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songer_respond1_3_2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellee, v. Edward Corbit HOULE, Appellant.
No. 78-1876.
United States Court of Appeals, Eighth Circuit.
Submitted March 13, 1979.
Decided Aug. 17, 1979.
David García, Devils Lake, N. D., for appellant.
James R. Britton, Fargo, N. D., for appellee.
Before LAY, ROSS and McMILLIAN, Circuit Judges.
LAY, Circuit Judge.
The sole issue in this case is the question left undecided in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), whether or under what circumstances an officer must obtain a warrant before he may lawfully enter a private place to effect an arrest.
The defendant was convicted under 18 U.S.C. §§ 111 and 1114 of willfully and by means and use of a dangerous weapon, a rifle, forcibly assaulting, resisting, opposing, impeding, intimidating and interfering with law enforcement officers of the United States of America while they were engaged in the performance of their official duties. This appeal followed.
The parties do not dispute the facts. In the early morning hours of September 5, 1978, the Bureau of Indian Affairs police department received a complaint that the defendant had threatened to shoot Sandra Houle at her father, Oscar Houle’s residence on the Turtle Mountain Indian Reservation at Belcourt, North Dakota. When the investigating officers arrived at the home, Sandra Houle and her father reported that the defendant had been drinking and making threats and was on his way to shoot them. The officers then heard two gun shots which one officer identified as coming from the direction of Edward Houle’s house. They removed Sandra Houle and her two children from the house and took them to the Belcourt police station, arriving there at approximately 2:40 A.M. Shortly before their arrival the police dispatcher received a call from a person who identified himself as Edward Houle. The caller stated that he wanted the officers to leave the area and to come back to talk to him in the morning. He also stated that he had a gun and that he would shoot any officer who came into his yard. The officers decided to delay action until the morning. At approximately 6:40 A.M. they went to the defendant’s house to arrest him. It is undisputed that the officers made no attempt to obtain a warrant for Edward Houle’s arrest during the intervening four hours.
When the officers arrived at the house, they looked through a broken window and saw someone sleeping on a bed about five or six feet from a rifle lying on a chair. One of the officers reached through the broken window and seized the rifle. The others then kicked down the door and entered the home arousing Edward Houle from his sleep and arrested him. At the time of the arrest officers found two spent cartridges on the floor about an inch apart. At trial the defendant objected to the admission into evidence of the rifle, the clip removed from the rifle, and the two spent cartridges.
The trial court overruled the defendant’s motion to suppress the evidence. Relying upon United States v. Watson, 428 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the court found that there had been probable cause to make the arrest so that no warrant had been necessary. We cannot agree that United States v. Watson is determinative.
The defendant argues on appeal that his warrantless arrest violated the Fourth Amendment. In United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Supreme Court held that a warrantless arrest in a public place based on probable cause does not violate the Fourth Amendment. It is undisputed in this case, however, that defendant’s arrest took place in his home. The parties agree that under these circumstances the Watson decision is not controlling.
The competing values involved in warrantless entries into the home to arrest have been discussed at length in opinions of the United States Supreme Court and in decisions in the federal and state courts. We see little merit in repeating that discussion in this opinion. After reviewing these authorities we conclude that a warrantless search and seizure conducted on private premises in the absence of exigent circumstances violates the Fourth Amendment. See Cooiidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The Supreme Court recently held in Brown v. Texas, - U.S. -, -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) that “seizure” for purposes of the Fourth Amendment includes all seizures of the person and that such seizures, therefore, must be reasonable. See also United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The vast majority of state and federal decisions have applied the same Fourth Amendment standards to warrantless entries to search as they have to warrantless entries to arrest. See notes 3 & 4 supra. See also Comment, Watson and Santana: Death Knell for Arrest Warrants?, 28 Syracuse L.Rev. 787, 791 (1977). Although the Supreme Court has indicated that the question remains open, we feel that until the Court has issued a mandate to the contrary the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), articulates the principle most in accord with our view. As Mr. Justice Stewart observed in that opinion,
It is clear, then, that the notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man’s house without warrant are per se unreasonable in the absence of some one of a number of well defined “exigent circumstances.”
Id. at 477-78, 91 S.Ct. at 2044.
Although the Government urges that exigent circumstances did exist relying upon United States v. Garcia Mendez, 437 F.2d 85 (5th Cir. 1971), we cannot agree. This is not a case involving hot pursuit. The officers’ deliberate four hour delay from 1:50 A.M. to 6:30 A.M., indicates that the officers had no reason to believe, and did not believe, that the defendant would attempt to escape or destroy the evidence in his possession. It is undisputed that the officers made no attempt to obtain a search or arrest warrant during that period of delay. Any exigency that arose by virtue of the presence of the rifle near the bed could have been anticipated by the officers and does not excuse their earlier failure to obtain a warrant. Without a proper search or arrest warrant the seizure of the gun within the house was illegal. Even if, arguendo, that seizure had been lawful, it disposed of any justification officers might have had for kicking down the door and entering the defendant’s home without a warrant; the officers had secured the only visible weapon. In short, our review of the record fails to disclose evidence that any exigency justified the warrantless entry and seizure.
We conclude that the warrantless intrusion into the home is one that cannot be sanctioned under the Fourth Amendment even for the purpose of private arrest, absent exigent circumstances. See United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 820, 46 L.Ed.2d 498 (1972) (entry of the home is the chief evil against which the Fourth Amendment is directed); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (the right to be free, except in limited circumstances, from unwarranted governmental intrusions into the privacy of the home is fundamental to our free society); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961) (at the core of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”); Mapp v. Ohio, 367 U.S. 643, 646, 81 S.Ct. 1684, 1687, 6 L.Ed.2d 1081 (1961) (Fourth Amendment applies “to all [governmental] invasions ... of the sanctity of a man’s home and the privacies of life.”); Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359,1361, 93 L.Ed. 1782 (1949) (security of privacy in the home against arbitrary governmental intrusion is basic to a free society); McDonald v. United States, 335 U.S. 451,455-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (right of privacy in the home is too precious to entrust to police discretion and absent some grave emergency the Constitution requires magistrate’s approval before the police may violate the privacy of the home); Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (when the right or privacy in the home must yield to the right of search is to be decided by a judicial officer absent exceptional circumstances).
Finding that the district court erred in failing to suppress the evidence, the judgment is ordered vacated; the mandate shall issue forthwith and the defendant shall be released from the penitentiary, subject to the appropriate bond in the event that the Government determines that he shall be retried.
. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (Stewart, J„ concurring):
The arrest in this case was made upon probable cause in a public place in broad daylight. The Court holds that this arrest did not violate the Fourth Amendment, and I agree. The Court does not decide, nor could it decide in this case, whether or under what circumstances an officer must obtain a warrant before he may lawfully enter a private place to effect an arrest.
id. at 433, 96 S.Ct. at 832.
Mr. Justice Powell observed of Mr. Justice Stewart's concurring opinion:
It makes clear that we do not today consider or decide whether or under what circumstances an officer lawfully may make a warrantless arrest in a private home or other place where the person has a reasonable expectation of privacy,
United States v. Watson, 423 U.S. at 432-33, 96 S.Ct. at 832 (Powell, J., concurring) (footnote omitted).
This issue is before the Supreme Court in Riddick v. New York, 45 N,Y.2d 300, 408 N.Y. S.2d 395, 380 N.E.2d 224, prob. juris, noted, 439 U.S. 1045, 99 S.Ct. 718, 58 L.Ed.2d 703 (1978). The case was argued March 26, 1979, 47 U.S. L.W. 3651 (April 3, 1979). Submission to the Court was vacated, however, and the case was set for reargument this fall. See -U.S. -, 99 S.Ct. 2049, 60 L.Ed.2d 658 (1979).
. The record is silent as to where the two spent cartridges came from and whether the rifle had been fired. No evidence was found of bullet holes in any of the homes or vehicles.
. See, e. g., United States v. United States District Court, 407 U.S. 297, 315-17, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 477-81, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 760-62, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Jones v. United States, 357 U.S. 493, 496-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Miller v. United States, 357 U.S. 301, 306-14, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948); McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948). See also United States v. Santana, 427 U.S. 38, 47-48, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (Marshall, J., dissenting).
. See e. g., Salvador v. United States, 505 F.2d 1348 (8th Cir. 1974); United States v. Campbell, 581 F.2d 22 (2d Cir. 1978); United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978); United States v. Killebrew, 560 F.2d 729 (6th Cir. 1977); United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974); United States v. Shye, 492 F.2d 886 (6th Cir. 1974); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc); Lankford v. Gelston, 364 F.2d 197, 205-06 (4th Cir. 1966); Morrison v. United States, 104 U.S.App.D.C. 352, 262 F.2d 449 (1958); State v. Cook, 115 Ariz. 188, 193-94, 564 P.2d 877, 882-83 (1977); People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, cert. denied 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299 (1976); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971).
. See also Coolidge v. New Hampshire, 403 U.S. at 480-81, 91 S.Ct. 2022, wherein the Court concluded that Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) “certainly stands by negative implication for the proposition that an arrest warrant is required [to enter the home] in the absence of exigent circumstances.”
. Garcia Mendez is clearly distinguishable. In that case the issue was whether the officers, who went to the defendant’s home for the purpose of executing a search warrant, were justified in not complying with 18 U.S.C. § 3109, the notice of authority and purpose statute, because of their observation through a window of an automatic pistol lying inches from the hand of the sleeping defendant. The issue before us is not whether the method of entry was lawful, but whether the officers’ failure to obtain a warrant was justified.
. It is urged that the defendant might have had other weapons; this is pure speculation. There is no evidence that the officers had any reasonable apprehension that the defendant had other weapons at the time of his arrest.
. Cf. Dorman v. United States, 140 U.S.App. D.C. 313, 435 F.2d 385 (1970) (en banc) (justification for warrantless entry evidenced, inter alia, by the possibility that delay would permit escape, by the fact that the delay in the arrest was not of the police officers’ making and that officers had attempted to obtain a warrant, and by the peaceful nature of the entry which was made after announcement of authority and purpose).
. We find Judge Frank’s eloquent description of the importance of the sanctity of the home particularly apropos:
A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizeable hunk of liberty — worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man’s castle.
United States v. On Lee, 193 F.2d 306, 315-16 (2d Cir.) (Frank, J., dissenting), aff'd 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
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_respond1_3_2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Robert H. RUNGE, Appellant, v. UNITED STATES of America, Appellee. Robert H. RUNGE, Appellant, v. UNITED STATES of America, Appellee.
Nos. 121-68, 167-69.
United States Court of Appeals, Tenth Circuit.
May 26, 1970.
H. C. Cooper, Oklahoma City, Okl. (Stephen K. Lester, Wichita, Kan., on the brief) for appellant.
Richard E. Oxandale, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief) for appellee.
Before LEWIS, Chief Judge, HILL, Circuit Judge, and LANGLEY, District Judge.
HILL, Circuit Judge.
In this consolidated case, appellant seeks reversal of two judgments which denied motions to vacate under 28 U.S. C. § 2255. The central issue before this court now is whether appellant’s plea of guilty was coerced because of the possibility of a jury-imposed death penalty under the Federal Kidnapping Act, 18 U.S.C. § 1201(a).
The settled rule is that a plea of guilty is void and subject to a § 2255 collateral attack when threats or promises divest it of the character of a voluntary act. When a coerced plea is the issue, all matters bearing on that allegation must be considered. When a case is in this posture, § 2255 requires a hearing on the issue unless the files, records, motions and transcripts conclusively show that appellant’s plea was voluntary; free from threat, promise or other coercion.
Numerous incidents, beginning with the plea and continuing through the second § 2255 motion, impress upon this Court the conclusion that the plea of April 9, 1962, was not in fact coerced by the threat of a jury-imposed death sentence; rather, we believe the coercion argument to be but a belated afterthought.
At arraignment time both Runge and his codefendant were represented by able court appointed counsel who advised each defendant to enter a plea of not guilty. Several days later, however, each defendant withdrew his former plea and pled guilty as charged under the Kidnapping and Dyer Acts. In the course of accepting appellant’s plea, it is apparent from the record that full compliance was had with Rule 11, F.R. Crim.P., 18 U.S.C.A. Furthermore, it is implicit in those proceedings that the court was satisfied that Runge was not encouraged to plead guilty because of the alleged threat inherent in a jury trial.
On April 11, 1968, appellant filed his first § 2255 motion, seeking relief on numerous grounds, including violations of Rules 5(a), (b), (c), 7, 9, 10, 21(b), 40(b), F.R.Crim.P.; violations of the 5th, 6th and 7th Amendments, U.S. Constitution; and violations of 18 U.S.C. § 3238. Nowhere in that motion is there any mention of a coerced plea. In fact, not until the sentencing court’s Memorandum and Order of April 18, did the question of a coerced plea and the case of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), arise. In that memorandum the court said it wished to be “fully advised as to all of the circumstances surrounding petitioner’s plea and sentence ** * * [so it could] determine the impact on that sentence of the decision of the Supreme Court of the United States in the case of United States v. Jackson * * The first time an allegation of coercion arose in behalf of appellant was in the June 4 Traverse written by Runge’s attorney in response to the District Attorney's Answer to the rule to show cause. Not until June 14, 1968, in a letter to Mr. Hackler, did appellant manifest a desire to use the new argument. Runge wrote: “ * * * Seeing as the Court saw fit to bring the Jackson v. United States, case in to my Motion. We would be quite foolish not to look into it, and it is my belief that I would qualify under the decision given by the Supreme Court.”
In an attempt to determine the necessity of an evidentiary hearing, a pretrial conference was held on July 10, 1968. Other than Runge’s own assertion that he was coerced into a guilty plea, there is no indication that the plea was made other than voluntarily. In fact, the record of the proceedings commands a contrary conclusion:
“MR. HACKLER (Runge’s Attorney) : If the Court please, as I understand our hearing this morning, we are to determine the necessity of a hearing and, as I read the cases on this matter, this boils down to a question of fact, whether there is a factual issue involved —or factual issues, involved that need to be presented to the Court. I have made some independent inquiry and investigation outside of the Court’s records. If I were to present — if we were to have a hearing, anything more than the affidavit on file in the record by Mr. Runge based on his statement that the — that he entered a plea to avoid the death penalty and to that extent the plea was involuntary and the other issues raised regarding how he came to be in the jurisdiction, I would not be able to present any other factual matters.
“I, just to review this matter, have made personal interview and telephone conversations with people involved in the prior hearing and the factual situation —on the factual situation I would not call any of those witnesses. So from that point of view, to be totally frank with the Court, I cannot present issues of fact other than is already in the record.”
This candid revelation by Runge’s attorney illustrates to our satisfaction that appellant’s mere denials of that which he has previously admitted, does not raise a substantial issue of fact within the meaning of . § 2255. Although an allegation of fact must ordinarily be accepted as true, it is not required where, as here, the allegation is contradicted by the files and records before the court. Putnam v. United States, 10 Cir., 337 F.2d 313 at 315. From the pre-trial conference of July 10, the court determined that a hearing was not required and entered findings of fact and conclusions of law denying the motion to vacate. In December, 1968, Runge filed a second § 2255 petition, singularly urging coercion in his guilty plea. This motion was denied on the grounds that it presented an issue identical to one on appeal under the initial § 2255 appeal. Both denials are appealed.
In order to be a beneficiary under the Jackson case, appellant reads it to say that prior to that decision, all who pled guilty while under a Federal Kidnapping Act charge, were, as a matter of law, coerced. That interpretation cannot fairly be attributed to that opinion, as we recognized in Brady v. United States, 404 F.2d 601. Rather, the coercive nature of the Act must be considered as but one element in a search to determine voluntariness.
Runge, just as Brady, seizes upon the language of Jackson stating, that since the “inevitable effect” of the death penalty provision of § 1201(a) was to needlessly encourage guilty pleas and jury trial waivers, all such pleas and waivers are ipso facto coerced when the fear of death is shown to be a factor in the plea. Our rejection of that interpretation of Jackson has been affirmed in Brady v. United States, 396 U.S. 809, 90 S.Ct. 86, 24 L.Ed.2d 63 (1970). Jackson did not hold § 1201(a) inherently coercive of guilty pleas; neither did it rule that all guilty pleas encouraged by fear of a possible death sentence are involuntary; nor did it hold that guilty pleas, so encouraged, are per se invalid. If a plea is “voluntarily” and “intelligently” made, it is valid. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
The voluntary character of Runge’s plea must be resolved by considering all relevant circumstances surrounding it. Initially, as Brady decided, the fact that Runge may have withheld his guilty plea if there had been no death penalty provision in § 1201(a) is not absolute proof of coercion. There is no claim of impropriety on the part of law officers, the court or his counsel. And there is a total lack of evidence that Runge was “so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.” Brady v. United States, 397 U.S. at 750, 90 S.Ct. at 1470. Our independent review of the record discloses no evidence of threats, misrepresentation or improper promises.
The record before us likewise supports the conclusion that Runge’s plea was intelligently made. Competent counsel advised him, he was made aware of the nature of the charges against him, and nothing indicated that he was incompetent or otherwise not in control of his mental faculties. It must be concluded upon the record that Runge intelligently admitted that he had kidnapped the victim and not released her unharmed.
Crow v. United States, 397 F.2d 284 (10th Cir. 1968) is a distinguishable case which does not require an evidentiary hearing in Runge’s case. In Crow, § 2255 relief was denied without a hearing principally because of the comprehensive questioning of the defendant, by the court, to determine the voluntariness of his plea. There, the § 2255 motion alleged a coercive threat which purportedly caused appellant to plead guilty. The trial court simply stated it could not “accept” such a threat as coercive, thereby permitting the existence of the threat to go undenied. The case was then remanded to determine whether the alleged coercion actually existed.
After the Runge § 2255 pre-trial, the court entered findings of fact and conclusions of law which specifically state that there was an absence of any coercion. The court said, “the files, records and transcripts herein conclusively show that this petitioner was not coerced or influenced in any manner and therefore he is not entitled to the relief requested.”
The difficulty of attempting to accurately disclose appellant’s subjective state of mind at plea time cannot be minimized. However, it is not an impossible task, and is an undertaking which must eventually be assumed in all cases such as this. If there was any evidence in the files of this case to warrant an evidentiary hearing, our decision would properly be stayed. But for us to deny such inquiry here would unnecessarily postpone it for another court. And, the straightforward disclosures of appellant’s lawyer convinces this court that a remand would be repetitious of the July 10, 1968, pre-trial conference.
Our own careful review of the entire record, files, motions and transcripts leads us to the same conclusion: When Runge entered his guilty plea, he did it voluntarily, knowingly and free from any statutory, court or otherwise imposed coercion. This conclusion is conclusively reflected in the entire case, and thereby did not require the court below to conduct an evidentiary hearing.
The remaining § 2255 allegations, all of which were dependent upon the foregoing, may be disposed of summarily. A plea of guilty waives all non-jurisdictional defects. See Tyler v. United States, 361 F.2d 862 (10th Cir. 1966); Jude v. United States, 262 F.2d 117, 118 (10th Cir. 1958). Allegations of improper removal from one district to another are not grounds for § 2255 relief. See Ragavage v. United States, 272 F.2d 196, 197 (5th Cir. 1959). Allegations of illegal arrest are insufficient grounds for attack under § 2255. Moreland v. United States, 347 F.2d 376 (10th Cir. 1965). And, an allegation of illegal detention prior to arraignment is not grounds for relief under § 2255, Semet v. United States, 369 F.2d 90 (10th Cir. 1966).
The denial of each of the § 2255 motions to vacate is affirmed.
. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Crow v. United States, 397 F.2d 284 (10th Cir. 1968); Howell v. United States, 355 F.2d 173 (10th Cir. 1966); Putnam v. United States, 337 F.2d 313 (10th Cir. 1964).
. Brady v. United States, 404 F.2d 601 (10th Cir. 1968), aff’d 396 U.S. 809, 90 S.Ct. 86, 24 L.Ed.2d 63 (1970).
. Crow v. United States, 397 F.2d at 285; Howell v. United States, 355 F.2d at 174; Putnam v. United States, 337 F.2d at 315.
. “THE COURT: Of course, it should be entirely clear that the defendants understand their rights and that no action by the Court, hy the United States attorney or counsel for defendant or by anyone, has induced them to change their
position. The defendants should realize that they have the right to trial by jury and that only they can waive that right. It is entirely up to the defendants whether they desire to enter pleas of guilty to one or more counts of the indictment.
Now, the United States attorney and counsel for the defendants had mentioned to the Court the possibility that the defendants might desire to enter a plea of guilty. The charge in this case on Count 1 is a serious charge, of course, and the penalty upon conviction can be death if the verdict of the jury shall so recommend, or by imprisonment for any term of years or for life if the death penalty is not imposed.
Now, the practical effect of that is this: That the penalty of death can be imposed only by recommendation of the jury which returns a verdict of guilty if they should find the defendants or either
of them guilty. The Court could, of course, even on a plea of guilty, impanel a jury to determine the penalty only, and I am not going to make any statement here that might possibly be construed as any inducement to these defendants to enter a plea of guilty.
I did receive a letter from Hiss Smalley indicating that she did not desire that the death penalty be inflicted. I received also a letter from Miss Smalley’s father to the same effect, and my own view is that under these circumstances, if a plea of guilty is entered, that the Court would not be justified in impaneling a jury to determine the penalty, but I certainly want these defendants to understand before any further action is taken, I want to hear from them, themselves, that they do understand this situation.
Of course, it is up to them whether they withdraw their plea of not guilty .or not and enter a plea of guilty, but it must be crystal clear in the record and in the minds of all of us and in the minds particularly of these defendants, that no promise is held forth to them and that they themselves take the action voluntarily and with full knowledge of the situation.
:& * * * *
MR. HARDING: If Your Honor please, with respect to Robert Henry Runge, at this time the defendant would like leave of Court to withdraw the plea of not guilty to the several counts of the indictment entered on March 5, 1962, and to change those pleas at this time.
Prior to that, I would like to state for the record and for Your Honor and make a few comments in the form of questions to Mr. Runge.
Since I have been appointed to represent you in this matter, Mr. Runge, have you and I had the opportunity on several occasions to discuss the charges in the indictment and your wishes and desires with respect thereto?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: And we have gone over those matters on several occasions at some length, have we not?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: And on Wednesday of last week in the presence of your mother, Mrs. Muller, did we discuss the mater of the plea to this indictment or change in the plea to the counts of the indictment, for a period of about two hours?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: And as a result of our discussion of this matter, do you feel that you were fully informed by me of your several constitutional rights and the things that I, as your attorney, did recommend to you with respect to this matter?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: Were any promises or extenuating circumstances of any kind indicated by me in connection with this matter, as either might be coming from the district attorney or from 1-Iis Honor?
DEPENDANT RUNGE: No, sir.
MR. HARDING: And that if a plea of guilty were entered and made by you to any of the counts of the indictment, it would have to be based solely upon the information which I presented to you as your attorney and your own judgment and decision in the matter?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: Now, you have heard here Judge Stanley’s explanation of the receipt of the letters from Miss Smalley and her parents?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: The statements that His Honor has made in connection with that aspect of the matter. At this time you are asking the Court for leave to withdraw the pleas of not guilty to the three counts of the indictment and, as I understand it, you are now ready to enter a plea of guilty of your own free will without any coercion or any inducement whatever, to Counts 1 and 2 of the indictment, is that correct, sir?
DEPENDANT RUNGE: Yes, sir.
THE COURT: Counts 1 and 2?
MR. HARDING: I mean 1 and 3, Your Honor-, of the indictment.
S}C it*
THE COURT: Mr. Runge, I think that Mr. Harding has covered very fully the questions that I would have asked you, but I want it to be very clear in the record here that you understand that if you should withdraw your plea of not guilty to Counts 1 and 3 of the indictment and enter a plea of guilty to those counts, that you understand that by so doing you admit the facts alleged in these counts, waive your right to trial on the charge in each count and subject yourself to punishment within the limits fixed by law.
DEPENDANT RUNGE: Yes, sir.
THE COURT: And you do understand, do you, that the punishment prescribed for the offense charged in Count 1 of the indictment, that is, the kidnapping charge, that the punishment for that charge could be imprisonment for any term of years or for life?
DEPENDANT RUNGE: Yes, sir.
THE COURT: And with all that understanding and as a matter of your own choice, freely made, is it your desire to withdraw the plea of not guilty to Counts 1 and 3 and to enter a plea of guilty to those counts?
DEFENDANT RUNGE: Yes, sir.
* sfc * *
THE COURT: Mr. Runge, I’ll ask you, do you feel that your counsel, you originally had two, Mr. Smith was with you in this initially, was he not? Mr. Harding?
MR. HARDING: That is right, Your Honor.
THE COURT: Mr. Smith was relieved when he was appointed to office. Do you feel that Mr. Harding and Mr. Smith while he was so acting, have served your best interests throughout in this case?
DEFENDANT RUNGE: Yes, sir.
THE COURT: And do you feel that they have both served you capably and honestly and as you would want to be served under the circumstances?
DEFENDANT RUNGE: Yes, sir.”
. This Order granted leave for Runge to proceed in forma pauperis; appointed Mr. Hackler as appellant’s attorney; and ordered a rule to show cause to determine “whether or not under the decision in the case of United States v. Jackson the sentence under attack was validly imposed * *
. United States v. Jackson, 390 U.S. at 583, 88 S.Ct. at 1217. The Court elaborated in note 25: “So, too, in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 the Court held that comment on a defendant’s failure to testify imposes an impermissible penalty on the exercise of the right to remain silent at trial. Yet it obviously does not follow that every defendant who ever testified at a pre-Griffin trial in a State where the prosecution could have commented upon his failure to do so is entitled to automatic reléase upon the theory that his testimony must be regarded as compelled.”
. Shelton v. United States, 246 F.2d 571, 572, n. 2 (5th Cir. 1957) (en banc), rev’d on confession of error on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).
. E. g., Howell v. United States, 355 F.2d 173 (10th Cir. 1966); Putnam v. United States, 337 F.2d 313 (10th Cir. 1964).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
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_othadmis | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Benjamin W. COREY, Defendant, Appellant, v. UNITED STATES of America, Appellee.
No. 6046.
United States Court of Appeals First Circuit.
Submitted Aug. 24, 1962.
Decided Sept. 18, 1962.
Russell Morton Brown, Washington, D. C., for appellant on memorandum.
W. Arthur Garrity, Jr., U. S. Atty., and Thomas P. O’Connor, Asst. U. S. Atty., for appellee on motion to dismiss and memorandum.
Before WOODBURY, Chief Judge, and HARTIGAN, Circuit Judge.
PER CURIAM.
This is a motion by the United States to dismiss, as untimely, defendant-appellant’s appeal from a judgment of conviction entered by the United States District Court for the District of Massachusetts.
Defendant was convicted as charged in the indictment of seventy-five offenses of making and presenting for payment to a department of the United States— the Department of the Army — false, fictitious and fraudulent claims in violation of 18 U.S.C. § 287. The maximum penalty for each offense is five years imprisonment or a fine of $10,000 or both.
On April 9, 1962, the district court entered a judgment of conviction against the defendant expressly noting that the judgment was entered pursuant to 18 U.S.C. § 4208(b). This statute empowers a court for a maximum period of six months to modify a defendant’s sentence without being restricted to sixty days, as provided by Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C. Following the April 9 judgment, defendant was placed in the custody of the Attorney General and committed by him to the United States Penitentiary at Lewis-burg, Pennsylvania.
Thereafter, on July 17, 1962, again pursuant to 18 U.S.C. § 4208(b), the district court entered an Order On Probation, suspending sentence and placing the defendant on probation for a term of two years.
Defendant took no appeal from the April 9 judgment but has appealed the Order On Probation entered July 17, 1962. The United States Attorney’s position is that the judgment of April 9, 1962, under § 4208(b), was a final appeal-able judgment and that defendant’s right of appeal has been lost by failure to give notice of appeal within ten days thereof.
The defendant contends that under the April'9 judgment “No sentence whatever was pronounced. No punishment was imposed, * * However, the district court expressly noted that it was acting under the provisions of Title 18 U.S.C. § 4208(b). Under this section the statute clearly states that the term of “commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law.” Consequently, at this point the defendant was on notice as to the extent of his punishment. If he desired to appeal, this was the time that he should have acted. While it is true that defendant could reasonably assume that the judge would modify this maximum sentence, the judge was assuredly under no duty to do so. See United States v. Behrens, 190 F.Supp. 799 (D.C.S.D., Ind.1961).
An order will be entered docketing the case and granting the motion to dismiss defendant’s appeal.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_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".
JARVIS et al. v. UNITED STATES.
No. 3121.
. „ , „ . .. Circuit Court of Appeals, First Circuit.
May 24, 1937.
_ F. J. Carney, of Boston Mass (Wilham H. Lewis, james H Vahey, Charles F. Smith, Daniel A. Lynch William J. Bullion, and Kevin P. Hern, all of Boston, Mass., on the brief), for appellants.
Charles W. Bartlett, Asst. U. S. Atty.,of Boston, Mass. (Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for the United States.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
This is an appeal by the defendants from convictions and sentences on two separate indictments. The first charged use of the mails in a scheme to defraud. It contained ten counts each alleging a separate substantive offense, and an eleventh count alleging a conspiracy to commit the same offense. The appellants, JarVis and Gaines, were convicted on all counts and were sentenced to five years’ imprisonment on each of the substantive counts, and to two years’ imprisonment on the conspiracy count, the sentences to run concurrently. Other appellants were convicted only on part of the counts, and concurrent sentences were imposed on such counts. The second indictment was for a conspiracy to violate section 17 of the Securities Act of 1933. (15 U.S. C.A. § 77q). The appellants were also convicted under this indictment and each was sentenced to imprisonment for two years, the sentences to run concurrently with those imposed under'the first indictment. There are 100 assignments of error, 48 in the first case and 52 in the second. This is clearly an unreasonable number and would justify a dismissal of the appeal. Patterson v. Mobile Gas Co., 271 U.S. 131, 132, 46 S.Ct. 445, 70 L.Ed. 870; Albert Pick-Barth Co. v. Mitchell Woodbury Corporation (C.C.A.) 57 F.(2d) 96, 100. However, as for reasons hereafter stated, we find it unneces sary to consider the assignments of error in the second case, and, as substantial sent,ences are involved, we think a dismissal of *lle aPPeal on thls Sround would be t0° ras 1C‘
As to the first indictment: About a dozen errors are assigned on matters of pleading, viz., overruling demurrers and motions to quash, denying specifications or particulars, refusing to hold the indictments were bad for variance and duplicity, and refusing motions for election on the ground that the government’s evidence showed two conspiracies. since the act of 1919 (Jud. Code § 269, as amended, 28 U.S.C.A. § 391) r iri that on appeal the court shall giye judgment witllout regard to technicai errors which do not affect the substantial rights of the parties, it is only under exceptional circumstances that rulings of this character will give rise to reversible error, See Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. We think the demurrers and motions to quash were properly overruled, and that the indictments Jere formally sufficient. It was within the discretion of the District Judge whether to grant the motions for specifications. It does not appear that in refusing them he abused his discretionary power. The other motions going to the pleadings were, we think, properiy dealt with,
The trail Judge under objection and exception by the defendants ordered that the, two mdictments should be tried toget;her- This order was made after the government had nol prossed against three defendants m the first indictment who were no^ defendants in the second indictment, thereby making the defendants in each indictment the same persons. To a very large extent the facts Evolved m each indictment were the same. There was cleaily no abuse of discretion m directing that the two be tried together. Such orders are explicitly authorized by R.S. § 921 (28 U.S.C.A. § 734). See Brown v. United States, 143 F. 60 ( C.C.A.8); Morris v. United States, 12 F.(2d) 727 (C.C.A.9)
The defendants complain that the government was not directed to state in regard to each piece of evidence which was presented, on which indictment it was offered. When separate cases are tried together it is because of great similarity in the evidence applicable to them. The trial judge followed the customary method of admitting any evidence which bore on either indictment, leaving to the defendants to ask to have any particular piece of evidence limited if they thought it should be. There was no error in so doing. Kansas City Ry. Co. v. Jones, Adm’x, 241 U.S. 181, 36 S.Ct. 513, 60 L.Ed. 943; Farnsworth v. Nevada Co., 102 F. 578 (C.C.A.8).
Many exceptions were taken on questions of evidence. None of these is of basic character. The most doubtful was the admissibility of certain telephone conversations. In a typical instance, the witness said that he had been receiving, for some little time before this talk, daily and weekly market letters from Gibbs & Co., and a day or two before, a special letter; that he received one morning a telephone call from Springfield; that the speaker said he was A. E. Gibbs and asked if he had received their literature, letters, etc.; that he then went on to talk about the Polymet stock, urging him to buy it, saying that the company was shortly to be taken over by the Westinghouse Company and its stock would greatly enhance in value, etc. The witness did not recognize the voice, but said he afterwards received other calls of the same sort. So far as appeared no other person or concern was at that time selling Polymet stock.
The law is now well settled with respect to telephone calls, that, if the person testifying does not recognize the voice, the surrounding circumstances may show sufficient probability that the person talking at the other end was one whose statements would be admissible to warrant admitting the conversation. Andrews v. United States, 78 F.(2d) 274, 105 A.L.R. 322 (C.C.A.10) ; American & British Corporation v. New Idria Co. (C.C.A.) 293 F. 509; General Hospital Soc. v. New Haven Rendering Co., 79 Conn. 581, 65 A. 1065, 118 Am. St.Rep. 173, 9 Ann.Cas. 168; Van Riper v. United States, 13 F.(2d) 961, 968 (C.C.A.2). The circumstances surrounding the incident made it altogether probable that the person talking to the witness over the telephone was connected with Gibbs & Co. as i . , ..c , i • * he said he was, and justified the admission £ ^ A . rrAi . , . of the testimony The same is true mutatis mutandis as to the other telephone conversations.
Without undertaking to discuss in detail the testimony of the witnesses Caroll, Newton, Flackman, and Badger to which exception was taken, we are of opinion that there was nothing in the rulings of the trial judge in this connection which amounted to reversible error. The telephone records would not have been admissible at common law on the proof offered. But the common law rule has of necessity been modified in recent years. United States v. Cotter, 60 F.(2d) 689 (C.C.A.2); E. I. Du Pont, etc., Co v. Tomlinson 296 F. 634 (C.C.A.4); NorthWestern Refrigerator Line Co. v. Ervin 78 F.(2d) 186 (C.C.A.5) ; Jennings v. United States 73 F.(2d) 470 (C.A.5).
At tbe close °f evidence the defendants moved for directed verdicts on the conspiracy count on the ground that the government’s evidence showed, not a single conspiracy as alleged, but two successive independent conspiracies; they also moved that tbe government be required to elect on which of the two alleged conspiracies it would go to the jury on this count. These motions were denied. The defendants also moved that the government be required to elect between counts 1 to 4, inclusive, which relate to dealings at Financial Profits in Boston in June and July, 1933, and counts 5 to 10 inclusive, which relate to dealings at A. E. Gibbs & Co., in Springfield, in August and September, 1934. The motion was denied. The questions involved in these motions may conveniently be considered togetiler
The indictment of the use of the mails in a sch«me ,to def^ whl,cb W£\s íormed ab°Ut ?c}ob.crJ.1' 1932’ f d„laSted UP t0 tbe daf of tlle ^dicttnent. It charged that, !he scheme was that the defendants w™ld °P®rate. tbroi«h F“lal Profits an0 °*ce ln Boston and through A. E. Glbbs * 1TOth anm Springfield It described the method of operation at each Pkce- The first four counts refer to alleged vlfms °f Financial Profits the next six «=íer all,e£ed vlctlms of ,A' F' Glbbs & Ga; the last c°uut> as. has bcen saad’ cha^es a ^eral conspiracy to use the malls “ a schc”e: defraud’ with overt act* at ^ancial Profits and at A. E Gibbs & Ga The operations at Financial Profits m Boston terminated m July, 1933': The , 0 ^ • t operations at Cribos <& Co. began w une or Jul 1934 and terminated abfeQut October 1, lm The evidence showed that Jarvis and Gaines were active throughout at both places. Shuman worked at Gibbs & Co., but not at Financial Profits. Gibbs had nothing to do with Financial Profits, and others of the defendants had nothing to do with Gibbs & Co. A considerable interval elapsed between the cessation of business at Financial Profits and the beginning of business at Gibbs & Co. ’
t, .1. , It was the contention of the appealing defendants that the government had shown, not a single conspiracy, but two distinct conspiracies separated in place and in time, This was a question of fact on the evidence, According to the government’s evidence Jarvis and Gaines were the prime movers and the principal beneficiaries of the scheme and conspiracy. They set up Financial Profits as an office from which to make fraudulent sales of stock in which they were interested. They operated it with the aid of salesmen and^ assistants, some of whom were indicted with them. When they regarded it as inadvisable to continue at Financial Profits they closed^ it and some months later arranged with Gibbs & Co. to take over the latter s business at Springfield and to use it in the same way as an agency through which to sell the same stock. At Springfield they had as assistants some of the persons who had been employed by them in Boston and others who had had no previous connection with them. Throughout practically the entire period Jarvis and Gaines had an office m Boston from which they directed operations at both places. The same stock, called “Poly C,” was sold at both places. That their operations were grossly fraudulent the government’s evidence, if accepted, leaves no doubt.
The governments theory of the case was that Jarvis and Gaines were parties to .. ■ ... ,, ,, , a continuing conspiracy to swindle the pub- .... ? 1 i 1 r j. 1 .. j. • lie by fraudulent sales of stock; that van-J, , . ous other persons became for a time mem- , , .. , t bers of this conspiracy. The scheme to defraud described m the substantive counts ,s a leged to have included illegal use of the mails at both Boston and Springfield. The jury under the instructions of the presiding . / .. - -^jlj j^jj judge discriminated between defendants. L, & , -itt u , 01 , . They acquitted Waldo and Shuman (who worked at Springfield) on the counts relating to Financial Profits and convicted them on thé counts relating to Gibbs & Co. and to the general conspiracy. There was evidence of a close connection throughout between Jarvis and Gaines in a fraudulent enterprise. It cannot be said that it did not warrant tjie view which the jury took that it constituted a continuing scheme and a continuing conspiracy as charged in the indictment. The motions under discussion were rightly denied. See United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168; Scaffidi v. United States, 37 F.(2d) 203 (C.C.A.1) ; Van Riper v. United States, 13 F.(2d) 961 (C.C.A.2).
The appellants moved that the government be required to elect whether it would proceed on the first indictment or the second. The District Judge refused to order it to do so. In this he was clearly right. The two cases were not consolidated, they were being tried together and the crimes charged were substantially different.
We have examined those parts of the District Attorney’s argument to which the appeilan.ts took exception. In long and compiica(;ed trials it is not uncommon for coungej argUjng to the jury to make unintentionaj misstatements of fact. When this occurs js die duty of opposing counsel to call attention to the misstatement and request t;he court to instruct the jury to disregard jq0 exception lies merely to the remarks 0£ counsel. Dunlop v. United States, 165 U.S. 486, 498 17 S.Ct. 375 41 L.Ed. 799 ; Diggs v. United States, 220 F. 545 (C.C.A 9). United States v. Wexler, 79 F.(2d) 526; 529 (C.C.A.2). In the present case no request was made for instruction by the .court that the jury disregard the improper aro-umen+ 8
^ An exception was taken on the ground that the instructions as to good faith were inadequate. The trial judge plainly told the jury that good faith on th of the defendaIlts in making the ... , , , ,., , ., 0 representations, honest belief that they were . e -Li-j- t.-i.i_ , ' , true, a belief which has some substantial , .’ ... . . . . , basis, would be a legal excuse. We think ., . ,, . , - jl^ * the jury could not have been m doubt as to the correct rule of jaw. on this point The other -assignments 0f error in this case have bfien exam¡ned. None of them seems t0 us bg wdl founded nQr tQ ^ discussion. ... We conclude that there was no reversible ■ ±1. ± • 1 * error m the trial of the first indictment.
We find it unnecessary to consider the questions raised under the' second indictment. The sentences imposed under that indictment did not exceed those imposed under the first indictment and are to run concurrently with them. Even if the convictions on the second indictment should be reversed, the defendants’ punishment would be in no way affected. It is well established that, where a conviction is sustained on counts sufficient to support the sentence. it will not be disturbed for error on certain other counts. Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692; Claassen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966; Hill v. United States (C.C.A.) 42 F.(2d) 812. The affirmance of the convictions under the first indictment makes the correctness of the convictions under the second indictment merely a moot question. The appeal on the second indictment will accordingly be dismissed. And on the first indictment the judgments are affirmed.
The appeals on the second indictment are dismissed, and the judgments on the first indictment are 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_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Glen Watson REAMER, Appellant, v. UNITED STATES of America, Appellee.
No. 17163.
United States Court of Appeals Eighth Circuit.
June 7, 1963.
T. Eugene Thompson, St. Paul, Minn., made argument for the appellant and filed brief.
Murray L. Galinson, Asst. U. S. Atty., Minneapolis, Minn., made argument for the appellee; Miles W. Lord, U. S. Atty., Minneapolis, Minn., was with him on the brief.
Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.
. This is not legal in Minnesota. M.S.A. §§ 340.731, 340.732, 340.79, 340.80, 645.45(14).
BLACKMUN, Circuit Judge.
Glen Watson Reamer in March 1962 was charged by indictment with a violation of the Mann or White-Slave Traffic Act, 18 U.S.C.A. § 2421. He pleaded not guilty and, in the manner prescribed by Rule 23(a), F.R.Cr.P., waived his right to a jury trial. He was convicted by the court and received a sentence of three years with the provision, “Defendant to be confined in a Jail type institution for a period of four (4) months. The execution of the remainder of the sentence of imprisonment is hereby suspended and the defendant placed on probation for such period as. remains”.
Reamer now appeals in forma pauper-is. The complete transcript of the trial was provided at government expense. The defense argues insufficiency of the evidence and error in denying its motion for judgment of acquittal.
The events in question took place on the cold Minnesota-Wisconsin winter night of January 20-21, 1962. There was snow on the ground. Reamer, then 28, first met Sally about 8:45 P.M. that evening at Scotty’s Tavern in St. Paul. This was a combination “neighborhood” 3.2 beer parlor and grocery store. Sally was 18 and unmarried. She had a tenth grade education. She had never had a date alone with a man before. Her parents were at the tavern that evening. Sally telephoned her mother there and was asked to come over to get the bread and milk her mother had purchased. She came. The defendant introduced himself to Sally as “Jack Larson”. She was invited to sit at his table. She did so. She had a soft drink. Reamer asked Sally’s father if he might take her to a movie. Her father consented if he would bring her home by one o’clock. The two left the tavern about nine. Reamer did not take her to a movie but stopped instead at his brother’s home nearby. There Reamer had whiskey. Some was offered to Sally but she refused it and said she did not drink. After about 20 minutes Reamer and Sally left and went to a restaurant in downtown St. Paul. While there Reamer told Sally he was going to take her to Hudson, Wisconsin, because 18-year old girls could drink legally in that state. Sally told him she did not wish to go to Hudson and that she did not drink. However, when Reamer agreed to stay in Hudson for only 15 minutes, she consented to go. Sally had never been in Hudson before.
Hudson is a Wisconsin town approximately 16 miles east of St. Paul. It is on the east side of the St. Croix River which, at that point and north beyond Stillwater, Minnesota, 10 miles upstream, constitutes the boundary between Minnesota and Wisconsin. There are paved roads on each side of the river between Hudson and Stillwater and there are bridges at each of these points.
The defendant drove Sally to Hudson. They spent approximately two hours there at the Badger Bar and at Sam's Bar. Sally had cokes at both places. The defendant had whiskey and some food. They left Sam’s about 12:30 A.M. with Reamer agreeing to take Sally home. Up to this point, as Sally testified, Reamer had not “done anything that [she] objected to”.
The foregoing facts are not in dispute. What happened between the time the couple left Sam’s Bar and Reamer’s return of Sally to her St. Paul home about four hours later with her feet swollen from frostbite is said by the defense to be in dispute. Sally was the only direct witness as to this period for the defendant did not take the stand.
Sally testified on direct examination that after they left Sam’s Bar, Jack Larson did not take her back to St. Paul but that, instead, he stopped his car on the road and attacked her. We need not at this point set forth all the described details. In themselves they are not too important. It is enough to note that Sally testified that the defendant’s advances to her were with force; that he removed much of her clothing; that she resisted; that intercourse was effected; that she was able to get out of the car; that she ran down the road; that she lost her shoes; that she encountered barbed wire; that she cut her legs; that the defendant ran after her and caught up with her; that he said once more he would bring her home; that she walked back to the ■car with him; that her feet were frozen; that when they returned to the car he again had intercourse with her; that they then drove to the Green Acres Motel ; that she took a shower there and he assisted in thawing out her feet; that they returned to St. Paul about five A. M.; that the defendant carried her to the porch of her home because she could not walk; that he left her on the porch; that the police were called; and that she went to the hospital for ten days.
On cross-examination Sally testified that she had never had anything to drink; that she was introduced to the defendant’s brother and his wife at their house but could not remember whether they were referred to as Mr. and Mrs. Reamer; that she did consent to go to Wisconsin; that she had only coke at the Badger Bar; that at Sam’s Bar she refused the defendant’s offer of a drink and had coffee instead; that it was about an hour after they left Sam’s place when the defendant stopped the car; that this was “out in the country”; that the defendant had kissed her that evening when they left his brother’s home, when they entered the Badger Bar, and when they left Sam’s place; that she did not cooperate with him in any way in his advances ; that when she got out of the car she did so on the driver’s side and fell into a ditch and met with barbed wire and was cut; that she then ran up the hill with the defendant after her; that he did not disturb her at the motel while she took her shower; that when she came out of the bathroom with only a slip on she lay on the bed; that Reamer was then in the bed; that he fondled her; that she objected to this and told him to take her home; that he obtained her underclothing from the car; that he took her home; that she was completely dressed, except for her shoes when she arrived home; that she had been at Still-water before; that the road on which the incident took place was between Still-water and Hudson; that she knew there were two roads between these towns; that she had no idea where the car was stopped other than that it was a plain road and no houses were nearby; that she did not know for sure if it was in Wisconsin; that she was not familiar with the area between Hudson and Still-water ; that the place they stopped could have been in Minnesota; and that the Green Acres Motel was in Wisconsin.
Sally’s father testified that he met the defendant at Scotty’s Tavern on the night of January 20; that the defendant introduced himself as Jack Larson; that he had seen him three or four times before but had not talked with him; that the defendant asked him if he could take Sally to a show; and that he told the defendant she had never been with men.
Her mother testified that they had met the defendant once or twice before to the extent of greeting him.
The prosecution stipulated that Reamer sustained no orgasm on the night in question. There is other testimony, not contested, that the Green Acres Motel is in Wisconsin across the St. Croix River east from Stillwater, and that Reamer registered there that night as “Mr. and Mrs. Glen W. Reamer”.
There are some discrepancies in Sally’s testimony; it is also evident that she was not positive about the exact location of the car when it was stopped, or, perhaps, even about the ultimate nature of the physical advances Reamer made upon her. It is apparent, too, that Sally was not well educated or experienced and that she was emotionally upset upon the happening of the events that evening. Her judgment and that of her parents may not have been good but the points of discrepancy and of unsureness in her testimony, as we point out below, concern matters of little legal consequence in the light of other admitted or established facts.
On this record there is no dispute that Reamer used a false name in his introduction to Sally and her parents; that he asked her to go with him to Hudson; that he drove her from Minnesota to Wisconsin; that he was drinking both before and after that drive; that he stopped the car at a lonely spot; that he effected sex play of some kind with Sally; that Sally endeavored to get away; that she was able to get out of the car; that she encountered barbed wire and sustained lacerations and severely frostbitten feet; that the defendant registered himself and Sally as husband and wife in a Wisconsin motel; and that he drove her back to her home in Minnesota in the very late hours of the night.
The defense here is three-fold. It is first argued that the Mann Act does not embrace activity of the essentially private and non-commercial kind indulged in by Reamer with Sally. It is urged next that, even if the statute is sufficiently broad to encompass this, the prosecution’s case falls short of establishing that any act proscribed by the statute took place outside Minnesota, or in other words, that the interstate aspect was not proved. It is argued, last, that, even if the statute is broad, the prosecution’s proof also falls short of establishing that the interstate transportation was effected with the requisite intent on the part of the defendant, that is, with a then existing, and not later acquired, purpose of the kind described in the statute.
A. The application of the Mann Act. There is of course, nothing in the indictment’s charge and nothing whatsoever in this record which associates the events of the night with either commercialized vice or pecuniary gain to Reamer or habitual conduct on his part with Sally. The government does not so contend. This was a private “date” and concerned only personal intimacies between the two.
The defense argument as to the scope and breadth of the Act is concededly not new. The Supreme Court has passed upon it on more than one occasion. Although the cases decided by that Court dealt with what is perhaps to be described as the more serious situations of intended concubinage and polygamous relationships, and although there were vigorous dissents, the Court’s attitude and holdings as to the application of the statute are clear.
“It is contended that the act of Congress is intended to reach only ‘commercialized vice’ * * *. In none of the cases was it charged or proved that the transportation was for gain or for the purpose of furnishing women for prostitution for hire, and it is insisted that, such being the case, the acts charged and proved, upon which conviction was had, do not come within the statute. * * * There is no ambiguity in the terms of this act. It is specifically made an offense to knowingly transport or cause to be transported, etc., in interstate commerce, any woman or girl for the purpose of prostitution or debauchery, or for ‘any other immoral purpose,’ or with the intent and purpose to induce any such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice. * * *
“While such immoral purpose would be more culpable in morals and attributed to baser motives if accompanied with the expectation of pecuniary gain, such considerations do not prevent the lesser offense against morals of. furnishing transportation in order that a woman may be debauched, or become a mistress or a concubine from being the execution of purposes within the meaning of this law. To say the contrary would shock the common understanding of what constitutes an immoral purpose when those terms are applied, as here, to sexual relations.” Caminetti v. United States, 1917, 242 U.S. 470, 484-486, 37 S.Ct. 192, 194, 61 L.Ed. 442.
“It is argued that the Caminetti decision gave too wide a sweep to the Act; that the Act was designed to cover only the white slave business and related vices; that it was not designed to cover voluntary actions bereft of sex commercialism * * *. In support of that interpretation an exhaustive legislative history is submitted * * *. Prostitution, to be sure, normally suggests sexual relations for hire. But debauchery has no such implied limitation. In common understanding the indulgence which that term suggests may be motivated solely by lust. * * * We do not stop to reexamine the Caminetti case to determine whether the Act was properly applied to the facts there presented. But we adhere to its holding, which has been in force for almost thirty years, that the Act, while primarily aimed at the use of interstate commerce for the purposes of commercialized sex, is not restricted to that end.” (footnotes omitted) Cleveland v. United States, 1946, 329 U.S. 14, 17-18, 67 S.Ct. 13, 14-15, 91 L.Ed. 12.
And in Mortensen v. United States, 1944, 322 U.S. 369, p. 375, 64 S.Ct. 1037, p. 1040, 88 L.Ed. 1331, where a conviction was reversed by a bare majority, that majority nevertheless said:
“What Congress has outlawed by the Mann Act, however, is the use of interstate commerce as a calculated means for effectuating sexual immorality.”
See also Hawkins v. United States, 1958, 358 U.S. 74, 79-80, footnote 9, 79 S.Ct. 136, 3 L.Ed.2d 125, and United States v. Bitty, 1908, 208 U.S. 393, 402, 28 S.Ct. 396, 52 L.Ed. 543.
On these holdings alone, and not being presumptuous enough to assume that the scope of the statute today has shrunk in the seventeen years since the Cleveland case was decided, we would feel compelled here to rule against the defense on this issue and to hold that the statute does have valid application to a situation such as that described in the present record.
The law in this circuit furthermore is settled. This court, in following what it felt was the lead of the Caminetti case, has viewed the statute broadly and has held it applicable to a private, non-commercial, casual and non-habitual venture of the kind we have here. In Brown v. United States, 8 Cir., 1956, 237 F.2d 281, a case strikingly similar to this one, so far as its pertinent facts are concerned, Judge Sanborn said, p. 283:
“The language of Section 2421, Title 18 U.S.C. in our opinion, covers the interstate transportation, without pecuniary motive, of a woman with intent to have illicit relations with her by force or otherwise.”
Earlier opinions of this court are to the same effect. Blackstock v. United States, 8 Cir., 1919, 261 F. 150, cert. denied 254 U.S. 634, 41 S.Ct. 8, 65 L.Ed. 449; Carey v. United States, 8 Cir., 1920, 265 F. 515; Christian v. United States, 8 Cir., 1928, 28 F.2d 114; Poindexter v. United States, 8 Cir., 1943, 139 F.2d 158.
Every other federal court of appeals has recognized the application of the statute to non-commercial as well as to commercial activity.
The defense recognizes the existence of these cases and their established authority. It presses upon us, however, the case of United States v. McClung, E.D.La., 1960, 187 F.Supp. 254, and urges that we reexamine the purposes of the White-Slave Traffic Act. It is true that Judge J. Skelly Wright (now of the Court of Appeals for the District of Columbia) in that case held that the Act did not apply to conduct charged in the indictment there, namely, transportation in interstate commerce of each of two named women “for an immoral purpose, to-wit, for the purpose of engaging in sexual intercourse and other sexual acts with her”. The court emphasized the legislative history of the Act and said that “the only type of immorality intended is that which is habitual”. Whether McClung is to be distinguished on its facts (its indictment’s lack of reference to debauchery; absence of victimization) from the present case, whether the opinion tends to support the defense position here, and whether it contains valid elements of protest against Caminetti and Cleveland and the extension of principles enunciated in those cases, are matters which we need not determine. We are satisfied that Caminetti and Cleveland and the unbroken line of consistent appellate authority leave us no present room for contrary statutory construction irrespective of what this panel’s reactions to this case might be were it one of first impression. We are controlled by the decided cases. If the law in this area is to be changed by judicial decision at this late date, that step is one to be taken by the Supreme Court and not by this inferior federal appellate court.
As a last detail on this point, we are not to be persuaded by references to the legislative history of the Act. This perhaps would be of greater moment had that history not been unearthed before. It is clear, however, that it was presented to the Supreme Court in Caminetti, see pp. 474-475, 481, 490, and 497-499 of 242 U.S., pp. 193, 196, and 199-200 of 37 S. Ct., in Cleveland, pp. 17 and 27-28 of 329 U.S., pp. 14 and 19-20 of 67 S.Ct. and in United States v. Beach, 1945, 324 U.S. 193, 65 S.Ct. 602, 89 L.Ed. 865, where the dissent makes much of it. This was noted by the Third Circuit in United States v. Reginelli, supra, p. 597 of 133 F.2d.
We hold that the Act is of sufficient breadth to apply to an enterprise of the kind which took place here. This first point, therefore, must be decided adversely to the defense.
B. The interstate feature. .As we have already noted, the defense concedes that Reamer knowingly transported Sally from Minnesota to Wisconsin. Yet Sally’s testimony as to where, whether in Minnesota or in Wisconsin, Reamer’s advances to her took place is confused and uncertain. The car was stopped presumably in Wisconsin if Reamer took from Hudson the road east of the St. Croix; it was stopped presumably in Minnesota if he took the road on the west side of the river. And Sally’s testimony is not entirely consistent as to whether intercourse was effected.
We think that, so far as the interstate feature is concerned, consummation of intercourse and its Minnesota or Wisconsin situs are of no ultimate legal significance here. What is significant is the knowing transportation of the girl from St. Paul in Minnesota to Hudson in Wisconsin. If the necessary intent is present and there is knowing interstate transportation, it is immaterial whether the immoral act took place or whether there was consummation. Actual fulfillment of the purpose is not necessary. Wilson v. United States, 1914, 232 U.S. 563, 570-571, 34 S.Ct. 347, 58 L.Ed. 728; Cleveland v. United States, supra, p. 20 of 329 U.S. p. 16 of 67 S.Ct.; Batsell v. United States, 8 Cir., 1954, 217 F.2d 257, 261-262; Bell v. United States, 8 Cir., 1958, 251 F.2d 490, 491; United States v. Marks, 7 Cir., 1959, 274 F.2d 15, 18-19. And the fact that the travelers, having crossed a state line, could have returned to the state of origin does not deny the interstate aspect. Batsell v. United States, supra, p. 261 of 217 F.2d.
The interstate feature, so far as it is necessary under the statute, was therefore established in this case.
C. The defendant’s intent. The statute requires that the transportation be for a purpose specified. Under this indictment, it must be that of debauchery “or any other immoral practice”. This purpose “must be found to-exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement”. Mortensen v. United States, supra, p. 374 of 322 U.S. p. 1040 of 64 S.Ct.; Hansen v. Haff, 1934, 291 U.S. 559, 563, 54 S.Ct. 494, 78 L.Ed. 968. It must be an “efficient purpose”, albeit one of several, as distinguished from an incidental one. Mellor v. United States, 8 Cir., 1947, 160 F.2d 757, 764, cert. denied 331 U.S. 848, 67 S.Ct. 1734, 91 L.Ed. 1858; Daigle v. United States, 1 Cir., 1950, 181 F.2d 311, 314; Dunn v. United States, 10 Cir., 1951, 190 F.2d 496, 497-498. But Mann Act intent may be inferred from all the circumstances. Shama v. United States, 8 Cir., 1938, 94 F.2d 1, 4, cert. denied 304 U.S. 568, 58 S.Ct. 1037, 82 L.Ed. 1533; Berry v. United States, 8 Cir., 1960, 283 F.2d 465, 466, cert. denied 364 U.S. 934, 81 S.Ct. 380, 5 L.Ed.2d 366.
Although this case could be said to be somewhat close, we have no difficulty in concluding that the evidence here is sufficient to support the court’s necessary finding of the requisite intent in Reamer when he drove Sally from St. Paul to Hudson. His use of a false name, not only to Sally, but to her parents; his repeated talk of a movie, coupled with his continuing delay in ever getting started toward one; his awareness from the very beginning that Sally did not drink, had never had an alcoholic beverage, and did not wish to drink; and his being told by her father that she had never dated with a man alone before, support an inference of immoral purpose with respect to Sally even before the couple left St. Paul. His knowledge of her negative drinking habits transforms into a hollow excuse his claim that the purpose of his drive to Wisconsin was to enable her to drink legally in public. The fact that two hours elapsed between their arrival at Hudson and their departure does not compel an adverse finding as to intent; the acquisition of the requisite courage, bolstered by continuing liquor consumption, may have required that much time. The Court’s determination of guilt, entailing, as it must, a finding that Sally’s transportation was for an immoral purpose within the meaning of the Act, has adequate foundation in the evidence.
Mr. T. Eugene Thompson of the St. Paul bar was appointed by the district court as counsel for the defendant for both the trial and this appeal. Mr. Thompson has given the defendant vigorous representation and he came to St. Louis at his own expense to present the oral argument. This has prompted us to set forth the facts and law in greater detail than we would ordinarily do in a case of this kind. We are grateful to Mr. Thompson for his assistance.
Affirmed.
. “That on or about January 20, 1962 in the City of St. Paul, State and District of Minnesota, Third Division, the Defendant
GLEN WATSON REAMER
did knowingly transport in interstate commerce, to-wit: from St. Paul, Minnesota, to Hudson, Wisconsin, and vicinity, a woman for the purpose of debauchery and other immoral purposes and with the intent and purpose to induce, entice and compel such woman to give herself up to debauchery and to engage in immoral practices; in violation of Title 18 United States Code, Section 2421.”
. § 2421.
“Whoever knowingly transports in interstate * * * commerce, * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice ; * * *
“Shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
. Jarabo v. United States, 1 Cir., 1946, 158 F.2d 509, 511; United States v. Pape, 2 Cir., 1944, 144 F.2d 778, 781, cert. denied 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602; United States v. Reginelli, 3 Cir., 1943, 133 F.2d 595, 597, cert. denied 318 U.S. 783, 63 S.Ct. 856, 87 L.Ed. 1150; Sipe v. United States, 1945, 80 U.S.App.D.C. 194, 150 F.2d 984, cert. denied 326 U.S. 788, 66 S.Ct. 473, 90 L.Ed. 478 ; Simon v. United States, 4 Cir., 1944, 145 F.2d 345, 347; Masse v. United States, 5 Cir., 1954, 210 F.2d 418, cert. denied 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105; Whitt v. United States, 6 Cir., 1959, 261 F.2d 907, 909; United States v. Marks, 7 Cir., 1959, 274 F.2d 15, 18; Ghadiali v. United States, 9 Cir., 1927, 17 F.2d 236, 237, cert. denied 274 U.S. 747, 47 S.Ct. 660, 71 L.Ed. 1328; Long v. United States, 10 Cir., 1947, 160 F.2d 706.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_appel1_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Raymond J. FUNKHOUSER’S TRUSTS, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 7922.
United States Court of Appeals Fourth Circuit.
Argued Nov. 5, 1959.
Decided Jan. 14, 1960.
Mannes F. Greenberg, Baltimore, Md. (John W. Cable, III, and John S. Me-Daniel, Jr., Baltimore, Md., on the brief), for petitioners.
Carolyn R. Just, Atty., Dept, of Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept, of Justice Washington, D. C., on the brief), for respondent.
Before SOPER and BOREMAN, Circuit Judges, and R. DORSEY WATKINS, District Judge.
R. DORSEY WATKINS, District Judge:
Question Presented
The Commissioner of Internal Revenue (Respondent) held that under the terms of certain trusts created by Raymond J. Funkhouser (hereinafter, Petitioner) $3,000 exclusions were not allowable under the Internal Revenue Code of 1939, 26 U.S.C. § 1003, for each gift to such trusts by Petitioner in the years 1948, 1950, 1951, 1952 and 1953. The Tax Court affirmed. We agree with the result reached by the Tax Court.
Position of the Parties
Petitioner over the years 1948, 1950, 1951 and 1953 established seventeen separate trusts for his five children and twelve grandchildren. Separate gifts were made to the various trusts in 1948, 1950, 1951, 1952 and 1953. As to each gift and each year, the Commissioner determined that no exclusions were allowable, since they were gifts of future interests. Petitioner and the trustees under sixteen of the various trusts contend that a portion of each gift was of a present interest, namely, the gift to each beneficiary of an interest in trust income. Respondent counters that even were this so, there is no method of valuing such interest or right.
The deficiencies claimed relate only to alleged gift tax liability for the years 1952 and 1953. However, the gifts in prior years must be considered, because increases in the taxable amounts of the gifts in prior years will tend to increase the rate of gift tax applicable to 1952 and 1953.
The case was tried in the Tax Court entirely upon stipulations.
The parties are in agreement that if the Tax Court is in error, none of the petitioners is liable for any gift tax. The parties have further agreed upon the extent of liability if the Tax Court is affirmed.
Discussion
The trusts created by Petitioner are irrevocable, and are identical in terms except for designation of the respective beneficiaries. Article Fifth contains the critical provisions, which so far as relevant are as follows:
“1. For a period ending twenty-one (21) years after the death of the survivor of the Grantor’s children * * * or until the death of the last surviving descendant, if the same shall occur prior to the expiration of said period, the Trustees shall collect the dividends and interest from the trust fund, and * * shall distribute and pay over the same forthwith as follows:
“(a) To * * * [the particular named initial income beneficiary] for and during [his or her] life; and after [his or her] death to [his or her] descendants living at the time of each payment in equal shares per stirpes and not per capita.” *##***
“3. Notwithstanding anything herein to the contrary provided, the Trustees are authorized in their absolute discretion from time to time to pay over to or expend on behalf of any person who is an income recipient hereunder at the time, such sum or sums from the principal of the Trust as they shall deem necessary or advisable to provide for any illness or other emergency affecting such person who is an income recipient hereunder at the time or any member of his or her immediate family, or to provide for the care, maintenance, support or education of such person or any member of his or her immediate family.”
In each trust the trustees were thus given the absolute discretion to invade to the point of extinction the corpus of the trust, and thus destroy the interest of the initial income beneficiary in income to the extent of such invasion, not merely to provide for “any illness or emergency affecting” any “person who is an income recipient at the time * * * or to provide for the care, maintenance, support or education of such person”; but the same right was given, for the same purposes, with respect to “any member of his or her immediate family.” There is no evidence in the record that the use of corpus for either class was so remote as to be negligible.
The Internal Revenue Code of 1939 <26 U.S.C.) provides:
Ҥ 1003. Net gifts.
“(a) General definition. The term ‘net gifts’ means the total amount of gifts made during the calendar year, less the deductions provided in section 1004.
“(b) Exclusions from gifts. # -x- * -x- *
“(3) [as added by Sec. 454 of the Revenue Act of 1942, c. 619, 56 Stat. 953] Gifts after 19 b2. In the case of gifts (other than gifts of future interests in property) made to any person by the donor during the calendar year 1943 and subsequent calendar years, the first $3,000 of such gifts to such person shall not, for the purposes of subsection (a), be included in the total amount of gifts made during such year.”
It was conceded that the interests of the beneficiaries in the principal of the trusts were future interests, for which no exclusion is allowed. It was further agreed that the unqualified right to receive income for life or other ascertainable periods is a present interest. But where the taxpayer claims an exclusion of a present interest:
“The taxpayer claiming the exclusion must assume the burden of showing that the value of what he claims is other than a future interest * * * ” Commissioner v. Disston, 1945, 325 U.S. 442, 449, 65 S.Ct. 1328, 1331, 89 L.Ed. 1720.
The “right” of the income beneficiaries to receive income was dependent upon the existence and amount of a corpus from which the income was to be derived. There was no certainty as to duration, or amount. The corpus of any trust could have been reduced at any time, in any amount (with corresponding reduction of income productivity), not simply for the needs of an income beneficiary but for those of any member of his or her immediate family.
Petitioners’ contention that their income interests should be valued as life estates because their interests could only be increased, as distinguished from decreased, by distributions of corpus, is without merit.
Under the trusts, no beneficiary had any life interest in the income from any ascertainable amount of corpus. That corpus could be reduced or wiped out at any time. Such reduction or elimination could be on behalf not only of the income beneficiary but of any member of his or her immediate family. Further, to the extent that any distribution (whether directly to or for the income beneficiary or on behalf of a member of his or her immediate family) could be considered an increase in the income beneficiary’s income interest, this would come from corpus, and the gifts of corpus admittedly were gifts of future interests, excluded in valuing the beneficiary’s interest in income when the trust was created.
The principles of the decided cases support the foregoing conclusions, and the decision of the Tax Court.
In Kniep v. Commissioner, 8 Cir., 1949, 172 F.2d 755, a trust provided for the payment currently to the beneficiaries of the trust income, and a proportionate share of the corpus was to be distributed to each upon arrival at the age of sixty years. The trustees were authorized to use corpus up to $1,000 for the proper maintenance and support of, or to provide against any emergency encountered by, any beneficiary. The court approved the Commissioner’s computation of the present worth of the gifts of income on the basis of a trust corpus reduced by the maximum permitted invasion, saying (at pages 757-758):
“ *- * * The argument [of the taxpayer] is that, if article V is to be given any effect in the determination of the amount of exclusions allowable under section 1003(b) (3), the necessary result would be to increase rather than to diminish the present worth of the gifts of present interests. * * * * * * -» *
“ * * * The taxpayer has the burden of proving not only his right to the claimed exclusion, but also the amount of it. Commissioner v. Disston, supra, 325 U.S. at page 449, 65 S.Ct. at page 1331, 89 L.Ed. 1720, 158 A.L.R. 166. The insuperable difficulty with which the petitioner is confronted is that it is impossible for him to prove that the principal of the trust estate, and thus the income from it, will not be decreased by the exercise of the discretionary power of invasion granted to the trustees; or to prove the amount by which the principal, upon which the present worth of the right to receive income must be computed, may be reduced by the exercise of the trustees’ power of invasion.”
On the contention there made, as here, that any distribution must enlarge the income beneficiary’s interest, the court, said (at page 757):
“ * * * the right to receive principal through the power of the trustees to invade it is a future interest * * * ”
In Evans v. Commissioner, 3 Cir., 1952, 198 F.2d 435, trust income was currently payable to each child of the donor for life, the trustees being given uncontrolled discretion to use such amount of principal as they deemed necessary for the education, comfort and support of such child, or the spouse or children of such child. The trust also authorized each child after reaching thirty years of age to withdraw principal not exceeding $1,000 each year. Relying upon Sensenbrenner v. Commissioner, 7 Cir., 1943, 134 F.2d 883 and Fisher v. Commissioner, 9 Cir., 1942, 132 F.2d 383, the court denied the claimed exclusions for the right to trust income, saying (198 F.2d at page 437):
“In brief, the terms of the present trust may enable us to ascribe a minimum combined value to the present and future interests of each beneficiary. But we ’cannot ascertain their values separately. Neither are we justified, for gift tax purposes, in treating them as if merged into a single present interest. The donor expressly divided the rights of each beneficiary into those of present and those of future enjoyment and must, accordingly, accept the tax consequences of that division.”
In Herrmann’s Estate v. Commissioner, 5 Cir., 1956, 235 F.2d 440, the donor had created irrevocable trusts for his minor grandchildren, providing for the distribution of the annual net income, and authorizing the trustee to distribute to each beneficiary any or all of the corpus, to the extent deemed necessary or advisable for the education, maintenance and support of the beneficiary. The trusts were to terminate as to each beneficiary upon reaching the age of twenty-five years. The court pointed out the twofold nature of the transaction; one an interest in income, the other in principal. The gifts of principal were clearly future. Although the requirement to pay income annually was unconditional, the authorized reductions of principal made it impossible to assign a present value to the income interest. The court said (at pages 444-445):
“ * * * Where, as here, the trustee is authorized to distribute all or any part of the principal, the distribution, be it little or much, would result in a ratable reduction in the trust income and a proportional reduction in the income producing potential of the trust res. Since it cannot be known, at the creation of the trust, what part, if any, of the trust principal will be distributed, or when, if ever, any principal distributions will be made, there is no basis or formula by which the future interest can be valued, and the taxpayers are unable to meet the burden imposed on them to establish a value.”
In La Fortune v. C.I.R., 10 Cir., 1958, 263 F.2d 186, the power of the trustee to terminate the trust at any time the trustee deemed it for the best interest of the beneficiary, and to distribute it to him, was held to make it impossible to value the income interest. Petitioner again advanced the argument that accelerated termination of the trust could not change the size or value of the present right to income. It was again rejected.
The court said (at pages 192-194):
“The value of a present right to income given in trust is calculated by multiplying the expected annual return by the probable period over which it will be paid. In the case of the 1951-2 gifts the probable period over which the income will be paid is uncertain because the trustee has the discretionary right of termination. An integral element of the formula is unknown.
“ * * * Appellants rely on the theory of the Tax Court dissents. It is argued that the accelerated termination of the trust can only have the effect of investing the beneficiary with the title to the corpus and cannot change the size or value of the present right to income. As heretofore noted separate consideration must be given to the gift of the corpus and to the gift of the income. A separate valuation of each is necessary. The theory that the valuation of the right to income is not affected by the circumstance of an accelerated distribution of principal overlooks the difference between income received by an owner as the result of absolute ownership of property and income received by a trust beneficiary as the result of payments to his trustee from the proceeds of trust investments. The two are different in legal contemplation. The possibility of a future merger of the corpus and the right to income does not justify the conclusion that the value of the right to income is the same whether derived from the trust or from ownership because it ignores the distinction between income from ownership and income from a trustee to his beneficiary * * *. •x x x x x x
“x x x we conclude that the Tax Court correctly held that the rights to income under the 1951-2 gifts wore incapable of valuation and hence were not subject to the claimed exclusion.”
The decision of this court in United .States v. Baker, 4 Cir., 1956, 236 F.2d 317, 319, is not to the contrary. There, trusts were created for the donors’ minor grandchildren, “the net income and principal” to be used for the support, education and benefit of each beneficiary “in such amounts and manner and at such times as shall be in accordance with the needs and best interests of the beneficiary and as if the Trustee herein were holding the properties as Guardian of the beneficiary and making distributions of the properties in that capacity for the needs and benefit of the beneficiary. It is the intention of the Grantor to make, and the Grantor does hereby make, an immediate and present gift to the beneficiary of the use and benefit of the properties.”
The trust agreement also provided for distribution of “all properties not used for the aforesaid purposes” to each beneficiary on the twenty-first anniversary of his birth, and further provided that if he should die before that time the trust property should pass as part of the beneficiary’s estate, excluding the donor.
The trust agreement was to be construed and the trust estate administered under the laws of North Carolina. The Commissioner disallowed the claimed exclusions on the grounds that the gifts were of future interests. The appellees paid the deficiencies so determined, claims for refunds were filed and denied, and suit was instituted in the district court which entered judgment for the appellees, which judgment was confirmed on appeal.
After mentioning that “ [although not controlling, it is of some significance that the donor * * * expressed his intention to make ‘an immediate and present gift to the beneficiary’ ”, this court pointed out that “It was conceded by appellant in argument that an outright gift by a donor to the guardian of a minor would be the gift of a present and not a future interest under the terms of the statute.” The trust agreements not only created no barrier to the present enjoyment by the infants of the trust funds beyond those established by the laws of North Carolina, but in fact removed certain of those barriers, since the trustee, although empowered to deal with the funds as if a guardian, was not, as a guardian would be, under North Carolina law, required’ to secure the approval of any court.
“ * * * Here the right of the beneficiaries to present enjoyment of both the corpus and the income is not different from what it would be if the gifts had been made directly to each of them [the infant beneficiaries], or to a guardian for their benefit. There is no magic in mere words. These gifts to a trustee, since they conferred on the beneficiaries the same right to present enjoyment which they would have had if the gifts had been made to a guardian for them, must be judged by the same standard as that applied to gifts made to a guardian.” 236 F.2d at page 320.
“We believe that the gifts made by appellees were equivalent to outright gifts by them to the infant beneficiaries * * (236 F.2d at page 321.)
The other citations of petitioners have also been considered, but they are likewise inapposite. Where a present right, although based upon a contingency (remarriage of a widow) is actuarially determinable, Du Charme’s Estate v. Commissioner, 6 Cir., 1947, 164 F. 2d 959, Commissioner v. Maresi, 2 Cir., 1946, 156 F.2d 929, such value should be recognized.
Newlin v. Commissioner, 31 T.C. 451, decided slightly more than one month before the decision of the Tax Court herein, is not inconsistent with that decision. In the Newlin case, the present interests in income were terminable only with the consent of the trustees and all living beneficiaries. This veto power was, understandably, held to justify treating the life income interests as susceptible of valuation.
For the foregoing reasons, the decisions of the Tax Court are
Affirmed.
. T. C. Memo. 1958-222 (Harron, J.).
. The parties so agree, in view of Commissioner v. Disston, 1945, 325 U.S. 442, 446, 449, 65 S.Ct. 1328, 89 L.Ed. 1720.
. It is therefore not necessary to consider the fact that the 1948 gifts were reported under 26 U.S.C. § 1000(f) as made one-half by petitioner and one-half by his wife. The underlying principle would not. in any event be affected.
. The stipulation contains computations of the “Value of the right to receive income for life from and after December 30,1950, from property of stated value.” (Emphasis supplied).
. Our problem and function is not to reconcile, criticize or review all decisions of the Tax Court, but only to determine the validity, vel non, of the particular decision under review.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_appel1_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
MARKOWITZ BROTHERS, INC., a Corporation, and Continental Casualty Co., Appellants, v. FOX-GREENWALD SHEET METAL CO., Inc., a Corporation, Appellee.
No. 20900.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 26, 1968.
Decided June 25, 1968.
Mr. Charles C. Hartman, Jr., Annapolis, Md., with whom Messrs. Kahl K. Spriggs and Mark P. Friedlander, Washington, D. C., were on the brief, for appellants. Messrs. Mark P. Friedlander, Jr., Blaine P. Friedlander, Washington, D. C., Harry P. Friedlander, Marshall H. Brooks, Arlington, Va., and John F. Myers, Washington, D. C., also entered appearances for appellants.
Mr. Fred C. Sacks, Washington, D. C., for appellee.
Before Bazelon, Chief Judge, and McGowan and Robinson, Circuit Judges.
PER CURIAM:
Fox-Greenwald Sheet Metal Co., Inc., obtained a jury verdict of $103,458.91 in the District Court against Markowitz Brothers, Inc., and Continental Casualty Company for money due on unpaid requisitions resulting from work allegedly performed by Fox-Greenwald under a sub-contract with Markowitz. Marko-witz and Continental, upon this appeal, assert the failure of Fox-Greenwald to establish liability as a substantive matter, as well as error in the conduct of the trial. We leave the jury’s verdict undisturbed.
Under the contractual arrangements formulated for this construction project, Fox-Greenwald submitted requisitions for work completed to Markowitz; Markowitz thereupon . included these amounts in its monthly requisitions to Blake, the prime contractor; and, subsequent to receiving payments of its requisitions from Blake, it paid Fox-Green-wald. Pursuant to this plan, the work and payments proceeded relatively well until December of 1963. In this month, Markowitz, while submitting the full amount of Fox-Greenwald’s requisition in its requisition to Blake, remitted to Fox-Greenwald only part of the amount claimed by it, and failed to pay anything on Fox-Greenwald’s January requisition.
Fox-Greenwald’s effort to collect what it considered due and owing proved unavailing, and it instituted this suit. During an eight-day trial both parties presented an abundance of testimony and exhibits relating to the amount of work satisfactorily performed. After comprehensive closing arguments, the jury was instructed that it had to decide: (1) whether any amount was due Fox-Green-wald for work performed prior to the termination of the contract on February 15, 1964, and (2) if Markowitz had received from Blake money for the benefit of Fox-Greenwald which it had not paid over to the latter.
As we view the case, the primary issue is appellant’s contention that the jury verdict is insupportable because it exceeded the amount that Blake paid Markowitz. Although the presentation of evidence in this- case is marked by considerable confusion, as is also its treatment in appellant brief and argument, our own examination of the record leaves us unpersuaded that it was inadequate.
From a procedural standpoint, appellants were afforded their day in court. Every possible circumstance which arose during the Markowitz-Fox-Greenwald relationship was permitted to be explored, and appellants had a full and fair opportunity to convince the jury that no sum of money was due Fox-Greenwald, and that Blake had not paid Markowitz in any event. More specifically, during closing arguments appellants’ counsel referred to a blackboard on which appeared all the relevant figures relied upon to show that no money was owing. Obviously the jury, in deliberating seven hours, thoroughly considered the positions of the parties. The thoroughness of the jury’s consideration of the case is supported by the fact that the jury, during deliberation, requested and obtained: (1) the figures placed on the blackboard by appellants, (2) Markowitz’s statement to the Bonding Company, giving the percentage figures of completion of the project as of December 31, 1963, (3) witnesses’ statements relating to the overall completion of the project and (4) Blake’s checks to Markowitz.
We find no error necessitating the imposition upon an already over-extended District Court of the reenactment of this lengthy proceeding in which the full opportunity afforded to illuminate the issues succeeded, as often as not, only in obscuring them.
Affirmed.
. Continental is a party because Marko-witz had secured a payment bond from it.
. Markowitz had entered into a sub-contract with Blake Construction Company, which had contracted with the United States Government to construct buildings of the National Bureau of Standards at Gaithersburg, Maryland, to perform the plumbing, heating, and air conditioning. Markowitz, in turn, sub-subcontracted the “sheetmetal” portion of its work to Fox-Greenwald.
. The contract involved was dated July 20, 1962, but was not executed until October 1962 when Fox-Greenwald commenced working on the project.
. Although Markowitz included the full amount of Fox-Greenwald’s requisition in its requisition to Blake, it attached a note stating it had not approved Fox-Green-wald’s requisition. When Blake did not pay the full amount of Markowitz’s requisition, Markowitz apparently apportioned all of this reduction to Fox-Green-wald. During the trial a Blake representative testified that none of the cut related to Fox-Greenwald’s work.
. Although Blake did not remit any cash to Markowitz for its January requisition, there was some testimony to the effect that Markowitz had earlier over-requisitioned and Blake credited Markowitz’s account accordingly.
. Appellants also claim that the District Court erred when it (1) decided as a matter of law that Fox-Greenwald did not have to prove it met certain contractual conditions precedent in order to be entitled to be paid for work performed, and (2) limited the instruction of the jury to the issue of money due and owing for work performed. We reject both of these claims. With regard to the first, we do not think this has any bearing on the issue of money had and received by one party for work performed by another which was the non-contractual theory upon which the court, with the explicit assent of all parties, received evidence and submitted the case to the jury. On appeal, appellants argue that such assent was not given by them, but the record is clearly to the contrary. As to the instruction argument, appellants’ trial counsel understood what issue was to be submitted to the jury and he tendered no proposed instructions. One other issue raised by appellants is that the judge erred when he refused to incorporate any specfic figures in his instructions. We do not think that this was error because counsel had ample opportunity to present and explain the figures to the jurv
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
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.
HARRIS et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 5841.
United States Court of Appeals Fourth Circuit.
April 8, 1949.
Stanley Worth, of Washington, D. C. (Blair, Komer, Doyle & Appel, of Washington, D. C., on the brief), for petitioner.
Sumner M. Redstone Sp. Asst. to Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack and L. W. Post, Sp. Asst. to Atty. Gen., on the brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
The main question in this proceeding to review the decision of the Tax Court is whether the Commissioner of Internal Revenue has met the burden resting upon him to prove that the taxpayers, Frank Harris and Victoria Harris, his wife, fraudulently reported less net income than they actually received in certain years between 1934 and 1942 The Tax Court held in favor of the Commissioner for deficiencies and penalties for the years 1934, 1936-37, 1939, and 1941-2, amounting in the aggregate to $7690.84. The taxpayers pleaded the statute of limitations as to- all years before 1941, and showed that in the absence of fraud, Section 6 of the Current Tax Payment Act of 1943, 57 Stat. 126, 145, 26 U.S.C.A. § 1622 note, prevented the assessment of any deficiency for 1942. The Commissioner took the position that neither defense could properly be made, since the taxpayers filed false and fraudulent returns for the years in question.
Section 1112 of the Internal Revenue Code, 26 U.S.C.A. § 1112, provides that “in any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, the burden of proof in respect of such issue shall be upon the Commissioner.” In order to meet this burden, the revenue agents endeavored to show the taxpayer’s net income for each of the years in question by comparing his net worth at the beginning and end of the year. They adopted this method because the taxpayer refused to cooperate with them in their investigation and because he denied that he had any books and records from which his gross income for each year and the allowable deductions therefrom could be ascertained.
The taxpayer owns about 400 acres of farm land in North Carolina, some 250 of which are under cultivation. At the time of the trial below in October, 1947, he was 72 years of age, and after 1940, because of ill health, he rented his farms to sharecroppers. Besides feed and products for home consumption, he -raised tobacco-, his principal crop, and some cotton for sale. His only other source of income consisted of interest on United States Government bonds and on mortgage loans, all o'f which were recorded. He and his family live with -extreme simplicity in a small farmhouse with no telephone, heating plant, or other conveniences except lights; they rarely go to town and have never seen a motion picture, or gone on a vacation. They raise practically all- their food, and their living expenses are relatively negligible.
The taxpayer reads and writes with great difficulty, and has never kept any record of his business transactions. Besides the recording of his mortgages, the only record with respect to them is the notation on the mortgage notes themselves of payments of interest and principal. At the close of each year, the taxpayer collected his tobacco and cotton bills (statements issued by a warehouse as selling agent, concerning the particulars of the sales), and his receipts evidencing disbursements, and with the help of his daughter-in-law, prepared a summary which was generally the result of three to five hours’ work. Some expenses had to- be estimated and the taxpayer conceded that it was impossible to be certain that he reported all the income he should have. He testified, however, that he conscientiously tried to report his income accurately, and intended to pay all the tax that was due. The summary thus prepared was turned over to taxpayer’s accountant, who prepared the returns. Neither taxpayer’s daughter-in-law nor his accountant had any independent knowledge of the accuracy of the items in the summary.
The number and variety o!f the activities and investments from which the taxpayer derived his income, and his failure to keep records of his transactions, made it impossible for the government to state his annual income with complete accuracy. Yet there are certain outstanding facts, supported by the proof, which strongly indicate that he was wilfully and deliberately, that is, fraudulently misstating his taxable income during the period under investigation. It is true that he was deficient in those , capacities that make for accurate accounting, but he was prudent and canny-enough to amass a considerable fortune in the business world -so that at the end of the period hi-s net worth was substantially greater than it was at the beginning. This fact cannot be denied, even though the estimate of the Tax Court that he was worth some $80,000 more in 1942 than in 1934 may be disputed.
Definite proof of deliberate understatement of income is found in the tax returns in respect to the item of interest which the taxpayer received from his investments in government securities and farm mortgages, and which is not open to dispute. The evidence indicates that during the period the taxpayer owned $30,000 in Government bonds on which the income approximated $975 annually; and also 6 per cent, mortgage notes which, according to evidence produced by the taxpayer, varied in amount during the tax years from $20,000 to $30,000. To these amounts should be added interest on bank accounts (at a rate not disclosed) which ranged from $10,000 in 1934 to $55,000 in 1941. Yet he reported his income from interest to be only $208.73 in 1934, $500 in 1938, $600 in 1941, $941.67 in 1942 and nothing in other years. The following statement from the court’s opinion is well substantiated by the proof:
“Whatever doubts may surround the amount of entire-net income, the evidence adduced is conclusive that petitioner has owned United States Government bonds of a face value of $30,000 since prior to 1934, and the annual interest on these bonds was about $975 — slightly more before exchanges for new issues in 1934 and 1935. The record is convincing that during all of the taxable years petitioner held 6 percent mortgage notes in aggregate face amounts ranging from $19,888 in 1938 to $31,545 in 1937 and in addition, interest-bearing bank accounts ranging from $10,000 in 1934 to over $55,000 in 1941, on which the rate of interest is not indicated. We have noted above that petitioner’s bonds and mortgages ■should have produced annually at least $2,375. It is certain that the interest from Government bonds was about $975 annually. Nonetheless petitioner reported as interest received $207.93 in 1934, $500 in 1938, $600 in 1941 and $941.67 in 1942. Of the last amount $300 only was described as interest on Government obligations. He reported no interest at all in other years. The assertion of mere forgetfulness can not be credited in a professional lender who has operated profitably for many years. We believe that these omissions were intentional and fraudulent.”
This statement demonstrates that the Commissioner has borne the burden of proof to show fraud on the part of the taxpayer, especially when the persistent recurrence of the understatement of interest in each of the years in the nine year period is considered. It also renders unnecessary a consideration of the taxpayer’s contention that the authorities hold that a net worth statement may be resorted to to measure the unreported income of a taxpayer only if there has been a prior showing by extraneous evidence of a gross misstatement of income. Calafato v. Commissioner, 42 B.T.A. 881, affirmed, 3 Cir., 124 F.2d 187; Hoefle v. Commissioner of Internal Revenue, 6 Cir., 114 F.2d 713.
Since fraud has been established, it remains to consider whether there was sufficient evidence to support the Tax Court’s decision that deficiencies in tax and penalties were due; and it must be borne in mind that in this posture of the case the burden is upon the taxpayer to overcome the presumption that the Commissioner’s determinations are correct. Snell Isle, Inc., v. Commissioner, 5 Cir., 90 F.2d 481; Rogers v. Commissioner, 6 Cir., 111 F.2d 987; Greenfeld v. Commissioner, 4 Cir., 165 F.2d 318; Leonard Willits, 36 B.T.A. 294. The investigation was fraught with difficulty and the taxpayer was able to demonstrate that there were errors in the Commissioner’s calculations with the result that the court found that the aggregate net taxable income for the years in question was $58,807.45 rather than $123,450.15 as the Commissioner had found, and that the aggregate deficiencies and penalties found by the Commissioner to be $24,569.42 should be reduced to $7,690.84.
Originally the Tax Court admitted in evidence over the taxpayer’s objection an exhibit prepared by a revenue agent which was based upon facts and figures taken from bank records of the taxpayer’s deposits and withdrawals, and from the land records showing his title to the farms and mortgages, and in part consisted of the agent’s own estimate of property values. The supporting documents for this calculation, however, were not offered or produced in evidence and the exhibit was clearly inadmissible. We think, however, that the error was harmless because the court did not accept the agent’s calculations but eliminated from consideration calculations which were shown to be erroneous, and confined itself to the amount of the mortgages shown by the taxpayer’s own evidence, and an examination of the bank deposits and withdrawals which were admitted by the taxpayer to be correct. For example, there was error in the Commissioner’s original statement of the amount of government bonds owned by the taxpayer; and since the evidence showed that the amount held by him did not vary materially during the period, they were omitted from the calculations of net worth. Again, it was not possible from the land records to ascertain the value of the lands, buildings and equipment, but, as the evidence indicated only slight variation in these items during the period, they were also eliminated. Depreciation, which was not itself a large item, was eliminated, but as an offset the living expenses of the family estimated to run from $1,000 to $1,500 per year were also eliminated.
The taxpayer points out that an element of uncertainty and conjecture remains in the final determinations, and this criticism is not without foundation. The Government agents did not attempt to check the sales records of the agents who disposed of the farm products from which a substantial part of the taxpayer’s income was derived, although such an investigation might have been made. Moreover, it was not always possible to trace with complete accuracy the source of the deposits or the disposition of the withdrawals, since the taxpayer failed to produce any checks or other records. The Government, however, made an earnest effort to identify the transactions and in one year, 1936, when the final figures indicated an increase of net worth of $24,362.40, the court treated only one-half thereof, or $12,181.20, as net income, since the former amount seemed abnormally large and the evidence indicated somewhat vaguely that the taxpayer had been engaged in trading in real estate and hence the great increase in the bank balance was probably attributable to the deposit of the proceeds of sale.
Notwithstanding the uncertainty and lack of precision which necessarily pervade the calculations on which the Tax Court’s determinations are based, we do not feel justified in setting them aside. It is admitted that the taxpayer’s income, aside from interest on government bonds, was derived entirely from sales of farm products and from mortgage loans, and hence the possibility that the notable increase in his bank deposits was derived from unknown sources is minimized. In addition, it is of importance that the comparison of the taxpayer’s net worth at the beginning and end of the year was not confined to a single year but was repeated over a series of years so that the chance of error is thereby lessened. Most important, of course, is the failure or refusal of the taxpayer to produce any records or to render such assistance to the court, although represented by able counsel, as would enable it to make its findings with accuracy and precision. Under such circumstances, approximation in the calculation of net income is justified. See Helvering v. Safe Deposit Co., 316 U.S. 56, 66-67, 62 S.Ct. 925, 86 L.Ed. 1266, 139 A.L.R. 1513; Cohan v. Commissioner, 2 Cir., 39 F.2d 540, 543. The following statement from the Tax Court’s opinion seems to us to be fully justified :
“In considering the evidence we have been constantly mindful of petitioner’s handicap of illiteracy and of credible testimony that he enjoys a reputation for commercial integrity in his community. But as petitioner has been ¡successful in his financial operations with individuals, we can not credit his statement that the amounts of principal and interest due to him are unrecorded or forgotten. He has evidently conducted his loan business with care. He owes to the Government an equal care in accounting for his profits from it, and having failed to account ¡for most of his receipts, we find that his returns for 1934, 1936, 1937 . . ., 193-9, 1941 and 1942 were false and fraudulent with intent to evade tax and sustain imposition of the 50 per cent penalty for fraud. Because of ¡fraud the income tax for 1942 is not forgiven. Section 6, Current Tax Payment Act of 1943.”
Affirmed.
1942 was the only year in issue in which Frank Harris, hereinafter called the taxpayer, filed a joint return with Iris wife, and the Tax Court therefore properly dismissed the case against her except as to that year.
Since, as taxpayer testified, it was his custom to bank all'his funds as he received them except for a negligible amount he kept in a safe deposit box, there is little danger that the increases in bank deposits during the years in question reflect anything other than increases in current income.
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_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.
McGLOTHAN v. PENNSYLVANIA R. CO.
No. 9594.
United States Court of Appeals Third Circuit.
Argued June 8, 1948.
Decided Sept. 14, 1948.
Owen B. Rhoads, of Philadelphia Pa. (H. Francis De Lone and Barnes, Dechert, Price, Smith & Clark, all of Philadelphia, Pa., on the brief), for appellant.
Donald J. Farage, of Philadelphia, Pa. (B. Nathaniel Richter, and Richter, Lord & Farage, all of Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
KALODNER, Circuit Judge.
This action to recover damages for the death of Edna Hawkins was brought by her representative under the provisions of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. A verdict was returned in the amount of $10,000, but the court below granted to the defendant a partial new trial on an issue not pertinent here, and at the same time rejected its arguments for a full new trial or, in the alternative, for judgment in accordance with its motion for directed verdict. 72 F.Supp. 176. This appeal followed the disposition, contrary to the interest of the defendant, of the partial new trial. 74 F.Supp. 808.
The defendant asserts that it is entitled to a retrial of the case because the court below erred in (1) instructing the jury on the evidence with respect to the existence of a reasonably safe footway, and denying the defendant’s request for charge on that issue; (2) excluding evidence relating to the marital status of decedent and her husband; and (3) allowing interest from the date of the judgment entered upon the verdict, rather than from the date of the order following the disposition of the partial new trial.
The issue first raised by the defendant does not encompass the full scope of its alleged liability for. negligence, but rather one phase of the case against it. Accordingly, the necessary statement of the evidence is considerably narrowed.
Edna Hawkins suffered her fatal injuries on December 27, 1944, while in the defendant’s employ as a switch oiler on its tracks in the immediate vicinity of the Girard Avenue-Forty-Fourth Street Bridge, in Philadelphia. Eight tracks, running in an east-west direction, pass under this bridge, some being separated by the concrete bridge supports or abutments, as they were referred to in the court below. A plan, introduced in evidence, assigns names to these tracks, which, for convenience, will be used here, and discloses their relation to each other and to the abutments. Reading from north to south, the plan is as follows: “Jersey,” abutment, “Westward,” “Eastward,” abutment “Cut,” “Departure,” abutment, “No. 2 Freight,” abutment, “Outward Passenger,” and “Inward Passenger.”
A few minutes prior to the accident the decedent was given instructions, at a point east of the east side of the bridge, to oil the “No. 28 switch.” That meant that she was to oil a switch on the “Eastward” track about ten feet east of the east side of the bridge, and another switch on the same track about ten feet west of the west side of the bridge. It is thus obvious that at some time she had to pass under the bridge, there being no evidence of any other means of getting from one side to the other. Although there was no direct evidence that the decedent was trying to get from one side of the bridge to the other, the fact is that she was crushed to death just within the east side of the bridge between an engine moving west on the “Eastward” track and the abutment to the south of it.
It is conceded, as it must be, that there is no sufficient clearance for a person to stand or walk under the bridge between an engine on the “Eastward” track and the abutment to the south of it. There was evidence, adduced by the defendant, however, of clearances north of the “Westward” track, between the “Departure” track and the abutment to the south of it, and between the “No. 2 Freight” track and the abutment to the north of it. The defendant’s evidence also disclosed that the decedent had no duties that would take her to the “No. 2 Freight” track or those to the south of it, the “Outward Passenger” and the “Inward Passenger.” These latter three tracks, according to the testimony, are high speed “main” lines, whereas the others in the group are “yard” tracks on which traffic operated at a reduced speed not exceeding 15 MPH. Moreover, one of the defendant’s witnesses stated that the designated pathway under the bridge was south of the “Departure” track, and that decedent might have been subject to discipline if she were found along the “main” lines. Another of the defendant’s witnesses, however, testified that he had given the decedent her instructions when she first took over the job of switch oiler, and his testimony affords the inference that he had instructed her to use a clearance north of the “Westbound” tracks.
With this evidential background, the defendant requested a charge to the jury as follows:
“In considering the question of negligence on the part of the defendant you may take into consideration the evidence that the decedent had no duties to perform under the bridge; that her duties were to be performed at points either east or west of the bridge and beyond the abutments and that the defendant furnished her a reasonably safe passageway from one point to the other.”
This request was refused, but in the course of his instructions to the jury, the learned trial judge said:
“The testimony, as I recollect it, was that Mrs. Hawkins, or Mrs. Smith, as she was known by the railroad company, was to perform her services on tracks which were beyond the tracks over which there has been some evidence offered that she could have crossed and then went through and under the bridge by what they called a sort of footway, as it were, a clearance. But you must bear in mind that the evidence discloses that her work was on the tracks in the opposite direction, and the tracks that she imtst cross in order to get to this clearance, to go under the bridge, were tracks over which were operated trains at a high rate of speed. It will be for you to determine whether under those circumstances she should cross those tracks to get to that footpath or clearance and go under the bridge, or whether it was the reasonably safe thing for her to go through the bridge where the yard trains were operated at a reduced speed.” (Emphasis defendant’s).
We do not think it was error to deny the quoted request for charge. Plainly, the decedent had a duty to be under the bridge at some time. Considering the position of the switches on which she was to work, it is plain, too, that she would have had to cross tracks to reach a “reasonably safe” pathway, if there was one, or follow the “Eastward” track, along which she met her misfortune. It was for the jury to measure the risks involved, and to determine the extent, if any, to which the decedent was contributorily negligent, since the statute under which the action is brought provides for recovery where the defendant is wholly or partially at fault. 45 U.S.C.A. § 51. Whether there was a reasonably safe footway depended, among other things, on the position of the decedent with respect to the pathways, the scope of her work and the area ip which she was permitted to operate, her previous experience, and the instructions given to her.
Nevertheless, it is patent that the charge as rendered was erroneous, for the evidence was undeniably misstated. The learned trial judge did not consider the error to have been prejudicial, 72 F.Supp., at page 181, and concluded that, “in any event, a new trial is not merited.” We are thus to determine whether the misstatements in the charge substantially prejudiced the defendant’s case.
Although the jury was forewarned that it was the sole judge of the facts, and that its recollection of the evidence was controlling, nonetheless it would not readily conclude that the court erred. Especially is this true where, despite the previous allocation to the jury of its particular function, the court, at the time the error was called to its attention, insisted upon the correctness of its statement, instead of referring the doubt to the conceded trier of the facts.
In our opinion, the statement of the testimony by the trial court could serve only to confuse the jury on a prime factual issue. And at the same time, the statement fails to comply with the elemental principle that it ought not to be one-sided. As held in Sperber v. Connecticut Mut. Life Ins. Co., 8 Cir., 1944, 140 F.2d 2, 5, certiorari denied, 321 U.S. 798, 64 S.Ct. 939, 88 L.Ed. 1087:
“The problem here is not that of a judge commenting upon or stating an opinion about the evidence. The situation is that the Court in summarizing an important aspect of the evidence * * * outlined the evidence favoring appellees and, when requested to cover the same aspect where favorable to appellant, omitted to do so.
“While a federal trial court is not at all required to state his recollection of the evidence with nice exactitude for both sides, yet, if such summary is made, it must be fair to both sides to the extent that it is not so one-sided or so warped that it must be regarded as prejudicial to one side in its effect upon the jury.”
The case at bar is thus immediately distinguished from Zurich v. Wehr, 3 Cir., 1947, 163 F.2d 791, 793.
We think our summary of the evidence indicates with sufficient clarity the shortcomings of the statement quoted. That statement narrowed the several possibilities suggested by the evidence in defendant’s favor for the decedent’s safe passage under the bridge. The question left to the jury, whether the decedent should have crossed the high speed lines, or risked the inadequate passage along the “Eastward” track, where she met her death, forbode an inevitable answer that the defendant had failed to furnish her a “reasonably safe” transitway through the bridge tunnels.
Not only was the jury misinformed as to the tracks which the decedent would have to cross, but also as to the nature of the traffic she could expect to encounter on those tracks. In this wise, too, the court,, albeit unintentionally, eliminated the possible safe passage suggested by the evidence along the south of the “Departure” track, or, at least, confused it with the passage along the north of the “No. 2 Freight” track. The statement that the decedent had “no duties on those tracks” further added to the confusion, for it would be as well applicable whether the tracks were high speed or not.
The importance' of the issue is certainly to be considered in assessing the prejudicial effect of trial error. Here, the issue is one which alone could support the jury’s, decision that the defendant was guilty of negligence which contributed to the death of Edna Hawkins. Coupling the statement in the charge with the further statement of the Court at the time of the defendant’s objection thereto, it is clear that the jury was left with a mistaken and misleading impression of the evidence in the case, and as well with respect to its force and direction. We are of the opinion, therefore, that the error was prejudicial to the defendant and that a new trial must be ordered.
The defendant’s second point complains, as already noted, of the rejection by the trial judge of evidence relating to the marital status of the decedent and her husband, Benjamin Hawkins. By this evidence the defendant sought both to attack Hawkins’ credibility on cross-examination, and, as part of its own case, to affect the damages for the decedent’s death. Independent of the purpose of the evidence, we have also a question, whether certain Veterans’ Administration (“VA”) tecords pertaining to Hawkins were available to the defendant in view of a statute characterizing such records as “confidential and privileged.”
The decedent’s husband was the only one of her surviving relatives as to whom evidence of pecuniary loss was adduced.
It was the aim of the plaintiff to show that Hawkins, by reason of disabilities sustained by him while in the armed service in time of war, would be dependent upon the decedent for support. As part of his •case, following the evidence relating to the accident, plaintiff put on the stand a representative of the VA who had with him, in accordance with the demands of a subpoena caused to be issued by the plaintiff, Hawkins’ VA file. From this file, evidence was adduced relating to Hawkins’ physical •condition. When plaintiff put Hawkins on the stand, he testified on direct examination, •in effect that he and the decedent were on good terms. The defendant was permitted Jo cross-examine Hawkins on this issue on the basis of the statements made by him in the “Induction Report” which was part of his VA file. According to this document, Hawkins had reported on May 29, 1942, that he was separated from his wife and that her specific address in Philadelphia was unknown to him. It also disclosed that Hawkins had named his mother as the nearest relative to be notified in case of emergency, had made her his beneficiary for allotment purposes, and his sister as alternate beneficiary. The plaintiff’s objection to this line of examination as irrelevant, and not affecting the decedent’s legal obligation to contribute to Hawkins’ support, was overruled on the specific ground that it was an attack upon Hawkins’ credibility.
For the sole purpose of mitigating damages, the defendant sought to include the Induction Report as part of its own case. This, too, was permitted. Later, the defendant sought to adduce additional evidence respecting the marital status, but by then the trial judge had concluded that it was irrelevant and rejected it. In the course of his charge, the trial court ruled that the the jury could not consider the issue of the marital status or the VA records in connection therewith.
The views of the learned trial judge on this issue are fully stated in his opinion disposing of the defendant’s motions. It is sufficient to state here, by way of summary, that the evidence with which we are now concerned was excluded because (1) there was no issue of past non-support, since Hawkins’ need for support did not arise until after decedent’s death; (2) the evidence was merely indicative of a lack of interest on the part of decedent toward Hawkins, and whether that feeling would continue in view of Hawkins’ need was too speculative to have any bearing on the issue ®f probable non-support; and (3) the evidence fell short of destroying the marital duty of the decedent and could not be admitted as indicating a probable termination of the relation or duty in the future. It was also concluded that the evidence was inadmissible on the issue of Hawkins’ credibility since if was collateral and not useful for any purpose independent of the contradiction. These arguments are adopted in toto by the plaintiff, and in addition, it is urged, presumably to bring the case within the decision of this Court in Dow v. Carnegie-Illinois Steel Corp., 3 Cir., 1948, 165 F.2d 777, that the evidence was too remote.
We are at once brought into a phase of the law explored in Dow v. CarnegieIllinois Steel Corp., supra. Parenthetically, it may be noted that the learned trial judge could not have had this decision before him at the time he made the rulings complained of. The actual holding of the Dow case, however, does not encompass the problem of the case at bar; in that case there had been a reconciliation, and the fact that divorce action had been instituted and terminated years before the reconciliation did not permit an inference of such a “disposition on the part of the husband to withhold funds which he might otherwise have given his wife if he had lived.” But as we stated in the Dow case:
“An examination of the authorities demonstrates that there are no clear signs as to what evidence respecting marital happiness or unhappiness may or may not be admissible. * * * Under almost all other conceivable circumstances, however, recovery has been allowed by some courts though aggravated conditions or causes of separation between husband and wife have served to mitigate damages. While it may be doubted that the human mind, whether empaneled in a jury box or not, can cast up with any degree of accuracy degrees of domestic bliss or marital unhappiness in terms of money, this is the course upon which our law, whether federal or State, has projected itself, and we may not now turn it into a new and perhaps more profitable direction.” 165 F.2d at page 780.
It is a singular feature of the instant case that the absence of past support from the decedent to Hawkins could carry no weight because the obligation to support is reversed and the facts effectuating the decedent’s alleged obligation did not begin to operate until after the husband had been discharged from the Army. By that time, of course, the decedent had met her death.
We think, nevertheless, that evidence of an existing separation, or evidence of a separation commencing prior to the decedent’s death and affording a reasonable inference of continuing to that point, is under the circumstances both relevant and material in mitigation of damages. Cf. Fogarty v. Northern Pac. R. Co., 1915, 85 Wash. 90, 147 P. 652, L.R.A.1916C, 803; Gilliam v. Southern R. Co., 1917, 108 S.C. 195, 93 S.E. 865. Such evidence, it is true, would not be adequate to deprive the husband of all benefits under the Act. Southern Ry. Co. v. Miller, 4 Cir., 1920, 267 F. 376, 381. Nor would it be sufficient to justify an inference that the decedent was not obligated, under the laws of Pennsylvania, to contribute to her husband’s support, or the inference that that obligation would soon come to an end. But the question for the jury was how much would the decedent have contributed to her disabled husband. To that end, the jury was instructed to determine “the amount that she (decedent) would give or contribute toward the maintenance of Mr. Hawkins” after considering “her earning power, which would be that, the length of time she would live, the regularity of her employment, the amount in this case that would be required to maintain herself.” That the evidence would not affect the reasonableness of Hawkins’ expectancy of support, in view of the local law, is not decisive. For at least it had a bearing on the jury’s determination of the amount which the decedent might be expected to contribute over and above any amount which she might be compelled to furnish by virtue of the operation of the local law. The case of Dunbar v. Charleston & W. C. R. Co., C.C.Ga.1911, 186 F. 175, upon which the plaintiff puts some reliance, is distinguishable for the dual reason that the court assumed that the separation was merely temporary, and the holding of the case was merely that the separation did not affect the right to recover damages. The defendant does not contend here that the separation, if it existed, should operate to cut off the right to damages, but only that the evidence was worthy of consideration in mitigation of damages.
We conclude, accordingly, that rejection of the evidence relating to the marital status of the decedent and her husband was erroneous, and also that, in removing from the jury’s consideration an element affecting damages, the error was prejudicial.
It follows, too, that since the evidence was relevant, and since Hawkins had testified on direct examination on the issue of his marital status, the defendant was entitled to cross-examine him on that score and to test his credibility. But the plaintiff asserts that in so doing the defendant was not entitled to use portions of Hawkins’ VA file other than that which the plaintiff himself had used. In fact, as already noted, the defendant used Hawkins’ Induction Report both to attack Hawkins’ credibility and as part of its own case in mitigation of damages.
The statute and VA Regulations upon which the plaintiff bases his claim of privilege are set out in the margin. The first attempt of the defendant to use the Induction Report was in cross-examination of the VA representative. At that time, the plaintiff’s objection, that it was beyond the scope of the direct examination, was sustained. As stated, the defendant again sought to use the Induction Report in its cross-examination of Hawkins. The plaintiff’s objection, that the information was irrelevant, was overruled; Hawkins identified the Report and his signature, the Report was marked as an Exhibit, and the information therein was made known to the jury through the cross-examination. Thereafter, the defendant made the VA representative its own witness, as part of its case, and limited questions to identification of the Report. During this brief direct examination, the VA representative stated that if it was necessary that the document “be submitted as identification,” he was not permitted to release it from the folder. This statement apparently was in obedience to the Regulation, § 1.315(b), that “Where original records are produced they must remain at all times in the custody of a representative of the Veterans’ Administration * * The direct examination ended, the plaintiff stated that he did not wish to cross-examine. It was then that the Court asked the VA representative whether the “paper” was confidential, and how it came to be released. Stating that it was confidential, the representative added, “These reports, it was merely released for inspection here. The folder of Mr. Hawkins was subpoenaed into Court, so that both counsel would be permitted to examine anything in the folder. For instance, your Honor, where a man has made application for a pension and we do not have his records, we send to Washington for his records and then after those records come back we rate him, and all of those folders are placed and kept very securely in an envelope by itself and they remain part of the records for the rest of his life.” Following this answer, the Court suggested to the defendant that the document be permitted to remain in the file, and agreed to allow the defendant to read the pertinent portions to- the jury “with the same force and effect as though the exhibit were attached to the record.” Before the reading began, however, the plaintiff, for the first time in the case, objected on the ground that “it is a confidential communication, and by statute of the United States it is not admissible except of pro tanto as it is released.” The objection was overruled, and after the reading to the jury, the document was submitted to it for inspection.
The records and files of the various governmental departments and agencies are frequently the subject of statutes and regulations enshrouding them with the cloak of confidence and privilege. Such statutes, as might be expected, differ widely, as do the Regulations. Whether the instant statute accords a privilege in the records to the individual concerned as well as to the government does not expressly appear. Cf. Harris v. Walsh, 1922, 51 App.DC. 167, 277 F. 569; Federal Life Ins. Co. v. Holod, D.C.M.D.Pa.1940, 30 F. Supp. 713. The legislative history does suggest, however, that some consideration for the desire of the individual was entertained. But that suggestion leaves in doubt whether it was merely the aim of the legislators to make confidential the files held by the governmental agency because they concerned “a chapter of some man’s life history,” granting a license to the claimant to authorize release of such information, or whether the object was to create a privilege running to the veteran as protection for communications made to the government which might otherwise have been withheld.
Such an inquiry is unnecessary here, for by express provision of the applicable statute the VA files are shorn of their “confidential and privileged” overdress when those records are “required by process of a United States court to be produced in any suit or proceeding therein pending.” (Emphasis supplied.) Insofar as there exists a governmental policy of secrecy, therefore, it has been waived to that extent. And it would appear that, in accordance with its Regulations, the VA had expressly exercised its discretion to release the records of Hawkins, the VA representative declaring, “The folder of Mr. Hawkins was subpoenaed into Court, so that both counsel would be permitted to examine anything in the folder.” We cannot assume that these records were not properly produced by the VA. Cf. Flannery v. Flannery Bolt Co., 3 Cir., 1939, 108 F.2d 531, 534, 535.
It is patent, from the recitation of the circumstances, that plaintiff’s objection was designed to take exception to the VA records on whatever privilege he could claim. But the plaintiff, who was in point of fact acting for Hawkins, subpoenaed the file. Aside from the doubt that the privilege running to Hawkins was thus destroyed, it is significant that the objection to the Induction Report on the ground of privilege was not raised at the time the defendant used the Report to cross-examine Hawkins. And the Report was then so used that in truth, if not formally, it was in evidence, the information contained therein having been made available to the jury. Again, the plaintiff permitted the defendant to establish the identity of the Report. It was not until the VA representative stated that he was not permitted to physically relinquish the document, and the court ascertained the basis of this refusal, that the plaintiff first raised the issue of confidence and privilege. Under the particular facts, we believe that whatever privilege Hawkins had to keep the file out of the case was waived by him. The assertion of such a privilege must be timely to be effective. In so holding, we add that the court below did not exclude the Induction Report from the case on any ground of privilege, but rather because the information sought to be included in the record was irrelevant. We add, too, out of an abundance of caution, that we do not here hold that the VA files pertaining to veterans may be summarily brought out into the open in any private litigation. The answer, we think, depends upon the particular facts of the case, and upon the ruling of the VA as well.
On the view we have taken, it becomes unnecessary to consider the defendant’s final point relating to interest on the judgment Accordingly, for the reasons stated, the judgment will be reversed and the cause remanded for further proceedings not inconsistent herewith.
The verdict was returned on November 20, 19-16, and judgment entered that day. The partial new trial was granted on June 4, 1947, to determine the capacity of the “representative” to sue, and was disposed of, without jury, on December 18, 1947, 74 F.Supp. 808. The order thereon, entered January 7, 1948, directed that judgment for the plaintiff be entered in the amount of $10,000.00 with costs, and interest from November 20, 1946.
Shortly after the accident, the decedent’s “tools,” a broom and a pail, -wore found on the west side of the bridge. Apparently she had left them there while she walked to the east side for her instractions. At least such an inference is permissible, there being no evidence that her “tools” had been moved.
The engine was facing east, but moving backwards. The names of the tracks are for reference only and, according te one witness, these tracks carried traffic in both directions.
Decedent held the position as switch oiler for two weeks prior to the accident.
“Mr. Rhoads: Then, if Your Honor please, I would like to take exception to that portion of the charge where you were referring to her work being distant from the safe passageway and saying that there was evidence of trains passing on the departure and cutting tracks, which are the two tracks at high speed. If Your Honor please, the evidence, I believe, was that her duties included those tracks and the east and west bound—
“The Court: No, sir, it was very clear in my mind about that.
“Mr. Rhoads: There was ample clearance on the east and west bound tracks, also.
“The Court: The evidence is quite clear, Mr. Rhoads, that she had no duties on those tracks.”
The complaint stated that the death of Edna Hawkins resulted in damage to “her husband, Benjamin Hawkins, and a number of brothers and sisters.”
His testimony was that the decedent gave him a “going away” party on May 28, 1942, the day before he entered the Army; that they corresponded regularly until the decedent died; and that by correspondence they had planned to buy a home when he came out of the service. He stated that he knew her address, and on cross-examination admitted that they had had a falling out sometime in 1938, but that a reconciliation had taken place. He could not account for the statements in his induction paper that her address was unknown and that they were separated at the time the paper was signed by him, on May 29, 1942. He accounted for the fact that he had made his mother eligible for his allotment by stating that ho and his wife agreed that since she was working she would not need it.
The offers were as follows: (1) Application signed by “Edna Louise Smith” for participation in the defendant’s relief fund making her sister beneficiary, bearing the statement “Benjamin (Separated)”, and dated January 5, 1943; (2) defendant’s check pursuant to that application to the order of her sister, dated February 8, 1945; (3) withholding exemption certificate dated June 9, 1943, signed by “Edna L. Smith” on which was checked the statement “Single person (not head of a family) or married person not living with husband or wife (not head of a family)”; (4) a card from defendant’s files showing that the decedent was carried on defendant’s records under the name of “Smith, Edna Louise (Mrs.)”; (5) two papers acknowledging receipt of copies of safety rules dated January 5, 1943, and May 5, 1943, signed “Edna L. Smith” and “Edna Louise Smith” respectively; (6) a form known to the defendant as “CER-1” dated January 5, 1943, signed “Mrs. Edna Louise Smith”; and (7) testimony of a witness that the decedent was known to the defendant and was carried on its records as Smith, rather than Hawkins.
It may be noted that in the part of the case relating to the manner in which the decedent sustained her injuries, there was evidence that she was known to her fellow employees by the name of Smith.
The instruction was:
“Yon will recall the induction record that was produced here by the Veterans Bureau. The record was passed among yourselves and I observed that you read it tery carefully. On that record there was allegedly a reply to a question asked to the effect of ‘Are you married?’ and ‘Are you living with your wife?’ and the answer was ‘Separated’. You will totally disregard that from this case. That question does not exist here. It is not properly in the case.”
62 P.S. § 1973. See also Commonwealth ex rel. Killmaier v. Hermann, 1930, 93 Pa.Super. 135; Department of Public Assistance v. Heinbaugh, 1942, 45 Pa.Dist. & Co. 38; Department of Public Assistance v. Palmer, 1942, 45 Pa. Dist. & Co. 590.
June 7, 1924, c. 320, § 30, 43 Stafc 615, as amended, 38 U.S.C.A. § 456, which, insofar as here pertinent, reads:
“All files, records, reports, and other papers and documents pertaining to any claim for the benefits of the provisions of this chapter, whether pending or adjudicated, shall be deemed confidential and privileged and no disclosure thereof shall be made except as follows:
“(a) To a claimant or his duly authorized representative, as to matters concerning himself alone, when in the judgment of the Administrator of Veterans’ Affairs such disclosure would not be injurious to the physical or mental health of the claimant;
“(b) Where required by the process of a United States Court to be produced in any suit or proceeding therein pending; or when such production is deemed by tbo Administrator of Veterans’ Affairs to be necessary in any suit or proceeding brought under the provisions of this chapter; * *
The Regulations of the VA, 38 C.F.R., Part 1, insofar as here pertinent read:
“ § 1.315. Judicial Proceedings Generally.
“(b) Where the process of a United States court requires the production of documents or records (or copies thereof) contained in the Veterans’ Administration file of a claimant, such documents or records (or copies) will be produced in the court out of which process has issued. Where original records are produced they must remain at all times in the custody of a representative of the Veterans’ Administration and if offered of received in evidence permission should be obtained to substitute a copy so that the original may remain intact in the file. Where the subpoena is issued on praecipe of a party litigant other than the United States such party litigant must prepay the cost of copies in accordance with fees prescribed by § 1.328 and any other costs incident to production.”
See 8 Wigmore on Evidence (3rd ed. 1940) §§ 2377-2379, and notes thereto. See also, Boske v. Comingore, 1900, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (distillery reports to collector of internal revenue); Harris v. Walsh, 1922, 51 App.D.C. 167, 277 F. 569, and Federal Life Ins. Co. v. Holod, D.C.M.D.Pa.1940, 30 F.Supp. 713 (Selective Service records) ; Ex parte Sackett, 9 Cir., 1935, 74 F.2d 922 (Department of Justice records) ; In re Grove, 3 Cir., 1910, 180 F. 62, and Firth Sterling Steel Co. v. Bethlehem Steel, Co., D.C.E.D.Pa.1912, 199 F. 353, and United States v. Haugen, D.C.Wash.1944, 58 F.Supp. 436 (Military secrets); Crosby v. Pacific S. S. lines, 9 Cir., 1943, 133 F.2d 470 (foreign government communications); and United States v. Beekman, 2 Cir., 1946, 155 F.2d 580 (O.P.A. files). Of these, all except the Haugen and Beekman cases involved private litigation in which the governmental department or agency was not a party.
See 8 Wigmore on Evidence, op. cit. supra, §§ 2377-2378a, and notes thereto.'
Congressional Record, 68th Cong. 1st Sess. (1924), p. 11011: Mr. Johnson: “We have made the files of the Veterans’ Bureau confidential. Some members of the House might think they would not have authority to go into those files; but if there is any patient of the Veterans’ Bureau who desires any Member of the House or Senate or anyone else to go into his case for him, all he has to do is to write a letter conferring that authority.”
Mr. Johnson: “I think it (permission to examine) would be refused, and I think it ought to be refused, unless he can show that he represents the claimant. In other words, you have there the military records of thousands of men. Each military record contains a chapter of some man’s life history.
“It contains the medical testimony that touches his life during the war and those records should not be open to inspection to everyone.”
“This provision was inserted only to prevent unauthorized persons from the inspection of records.”
Mr. Chindbloom: “Will not the gentleman concur in the opinion that a letter from an ex-serviceman, or from a member of his family, addressed to a Member of Congress, ought to be considered as authority, even under the provisions proposed?”
Mr. Johnson: “Unless that letter was written by a member of his family for the purpose of interfering in some civil suit; then I would say no.”
Mr. Chindbloom: “Certainly. The gentlemen’s modification is absolutely correct.”
Cf. 26 U.S.C.A. § 55(a
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_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.
MELODY MUSIC, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
No. 18857.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 14, 1965.
Decided April 8, 1965.
Mr. Marcus Cohn, Washington, D. C., with whom Messrs. Paul Dobin and Stanley S. Neustadt, Washington, D. C., were on the brief, for appellant.
Mr. John Conlin, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, Gen. Counsel, and Daniel R. Ohlbaum, Deputy Gen. Counsel, Federal Communications Commission, were on the brief, for appellee.
Mr. Howard Jay Braun, Counsel, Federal Communications Commission, also entered an appearance for appellee.
Before Bazelon, Chief Judge, and Fahy and Weight, Circuit Judges.
BAZELON, Chief Judge:
The Federal Communications Commission refused to renew appellant’s license to operate WGMA, a standard radio broadcast station in Hollywood, Florida. Appellant’s only shareholders, Daniel En-right and Jack Barry, produced television quiz shows prior to 1960 in which some contestants were secretly given assistance in answering questions. The hearing examiner stated that Enright and Barry
“have engaged in activities relating to television quiz programs which are censurable and [which] * * * reflect adversely upon their character qualifications to be a licensee of a radio station. However * * * such activities do not constitute an absolute disqualification. * *
The examiner found, as mitigating factors, that WGMA had provided “outstanding service,” and that Enright and Barry had violated no law or express Commission policy when they conducted the deceptive programs, though Congress has since amended the Communications Act to forbid such practices. The examiner further stated:
“[S] imple justice requires that Barry and Enright’s conduct be considered in the light of the then-existing circumstances. Certainly the networks which broadcast these then highly rated programs had both network and licensee responsibility, since the programs in question were broadcast over their own stations, as well as over those of their affiliates.
“From the evidence, it appears that, at least, the higher echelons of the networks were not aware of the use of such controls. It is, however, equally evident that there had been public exposés which would appear likely to alert persons with a desire to know the facts * * * and to cause real investigations to be made * * *. [A]s was pointed out to the vice president and general attorney of NBC by at least two members of the congressional committee [which investigated these practices in 1960], it was singular indeed that no suspicion had been aroused * *
On the basis of these findings, the examiner recommended license renewaL On April 15, 1964, the Commission reversed the examiner, because Enright and Barry “lack the requisite character qualification to be licensees” on the ground that their “prolonged deception practiced upon the television viewing public * * * is so patently and flagrantly contrary to the public interest as to warrant, without more, the denial of an application for renewal * * The Commission also found that Enright and Barry had attempted “to discourage and to frustrate” initial investigations by a New York City grand jury and by network officials.
Appellant petitioned the Commission to reconsider its decision and to consolidate oral argument with pending applications for renewal of operating licenses by the National Broadcasting Company, the network which carried, and for a time owned, the quiz shows produced by En-right and Barry. Alternatively appellant asked the Commission to vacate its decision and withhold further decisions until it had decided the NBC case.
It appears that before the Commission’s initial decision in the present case, the hearing examiner in the NBC case rendered his opinion, stating in pertinent part:
“NBC contends that it was duped, and that it acted promptly to protect the public interest as soon as it determined what was going on. * * * The manner in which NBC reacted when the revelations inescapably broke upon it shows how clearly it was recognized inside the company that the trickery of its quiz shows was on the wrong side of the line separating downright dishonesty from the permissible make-believe of show business. The record urges the judgment that so long as there was no danger of disclosure to threaten audience acceptance of the shows, NBC turned its back on the evidence that the quiz programs might be counterfeit, and acted finally only when it was compelled by the growing tide of public dissatisfaction and by the threat posed in the aroused interest of various public agencies. Clearly, any disposition to frame conduct not according to ordinary morality and public requirements but in response to business necessities, and which shuns misconduct only because of the risks in discovery, is a substantial discredit.”
The examiner concluded, however, that this discredit was counterbalanced by “the record of the network” in broadcasting, and that its role in the deceptive quiz shows thus did not disqualify it from holding broadcast licenses. On July 24, 1964, while the NBC proceedings were still pending, the Commission denied appellant’s request for reconsideration in conjunction with the NBC applications on the ground that “no useful purpose would be served.” One week later, on July 30, 1964, the Commission granted several license renewals to NBC without any mention of the network’s role in the deceptive quiz shows.
We think the Commission’s refusal at least to explain its différent treatment of appellant and NBC was error. Both were connected with the deceptive practices and their renewal applications were considered by the Commission at virtually the same time. Yet one was held disqualified and the other was not. Moreover, while in other cases the Commission found that criminal violations of antitrust laws were not sufficient character disqualifications to bar license renewals, in the present case it found noncriminal conduct sufficient. The Commission stated, “Obviously, misconduct of the nature here involved in the broadcast field is necessarily in a somewhat different category [from criminal antitrust violations] and, on the facts of this case, of a most serious consequence.” Without intimating any opinion as to whether any of the misconduct discussed here is “in a somewhat different category” from appellant’s, we think the differences are not so “obvious” as to remove the need for explanation. And whether there are differences may be a question of decisional importance.
Moreover, “the Commission has not explained its decision ‘with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences. * * * We must know what a decision means before the duty becomes ours to say whether it is right or wrong.’ ” Secretary of Agriculture v. United States, 347 U.S. 645, 654, 74 S.Ct. 826, 832, 98 L.Ed. 1015 (1954). We therefore remand this case for further proceedings. The Commission should reconsider appellant’s application in accordance with the purposes of this remand. Whatever action the Commission takes on remand, it must explain its reasons and do more than enumerate factual differences, if any, between appellant and the other cases; it must explain the. relevance of those differences to the purposes of the Federal Communications Act.
So ordered.
. Section 509, Federal Communications Act, 47 U.S.C. § 509 (Supp. V, 1964).
. In re Applications of Nat’l Broadcasting Co., Docket Nos. 13085, 14091-92, 14054-56, initial decision of Hearing Examiner, released Nov. 20, 1963.
. Following oral argument before this court, counsel for the Oommission submitted a memorandum stating that “no formal findings as to the network’s lack of knowledge or participation in the shows had been publicly made” by the Oommission.
. Any inconsistency here may not be explained as a ehange in policy or correction of a previously erroneous ruling since the cases were decided contemporaneously. Compare Federal Communications Comm’n v. WOKO, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946); Leedom v. International Brotherhood of Elec. Wkrs., 107 U.S.App.D.C. 357, 278 F.2d 237 (1960); Shawmut Ass’n v. Securities & Exchange Comm’n, 146 F.2d 791 (1st Cir. 1945); Feinstein & Co. v. United States, 317 F.2d 509 (2d Cir. 1963); Lanolin Plus Cosmetics v. Marzall, 90 U.S.App.D.C. 349, 196 F.2d 591 (1952).
. General Electric Company, 2 Pike & Fischer R.R.2d 1038 (1964); Westinghouse Broadcasting Co., 22 Pike & Fischer R.R. 1023 (1962).
. Compare Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Hornsby v. Allen, 326 F.2d 605, 330 F.2d 55 (5th Cir. 1964); Mary Carter Paint Co. v. Federal Trade Comm’n, 333 F.2d 654 (5th Cir. 1964).
. See Sunbeam Television Corp. v. Federal Communications Comm’n, 100 U.S.App.D.C. 82, 243 F.2d 26 (1957), where the case was remanded to the Commission because of its apparent failure to apply consistent standards in a comparative hearing for a broadcast license. See also Secretary of Agriculture v. United States, supra; Carter Mountain Transmission Corp. v. Federal Communications Comm’n, 116 U.S.App.D.C. 93, 321 F.2d 359 (1963).
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_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
Leslie Stilman WIGAND, Appellant, v. J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.
No. 6560.
United States Court of Appeals Tenth Circuit.
Dec. 23, 1960.
Roy Cook, Kansas City, Kan., for appellant.
James C. Waller, Jr., Major, JAGC, Office of Judge Advocate General, Washington, D. C., (Wilbur G. Leonard, U. S. Atty., Topeka, Kan., and Alden Lowell Doud, First Lieutenant, JAGC, Office of Judge Advocate General, Washington, D. C., with him on the brief), for appellee.
Before BRATTON, PICKETT and BREITENSTEIN, Circuit Judges.
PICKETT, Circuit Judge.
The petitioner, while on active duty with the United States Army in Germany, was tried and convicted in two courts-martial proceedings in each of which the crime of rape was charged, together with other offenses committed in connection with rape. The two sentences totaled 50 years, which the petitioner is now serving at the United States Penitentiary at Leavenworth, Kansas. The trials were reviewed as required by Article 66 of the Uniform Code of Military Justice, 10 U.S.C. § 866. In this habeas corpus proceeding it is contended that the failure to consolidate the charges for trial as provided for in Paragraph 30f of the Manual for Courts-Martial, United States, 1951, invalidates the second sentence, and that the prisoner is now entitled to his release. This is an appeal from a judgment of the District Court dismissing the petition and remanding the petitioner to the custody of the Warden.
Briefly, the facts are these. On July 22, 1953 the petitioner, with an unknown accomplice, assaulted and raped a German girl near the town of Oberbernbach, Germany. On the 23rd of August, 1953, the petitioner, with two other American soldiers, made a similar attack upon another German girl at Box-burg, Germany. On September 28, 1953, a general court-martial was convened at Goeppingen, Germany to try the petitioner and his confederates for the offense of August 23rd. Upon conviction each of the three defendants was sentenced to 20 years confinement at hard labor. On February 8, 1954 a general court-martial was convened at Augsburg, Germany to try the petitioner for the offenses of July 22nd. Upon conviction he was sentenced to be confined at hard labor for a term of 30 years. No contention is made that the petitioner was not represented by qualified counsel during the two trials or throughout the appellate proceedings which followed his convictions. Likewise, no contention is made that the military tribunals which tried the appellant were improperly constituted or lacked jurisdiction over the offenses charged. We find no merit in the claim that the failure to consolidate the trial of the two offenses violated any fundamental right of the petitioner which is subject to review by a civil court.
As a general rule, a review of a court-martial conviction in a civil court is limited to an inquiry as to whether the tribunal had jurisdiction over the person and the offense charged, and acted within its lawful powers. Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 ; In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636; Sutiles v. Davis, 10 Cir., 215 F.2d 760, certiorari denied 348 U.S. 903, 75 S.Ct. 228, 99 L.Ed. 709; Easley v. Hunter, 10 Cir., 209 F.2d 483. In Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508, it was said:
“In military habeas corpus cases, even more than in ^tate habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted. Congress has provided that these determinations are ‘final’ and ‘binding’ upon all courts. We have held before that this does not displace the civil courts’ jurisdiction over an application for habeas corpus from the military prisoner. Gusik v. Schilder, 340 U.S. 128 [71 S.Ct. 149, 95 L.Ed. 146] (1950) * * * (Footnote omitted.)
The Court was careful to point out that -the military courts have the same responsibility as the federal courts to protect an accused from a violation of his ■Constitutional rights. But when the military court has fairly dealt with the ■question involving Constitutional guarantees, the Court concluded that “it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.”
In the present case, the error •complained of is not one which affects fundamental rights of the petitioner. 'The consolidation suggested in Paragraph 30 f of the Manual for Courts-Martial is a procedural matter, and is qualified by Paragraph 33 l, which provides in -part that “offenses charged against different accused which are not closely related should not be tried in a common trial, notwithstanding the fact that some other offenses with which each accused is charged may be closely related.” Under Paragraph 33 l, the charges arising out of the first rape were not subject to consolidation in a common trial of the petitioner and his co-defendants for the charges arising out of the second rape. In this event, the same paragraph further provides that “the convening authority may exercise his discretion in determining the order in which such charges shall be tried.” An abuse of this discretion is subject to correction in the military courts, but the procedural question is not reviewable in a habeas corpus proceeding in the civil courts. Casey v. Taylor, 10 Cir., 281 F.2d 549. Furthermore, the record does not disclose that the question was presented to the military courts. It may not be raised for the first time in a habeas corpus proceeding Bennett v. Davis, 10 Cir., 267 F.2d 15; Thomas v. Davis, 10 Cir., 249 F.2d 232, certiorari denied 355 U.S. 927, 78 S.Ct. 385, 2 L.Ed.2d 358; Suttles v. Davis, supra.
Affirmed.
. Paragraph 30f, Manual for Courts-Martial, United States, 1951, provides: “f. Subject to jurisdictional limitations, charges against an accused, if tried at all, should be tried at a single trial by the lowest court that has power to adjudge an appropriate and adequate punishment. See 33h and 1.”
. Petitioner’s accomplice in this offense was never apprehended.
. In Easley v. Hunter, 10 Cir., 209 F.2d 483, 487, we said:
“The court held that from an examination of the record the questions presented in the habeas corpus action had been fully and fairly considered and decided by the reviewing authorities provided for in the procedure for courts-martial and could not be retried in the civil courts. In other words, as we understand the Burns decision, it does no more than hold that a military court must consider questions relating to the guarantees afforded an accused by the Constitution and when this is done, the civil courts will not review its action.”
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_casetyp1_1-3-2 | R | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
Charles PURCILLA and Timothy McLEAN, Appellants, v. William H. BANNAN, Warden, State Prison of Southern Michigan, Appellee.
No. 13541.
United States Court of Appeals Sixth Circuit.
Nov. 3. 1958.
Flach Douglas, Cincinnati, Ohio, for appellants.
Paul Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Mich., for appellee.
Before MARTIN and MILLER, Circuit Judges, and JONES, District Judge.
PER CURIAM.
This cause has been heard and considered on appeal by two convicts from the denial of a petition for writ of habeas corpus filed by them.
Having duly considered the briefs and oral arguments and the record in the cause, conclusion has been reached that the dismissal of the petition for writ of habeas corpus by the district court was correct, for the reasons stated by United States District Judge Thornton in his carefully prepared and detailed opinion.
The judgment of the district court is affirmed.
Question: What is the specific issue in the case within the general category of "criminal - state offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other state crimes
R. state offense, but specific crime not ascertained
Answer: |
songer_bank_r1 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
The UNIVERSITY OF MARYLAND AT BALTIMORE; Andrew R. Burgess, M.D.; Sea Quest Inc., for themselves and all others similarly situated; The School Board of Palm Beach County, Florida, for themselves and all others similarly situated v. PEAT, MARWICK, MAIN & COMPANY Constance B. Foster, Insurance Commissioner of the Commonwealth of Pennsylvania, as Rehabilitator of The Mutual Fire, Marine and Inland Insurance Company, Intervenor (in District Court), The University of Maryland at Baltimore; Andrew R. Burgess, M.D.; Sea Quest, Inc.; and The School Board of Palm Beach County, Florida; and Richard A. Brown, Esq.; and Spiegel & McDiarmid *, Appellants.
No. 91-1889.
United States Court of Appeals, Third Circuit.
Argued May 4, 1992.
Decided June 22, 1993.
John W. Frazier, IV (argued), John E. Caruso, Richard G. Placey, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, Leonard P. Novello, Claudia L. Taft, Frances J. DiSarro, KPMG Peat Marwick, New York' City, for appellee.
Susan H. Malone, Richard DiSalle, Roger Curran (argued), Rose, Schmidt, Hasley & DiSalle, Pittsburgh, PA, James S. Gkonos, Mut. Fire, Marine & Inland Ins. Co., Philadelphia, PA, for intervenor.
Jeffrey R. Babbin, Richard A. Brown, Spencer L.. Kimball, Spiegel & McDiarmid, Washington, DC, Robert S. Kitchenoff, David H. Weinstein (argued), Harold E. Kohn, Kohn, Klein, Nast & Graf, Philadelphia, PA, for appellants.
Before: BECKER, SCIRICA and NYGAARD, Circuit Judges.
Pursuant to F.R.A.P. 12(a).
This case was originally argued before the panel of Judges Becker, Nygaard and Higginbotham on May 4, 1992, and the panel was reconstituted to the panel of Judges Becker, Scirica and Nygaard \ since Judge Higginbotham retired after the alf,'; gued date. \
OPINION OF THE COURT
NYGAARD, Circuit Judge.
When Mutual Fire, Marine & Inland Insurance Company went into statutory rehabilitation, it triggered various insolvency proceedings and- suits in state and federal courts, and satellite litigation concerning the conduct of some attorneys in the proceedings. The Commonwealth Court of Pennsylvania dealt primarily with Mutual Fire’s insolvency. While that was progressing, four individually named plaintiffs filed a class action in federal district court against Peat, Marwick, Main & Company, alleging that Peat Marwick performed materially deficient audits of Mutual Fire. The plaintiffs pleaded various causes of action based on state law and a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.
The attorneys who instituted this action, Richard Brown and his law firm Spiegel & McDiarmid (the plaintiffs’ attorneys), had participated in Mutual Fire’s rehabilitation proceedings. Since they were bound by various supervisory and confidentiality orders issued by the Commonweálth Court in the insolvency proceedings, and since they may have violated these orders by filing this action, the Insurance Commissioner of Pennsylvania, acting in her capacity as Mutual Fire’s statutory receiver, brought state contempt proceedings against them.
After we revei'sed the district court’s decision to abstain under the Burford abstention doctrine, the district court denied the plaintiffs’ motion for Rule 11 sanctions and their attorneys’ motion for injunctive relief against the state contempt proceedings. It then granted Peat Marwick’s motion to dismiss the complaint for failure to state a claim. The plaintiffs and their attorneys appeal. We will reverse that portion of the district court’s order dismissing the state claims with prejudice and affirm the balance.
I.
In 1986, the Commonwealth Court ordered Mutual Fire into rehabilitation and appointed the Insurance Commissioner as statutory receiver. The rehabilitation order prohibited any actions against Mutual Fire or its property in any court in Pennsylvania.
At the request of five corporate policyholders, two of whom were represented by Attor- ^' ney Brown, the Commonwealth Court estab- ,; lished a Committee of Policyholders and au- y thorized the Committee’s costs, including at-, 1 torney’s fees, to be charged to Mutual Fire’s;! estate. The court later issued a supervisory ¡ order declaring its exclusive jurisdiction “to , j hear and determine all disputes concerning claims and the collection of assets of Mutual ■' Fire.” It also issued a confidentiality order ’ requiring all information submitted by Peat .Marwick to “be used solely for purposes of the Mutual Fire rehabilitation and/or liqui- ' dation proceedings.” Attorney Brown was bound by this order. .
Attorney Brown and the accounting firm of •; Price Waterhouse, whom he had hired as a consultant, investigated the claims against^ Peat Marwick. He and Price Waterhouse,' submitted bills in excess of $2 million to ■ Mutual Fire’s estate. The Commonwealth'' Court eventually dissolved the Committee, concluding that its costs to the Mutual Fire’s estate could no longer be justified. Grode v. Mutual Fire, Marine & Inland Ins. Co., 132 Pa.Cmwlth. 196, 572 A.2d 798, 810-11 (1990).
In 1988, the Insurance Commissioner, Constance Foster, filed a Praecipe for Writ of Summons against Peat Marwick in connection with its audits of Mutual-Fire’s books. She selected the law firm of Rose, Schmidt, Hasley & DiSalle to prosecute the action. Rose Schmidt filed a complaint with the Commonwealth Court, alleging that Peat Marwick improperly reported Mutual Fire’s financial conditions for several years and estimating shareholders’ damages to be over $350 million.
In 1989, without notice to the Commonwealth Court or the Commissioner, the plaintiffs’ attorneys filed this class action against Peat Marwick on behalf of the University of Maryland at Baltimore, Andrew Burgess, M.D., Sea Quest, Inc., and the School Board of Palm Beach County, who collectively sought to represent some 20,000 Mutual Fire policyholders. The plaintiffs alleged that Peat Marwick performed materially deficient, false and misleading financial audits of Mutual Fire and without reasonable basis certified Mutual Fire’s financial statements. Those statements represented that Mutual Fire was adequately financed when it was not. The Commissioner filed a similar suit in the Commonwealth Court against Peat Marwick on behalf of, among others, Mutual Fire and its policyholders for breach of contract, negligence, malpractice, and misrepresentation. The plaintiffs then amended their complaint to allege negligence per se, fraud, negligent misrepresentation, negligence, actions in concert, and a violation of RICO.
The Commissioner simultaneously sought leave to intervene in the district court, and filed a petition in the Commonwealth Court for a rule upon plaintiffs’ attorneys to show cause why they should not be held in contempt for filing this federal suit, which she contended violated the supervisory and confidentiality orders of the Commonwealth Court.
After the district court allowed the Commissioner to intervene, there was a flurry of motions for various forms of relief. The Commissioner moved to dismiss the action based on a purported conflict between the federal and state proceedings. Peat Mar-wick moved to dismiss the amended complaint on the basis of, among other things, $the statute of limitations and failure to state '’;,a' claim. The plaintiffs’ attorneys moved to enjoin the state contempt proceedings against them.
The district court granted the Commissioner’s motion to dismiss based on the Bur-ford abstention doctrine and denied the plaintiffs’ attorneys’ motion for an injunction as moot. University of Maryland v. Peat, Marwick, Main & Co., 736 F.Supp. 643 (E.D.Pa.1990). It did not rule on Peat Mar-wick’s motion to dismiss. On appeal, we ruled that the Burford abstention doctrine did not apply. We vacated the district court’s abstention order and remanded the case. University of Maryland v. Peat, Marwick, Main & Co., 923 F.2d 265 (3d Cir.1991).
On remand, Peat Marwick and the Commissioner, through Richard DiSalle of Rose Schmidt, again moved to dismiss, and the plaintiffs again moved to enjoin the state contempt proceedings. The plaintiffs also moved for Rule 11 sanctions against Attorney DiSalle on the basis that we had in the first appeal considered and rejected the merits of the Commissioner’s renewed motion to dismiss.
The district court denied the Commissioner’s motion to dismiss. It also denied the plaintiffs’ motion for sanctions and the plaintiffs’ attorneys’ motion for an injunction, believing that the pleadings “bear a closer resemblance to a retaliatory strike against Brown’s assorted foes than a serious motion for relief.” It granted Peat Marwick’s motion to dismiss because it opined that the RICO and state law claims were time-barred. Alternatively, it reasoned that the negligence claim was too attenuated to make out the necessary causation and reliance and that the RICO claim failed to allege a pattern of racketeering activity.
II.
Whether the district court properly-dismissed the plaintiffs’ amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a RICO claim is subject to plenary review, and we apply the same standard as the district court. Sames v. Gable, 732 F.2d 49, 51 (3rd Cir.1984). We construe the complaint liberally and take all material allegations as admitted. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). All reasonable inferences are drawn in favor of the plaintiffs. Sturm v. Clark, 835 F.2d 1009, 1011 (3rd Cir.1987). We will not affirm the dismissal unless the plaintiffs could prove no set of facts that would entitle them to relief. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3rd Cir.1984).
The essential facts pleaded are the following. Peat Marwick was Mutual Fire’s independent auditor, and it issued unqualified auditor’s opinions on Mutual Fire’s financial statements for the fiscal years ending December 31, 1979-84. The last opinion was issued before June 30, 1985. These opinions informed the public that Peat Marwick had a reasonable basis for concluding that Mutual Fire’s financial statements were accurate and that Mutual Fire was well-financed. In fact, the financial statements were false and misleading; liabilities were more and assets were less than reported. Peat Marwick ignored numerous signs of Mutual Fire’s precarious financial condition and had no reasonable basis to issue the unqualified opinions. The policyholders directly and indirectly, through their brokers and agents, chose Mutual Fire because they relied “substantially” on a “B + ” rating from A.M. Best Company, the leading insurance rating company. Best relied “primarily” on Mutual Fire’s financial statements, and Mutual Fire in turn depended heavily on a favorable rating from Best. On June 18, 1985, Best assigned Mutual Fire a “no rating.” In June 1986, Mutual Fire stopped paying claims, and in December of that year it was placed in rehabilitation.
Based on these allegations, the plaintiffs try to make out a RICO violation. Section 1962(c) makes it 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.” Although a plaintiff must successfully plead many elements to bring a civil RICO claim, for the pur-poses of this appeal we need only consider whether Peat Marwick “participated” in the affairs of Mutual Fire, the alleged RICO enterprise.
We believe that Reves v. Ernst & Young, — U.S. -, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), is dispositive. Ernst & Young engaged in activities related to the valuation of a gasohol plant on the yearly audits and financial statements of a farming cooperative. Because the firm concluded for accounting-purposes that the co-op owned the gasohol plant from the beginning of construction rather than having purchased it later, the assets of the co-op were inflated. Although the solvency of the co-op depended on this conclusion, the firm did not tell the co-op’s board of directors of its conclusion or that without that conclusion the co-op was insolvent. The co-op as a result went bankrupt, and the trustees sued the accounting firm. The Court of Appeals for the Eighth Circuit summarized the accounting firm’s involvement with the co-op as “limited to the audits, meetings with the Board of Directors to explain the audits, and presentations at the annual meetings.” Arthur Young & Co. v. Reves, 937 F.2d 1310, 1324 (8th Cir.1991).
The Supreme Court addressed the validity of the Eighth Circuit’s “operation or management” test of participation in the affairs of an enterprise. Although RICO liability does not inure simply to those with primary responsibility for the enterprise’s affairs, just as it is not limited to those with formal positions in or those in the upper echelon of an enterprise’s management, the Court concluded that “to conduct or participate” in the affairs of a RICO enterprise one must, in some capacity, direct the affairs of the enterprise. — U.S. at-, 113 S.Ct. at 1170. It endorsed the “operation or management” test as sufficiently expressing the element of direction in an easy-to-apply formula. Id. Under this test, not even action involving-some degree of decisionmaking constitutes participation in the affairs of an enterprise. The accounting firm in Reven made a critical, erroneous decision that affected on the solvency of the co-op and did not tell the board of directors about it, thus prompting the dissent to characterize the firm as “functioning as the Co-op’s de facto chief financial officer.” Id. at-, 113 S.Ct. at 1177 (Souter, J., dissenting). Yet, even this decision-making did not rise to the level of directing an enterprise.
The plaintiffs first contend that the Revea test applies only in a summary judgment context because it dealt with “the quantum of proof necessary to find that an auditor actually participated in the conduct of its client’s affairs.” We disagree. The Revea Court nowhere suggested that the “operation or management” test is limited to the summary judgment context. In fact, the Court of Appeals for the Eighth Circuit first announced that legal standard in a motion to dismiss. See Bennett v. Berg, 710 F.2d 1361 (8th Cir.1983) (en banc). Other courts have applied various legal standards for participation and have dismissed complaints for failure to satisfy those standards. See, e.g., Blake v. Dierdorff, 856 F.2d 1365, 1371 (9th Cir.1988); Occupational Urgent Care Health Sys., Inc. v. Sutro & Co., Inc., 711 F.Supp. 1016, 1026-27 (E.D.Ca.1989); Plains/Anadarko-P Ltd. Partnership v. Coopers & Lybrand, 658 F.Supp. 238, 240 (S.D.N.Y.1987). We see no reason why we should not apply the Reves test on a motion to dismiss.
The plaintiffs primarily contend that they have sufficiently alleged that Peat Mar-wick participated in the affairs of Mutual Fire. They aver the following to show the relationship between Peat Marwick and Mutual Fire: (1) Peat Marwick performed deficient audits and issued unqualified auditor’s opinions; (2) Peat Marwick personnel attended a number of meetings of Mutual Fire’s board of directors; and (3) Peat Marwick performed other accounting and consulting-services from time to time, including services related to the computerization of certain accounting functions, to the purchase of an interest in a building occupied by Mutual Fire, and to the valuation and sale of a Mutual Fire reinsurance subsidiary. The Reves Court made clear that merely performing financial services and attending board meetings do not show that Peat Mar-wick was participating in the affairs of the enterprise.
The plaintiffs contend, however, that the additional services provided by Peat Marwick, such as computerization of accounting services and financial services in connection with the purchase of real estate and sale of a business, push its conduct over the threshold to participation in the affairs of an enterprise. We disagree. These services, like the audits, were merely financial services provided for Mutual Fire, just as lawyers or computer technicians may have provided valuable, indispensable services. Simply because one provides goods or services that ultimately benefit the enterprise does not mean that one becomes liable under RICO as a result. There must be a nexus between the person and the conduct in the affairs of an enterprise. The operation or management test goes to that nexus. In other words, the person must knowingly engage in “directing the enterprise’s affairs” through a pattern of racketeering activity. Reves, — U.S. at -, 113 S.Ct. at 1170 (emphasis added).
The plaintiffs have nowhere averred that Peat Marwick had any part in operating or managing the affairs of Mutual Fire. Although they make much ado about how important and indispensable Peat Marwick’s services were to Mutual Fire, the same can be said of many who are connected with Mutual Fire. Similar to the allegation against the accounting firm in Reves, the plaintiffs’ amended complaint, when distilled to its essence, is nothing more than an allegation that Peat Marwick performed materially deficient financial services. It cannot be said that by merely performing what are generic financial and related services to an insurance company, even if they are later found to be deficient, an accounting firm has opened itself to liability under the federal racketeering statute. The district court did not err in dismissing the RICO count.
It is clear that the plaintiffs never pleaded a substantial RICO claim, which was the only claim that conferred federal question jurisdiction. Thus, the district court erred when it dismissed the plaintiffs’ state law claims as time-barred. “Since there was no substantial federal claim to which the state claims could be appended, the primary justification for the exercise of pendent jurisdiction was absent.” fully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir.1976).
III.
We now consider whether it erred by denying the plaintiffs’ attorneys injunctive relief from the state contempt proceedings. When the plaintiffs’ attorneys filed this action in federal court, the Commissioner brought contempt proceeding in the Commonwealth Court against them on the theory that they, in their capacity as the attorneys for the Committee in the state insolvency proceedings, had violated confidentiality and supervisory orders of that court. The plaintiffs’ attorneys contend that the district court erred by refusing to enjoin the state contempt proceedings because the proceedings inhibit the plaintiffs from prosecuting their action in federal court. We review the district court’s denial of injunction for an abuse of discretion. Hohe v. Casey, 868 F.2d 69, 70 (3rd Cir.1989); Klitzman, Klitzman & Gallagher v. Knit, 744 F.2d 955, 958 (3rd Cir.1984).
The Anti-Injunction Act prohibits federal courts from enjoining state court proceedings unless authorized by Congress or where necessary to protect its jurisdiction or effectuate its judgments. 28 U.S.C. § 2283. The plaintiffs’ attorneys rely primarily on Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), to assert that an injunction is necessary to preserve the district court’s jurisdiction over this action. In Donovan, the plaintiffs were dissatisfied with the results of a suit brought in state court and filed another action in federal district court. After some procedural maneuvers which are irrelevant here, the state court granted a writ of prohibition to bar the plaintiffs from prosecuting their case in federal court. The Supreme Court articulated a general rule, with exceptions for in rem and quasi in rem proceedings, that state and federal courts should not interfere with each other’s proceedings. 377 U.S. at 412, 84 S.Ct. at 1582. It then held that when Congress grants a right to bring a claim in federal court, a state court cannot take that right away by restraining a federal in personam action. Id.
Significantly, in Donovan, the plaintiffs were being barred from prosecuting their case in federal court. Here, however, the state contempt proceedings are not directed at the litigants, but only at their attorneys. The district court’s jurisdiction is not implicated here because nothing prevents the plaintiffs from prosecuting their case against Peat Marwick. The attorneys run for cover behind a shield meant only to protect their .clients’ access to federal courts and the district court’s authority to adjudicate this action.
Also, the state contempt proceedings were brought against the attorneys not in their capacity as attorneys for the federal litigants, but in their capacity as the attorneys for the Committee of the Policyholders in the state rehabilitation proceedings. The attorneys were bound by the Commonwealth Court’s confidentiality and supervisory orders. Principles of federal-state comity require that we not interfere with legitimate state contempt and disciplinary proceedings. Otherwise, attorneys finding themselves in a predicament because they violated state court orders might avoid disciplinary action by filing a federal suit.
The basic requirements for injunctive relief are a showing of the likelihood of success on the merits and a probability of irreparable harm if an injunction is not issued. Hoxworth v. Blinder Robinson & Co., 903 F.2d 186, 197 (3rd Cir.1990). The district court observed that this “motion in effect would have this court issue an order telling-judge Crumlish [of the , Commonwealth Court] that plaintiffs [attorneys] did not violate an order issued by him.” It wisely refused to do this. Federal courts are neither the proper forum for attorneys to air their grievances or objections to contempt proceedings brought against them in a state court, nor are we a safety net into which attorneys who find themselves in a predicament with a state court can simply jump. The district court properly denied injunctive relief. See Machesky v. Bizzell, 414 F.2d 283, 286 (5th Cir.1969) (district court did not abuse its discretion by denying injunctive relief against state criminal contempt proceedings).
IV.
We will reverse the district court’s order with respect to the dismissal of the state claims and remand with instructions to dismiss them without prejudice. We will affirm the balance of the district court’s order, including the order denying sanctions.
. This is made manifest by the remedies sought: disgorgement of about $1.5 million in fees paid to the plaintiff attorneys from Mutual Fire's estate before the filing of this action, revocation of Attorney Brown’s pro hue vice admission to the Commonwcalth Court, discontinuation of payment of fees and expenses to the Committee, an order to return ah copies of papers and files produced, and any other relief and sanctions the Commonwealth Court finds appropriate.
Question: Is the first listed respondent bankrupt?
A. Yes
B. No
Answer: |
songer_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Leemunth Peter JOHN, Defendant-Appellant.
No. 90-5052.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 11, 1991.
Decided June 4, 1991.
William Dupree Spence, Kinston, N.C., for defendant-appellant.
John Stuart Bruce, First Asst. U.S. Atty., argued (Margaret Person Currin, U.S. Atty., on brief), Raleigh, N.C., for plaintiff-appellee.
Before RUSSELL, HALL, and WILKINSON, Circuit Judges.
WILKINSON, Circuit Judge:
This case involves the question of whether and by what means a defendant’s sentence may be enhanced under the United States Sentencing Guidelines due to that defendant’s conduct during the course of an arrest. Because we are unable to assess on this record whether such an adjustment would be warranted in appellant’s case, we remand for further findings.
I.
Leemunth Peter John pled guilty to one count of possession with intent to distribute cocaine base (21 U.S.C. § 841(a)(1)) and one count of use of a firearm in a drug trafficking crime (18 U.S.C. § 924(c)(1)).
At the sentencing hearing on May 3, 1990, Detective David Best and appellant John testified as to the events of August 17, 1989, the evening John was arrested. Best testified that he saw a gold colored Chrysler with no rear lights weaving from side to side as it proceeded down Dixon Avenue in Greenville, North Carolina. Unable to find back-up, Best stopped the Chrysler, approached the driver — John— and asked him for his driver’s license. When John responded that he did not have a driver’s license, Best told him to keep his hands on the dash where they could be seen. Best testified that, at that time, John’s left hand was on the steering wheel and his right hand was down beside his right leg.
According to his testimony, Best then pointed his flashlight into the car. At that point, he saw appellant’s right shoulder move. Shining the flashlight on appellant’s right leg, Best saw about two inches of the barrel of a gun resting between appellant’s index and middle fingers. Best testified that he believed that John was going to use the gun.
In response, Best went for his gun. Unable to get it out of his ankle holster, Best dropped his flashlight and lunged through the open car window. Best managed to get the car door open and, trying to fight John off, grabbed John’s right hand. Best’s partner, who had been sitting in the squad car guarding two suspects, saw what was happening and came to help.
According to Best’s testimony, the two officers pulled the resisting John out and “fought him all the way down the side of the car.” A third officer pulled up in a second squad car and came to assist. Together, the three officers wrestled John and succeeded in handcuffing him.
One of the officers searched John and the passenger area of the car. The presen-tence report detailed the items found which included approximately 5.9 grams of crack cocaine, an undetermined amount of marijuana and a fully loaded Excam caliber .380 pistol.
Appellant John’s testimony as to the events of the evening of August 17, 1989 differed from Best’s in several respects. According to John, after Best approached his car, he started to turn the car off. Best asked him what he was doing. When John explained, Best told him to leave the car alone and John agreed. John testified that Best then asked him to step out of the car and that he complied. Best searched John and then asked John to let him cuff him.
John testified that he put his arms behind his back but that Best tried to cuff them in a painful position. John asked Best to cuff them differently; Best argued that he could cuff them the way he wanted. John testified that, at that point, several other officers approached and all of them started wrestling him. The officers searched him again and then started roughing him up. John testified that he did not resist arrest.
At the conclusion of the evidentiary hearing, the district court granted the government’s request for a two level increase for obstruction of justice, noting that “there was a struggle beyond the norm in this case.” The court then determined that the Guideline range for the possession count was sixty-three to seventy-eight months and that the firearm count carried a mandatory term of sixty months.
Judgment was entered and John was sentenced to seventy-eight months imprisonment for the possession count and sixty months for the firearm count, the terms to run consecutively for a total of 138 months. The district court added a special directive that, after serving his sentence, the defendant be released to the custody of United States immigration authorities with the request of the court that John be deported immediately. In addition, the court directed that John be on supervised release as long as he remained in this country.
This appeal followed.
II.
John contends that his conduct cannot serve as the basis for an enhancement under the relevant obstruction of justice provision. The provision of the Sentencing Guidelines applicable to John’s case reads as follows:
§ 3C1.1 Willfully Obstructing or Impeding Proceedings
If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase offense level by 2 levels.
United States Sentencing Commission, Guidelines Manual, § 3C1.1 (Nov. 1989).
In statutory interpretation, “the starting point is the language of the statute.” Dole v. United Steelworkers of America, 494 U.S. 26, 110 S.Ct. 929, 934, 108 L.Ed.2d 23 (1990) (quoting Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 5, 105 S.Ct. 2458, 2461, 86 L.Ed.2d 1 (1985)). The plain language of § 3C1.1 encompasses administration of justice in the broadest sense— from the beginning of the criminal justice process through all aspects of prosecution. Willful interference with police activity can operate as an obstruction of justice in certain circumstances. Police officers are intimately involved in the “investigation” and “prosecution” of the offense, including the arrest of suspects. If the police were threatened during a criminal investigation, § 3C1.1 would clearly apply. Similarly, a defendant’s conduct that endangers an officer during arrest is conduct that “impeded or obstructed ... the administration of justice during the investigation or prosecution of the instant offense.” To hold that a defendant’s conduct during the course of an arrest could never constitute obstruction of justice would be to carve such conduct out of a provision whose inclusive language does not invite exception.
The cases interpreting the obstruction of justice provision support the view that extraordinary interference with or endangerment of law enforcement officials or bystanders can constitute obstruction of justice. See United States v. Paige, 923 F.2d 112, 114 (8th Cir.1991) (enhancement affirmed where suspect “endangered others’ lives and destroyed incriminating evidence” during high-speed flight from arrest); United States v. Castillo-Valencia, 917 F.2d 494, 502 (11th Cir.1990) (enhancement affirmed where defendant assisted in attempt to evade and to ram Coast Guard vessel with vessel carrying drugs); United States v. White, 903 F.2d 457, 462 (7th Cir.1990) (enhancement affirmed where defendant endangered law enforcement personnel and bystanders in course of high-speed flight from arrest); United States v. Tellez, 882 F.2d 141, 143 (5th Cir.1989) (enhancement affirmed where defendant attempted flight, endangering arresting officer and bystanders, and made vigorous efforts to resist arrest after his vehicle crashed); United States v. Franco-Torres, 869 F.2d 797, 800 (5th Cir.1989) (enhancement affirmed where defendant threw gun away to hide it and shot at agent who was both witness to crime and investigating officer). The dissenting opinion, by contrast, has pointed to no court that holds its view that the provision is inapplicable to flight or resistance to arrest “regardless of the danger posed.”
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
While the examples of conduct listed in the application notes to § 3C1.1 as a basis for applying the adjustment do not specifically include resistance to arrest, the non-inclusion of such conduct in the enumerated list is not dispositive. White, 903 F.2d at 461. The failure of the Sentencing Commission to include a particular type of conduct was not thought significant by the Seventh Circuit both because the application notes themselves provide that the list of examples is not meant to be exclusive and because “the drafters of the commentary to the Sentencing Guidelines recognized the obvious inability of any group drafting guidelines to encompass and list each and every example of obstruction of justice.” Id. Even in United States v. Stroud, 893 F.2d 504, 506 (2d Cir.1990), the case relied on most heavily by John, the court declined the defendant’s invitation to narrowly confine the obstruction provision in § 3C1.1 to attempts to corrupt the truth-finding process.
In sum, the obstruction of justice provision applicable in John’s case represented a broad residual and omnibus provision whose sweeping language permitted application to a variety of different circumstances. As the provision in effect at the time of John’s arrest, it was the logical provision for the district court to apply. As the Guidelines have undergone further refinements, however, certain forms of police-citizen contact have been removed from this general provision and made the basis for specific adjustments.
To take an initial example, § 3A1.2(b) (effective date November 1, 1989) provides for a three level increase if “during the course of the offense or immediate flight therefrom, the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury.” It is, of course, an elementary canon of statutory construction that the specific provision controls the general. Markair, Inc. v. Civil Aeronautics Bd., 744 F.2d 1383, 1385 (9th Cir.1984). Had this specific provision been in effect at the time of John’s arrest, the district judge would have been well advised to address its application to John’s conduct. However, as this revision only took effect between the time of John’s arrest and his sentencing, application of the two level enhancement under the older residual provision rather than the three level enhancement under the amended provision avoided any potential problem of an ex post facto application. See United States v. Morrow, 925 F.2d 779, 782-83 (4th Cir.1991).
To take a second example of removal of specific conduct from the omnibus provision, § 3C1.2 (effective date November 1, 1990) provides for a two level enhancement for reckless endangerment during flight. Those courts which had applied the earlier omnibus provision to endangerment during flight would now presumably apply the more specific § 3C1.2. The latest application notes to § 3C1.1 now reference § 3C1.2 as a particular species of obstructive conduct to which the two level adjustment will apply, and the Commission has noted that “reckless endangerment during flight is sufficiently different from other forms of obstructive conduct to warrant a separate enhancement.” U.S.S.G.App. C, note to amendment 347 (Nov. 1990). The Guidelines reveal, however, that the parent of § 3C1.2 was the earlier omnibus obstruction provision in § 3C1.1.
As the Sentencing Commission is embarked upon an enterprise whose continuous and evolving nature is apparent, detailing the development of specific concepts may be helpful. The above examples, however, would be of no avail in supporting an enhancement if the plain language of the applicable provision and a substantial body of caselaw interpreting it did not, at the time of John’s arrest, clearly support the adjustment. Here, the indicators all point to the fact that the district court properly applied the plain language of § 3C1.1 — at the time the only language relevant to John’s conduct — to address the appropriateness of a two level increase for forcible resistance to arrest.
III.
There remains the question of whether the findings of the district court are adequate to support a two level increase in this case.
An ordinary course of conduct during arrest would plainly not justify an enhancement under the obstruction of justice provision. Arrests by their very nature are often not amiable encounters and an unpleasant exchange of words, for example, between a suspect and an arresting officer provides no basis for an adjustment. Such conduct can appropriately be sanctioned, not by way of enhancement, but by the determination of the particular sentence within the otherwise applicable Guideline range. See, e.g., U.S.S.G. § 3CI.1, comment. (n. 4) (Nov. 1990). Extraordinary conduct, however, which endangers arresting officers or others, would support an adjustment because the very purpose of such adjustments is to take into account culpable conduct outside the norm. See U.S.S.G. § 3C1.1, comment, (n. 3(d)) (Nov. 1990).
For example, mere flight from an arresting officer would not, by itself, warrant an enhancement. See United States v. Hagan, 913 F.2d 1278, 1285 (7th Cir.1990) (enhancement not warranted where officers were never endangered by unarmed suspect who attempted flight on foot); United States v. Garcia, 909 F.2d 389, 392 (9th Cir.1990) (obstruction of justice does not include “the instinctive flight of a suspect who suddenly finds himself in the power of the police.”); Stroud, 893 F.2d at 506 (“mere flight from arrest, by itself, does not constitute obstruction”). The addition of § 3C1.2 providing for an enhancement for reckless endangerment during flight made the absence of an enhancement for ordinary flight explicit. The cases suggest that endangering others during flight or in the course of resisting arrest involves active, willful behavior; in contrast, mere flight or disagreeableness during an encounter involves more passive or instinctive conduct.
We now turn to the particular finding at issue. The entirety of the finding underlying the district court’s enhancement was that “there was a struggle beyond the norm in this case.” While it appears that the district court credited the testimony of Detective Best, its finding is insufficiently informative. We do not know, for example, why the struggle ensued or whether the district court credited the testimony of Best that John intended to use the gun that lay in his right hand. If the arrestee’s conduct endangered the personal safety of the police officer, an enhancement under § 3C1.1 was plainly warranted. The present finding, however, requires that we make what would be at best an educated guess as to endangerment. We, therefore, remand for the district court to make a factual finding to which we may accord due deference. See 18 U.S.C. § 3742(e).
IV.
For the foregoing reasons, the judgment of the district court is
REMANDED WITH DIRECTIONS.
. Since the time of John’s sentencing, § 3C1.1 has been made broader still. Effective November 1, 1990, the provision reads:
§ 3C1.1 Obstructing or Impeding the Administration of Justice
. In order for an adjustment under § 3C1.1 to be warranted, the defendant must also have acted "willfully." Most courts — at least implicitly — have found endangerment can be willful. We have no difficulty concluding that intending to use a gun on an officer is willful within the meaning of § 3C1.1.
. At the time of John's sentencing, the introductory note to the commentary to § 3C1.1 stated that ‘‘[t]his section provides a sentence enhancement for a defendant who engages in conduct calculated to mislead or deceive authorities or those involved in a judicial proceeding, or otherwise to willfully interfere with the disposition of criminal charges, in respect to the instant offense." This introductory paragraph was deleted as part of the November 1990 amendments.
We note that this explanatory statement cannot trump the plain language of the provision which it is intended to illuminate. In any case, the phrase "conduct calculated ... to willfully interfere with the disposition of criminal charges” can be interpreted to encompass all aspects of investigation and prosecution.
. § 3C1.2 Reckless Endangerment During Flight
If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.
. Finally, John argues that the district court acted improperly in giving him a sentence at the top of the applicable guideline range. We have no jurisdiction, however, to review a sentence which is within the correct guideline range. United States v. Porter, 909 F.2d 789, 794 (4th Cir.1990).
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_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".
PACKER PUB. CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 14678.
United States Court of Appeals, Eighth Circuit.
April 15, 1954.
Charles C. Shafer, Jr., Kansas City, Mo. (Lancie L. Watts, Kansas City, Mo., on the brief; Watts & Shafer, Kansas City, Mo., of counsel), for petitioner.
Harry Marselli, Sp. Asst, to Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before GARDNER, Chief Judge, and JOHNSEN and COLLET, Circuit Judges.
COLLET, Circuit Judge.
The Packer Publishing Company duly filed its excess profits tax returns for the years 1943, 1944 and 1945. In those returns it did not claim any adjustments under § 711(b) (1) (J) of the Internal Revenue Code, 26 U.S.C.A. § 711. In due time it made claims for refunds under § 711 for all three years. These claims were allowed in part by the Commissioner by stipulation. The taxpayer did not then nor does it now criticize the stipulated allowance. Thereafter, it filed claims for relief and refunds for each of the three years under § 722 of the Internal Revenue Code, 26 U.S.C.A. § 722. The Commissioner disallowed the claims under § 722.
Upon petition by the taxpayer to the Tax Court, that court allowed a portion of the claims by decision reported in Packer Publishing Co. v. Commissioner of Internal Revenue, 17 T.C. 882. The claims based on § 711 having been settled by stipulation between the taxpayer and the Commissioner, neither pleaded the basis for the stipulated allowance in the § 722 proceedings before the Tax Court. The exhibits filed in the Tax Court, made a part of the petition addressed to that court, showed, however, that an allowance had been made under § 711 and the calculations and computations in those exhibits were based upon that stipulated allowance. When the Tax Court granted relief under § 722 it directed that the Commissioner and the taxpayer undertake to make the computation of the amount of refund due and submit the result to the court. This pursuant to the Tax Court’s Rule 50. When the Commissioner and the taxpayer undertook to do so, the Commissioner took the position that the taxpayer could not be entitled to relief under both § 722 and § 711 and, since the court had directed relief under § 722, the Commissioner eliminated from consideration the relief theretofore granted by stipulation under § 711. The taxpayer contended that it was entitled to both. Each submitted to the court, under Rule 50, computations based upon its respective position. The dispute was heard by one judge of that court. The record shows that the judge concluded that the court was without jurisdiction to consider whether the taxpayer was entitled to any relief under § 711 in a proceeding for relief under § 722. This decision was made without inquiry into the basis' for the claimed relief under § 711. Judgment was entered for the taxpayer upon the computation submitted by the Commissioner. That computation was correct if relief under § 722 necessarily and automatically excluded any relief under § 711. If that premise is not correct, the taxpayer has been denied the relief granted by the Commissioner by stipulation without any opportunity to be heard thereon by the Tax Court.
Also presented to the Tax Court in the § 722 proceeding was a claim for adjustment in the event relief was granted under § 722. Briefly, that claim was based upon the fact that one of the taxpayer’s executives was paid upon a bonus agreement, the bonus to be a stipulated portion of net profits after taxes. If relief was granted under § 722, the taxes would be lower and the bonus greater. The claim was that the greater compensation to be paid the executive, in the event the bonus was automatically increased as a result of relief being granted under § 722, be treated as operating expense and the increase deducted from the taxable income of the corporate taxpayer. The Tax Court refused to consider this claim on the ground that it was without jurisdiction to grant such relief in a § 722 proceeding.
The Commissioner now seeks to sustain the Tax Court’s judgment upon the grounds that: (1) the Tax Court’s judgment is not reviewable and the Commissioner’s motion to dismiss on that ground should be sustained; (2) that if it is reviewable the judgment is correct, because in a § 722 proceeding the Tax Court’s jurisdiction is strictly limited to issues arising under § 722 alone; (3) that the taxpayer did not plead the grounds upon which it was claiming the relief theretofore administratively granted by stipulation under § 711 and hence such relief could not be considered in the § 722 proceeding; (4) that in its petition for review of the Tax Court’s judgment the taxpayer did not include in the errors assigned or points stated therein any reference to its claim to an increased deduction on account of the-increased bonus compensation in the nature of salary to its executive. A motion was addressed to this court, prior to docketing and submission of this cause, for leave to include this additional point for presentation to this court. At that time the motion was denied without prejudice to its renewal at the time of argument and submission. It has been renewed and is before us for determination with the case.
The Commissioner’s motion to dismiss is based upon § 732(c), which is as follows :
“(c) Finality of determination. If in the determination of the tax liability under this subchapter the determination of any question is necessary solely by reason of section 711(b) (1) (H), (I), (J), or (K), section 721, or section 722, the determination of such question shall not be reviewed or redetermined by any court or agency except the Board.” 26 U.S.C.A. § 732(c).
Broadly and generally stated, both § 722 and § 711 deal with determining the normal income base to be used for purposes of comparison with the income for the tax year in question in order to determine the excess profits for a given year which were earned in addition to the normal or base period earnings. This for the purpose of determining the tax for that year. The provision of § 722 under which the Tax Court granted relief is § 722(b) (4), reading as follows :
“(b) Taxpayers using average earnings method. The tax computed under this subchapter (without the benefit of this section) shall be considered to be excessive and discriminatory in the case of a taxpayer entitled to use the excess profits credit based on income pursuant to section 713, if its average base period net income is an inadequate standard of normal earnings because—
“(4) the taxpayer, either during or immediately prior to the base period, commenced business or changed the character of the business and the average base period net income does not reflect the normal operation for the entire base period of the business. If the business of the taxpayer did not reach, by the end of the base period, the earning level which it would have reached if the taxpayer had commenced business or made the change in the character of the business two years before it did so, it shall be deemed to have commenced the business or made the change at such earlier time. For the purposes of this subparagraph, the term ‘change in the character of the business’ includes a change in the operation or management of the business, a difference in the products or services furnished, a difference in the capacity for production or operation, a difference in the ratio of nonbor-rowed capital to total capital, and the acquisition before January 1, 1940, of all or part of the assets of a competitor, with the result that the competition of such competitor was eliminated or diminished. Any change in the capacity for production or operation of the business consummated during any taxable year ending after December 31, 1939, as a result of a course of action to which the taxpayer was committed prior to January 1, 1940, or any acquisition before May 31, 1941, from a competitor engaged in the dissemination of information through the public press, of substantially all the assets of such competitor employed in such business with the result that competition between the taxpayer and the competitor existing before January 1, 1940, was eliminated, shall be deemed to be a change on December 31, 1939, in the character of the business, or * *
Section 711(b) (1)(J), 26 U.S.C.A. § 711, under which relief was granted administratively by stipulation and later withdrawn by the Commissioner after the Tax Court had granted relief under § 722, is as follows:
“(b) Taxable years in base period.
“(1) General rule and adjustments. The excess profits net income for any taxable year subject to the Revenue Act of 1936 shall be the normal-tax net income, as defined in section 13(a) of such Act; and for any other taxable year beginning after December 31, 1937, and before January 1, 1940, shall be the special-class net income, as defined in section 14(a) of the applicable revenue law. In either case the following adjustments shall be made * * *_
“(J) Abnormal deductions. Under regulations prescribed by the Commissioner, with the approval of the Secretary, for the determination, for the purposes of this sub-paragraph, of the classification of deductions—
“(i) Deductions of any class shall not be allowed if deductions of such class were abnormal for the taxpayer, and
“(ii) If the class of deductions was normal for the taxpayer, but the deductions of such class were in excess of 125 per centum of the average amount of deductions of such class for the four previous taxable years, they shall be disallowed in an amount equal to such excess.” 26 U.S.C.A. § 711(b)(1) (J).
It is obvious, from the above quoted portions of § 722 and § 711 that the application of the formulae for determining normal or base period income is a complicated process. Reference to the remainder of both sections not quoted herein makes that fact more certain. It is safe to say from the proceedings in Congress incident to the enactment of § 732(c) and the language of the latter section, heretofore quoted, that the congressional intent and purpose was to provide that the application of the formulae set out in § 722 and § 711 (and § 721, not now directly involved) should be finally reviewed by the experts in that field, — the Tax Court. The Commissioner contends that such finality of review by the Tax Court extends not only to the ascertainment of whether the facts in a particular case warrant relief under those sections, but also to the legal construction of those sections for the purpose of determining whether relief granted under § 722 automatically precludes and is in lieu of any and all relief which is provided for by § 711. The cases of Colonial Amusement Co. v. Commissioner, 3 Cir., 173 F.2d 568; Colorado Milling & Elevator Co. v. Commissioner, 10 Cir., 205 F.2d 551; George Kemp Real Estate Co. v. Commissioner, 2 Cir., 182 F.2d 847; James F. Waters, Inc., v. Commissioner, 9 Cir., 160 F.2d 596, are cited iñ support of that position.
An examination of these authorities discloses that neither of them holds thát a review of the question presented here is barred by § 732(c). In each of those cases the question determined by the Tax Court was whether, under the facts, relief under § 721, § 722, or § 711 was appropriate. It is true that in the Kemp case the court stated that the language of § 732(c) “forbids any judicial review, whether of fact or law.” [182 F.2d 849.] But that statement was made in answer to á contention that § 732(c) should-not be construed to forbid appellate review of questions of law when there were no disputed questions of fact. That presented an entirely different situation from that which is before us. There the facts were before the Tax Court. They were considered and the formulae of § 721 and § 722 were applied by that court with the result that it was determined the facts justified no relief under the law. Here the Tax Court declined to consider whether relief was appropriate under § 711, not because the facts did not justify relief, but because that court concluded the proper judicial construction of § 722 and § 711 must result in a holding that the granting of any relief under § 722 automatically precluded any consideration of relief under § 711, and hence no consideration could be given a claim for relief under § 711 in a § 722 case. That decision involved solely the judicial construction of the statute. It did not involve to any extent the determination of whether the formula of the statute, applied to the facts by the experts, justified or did not justify relief. The facts were not before the court and the taxpayer was prevented from presenting them by the court’s construction of the statutes. Such a decision of the Tax Court is not within the purview of the prohibition of § 732(c). Cf. Dowd-Feder, Inc., v. Commissioner, 6 Cir., 173 F.2d 673; Stimson Mill Co. v. Commissioner, 9 Cir., 163 F.2d 269.
We are not confronted with the necessity of determining the propriety of a denial of relief by the Tax Court under § 711 upon the ground that such relief, if any was merited, was included in the relief given under the broad scope of § 722, or upon any other ground involving the merits or the facts upon which a claim under § 711 is based. As we have undertaken to make clear, our problem is to determine whether the Tax Court was precluded by § 722 and § 711 from entertaining jurisdiction of the merits of the claim made and granted by stipulation under § 711 in a proceeding instituted under § 722.
Granting that both sections are relief provisions and are to be strictly construed to the end that the relief intended should not be extended beyond the clear intent of the law as written, yet such construction should not be unreasonable or arbitrary.
In Mutual Lumber Co. v. Commissioner, 16 T.C. 370, the Tax Court held (with three judges dissenting) that in a case arising under § 722 it had no jurisdiction to consider an issue other than one arising under § 722. In H. Fendrich, Inc., v. Commissioner, a similar ruling was made. The latter case was reversed in H. Fendrich, Inc., v. Commissioner, 7 Cir., 192 F.2d 916, decided November 16, 1951. In the case of City Machine & Tool Company v. Commissioner, 6 Cir., 194 F.2d 535, decided February 22, 1952, the Tax Court had followed the rule it announced in Mutual Lumber Co. v. Commissioner and H. Fendrich, Inc., v. Commissioner. The Commissioner confessed error and the Court of Appeals (6 Cir.) reversed, following H. Fendrich, Inc., v. Commissioner (7 Cir.).
In the case of Jefferson Amusement Co. v. Commissioner, 18 T.C. 44, decided April 9, 1952, and East Texas Theatres v. Commissioner, 19 T.C. 615, decided December 31, 1952, the Tax Court followed the decisions of the Courts of Appeals for the Sixth and Seventh Circuits in the City Machine & Tool Company and the Fendrich cases.
The hearing on the merits of the claim under § 722 was held in November, 1950. The record appears to have been closed April 9, 1951. Although the findings and opinion were not filed until November, 1951, apparently that opinion was rendered before the decision of the Fendrich case, November 16, 1951. When the hearing was held in March, 1952, by the trial judge, on the dispute arising at the conference of the parties under Rule 50, the hearing judge considered the Fendrich case but concluded that the Mutual Lumber case, supra, was the law of this case, the opinion of the Tax Court in the § 722 case having been theretofore filed. Whether the trial judge should have reached that conclusion is of no present importance, for we must now determine the correctness of the judgment of the Tax Court and the decision reached in the Fendrich and City Machine & Tool Company cases, supra, by the Courts of Appeals for the Sixth and Seventh Circuits. We find no fault with those cases. The principle decided in both is correct and controlling here. In both of them those courts reached the conclusion that the Tax Court had jurisdiction to consider issues arising under other parts of the Internal Revenue Code in a proceeding arising under § 722.
The argument is made by the Commissioner that the facts showing the grounds upon which relief was sought (and which had been granted by stipulation) under § 711 should have been pleaded by the taxpayer in its petition to the Tax Court for relief under § 722, and not being pleaded, no relief could be granted under § 711. The taxpayer contends that since the relief under § 711 had been granted by the Commissioner and was no longer in dispute, if the Commissioner considered that relief a bar to or a duplication of the relief sought in the petition for § 722 relief, that fact should have been pleaded as an affirmative defense by the Commissioner and that not having been done, any such defense is now waived.
We are not impressed with the value or desirability of making hard and fast pronouncements concerning procedural practices which experience has taught and formal rules of procedure contemplate should be left sufficiently elastic to enable trial courts to exercise a large degree of discretion in the administration of substantial justice. Formal rules of procedure are necessary and desirable in order that litigants may have an authoritative guide in a proper course to be safely followed to obtain a determination of the merits of their controversy. They should not be made the means of entrapping a litigant, whereby he loses his opportunity to present his cause on its merits. The Tax Court did not do this. It did not reach the question. Since the cause must be remanded, it is sufficient for present purposes to observe that if the formal pleading of additional facts be deemed necessary by the Tax Court for the clarification and presentation of this issue, leave should be granted to make appropriate amendment to the pleadings.
From what has already been said it must follow that the taxpayer’s motion for leave to include in the errors assigned the point that the Tax Court had jurisdiction to pass upon the claim for an increased deduction on account of an increase in the compensation of the taxpayer’s executive should be granted. It is granted. We agree with the statement of the Senate Finance Committee and the Court of Appeals for the Seventh Circuit in II. Fendrich, Inc., v. Commissioner, 192 F.2d 916, 920, that:
“ '* * * it is essential that all such issues be decided by one group familiar with the problems involved. Only by this method can a consistent and uniform application of the principles established be assured in all cases. At the same time there is provided [by the statute] flexible machinery to coordinate cases involving both relief and abnormality issues as well as other questions.’ ”
The petitioning taxpayer requests that we direct the entry of a judgment allowing the relief claimed under § 711. A consideration of the merits of that claim and the facts upon which it is based, in the light of the relief granted under § 722, is essential to a determination of whether relief under § 711 is appropriate, in addition to that granted under § 722. That is for the Tax Court to determine, both from necessity in this case, and also because of the direction of the statute.
For the reasons stated, the cause is remanded to the Tax Court for its determination of the taxpayer’s right to relief under § 711, and the propriety of an additional deduction on account of an increase in the compensation of the taxpayer's executive, occasioned by the decrease in taxes resulting from such relief as may be granted by the Tax Court.
. Since the pertinent portions of § 711 will be referred to later, they are not set out here.
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_usc1 | 28 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
DAYTONA BEACH RACING AND RECREATIONAL FACILITIES DISTRICT, a body politic and corporate under the laws of the State of Florida, and International Speedway Corporation, a Florida Corporation, Plaintiffs-Appellants, v. COUNTY OF VOLUSIA, a political subdivision of the State of Florida, et al., Defendants-Appellees.
No. 78-1634
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 1, 1978.
Rehearing Denied Oct. 17,1978.
Nathan Lewin, James E. Rocap, III, Washington, D. C., Thomas T. Cobb, S. La-Rue Williams, Daytona Beach, Fla., for plaintiffs-appellants.
Raymond, Wilson, Conway, Barr & Burrows, William M. Barr, Daytona Beach, Fla., for County of Volusia, James Bailey, Robert D. Summers.
Robert L. Shevin, Atty. Gen., Harold F. X. Purnell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for J. Edward Straughn, Dept. of Revenue, State of Florida.
Before THORNBERRY, GEE 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:
In 1955, the Florida legislature exempted from taxation racing and recreational facilities to be acquired or constructed by the plaintiff, Daytona Beach Racing and Recreational Facilities District. Subsequently, plaintiff, International Speedway Corporation, subleased land from the District and constructed a racing facility. In 1973, the Florida legislature repealed the tax exemption.
The plaintiffs brought suit in United States district court in 1974 alleging that the Florida legislature’s action violated the Impairment of Contract Clause. The district court dismissed the action holding that the Tax Injunction Act of 1937, 28 U.S.C. § 1341, prohibited relief since the State of Florida provided a “plain, speedy, and efficient remedy” in state court. We affirmed without opinion. Daytona Beach Racing and Recreational Facilities District v. County of Volusia, 512 F.2d 1404 (5 Cir. 1975).
The plaintiffs then amended a pending state suit to include their constitutional claim. The plaintiffs, however, did not offer any evidence to the Florida trial court relating to their constitutional contention. The Florida trial court found for the plaintiffs on state grounds and the defendants appealed. The Florida Supreme Court reversed the trial court and the United States Supreme Court dismissed the appeal for lack of a substantial federal question. Day-tona Beach Racing and Recreational Facilities District v. County of Volusia, 341 So.2d 498 (Fla.1977), appeal dismissed, 434 U.S. 804, 98 S.Ct. 32, 54 L.Ed.2d 61 (1977).
The plaintiffs again brought suit in federal court contending that the Florida Supreme Court improperly rejected their constitutional argument since no evidence was presented on the issue in the Florida trial court. The district court dismissed the action holding that the Supreme Court’s dismissal in the prior action was dispositive on the constitutional claim. We need not consider this argument since it is plain that the Tax Injunction Act of 1937 still bars the federal courts from assuming jurisdiction in this suit. The Act states:
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. June 25,1948, c. 646, 62 Stat. 932.
28 U.S.C. § 1341.
All that is required is that the state must provide a “plain, speedy and efficient remedy” in the courts of the state. This Florida has done, and the plaintiffs’ failure to present any evidence and argument to the Florida state court will not make the Florida remedy improper. The plaintiffs cannot fail to take advantage of the state remedy and then litigate in federal court.
The plaintiffs’ first suit was barred because the State of Florida provided a proper remedy for the litigation of their claim, and the plaintiffs’ second suit is barred for the same reason. See Kiker v. Hefner, 409 F.2d 1067 (5 Cir. 1969).
The district court was correct in dismissing the action because it is without jurisdiction to hear the matter.
AFFIRMED.
. U.S.Const. Art. 1, § 10.
. The Order dismissing the action under the Tax Injunction Act of 1937 is reproduced below:
This cause came on before the Court for a hearing on the motion of all the defendants, County of Volusia, Robert Bolin, Robert D. Summers, and J. Ed Straughn, to dismiss the complaint. The undisputed facts are that the plaintiffs seek to challenge in this court on federal constitutional claims the action of the Legislature of Florida in terminating a previously enacted tax exemption granted to the plaintiffs.
1 Section 13 of Florida Statutes, Chapter 31343, enacted in 1955 provided that no taxes or assessments were to be levied upon any of the racing and recreational facilities that were constructed pursuant to the Act. In 1973, Fla. Statutes Chapter 73-647 was enacted which repealed Section 13 of Chapter 31343, Laws of Florida, 1955, thus eliminating plaintiffs’ tax exempt status.
The plaintiffs have also filed in the State Courts of Florida a challenge to the same statute eliminating their tax exemption based upon alleged state grounds. The defendants contend that Section 1341, Title 28 United States Code, precludes this Court from considering this case and that plaintiffs must look to the State Courts for relief, including the federal constitutional grounds raised by them.
In view of Great Lakes Dredge & Dock Company v. C. C. Huffman, 319 U.S. 293 (63 S.Ct. 1070), 87 L.Ed. 1407 (1943) and Bland v. McHann, 463 F.2d 21 (5th Cir., 1972), the position of the defendants appears to have merit in that this Court finds that the plaintiffs have a “plain, speedy, and efficient remedy” in the state courts. 28 United States Code § 1341.
2 FSA § 194.171, the predecessor to which the Fifth Circuit has found satisfied the requirements of 28 U.S.C. § 1341. Carson v. City of Ft. Lauderdale, 293 F.2d 337 (5th Cir., 1961).
The plaintiffs presented the ingenuous argument that, based on cases not involving state taxes, this court should retain jurisdiction of this case so as to permit the plaintiffs to litigate in the state courts only their state claims and then, if unsuccessful, to pursue for the first time their federal claims in this court.
While such a procedure has been authorized for nonstate tax issues, it is not the procedure specifically approved in state tax matters. It is, therefore
ORDERED that the motion to dismiss be and is hereby granted and this case is dismissed. DONE AND ORDERED in Chambers at Orlando, Florida, this 7th day of November, 1974.
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_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
John E. DEMARINIS, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Respondent.
No. 83-7489.
United States Court of Appeals, Ninth Circuit.
Argued Nov. 18, 1983.
Submitted March 21, 1984.
Decided March 21, 1984.
John William Cumming, Eureka, Cal., for petitioner.
Dennis A. Paquette, Dept. of Labor, Washington, D.C., for respondent.
Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges.
GOODWIN, Circuit Judge:
John E. Demarinis appeals from the Assistant Secretary of Labor’s decision that he is ineligible for Redwood Employee Protection Program (REPP) benefits under Title II of the Redwood National Park Expansion Act of 1978, Pub.L. No. 95-250, §§ 201-13, 92 Stat. 163, 172-82.
Demarinis was employed as a lab technician for over nine years with the Samoa Lumber Mill of the Louisiana-Pacific Corporation. In early November, 1978, the hourly employees went on strike, and Demarinis was temporarily assigned to an eight-hour graveyard shift tending the boiler. During this period he worked overtime to complete his regular duties as a lab technician. On November 8, 1978, he refused to work a twelve-hour graveyard shift tending the boiler, and was discharged from his position as a lab technician. Demarinis testified before the administrative law judge that he did not refuse to work, but rather sought to be reassigned away from the graveyard shift.
The California Employment Development Department (EDD) found Demarinis eligible for both State unemployment compensation benefits and REPP benefits. An administrative law judge affirmed on the grounds that the refusal to work constituted a voluntary leaving with “good cause” as defined in Cal.Unemp.Ins.Code § 1256. De-marinis began collecting his benefits.
Several months later, the EDD changed its eligibility policy and decided that a voluntary leaving with good cause did not constitute a qualifying layoff as defined in the Redwood Act. Demarinis was issued a notice that because he voluntarily left his employment and therefore was not “laid off”, he was not an eligible employee under the Redwood Act. An ALJ and the Secretary affirmed the EDD’s new determination of ineligibility.
This appeal presents a question of statutory interpretation. Title II of the Act, section 213(f), provides that where there is more than one reasonable interpretation of the Act, the Secretary shall adopt the construction which is the most favorable to employees. See Local 3—98, International Woodworkers of America v. Donovan, 713 F.2d 436, 439 (9th Cir.1983). This rule also applies to the interpretation of Redwood Act regulations. David v. Donovan, 698 F.2d 1057 (9th Cir.1983).
In this case the Secretary’s own regulations preclude him from reconsidering De-marinis’ eligibility for REPP benefits. 29 C.F.R. § 92.50(c) provides that the EDD may reconsider determinations of eligibility on the same terms and under the same conditions as it may reconsider its own determinations made under California unemployment insurance statutes and regulations.
The California Unemployment Insurance Code, § 1332(a), provides that a determination may be reconsidered within twenty days after mailing or service of the notice of determination. The Secretary clearly has not met this time limit. The Secretary claims that California unemployment insurance regulations permit him to reconsider Demarinis’ claim, citing 22 Cal.Adm.Code §§ 1326-1 through 1326-6. Section 1326-1(b)(4), which describes the “usual procedures” followed in handling a claim, see § 1326-l(b), comes closest to supporting the Secretary. This subsection says that the claimant reports periodically to the EDD for an interview concerning his or her efforts to find work, and states that the interview “is designed’ to discover any potential eligibility issue.” This language at most authorizes the Secretary to redetermine a claimant’s eligibility if the factual situation changes, e.g., if he or she finds another job. It does not authorize him to reconsider eligibility when he changes his interpretation of the applicable law, because the interviews are not designed to discover changes in the law.
The Secretary is bound by his own regulations. United States v. Nixon, 418 U.S. 683, 696, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974); 2 K. Davis, Administrative Law Treatise § 7:21 (2d ed. 1979). He is not permitted to redetermine whether De-marinis quit or was laid off now that the 20 day period has expired.
In a somewhat similar case we held on equitable grounds that the Secretary was not free to redetermine whether an employee had been laid off before or after the effective date of the Act many months after the state agency had found the worker to be eligible. See Egbert v. Donovan, 720 F.2d 1122 (9th Cir.1983).
Construing the statutory scheme as a whole, we hold that the Secretary was time barred from redetermining Demarinis’ eligibility and that the petition must be allowed.
Judgment for Petitioner.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_procedur | D | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
DE CASTRO v. BOARD OF COM’RS OF SAN JUAN.
No. 3796.
Circuit Court of Appeals, First Circuit.
June 14, 1943.
Hugh R. Francis and Gabriel de la Piaba, both of San Juan, Puerto Rico, for appellant.
F. Fernandez Cuyar and H. Gonzales Blanes, both of San Juan, Puerto Rico, for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
On January 4, 1937, the Board of Commissioners of San Juan (the newly elected members of which took office on that day) appointed Carlos M. de Castro, appellant herein, as city manager of the Capital of Puerto Rico. Pursuant to § 22 of Act No. 99, Laws of Puerto Rico (1931) pp. 638-640, the said Board of Commissioners, after hearing upon charges, removed de Castro from office on April 5, 1939. The District Court of San Juan upheld the Board. On appeal the Supreme Court of Puerto Rico reversed the judgment of the district court and directed appellant’s reinstatement. The Supreme Court’s judgment which was rendered June 28, 1940, read as follows: “For the reasons set forth in the foregoing opinion, the judgment appealed from, which was rendered by the District Court of San Juan on August 21, 1939, is hereby reversed, and in its stead a new one rendered, annulling Ordinances No. 370, of January 5, 1939, and No. 373, of April 5, 1939, which decreed the suspension .and removal of the city manager, and in consequence thereof, ordering the reinstatement of the petitioner Carlos M. de Castro in his office of city manager, said reinstatement to date hack from January 5, 1939, when the petitioner was suspended from office and pay.” An appeal was duly allowed, and on July 30, 1940, the court below approved a supersedeas bond. This court affirmed the judgment of the Supreme Court of Puerto Rico on January 10, 1941. Board of Commissioners of San Juan v. De Castro, 1 Cir., 116 F.2d 806. Certiorari was denied on October 13. 1941, 314 U.S. 614, 62 S.Ct. 61, 86 L.Ed. 495.
Shortly after our mandate went down to the Supreme Court of Puerto Rico the Board, on October 27, 1941, filed in that court a motion to stay the execution of its judgment of June 28, 1940 (which we had affirmed) insofar as it ordered the reinstatement of appellant, on the ground that meanwhile appellant’s term of office as city manager had expired.
Appellant filed an opposition to this motion, and after a hearing thereon, the Supreme Court of Puerto Rico on January 14, 1942, entered its judgment, from which the present appeal is taken reading as follows: “For the reasons set forth in the foregoing opinion, the motion filed by the Board of Commissioners of San Juan on October 27, 1941, is granted, and in consequence thereof the execution of the judgment of this court of June 28, 1940, is stayed insofar as it decrees the reinstatement of petitioner Dr. Carlos M. de Castro in the office of city manager of the capital because the term for which he was appointed expired in February, 1941.”
If the court below was correct in its conclusion that appellant’s term of office expired at some time subsequent to its judgment of June 28, 1940, ordering appellant’s reinstatement, we think it is manifest that that court had jurisdiction to stay the execution of its judgment insofar as it decreed reinstatement, despite the fact that the said judgment had been affirmed by this court. See Puerto Rican Code of Civil Procedure, § 7, subdivision 8. Appellant urges that the issue as to his tenure of office had become res judicata in his favor, because in his brief before the Supreme Court of Puerto Rico at the earlier hearing he had advanced the contention that the city manager holds office during good behavior. But that court in its opinion of June 28, 1940, did not go into the question of the tenure of the office at all, and did not need to, because at that time appellant’s four-year term, which the Board claims was the extent of his tenure, had not expired. Certainly, when we affirmed on the previous appeal we had no idea that we were passing on the tenure of the office. We affirmed a judgment holding that appellant had been improperly removed and ordering his reinstatement. How long appellant should retain his office after reinstatement was quite another question. When the Supreme Court of Puerto Rico, upon remand from us, regained jurisdiction over its judgment of June 28, 1940, a new situation was then presented. It was then inappropriate, if appellant’s term of office had meanwhile expired, for the Supreme Court of Puerto Rico to carry into execution its decree of reinstatement.
This brings us to the merits, the question whether under the applicable statute the city manager holds office for a life tenure (during good behavior), or as contended by the Board, for a definite term of four years coincident with the four-year terms of the members of the Board which appointed him.
Act No. 99 of the insular legislature approved May 15, 1931, established a special government for the body politic to be known as the “Capital of Puerto Rico”. Relevant portions of this Act, Laws P. R. (1931) p. 626, and of amendatory Act No. 10, Laws P. R. (1937) p. 131, are copied in the footnote.
The legislative powers are conferred upon a governmental body known as the “Board of Commissioners of San Juan”, As originally constituted by § 9 of the Act, this was a continuing body, composed of five commissioners, appointed by the Governor and confirmed by the Senate, with staggered terms, the term of one commissioner expiring each year. Section 50 of the Act, however, provided that at the general elections in 1936 and every four years thereafter the commissioners should be elected by popular vote, the commissioners previously appointed by the Governor under § 9 to hold office until the first Monday in January, 1937. Act No. 10, approved March 24, 1937, increased the membership of the Board by providing that the Governor should forthwith appoint, with the advice and counsel of the Senate, four additional commissioners to serve with the five commissioners who had been elected in 1936. For the future it was provided that the nine members of the Board should take office on the second Monday in February following each general election, which seems to imply that the four appointed commissioners are to hold office for four years, as in the case of those elected by popular vote.
Section 10 creates the offices of city manager, treasurer, director of public works, director of health and charities, school director, auditor and secretary of the Capital.
Section 21 provides that the city manager shall be the chief executive of the Capital; “he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct.” [Italics ours.] Procedure for removal of the city manager by the Board “for just cause” after hearing is set forth in § 22.
Section 26 provides that the city manager shall appoint the various departmental heads previously mentioned, except the auditor. No specific provision is made as to the tenure of these officers so appointed by the city manager, but § 27 provides that they may be removed by the city manager, for just cause after hearing, the removal provisions being the same as those empowering the Board to remove the city manager.
Section 36 provides that the auditor shall be appointed by the Board of Commissioners. No specific provision is made as to the auditor’s term of office; but he also may be removed by the Board for just cause after hearing.
It is to be observed that the legislature has dealt in various ways with the tenure of officers and employees of the city government. The commissioners have fixed terms of years. Of the two officers to be appointed by the Board, the city manager “shall hold office during good conduct”; the auditor’s tenure is not stated. Nor is any tenure stated for the other offices to which the city manager has the appointing power. “Employees” are appointed for the term of the appointing officer.
Act No. 99 supersedes, so far as concerns the capital city, the Municipal Law of April 28, 1928, Laws, P.R.(1928) No. 53, p. 334, under whch the chief executive was a mayor, elected for a fixed term, though subject to impeachment by the municipal assembly. Appellant contends that the legislature, in providing that the city manager should hold office “during good conduct,” evidenced a clear and unambiguous purpose to introduce experimentally in the city of San Juan a new type of city government, under which the chief executive or city manager would hold office during good behavior “without being tied to the whims and uncertainties of partisan politics.”
The court below, however, reached the conclusion that “the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior.”
It is difficult for us to see how § 21 could mean anything different in 1937, and thereafter, from what it meant in 1931, when the new form of government was instituted. There is no basis for saying that the first city manager, appointed in 1931, held a four year term, for at that time the tenure of office of the commissioners themselves was not four years, and their terms were staggered so that only one of the five commissioners went out of office each year.
But passing that difficulty, suppose it had been provided from the outset that the whole body of commissioners should be elected by popular vote every four years, as § 50 provided for 1936 and thereafter. It might then be implied that the auditor, whose tenure is not specifically stated, holds office during a four year term, coinciding with that of the commissioners. The only other alternative would be (1) that the auditor holds office at the pleasure of the Board, which would seem to be contrary to the implication of the further provision that the auditor is removable by the Board for just cause, after notice and hearing, or (2) that the auditor holds office for life, subject to removal for cause. But a life tenure for public officers is the exceptional thing and will not be read into the statute by implication. Shurtleff v. United States, 1903, 189 U.S. 311, 316, 23 S.Ct. 535, 47 L.Ed. 828. Notwithstanding the provision that the city manager shall hold office “during good conduct,” the court below has read the statute as meaning that the city manager has the same limited tenure as that of the auditor, as to whose tenure the legislature is silent. Under this interpretation the phrase “during good conduct” in § 21 seems to be rendered meaningless and of no significance.
The tenure of federal judges under Article III, § 1 of the Constitution is described as “during good Behavior,” which means for life, provided they behave themselves. Cf. Matter of Hennen, 1839, 13 Pet. 230, 258, 10 L.Ed. 138. Nobody ever supposed' that “during good behavior” meant that the judge would hold office during the term of the president who appointed him, provided that he observed good behavior during that time. In Smith v. Bryan, 1902, 100 Va. 199, 203, 40 S.E. 652, 653, cited by the court below in another connection, it is stated: “An official tenure ‘during good behavior’ is for life, unless sooner determined for cause. And removal for cause implies a right to be heard, and a trial in one form of procedure or another.” The steps in the reasoning of the court below are as follows:
(1) Life tenure for public officers is the exception; hence should not be read into the statute by implication but only if the intention of the legislature to that effect appears to be so evident as to permit of no doubt. This is an accepted canon of construction, for which the court properly cites Shurtleff v. United States, 1903, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828. That case involved the tenure of the office of general appraiser of merchandise. It was provided in the act creating the office that the appraisers should be appointed by the President with the advice and consent of the Senate and might be removed from office at any time by the President for inefficiency, neglect of duty or malfeasance in office. Beyond that the statute was silent as to the tenure of the office. The court held that Congress had not clearly enough indicated an intention to make the tenure one for life subject only to removal for cause; and therefore that the act should be construed as leaving unrestricted the President’s implied power of removal without cause. But the significant thing is that the act there involved did not provide that appraisers should hold office “during good behavior”. The court pointed out (page 316 of 189 U.S., page 536 of 23 S.Ct, 47 L.Ed. 828) that “The tenure of the judicial officers of the United States is provided for by the Constitution; but, with that exception, no civil officer has ever held office by a life tenure since the foundation of the government”. How is the life tenure of judicial officers provided for in the Constitution except by the phrase that they shall hold office “during good Behavior”? The rule of interpretation laid down in the Shurtleff case, where the act in question did not use the phrase “during good Behavior”, should not be used to create an ambiguity in § 21 of the act now before us, where the legislature describes the tenure simply as “during good conduct”.
(2) The court points to the “anomaly” which would result if the city manager were held to have a life tenure, from the fact that the treasurer, the director of public works, etc., might under § 26 be appointed “for a limited term to be fixed by the city manager,” while an employee attached to the office of the city manager, “for example, the messenger of his office, by the mere fact of being appointed by the city manager would hold his employment for life unless removed for just cause.” Along the same line, the court states that an uncalled for discrimination would be created between the employees appointed by the other officers and the employees appointed by the city manager, “as the former would hold their employments during the tenure of the appointing officer while the term of office of the employees appointed by the city manager would be for life.” But these “anomalies,” if such they be, are relevant only if it is assumed that there is doubt or ambiguity as to the meaning of § 21.
(3) The court invokes the rule of construction that where the legal provision describing a term is uncertain or doubtful, an interpretation will be adopted which limits the term to the shortest time — in this 'case, “that of four years, which is the one of the majority, at least, of the Board of Commissioners which appointed” the city manager. This, again, assumes some ambiguity in § 21.
(4) The court refers to the rule that in cases of doubt “the practical construction given to a statute by public officials and acted upon by the people” will be regarded as decisive. In this connection the court took judicial notice of the facts that at the general elections held in 1936 and 1940 the various political parties had indicated to the electorate in advance their respective choices for city manager, and that when the newly elected commissioners took office the board proceeded to appoint as city manager the candidate of the successful political party. Appellant objects that the court below ought not to have taken judicial' notice of these facts; that he had no opportunity to put in evidence other facts or explanations which would rob the judicially noticed facts of their significance, and thereby he was denied due process of law. But it is clear that an appellate court may take judicial notice of public acts and facts of common knowledge bearing on a doubtful issue of statutory construction. If the court below took judicial notice of some fact that wasn’t so, appellant, on appeal to us, by reference to official records or in some other appropriate way, could bring the true situation to our notice, and we in our turn, taking judicial notice of the relevant facts, could review any error in statutory interpretation committed by the court below as the result of a misapprehension of the facts judicially noticed by it. Appellant, however, has not undertaken to enlighten us on these matters. Indeed, appellant does not deny the fact, as stated by the court below, that appellant, himself was the preannounced choice for city manager of the winning party at the general elections of 1936. And there seems to be no doubt of the further fact, stated by the court below, that when the newly elected commissioners came into office on January 4, 1937, they proceeded at once to appoint appellant as city manager.
Appellant is no doubt embarrassed by the argument ad hominem, namely, that appellant himself obtained the office of city manager upon an assertion of an interpretation of § 21 inconsistent with that which he now maintains. But we know of no principle of “estoppel” which would preclude appellant from taking this inconsistent position in the present proceedings.
The interpretation put upon the Act by the local political parties and by the successive boards of commissioners would be a relevant consideration in determining the construction of the Act, if the Act itself is deemed to be doubtful or ambiguous in meaning.
If we were free to take a wholly independent view of the point at issue we would be inclined to conclude that the meaning of § 21 is clear, and that the court below went beyond the permissible limits of interpretation in reading the clause “and shall hold office during good' conduct” as meaning that “the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior.” But in Sancho Bonet v. Texas Co., 1940, 308 U.S. 463, 471, 60 S.Ct. 349, 353, 84 L.Ed. 401, the court said: “To reverse a judgment of a Puerto Rican tribunal on such a local matter as the interpretation of an act of the local legislature, it would not be sufficient if we or the Circuit Court of Appeals merely disagreed with that interpretation. Nor would it be enough that the Puerto Rican tribunal chose what might seem, on appeal, to be the less reasonable of two possible interpretations. And such judgment of reversal would not be sustained here even though we felt that of several possible interpretations that of the Circuit Court of Appeals was the most reasonable one. For to justify reversal in such cases, the error must be clear or manifest; the interpretation must be inescapably wrong; the decision must be patently erroneous.”
We are not prepared to say that the judgment now under review is “inescapably wrong.” For many years this court has not had much luck in reversing the Supreme Court of Puerto Rico on questions of local law. As we pointed out in de La Torre v. National City Bank, 1940, 110 F.2d 976, 983, “though Congress has given us appellate jurisdiction over the Supreme Court of Puerto Rico in matters of local law where the value in controversy exceeds $5,000, the exercise of this jurisdiction is so restricted by the canon prescribed by the Supreme Court of the United States that appeals in such cases are likely to be futile and merely to cause needless delay and expense.”
It may be pointed out that our function in this class of cases, technically, at least, is different from that of the Supreme Court of the United States upon review of decisions of state courts. There, the Supreme Court has no appellate jurisdiction in matters of state law, and hence it accepts as conclusive the decisions of the state tribunals in matters of local law. But Congress has given us, and the Supreme Court of the United States upon certiorari, appellate jurisdiction over the Supreme Court of Puerto Rico in matters of local law where the jurisdictional amount is involved. It may well be that as a matter of legislative policy we ought not to have this jurisdiction; the present case is a good example, involving as it does a political matter of strictly local concern in San Juan, Puerto Rico. But as the law now stands litigants bring these cases to us as a matter of right, and we have to pass on them. It is a bit humiliating to this court to be obliged to act practically as a rubber stamp, or else to be reversed by the Supreme Court of the United States.
Incidentally, we have two lines of appellate jurisdiction from Puerto Rico, one from the United States District Court for Puerto Rico~ and the other from the Supreme Court, of Puerto Rico. 28 U.S.C.A. § 225. Appeals from the District Court may involve questions of local Puerto Rican law; so far as we know, the “inescapably wrong” rule has never been applied in such cases. Suppose, upon such an appeal, we should decide a question of local law which had never been passed upon by the Supreme Court of Puerto Rico, and that subsequently, in other litigation, the same question should come before that court. Would it be “inescapably wrong” if it should refuse to follow our previous ruling on the point? Or is the Supreme Court of Puerto Rico free in such a case to make its own interpretation of the local law, brushing aside an earlier decision of this court, which on the face of 28 U.S.C.A. § 225 has appellate jurisdiction over it?
We have gone into this case at such length not in any spirit of complaint, because we recognize that the Supreme Court of the United States applies to itself the same self-denying canon which it imposes on us; and it may be a good thing. But to save future litigants from disappointment and futile expense, we wish to reiterate that our appellate jurisdiction in this class of cases is pretty much of a dead letter.
The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee.
Act No. 99:
“Section 9. — The legislative powers conferred by this Act on the Capital shall be exercised by a governmental body which shall be officially known as ‘Board of Commissioners of San Juan.’ This Board of Commissioners shall be composed of five members, who shall be appointed by the Governor of Porto Rico, with the advice and consent of the Insular Senate, for the following terms:
One Commissioner for a term of one year;
One Commissioner for a term of two years;
One Commissioner for a term of three years;
One Commissioner for a term of four years;
One Commissioner for a term of five years.
“None of the first five commissioners appointed in accordance with this Act shall assume his ofiice until his appointment has been confirmed by the Insular Senate.
“Section 10. — There are also hereby created the offices of City Manager, Treasurer, Director of Public Works, Director of Health and Charities, School Director, Auditor and Secretary of the Capital.
“Section 21. — The City Manager shall be the chief executive of the Capital; he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct.
“Section 22. — The City Manager may be removed by the Board of Commissioners, for just cause, upon hearing and an opportunity to defend himself either in person or through attorneys. The following shall be causes for the removal of the City Manager: Any act of his constituting a felony; any act of his constituting a misdemeanor and implying moral turpitude; or carelessness, inexcusable negligence in the performance of his duties, or immoral or incorrect conduct in the exercise thereof.
“Section 26. — The City Manager shall appoint the following officers:
(1) Treasurer of the Capital;
(2) Director of Public Works;
(3) Director of Health and Charities;
(4) School Director;
(5) Secretary of the Capital.
“Section 27. — The Treasurer, the Director of Public Works, the Director of Health and Charities, the School Director, and the Secretary of the Capital may be removed by the City Manager, for just cause, upon hearing and an opportunity to defend themselves either in person or through attorneys. The following shall be causes for the removal of said officers; Any act of theirs constituting a felony; any act of theirs constituting a misdemeanor and implying moral turpitude; carelessness, or inexcusable ignorance in the performance of their duties, or immoral or incorrect conduct in the exercise thereof.
“Section 36. — The Auditor of the Capital shall be appointed by the Board of Commissioners. This official may be removed by the Board of Commissioners for just cause, after a hearing and an opportunity to defend himself either personally or by attorneys. Causes for removal of this official shall be any act performed by him which constitutes a felony; any act performed by him which constitutes a misdemeanor and implies moral turpitude; carelessness or inexcusable negligence, or immoral and incorrect conduct, in the discharge of his office. * * * * e * •
“Section 39. — All appointments of employees shall be made by the respective officers, according to the department, of the Capital in which they render services. Said employees shall be appointed for the term for which each officer is appointed. The employees of the Capital may be removed for just cause by the officer appointing them, after a hearing and an opportunity to defend themselves. Any employee may be suspended from office and salary upon the preferment of charges against him by the corresponding official.
“Section 50. — The Board of Commissioners created by this Act shall be elected by popular vote at the general elections to be held in 1936, and every four years thereafter. The Commissioners appointed by the Governor of Porto Eico in accordance with section 9 of this Act shall hold office until the first Monday in January of 1937.”
Amendatory Act. No. 10:
“Section 1. — Section 50 of Act No. 99, entitled ‘An Act to establish a special government for the Capital of Puerto Eico, and for other purposes’, approved May 15, 1931, as subsequently amended, is hereby amended to read as follows:
“ ‘Section 50. — The Board of Commissioners created by this Act shall be composed of nine members. Five of these nine members shall be elected by the popular vote of the qualified voters of both precincts of San Juan at the general elections to be held in 1940 and each succeeding four years. The other four members shall be appointed by the Governor of Puerto Eico with the advice and consent of the Insular Senate. The nine members of the Board of Commissioners shall take office on the second Monday in February following each general election; Provided, That the five members of the Board of Commissioners elected at the general election of 1936 shall continue in office until the end of the terms for which they were elected, and said Board of Commissioners shall be increased in the manner indicated as soon as this Act takes effect. * * * * * *
See People of Puerto Rico ex rel. Luis A. Castro, - P.R.R. -, decided by tbe Supreme Court of Puerto Rico July 29, 1942.
Whose “life”? Presumably not that of the employee, for the idea in § 39 seems to be that the employee holds office during the tenure of the officer who appointed him. If appellant is correct, the tenure of the city manager is for life unless sooner terminated by his resignation or removal for cause.
In Ms opposition to the motion of the Board for stay of execution of the judgment insofar as it ordered reinstatement, filed in the court below, appellant, referring to the tenure of his predecessor in the office, said: “The fact remains that Mr. Benitez Castaño did not cease in the exercise of his office because a part of the Board of Commissioners was again elected in 1936, but because of his voluntary resignation, effective many months after January, 1937.” But we note that in appellant’s original petition in the District Court of San Juan, seeking review of the Board’s order of removal, appellant recites that he “held the public office of City Manager, appointed therefor by the respondent Board on the 4th of January 1937.” In the complaining petition filed before the Board, seeking removal of appellant, it is recited: “The respondent, Carlos M. de Castro is and has been at all times stated in this petition City Manager having been appointed by the Board of Commissioners of the Capital for that office during good conduct, in the month of January 1937, the said Carlos M. de Castro having taken possession of said office on the 4th day of January 1937 temporarily and on the 19th day of March 1937, as proprietor.” Appellant’s answer, referring to this paragraph in the complaint, states: “He admits that he is City Manager, appointed by the Board of Commissioners of San Juan and has been in the discharge of his present office from the 4th day of January 1937 up to the present time.” In the court’s opinion in Rodriguez v. de Castro, 1937, 52 P.R.R. 275, 277, there is quoted a letter written by appellant stating that Mr. Jesús Benitez Castaño “ceased to be City Manager of the Capital on the 19th of March, 1937.” It may be surmised from all this that the newly elected board coming into office on January 4, 1937, asserted on that day its power to appoint, and did appoint, appellant as city manager, but that the incumbent, Mr. Benitez Castaño, at -first demurred, perhaps making the claim which appellant now makes on this appeal, that the city manager holds office “during good conduct”.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_interven | 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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
SOUTHERN MARYLAND HOSPITAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Office and Professional Employees International Union, Local 2, Intervenor for Respondent.
No. 85-2042.
United States Court of Appeals, Fourth Circuit.
Argued May 7, 1986.
Decided Sept. 18, 1986.
Warren M. Davison (Leslie Robert Stell-man, Littler, Mendelson, Fastiff & Tichy, on brief), for petitioner.
Nancy B. Hunt, N.L.R.B. and Joseph E. Finley, Gen. Counsel, Office and Professional Employees Intern. Union (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Peter Winkler, on brief), for respondent.
Before WIDENER, HALL, and CHAPMAN, Circuit Judges.
CHAPMAN, Circuit Judge:
This case comes before us upon the petition of Southern Maryland Hospital Center to review and set aside an order of the National Labor Relations Board (NLRB or Board). The Board has filed a cross-application for enforcement of its order. The Office and Professional Employees International Union, Local No. 2 (OPEIU or the union), the charging party before the Board, has intervened in support of enforcement.
The petitioner is a full-service general hospital located in Clinton, Maryland. The hospital opened in 1977 under the direct control of its Chief Executive Officer and principal stockholder, Dr. Francis Chiara-monte. It employed approximately 1300 persons during the time period relevant to this suit. In the spring of 1981, five labor organizations, including intervenor OPEIU, began what would become a thirteen-month organizational effort at the hospital. The effort culminated on June 11, 1982, with a representation election in which no labor organization won a majority. This case arises from union charges filed January 25, 1982, claiming that the hospital committed a long list of unfair labor practices during the organizational campaign in violation of § 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a)(1), (3) (1982).
The administrative law judge found numerous violations of § 8(a)(1) and two violations of § 8(a)(1) and (3). The Board affirmed, in substance, all but one of the AU’s findings and conclusions and issued a remedial order. Southern Maryland Hospital Center and Office and Professional Employees International Union, Local No. 2, AFL-CIO, 276 N.L.R.B. 153 (1985). In reviewing these violations pursuant to 29 U.S.C. § 160(e), (f), we are mindful that we must sustain them and grant enforcement of the order if the findings are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); NLRB v. Kiawah Island Co., 650 F.2d 485, 489 (4th Cir.1981). We find that there is substantial evidence in the record as to most of the § 8(a)(1) violations and grant enforcement on that portion of the order. We deny enforcement as to the two claimed § 8(a)(1) and (3) violations and three other claimed § 8(a)(1) violations.
I
THE BONUS ISSUE
The most significant issue arises from the Board’s finding that the hospital violated § 8(a)(1) and (3) of the Act by “withholding” a year-end bonus in 1981. The Board found that even though the hospital had given just one such bonus in the past, the evidence indicated that the hospital intended to give a bonus in 1981 but chose not to out of anti-union animus. The Board adopted the ALJ’s recommended remedy, requiring the hospital to pay its 1981 employees a bonus similar in amount to the $215,000 bonus of 1980, along with interest.
The hospital contends that the 1980 bonus was a one-time gift which it had no intention of repeating in 1981. In particular, Dr. Chiaramonte testified that the 1980 bonus was a spur-of-the-moment gift which he authorized because the cash was on hand and because he wanted to repay the hospital employees for their support in a personal crisis — his sixteen year-old daughter had been fatally injured in an automobile accident and had received care at the hospital. The hospital further contends that its yearly contributions to an employee pension plan illustrate that the hospital preferred this system of employee recognition over a bonus system. The hospital had contributed $195,000 to the plan in 1980 and $175,000 in 1981. Finally, the hospital contends that even if it had intended to give a 1981 bonus, cash flow problems at the time prevented it from paying out funds to the employees.
The Board found, contrary to the hospital’s contention, that the 1980 bonus was not a one-time “gift”, that the hospital intended to give a bonus in 1981, that the bonus was withheld out of anti-union animus, and that the cash flow problems put forth as a separate business justification for the hospital’s inability to grant a bonus were pretextual. The Board concluded that the withholding of the bonus was an attempt to coerce and restrain employees into not supporting the union and therefore violative of § 8(a)(1) and (3). See NLRB v. Tamper, Inc., 522 F.2d 781, 785 (4th Cir.1975).
A.
There is general agreement that when an employer by promises or by a continuous course of conduct has made a particular benefit part of the established wage or compensation system, then the withholding of that benefit during an organizational campaign raises the inference of improper employer conduct. NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir.1970); Gossen Company v. NLRB, 719 F.2d 1354, 1356-57 (7th Cir.1983); Plasticrafts, Inc. v. NLRB, 586 F.2d 185, 188-89 (10th Cir.1978); Free-Flow Packaging Corp. v. NLRB, 566 F.2d 1124, 1129 (9th Cir.1978). An employer can avoid the finding of a violation in such a case only if he can separately justify his action with a legitimate business purpose. NLRB v. Otis Hospital, 545 F.2d 252, 256 (1st Cir.1976).
On the other hand, when there is no “established practice” of granting benefits, the General Counsel must show that the employers’ withholding of particular benefits was motivated by anti-union sentiment to prove a violation of the Act. Plasti-crafts, 586 F.2d at 188-89. This is so because “in such an ambiguous situation the employee is unlikely to draw a predictable conclusion [that the employer seeks to influence the election] from the employer’s course of conduct.” Id; see also Gossen, 719 F.2d at 1356-58; Free-Flow Packaging, 566 F.2d at 1129-30.
B.
The initial determination to be made is whether an employer by promises or by a continuous course of conduct has made a particular benefit part of its “established practice.” The focus in such a situation should be upon the employer, who is confronted with the dilemma of deciding whether his past promises or grants of benefits have created a clear status quo that he must maintain during the pre-election period. See Free-Flow Packaging, 566 F.2d at 1129. The standard then is whether it would be clearly apparent to an objectively reasonable employer that his grant or denial of a benefit, at the time the action is taken, conforms to the status quo. Plasticrafts, 586 F.2d at 188.
Upon review of the record in this case, we find no substantial evidence to support a conclusion that Southern Maryland Hospital Center had established a practice, through prior promises or conduct, of granting an annual year-end bonus. Turning first to the hospital’s past conduct, we refuse to give any credence to the proposition that a one-time gift such as that given by Dr. Chiaramonte in 1980, standing alone, could in any way establish a policy or practice of yearly bonuses. Christmas bonuses are generally discretionary in nature and must be given over a significant period of time before they can be considered part of the status quo. See, e.g., NLRB v. McCann Steel Co., 448 F.2d 277, 279 (6th Cir.1971); Beacon Journal Publishing Co. v. NLRB, 401 F.2d 366, 367 (6th Cir.1968).
The Board found, however, that several publications and conversations between management and employees during 1981 indicate that the hospital intended to give a Christmas bonus that year. Specifically, the Board relies upon a recruiting advertisement for nurses in the Washington Post, two recruiting pamphlets listing hospital employee benefits, and a half-dozen isolated conversations between various members of the hospital management, low-level supervisory staff, and employees. Assuming, as we must, that this evidence is credible and true, we nonetheless hold that it is insufficient as a matter of law to prove that the hospital made the kind of promises that would elevate the year-end bonus in this case to the status of an established practice. At best, the evidence shows that an ambiguity existed as to whether a year-end bonus should be given in 1981.
The Board found that the Washington Post ad contained language indicating that nurses were to receive a year-end bonus as an employment benefit. While this is one interpretation, the language of the ad is far from clear and could just as easily be read to refer to another benefit which allowed nurses to take a “bonus” day off if they did not take their five annual sick leave days.
The two recruiting pamphlets relied upon by the Board both contained a list of employee benefits, one of which was a “year-end bonus.” There is evidence that the first of the two pamphlets was posted on hospital bulletin boards and distributed to some employees; however, the explicit purpose of this flyer was to persuade some of approximately 100 former nurses to return to work for the hospital. There is evidence that the flyer produced at most seven inquiries. In any event, the employee who drafted the pamphlet testified without contradiction that she published the documents without Dr. Chiaramonte’s approval or authorization. Upon receiving a copy of the first pamphlet, Dr. Chiaramonte reprimanded the employee, explaining that three of the benefits listed, including the year-end bonus, were nonexistent. The second pamphlet, a more polished brochure to be used for recruitment and orientation, was edited before it was released, and there is no evidence that any employee saw the pamphlet in its uncorrected form.
The conversations and statements relied upon by the Board are similarly isolated incidents not amounting to the type of authoritative and generally disseminated promises necessary to create an established practice. Most of the conversations occurred during December 1981, a month in which rumors concerning a possible year-end bonus were widespread. The conversations generally consisted of an individual or small group of employees inquiring of supervisors or low-level managers whether there would be a bonus in 1981. While the evidence concerning Comptroller Wesley Melvin indicates that he seemed to think that there might be a bonus, it also plainly shows that he was not the decision maker and that the final decision on whether to give a bonus had not been made.
Meanwhile, there is no evidence that the ultimate decision maker, Dr. Chiaramonte, had at any time given any indication that the one-time gift of 1980 was to be continued as a year-end bonus in 1981 and beyond. The doctor made no statements, and more importantly, there was never an authoritative, general announcement of any kind stating that the 1300 hospital employees would receive a 1981 Christmas bonus. This is not a case such as NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir.1976). In that case, the Hospital Administrator issued a general announcement, posted on all bulletin boards, that employees would receive a cost-of-living salary increase. When the union began its organizational drive, the administrator refused to implement the wage increase. The court upheld the Board’s finding of a § 8(a)(1) and (3) violation reasoning, “A clear impression was publicly conveyed to all employees that a wage increase was imminent, and an employee would scarcely expect this employer to renege in such circumstances.” 545 F.2d at 256. The hospital’s actions in the present case could not have conveyed such a “clear impression” to anyone and, at most, evidenced that the bonus issue was mired in ambiguity.
Based upon this record, we find that it would not have been clearly apparent to a reasonable employer in the hospital’s situation that the Christmas bonus was such an established employee benefit that its withholding would raise an inference of improper conduct on the part of the hospital.
C.
Since there was no established practice in this case, the Board may find a violation of the Act only if it is affirmatively shown that the hospital was motivated by anti-union sentiment in withholding the benefit. Plasticrafts, supra; Gossen, supra; Free-Flow Packaging, supra. The Board found anti-union animus based upon (1) a statement by an assistant maintenance supervisor to an employee; (2) a statement by Comptroller Melvin to one employee, overheard by a second employee; and (3) Dr. Chiaramonte’s general anti-union animus and his silence concerning the bonus. We hold that this is insufficient evidence to show the type of coercive and manipulative motivation necessary for a violation of the Act.
The statement by Assistant Operations Director Morris to employee Kearney consisted of a cryptic response to a confidential question. According to Kearny, Morris acknowledged that the reason no bonus had been given was because of “union activities at the shop.” This isolated comment made by a low-echelon supervisor during a confidential conversation with an individual employee can hardly be classified as the type of coercive statement proving the anti-union animus of the employer. See NLRB v. Big Three Industrial Gas & Equipment Co., 579 F.2d 304, 310-11 (5th Cir.1978); Federal-Mogul Corp. v. NLRB, 566 F.2d 1245, 1257 (5th Cir.1978).
The second statement was made by Comptroller Melvin in response to employee Diggs’ question about the bonus. Employee Westfield testified that she overheard Melvin tell Diggs that there would be no Christmas bonus because of the union, but that “we may receive one after the union election.” Melvin denied making the statement, but the ALT and Board chose to credit Westfield’s testimony. Again, we are struck by the casual and isolated nature of this particular conversation. Melvin was informally answering a question about the bonus from an individual employee, and his response reached the ears of at most three employees. We are also uncertain that the substance of Melvin’s explanation was of such a coercive nature to constitute an unfair labor practice. See Gossen, 719 F.2d at 1356-58; see also NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 715 (2d Cir.1969) (“This is not a situation where the employer has by public announcement specifically advised the employees that the union is causing them to lose a [benefit] they would otherwise have received.”)
Finally, the ALT and Board found that Dr. Chiaramonte’s total silence on the bonus matter “sent a message loud and clear [to the employees] that any benefits they might receive would be bestowed by his fiat and not wrung from him by outside coercion.” There is no factual basis for this conclusion. While it is true that Dr. Chiaramonte generally showed no love for the unions in his actions, such dislike is not an unfair labor practice. Instead of being detrimental to his cause, the fact that Dr. Chiaramonte was silent on the bonus issue weighs in his favor. The doctor was confronted with a situation during late 1981 in which a great deal of ambiguity existed as to whether or not he was required to give a Christmas bonus. The usually outspoken doctor chose to say nothing instead of issuing explanatory statements which could later have been viewed as manipulative. There was absolutely no evidence introduced to suggest that Dr. Chiaramonte’s silence was intended to influence or manipulate the votes of the hospital employees. More likely, the doctor’s silence evidences a “good faith effort to conform to the requirements of the law.” Dorn Transportation Co., 405 F.2d at 715; see also J.J. Newberry Co. v. NLRB, 442 F.2d 897, 900 (2d Cir.1971); Free-Flow Packaging, 566 F.2d at 1130.
In summary, we find no support for a finding that the hospital committed an unfair labor practice by not giving a 1981 Christmas bonus. There was no evidence to indicate that a yearly Christmas bonus was an established practice, nor was there substantial evidence that the hospital withheld the bonus in an attempt to influence the election. As a consequence, we refuse to enforce the Board order finding violations of § 8(a)(1) and (3) and requiring payment of a 1981 bonus to affected employees.
II
OTHER CLAIMED VIOLATIONS
Beyond the bonus issue, there are three additional unfair labor practice findings which we refuse to enforce: (1) the finding of a § 8(a)(1) violation based upon Dr. Chiaramonte’s “confiscation” of union campaign literature; (2) the finding of a § 8(a)(1) violation resulting from the hospital’s creation of an “Employee of the Month” award; and (3) the finding of a § 8(a)(1) and (3) violation for discriminatory discipline of a union-supporting employee.
A.
The facts concerning the confiscation issue are uncontroverted. On September 17, 1981, employee Mary Cox was distributing copies of the OPEIU newsletter at the cafeteria entrance. Dr. Chiaramonte came upon her and asked what she was doing. She offered him a copy of the newsletter. The doctor grabbed the eight to ten copies she had in hand and proceeded to the cafeteria kitchen where he offered the newsletters to kitchen workers with the words, “Does anybody want these?” He returned to Cox's table about five minutes later and returned the one copy of the newsletter he had not distributed. During the doctor’s absence, Cox had reached into a nearby box for more copies of the newsletter, which she continued to distribute.
The Board found that Dr. Chiaramonte interfered with his employees’ § 7 rights by confiscating union campaign materials. There is no support for this finding. The evidence shows that the doctor distributed to employees most of the eight to ten newsletters he took. He returned to employee Cox the one copy that he did not pass out. Also, Cox had a box full of newsletters available to her to replenish her supply upon the doctor’s departure. There was no finding that Cox or any other employee was intimidated by the incident; indeed, Cox continued to distribute newsletters during the doctor’s absence. We find that the doctor’s conduct in this case was at most a minimal intrusion upon employees § 7 rights and was not violative of the Act. See Graham Architectural Products Corp. v. NLRB, 697 F.2d 534, 541-42 (3rd Cir.1983); NLRB v. First National Bank of Pueblo, 623 F.2d 686, 692 (10th Cir.1980).
B.
The facts surrounding the creation of an “Employee of the Month” award are similarly undisputed. Hospital Special Projects Director Margaret Greenway testified that when she came to work at the hospital in August 1981 as a special assistant to Dr. Chiaramonte for public relations matters, she discussed with him the desirability of reinstituting a program of employee recognition. She claimed that she was unable to uncover details of the former program since the previous public relations director was no longer employed at the hospital. The record is unclear as to the exact nature of the earlier program, but evidence indicates that the hospital had held annual banquets in past years at which prizes and awards were given to deserving employees. In October 1981, Greenway released a bulletin announcing the “Employee of the Month” program which offered a prize of $100 to the individual winner each month.
The AU adopted the presumption that because of its timing, the award was granted for the purpose of influencing employees to vote against the union. The judge went on to dismiss the hospital’s explanation that it was merely reintroducing a previously-established employee recognition program. The Board qualified this finding in a footnote to its order stating that it agreed that there was a § 8(a)(1) violation, but that “we find it unnecessary to rely on the Board’s policy of presuming the unlawfulness of grants of benefits during the pre-election period.”
We refuse to enforce the Board’s order on this point. As a technical matter, the Board’s decision not to rely on the presumption of unlawful motivation is fatal to the Board’s finding. Without the presumption, there is absolutely no evidence that the hospital reinstituted this employee recognition program for the purpose of influencing the election. Moreover, even if the presumption were invoked, we are unconvinced that the effect of the award, given the context of its creation, was substantial enough to constitute a violation of the Act. Considering both the length of the organizational drive and the large number of hospital employees, the designation of one individual as employee of the month can not reasonably be said to be so significant as to influence in any way the attitude of the employees or the outcome of the election.
C.
The Board found that the hospital committed violations of § 8(a)(1) and (3) of the Act by disciplining employee and union supporter Patricia Vass “for conduct it would have ignored were it committed by others.” In particular, the Board found that the hospital discriminatorily applied its no solicitation rule against Vass on two separate occasions because of her known union activism.
The first incident occurred on September 30, 1981, when Nurse Elizabeth Wustner observed Nurse Vass, who was not known to Nurse Wustner at the time, looking at a departmental time roster on a desk top at the nurse’s station. When Wustner asked Vass what she was going, Vass replied that she wanted to find out how many registered and practical nurses were on the roster. Vass was wearing a union button, and when asked if she was gathering information for the union, Vass responded that the information was for her personal use. Wustner told Vass to come back later to ask the head nurse for permission to view the list. Subsequently, Wustner reported the incident to Head Nurse McCormick, who recognized the description of Vass, a known union supporter. McCormick asked Wustner to prepare a written statement and submit it to Director of Nurses Margaret Miller.
Miller, in accordance with her usual practice in such matters, wrote up a verbal counseling report with the intention of then calling in Vass to discuss it. Miller testified that if Vass had been able to explain satisfactorily her conduct, then Miller would have destroyed the report. Vass, however, refused to meet with Miller, claiming that she had a right to be accompanied by a union representative. Miller told Vass that she had no such right, and when Vass refused again to discuss the matter, Miller let the report stand.
The second event occurred in December 1981. According to the record, Pharmacy Technician Hanaa Malaty was serving as a translator for Vass and several other nurses with an Arabic patient. As Vass and Malaty left the patient’s room, Vass asked for a list of telephone numbers of pharmacy employees. Malaty agreed to bring the list, which she delivered to Vass on her next round. Later, a supervisor recognized Malaty’s description of Vass and chastised Malaty for giving the list, which the hospital maintains was confidential, to a union supporter.
The Director of Pharmacy Stanley Sherman, sent an incident report to Miller. Miller then drafted an official reprimand in which she noted that this was the second time that Vass had been caught interrupting the work of another employee. The reprimand warned of a possible termination or suspension if Vass’s conduct continued. Miller called Vass to discuss the report, but again Vass claimed a right to the presence of a union representative and refused to discuss the matter in any way. Under the circumstances, Miller had no choice but to let the reprimand stand.
The Supreme Court and the NLRB have both recognized a hospital’s right to prohibit solicitation in patient care areas. See Beth Israel Hospital v. NLRB, 487 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978); St. John’s Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976). The rationale behind this rule is that “the primary function of a hospital is patient care and ... a tranquil atmosphere is essential to the carrying out of that function.” St. John’s Hospital, 222 N.L.R.B. at 1150. In this case, Southern Maryland Hospital Center had such a no solicitation rule for patient areas. The issue before us is whether the hospital’s application of the rule with respect to employee Vass constituted an unfair labor practice. There is no substantial evidence to support such a conclusion.
Under the Board rule approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), in order to show a violation of § 8(a)(1) and (3), the General Counsel must prove as part of his prima facie case that an employee’s protected § 7 conduct was a substantial or motivating factor in the adverse action taken against the employee. The employer may then avoid being charged with an unfair labor practice by showing what his actions would have been regardless of his forbidden motivation. Id. 462 U.S. at 401-02, 103 S.Ct. 2474.
The Board found that the General Counsel successfully showed anti-union animus as a possible motivating factor in the disciplining of Vass. We defer to the Board’s finding of fact on this motivational issue as it is based upon substantial evidence. The record reveals, however, that the hospital had a rule which explicitly forbade the type of conduct in which Vass engaged. Union solicitation was liberally allowed in various parts of the hospital, but not in patient areas, and if Vass was unaware of this prior to the incident with Nurse Wustner, she was certainly aware of it when she interrupted the work of Technician Malaty to obtain the telephone list. Director of Nurses Miller followed her normal procedure upon receiving the complaints about Vass, writing up a counseling report in the first case and a reprimand in the second case, and then asking Vass to come in to discuss the matters. Vass refused to appear without a union representative, and Miller therefore had to let the reprimands stand. Had Vass agreed to talk to Miller, it is possible that the two reports would have been destroyed and thus would not have been included in Vass’s file.
In dismissing the hospital’s explanation for the discipline, the Board relied heavily on evidence that some raffle tickets, Girl Scout cookies and cosmetics were sold by employees without reproach under the hospital’s rule. The Board submits that this proves discriminatory application of the rule. However, to follow the Board’s reasoning to its logical conclusion, the fact that the hospital had allowed some innocuous activity to go unpunished in the past would mean that any subsequent attempt by the hospital to control union solicitation in its patient care areas would have amounted to an unfair labor practice. The care of patients is too important to allow such a result. As a consequence, we refuse to enforce the Board’s order on this point, finding that the hospital undisputedly showed (1) a violation of its no solicitation rule, (2) a failed attempt to resolve the dispute and possibly withdraw the discipline, and (3) final disciplinary actions in proportion to the conduct involved.
Ill
To summarize, we refuse to enforce paragraphs 1(a), (b), (e), (i) and (j), and 2(a), (b) and (c) of the Board’s order because they were not supported by substantial evidence on the record as a whole. We find, however, that the numerous remaining § 8(a)(1) violations found by the Board are supported by substantial evidence and are entitled to enforcement.
ENFORCED IN PART, REFUSED IN PART.
. In particular, the Board found that: the hospital violated sections 8(a)(3) and (1) of the Act by failing to grant its approximately 1,300 employees a year-end bonus in 1981; the hospital violated section 8(a)(1) of the Act by various acts and conduct on the part of certain of its managers and supervisors during the period November 1981 through March 1982; the hospital violated section 8(a)(1) of the Act by instituting an "Employee of the Month” award in order to discourage employees’ support for the union; the hospital violated section 8(a)(1) of the Act by soliciting grievances from employees and remedying those grievances in order to discourage their support for the union; the hospital violated section 8(a)(1) of the Act by restricting access of employees to union organizers in the hospital cafeteria; and the hospital violated sections 8(a)(3) and (1) of the Act by issuing disciplinary warnings to former employee Patricia Vass on September 30 and December 23, 1981.
. The advertisement read:
Excellent working conditions. Benefits include: Fully Paid Life, Disability; Hospitalization, Dental Insurance; vacation; holidays; sick leave & bonus.
The Board’s interpretation of this advertisement is not a finding of fact to which we must defer, as courts may engage in legal interpretation of the written word. NLRB v. Big Three Industrial
Gas & Equipment Co., 441 F.2d 774, 777 (5th Cir.1971).
. The union itself was a leading contributor of grist to the rumor-generating mill. The December 10, 1981 edition of the OPEIU newsletter, Solid Rock, contained the passage, "Rumor has it that Dr. C is not sure if he can pay Christmas Bonuses again this year or not due to ‘union activity’.”
. Kearney testified that his question to Morris was: "Jim, between me and you as workers, is the union really — what is the reason that we didn’t get the bonus? Was it the union?”
. Vass did not raise before the Board this alleged pre-election right to union representation in a disciplinary matter. The Supreme Court has acknowledged an employee’s right to representation in such matters once a union has been certified. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). Other circuits have struggled with the question of whether employees have a Weingarten right in non-union situations or prior to union certification. See E.I. du Pont de Nemours and Company, Inc. v. NLRB, 707 F.2d 1076 (9th Cir.1983); Anchortank, Inc. v. NLRB, 618 F.2d 1153, 1161 (5th Cir.1980). This circuit has never recognized a pre-election right to representation in disciplinary matters. Since Vass did not raise the issue before the Board, we assume, without deciding, that Vass had no right to the presence of a union representative in her meetings with Miller.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer: |
songer_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William Raiford PARMENTER and George David Lincoln, Appellants, v. UNITED STATES of America, Appellee.
No. 18139.
United States Court of Appeals Fifth Circuit.
June 17, 1960.
Rehearing Denied July 21, 1960.
Hal S. Ives, West Palm Beach, Fla., Damon G. Yerkes, Jacksonville, Fla., for appellants.
John E. Palmer, Asst. U. S. Atty., Jacksonville, Fla., F. William Reeb, Asst. U. S. Atty., Tampa, Fla., E. Coleman Mad-sen, U. S. Atty., Miami, Fla., for appellee.
Before TUTTLE, CAMERON and WISDOM, Circuit Judges.
PER CURIAM.
The appeal in this liquor conspiracy case is based primarily on the contention of Parmenter that possibly several but not a single general conspiracy was proved and the contention of Lincoln that his contacts with the possession of the nontaxpaid liquor were too fleeting and too tenuous to tie him into any conspiracy whatever.
We have stated in Jolley v. United States, 5 Cir., 232 F.2d 83, at page 88:
“Under the evidence in this case, we think that it was for the jury to say whether there was any conspiracy and if so, whether one or more than one. If more than one conspiracy was proved, of at least one of which the appellant was guilty, it is clear that there was no variance affecting his substantial rights.”
As to Lincoln’s point, we need only say that we have carefully read the testimony to which our attention has been called in the briefs, touching on Lincoln’s actions. We conclude that the evidence clearly shows t-hat his relations with Parmente: and others charged in the indictment and the manner in which he knew exactly how to fit into the part he was to play in receiving and paying for the final load of whiskey on terms which must have been the subject of prior agreement, spoke eloquently and convincingly of an agreement with Parmenter to be an important actor in the illegal possession and sale of the nontaxpaid whiskey. No more was needed to warrant submission of the case to the jury. Its verdict must therefore be sustained.
The remaining points urged by appellants do not constitute prejudicial error.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_constit | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Robert B. KING, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
No. 83-3516.
United States Court of Appeals, Sixth Circuit.
Argued May 2, 1984.
Decided Aug. 30, 1984.
Wellford, Circuit Judge, filed a dissenting opinion.
Sanford A. Meizlish, Barkan & Neff Co., L.P.A., Lawrence J. Ambrosio, argued, Columbus, Ohio, for plaintiff-appellant.
Joseph E. Kane, Linda Tucker, argued, Asst. U.S. Atty., Columbus, Ohio, for defendant-appellee.
Before JONES and WELLFORD, Circuit Judges, and TIMBERS, Senior Circuit Judge.
Of the Second Circuit, by designation.
TIMBERS, Senior Circuit Judge.
Appellant Robert B. King commenced this action in the district court pursuant to § 205(g) of the Social Security Act as amended, 42 U.S.C. § 405(g) (1976 & Supp. Y 1981), to review a final determination of the Secretary of Health and Human Services (Secretary) which denied his application for disability insurance benefits. The court, John D. Holschuh, District Judge, took on submission cross motions for summary judgment. In an opinion filed May 31, 1983, the court granted the Secretary’s motion, denied appellant’s motion, and affirmed the decision of the Secretary. From the judgment entered thereon, this appeal has been taken. We reverse and remand for an award of benefits.
I.
At the time of filing his application for disability insurance benefits on November 7, 1980, appellant was thirty years of age. He lived in Cambridge, Ohio, with his wife and two children. He had been born in Ohio. He completed his education through the twelfth grade. Since 1968, he had worked at various jobs, including a baker’s assistant, truck driver, grave digger, security guard sergeant, janitor and busboy. His primary work experience had been as a grave digger, in which capacity he had been employed from September 1970 to June 1974; and as a security guard sergeant from June 1977 to October 20, 1980 —just 18 days prior to the filing of his application. The security guard position consisted of filling out reports, supervising other employees, and a substantial amount of standing and walking.
Appellant’s claim of disability is based on his assertion of constant and debilitating back pain in the lumbar sacral region resulting from what various medical doctors have diagnosed as degenerative disc disease. Appellant claims that he first injured his back in 1972 when he fell from a truck while unloading a lawn mower. His back was X-rayed at that time, but he sustained no injury that prevented him from returning to work. He experienced no significant back pain again until June 1974, when he ruptured a disc while digging a grave.
Appellant at that time was hospitalized at Doctor’s Hospital North, in Columbus, Ohio. His treatment at first consisted of myelography, spinal fluid analysis and traction. Eventually, it was determined that his condition required surgery. Dr. Hawes performed a lumbar laminectomy in July 1974. Appellant did not experience much relief from pain after this first operation.
He underwent a second back operation in March 1975, again performed by Dr. Hawes. This operation did relieve some of his pain.
Appellant continued to receive various treatments during the next two years to relieve the pain he still experienced. During this time, he received workmen’s compensation benefits since he was temporarily totally disabled. In June 1977, he commenced work as a Pinkerton security guard.
In July 1978, appellant slipped and fell on wet grass. This accident aggravated his back condition. After receiving treatment, however, he returned to work. He continued to work until October 20, 1980. At that time, the pain became so acute that he could no longer continue to do the standing and walking that his job required. He was hospitalized on October 24, 1980. He received treatment consisting of supportive analgesics, muscle relaxants, pelvic traction and physical therapy. He was discharged on October 31, 1980.
Appellant’s claim for disability insurance benefits, filed November 7, 1980, was denied without a hearing on January 29, 1981 on the grounds that he retained normal muscle strength, sensation and reflexes; he suffered only minor limitation on range of movement; and he therefore could return to his security guard work. He applied on March 20, 1981 for reconsideration of the disallowance of his application. This was denied on March 26, 1981, again without a hearing. On June 19,' 1981, appellant requested a de novo hearing before an administrative law judge (AU).
Appellant appeared before an AU on November 13, 1981, at 9:00 a.m. The hearing lasted for one half hour. During the hearing appellant alternately sat and stood, this being necessary to relieve the pain he felt while in any one position for too long. He was the only person who testified at the hearing.
Appellant testified that he was “never without pain”, that he could not stand up straight, and that the pain frequently shot through his left leg, occasionally to his right leg. At the time he was suffering from three or four headaches a day, which he was able to relieve only by taking pain killers and lying down. He testified that he could walk only about one half block at a time, and that he required a “Canadian Crutch”. He could neither sit nor stand for more than ten to fifteen minutes at a time. He testified that, during the 85 mile drive with his wife to the hearing, they had to stop more than once to allow him to get out of the car. He testified to having difficulty getting in and out of the bathtub without help, tying shoes, and putting on his trousers. He spent between ten and fourteen hours a day lying down, which he found the least painful position. He did no housework, could not lift anything of any significant weight, and left his house only infrequently. He testified to taking Percodan and Diascephen for the pain.
In addition to appellant’s own testimony, several medical reports were submitted to the AU. The first report was that of appellant’s treating physician, Dr. W.A. Larrick, of Cambridge. Dr. Larrick, a general practitioner, had been treating appellant since March 3, 1973. On November 24,1980, when he filled out a Medical Questionaire furnished by the Ohio Bureau of Disability Determination, Dr. Larrick was seeing appellant twice a week. He reported that on October 20, 1980 appellant had sustained an acute relapse of his degenerative disease of the lumbar spine. Further, he reported that appellant suffered from “severe low back pain with muscle spasms.”
A second, updated report by Dr. Larrick was submitted to the AU on November 17, 1981 — four days after the hearing. In this report, Dr. Larrick related that he had reclassified appellant as permanently totally disabled for workmen’s compensation purposes in October 1981. He stated that appellant’s spine was frequently spastic and withdrawn. He noted, however, that his bad headaches had subsided in both frequency and intensity. He reported that any relief of appellant’s pain could be only temporary. He concluded that
“I have reviewed the listing of impairments and it is my opinion that Mr. King’s disability would be the 105C category. It is my opinion that he is permanently and totally disabled and restricted from performing any gainful employment.”
A third medical report submitted to the AU was the Discharge Summary completed by Dr. J. Martz, who reported on appellant’s hospitalization during the last week of October 1980. Dr. Martz found positive leg maneuvers limited by pain to 60 degrees on the right and 45 degrees on the left. He also found that appellant had limitation of motion in the lumbar spine and tenderness to palpatation in the sacroiliac and lumbar joints. He further found that muscle testing was “within normal limits”, distal pulses were “intact”, and “no reflex changes were noted”. Dr. Martz treated appellant with analgesics, muscle relaxants, pelvic traction and physical therapy. His final diagnosis was acute lumbar nerve root irritation due to nerve root adhesions on the left side.
The fourth medical report submitted to the AU was that of Dr. M.A. Shahabi of Zanesville, Ohio. He was an electromyographer-physiatrist designated by the Secretary to conduct a consultative examination of appellant. Dr. Shahabi saw appellant on January 22, 1981. His report was dated the following day. He noted appellant’s limping gait, favoring his left leg. He reported that the lumbosacral area was tender to palpation, and that the range of motion in that area was limited by pain to 30 degrees flexion, five degrees hyperextension, and ten degrees lateral rotation and bending. According to Dr. Shahabi, appellant had sustained no muscle wasting or atrophy. He graded appellant’s muscle strength in his upper and lower extremities, on a scale of one low and five high, as a five. Appellant’s deep tendon reflexes were reported to have moderately decreased, down to two-plus (on the same scale). Sensation in appellant’s left leg was decreased to pinprick, not related to dermatomes. In the sitting position, appellant could raise both of his legs up to 60 degrees. In the supine position, he could raise his left leg to 30 degrees, his right to 60. An X-ray report attached to Dr. Shahabi’s report stated that the heights of the vertebral bodies were normally maintained, and that a transitional vertebral body was located at L5 with the L5-S1 disc narrowed. Dr. Shahabi’s diagnosis, like that of the other physicians, was that appellant was suffering from a degenerative disc disease of the lumbosacral spine. He stated that no ambulatory aids were necessary.
On December 28, 1981, the AU filed his eight page decision. After reviewing the evidence, he concluded that appellant’s condition did not meet the listed impairment at 1.05(C) of Appendix 1 of the Secretary’s regulations. Turning to a determination of whether appellant had any residual functional capacity to work, the AU conceded, in his section on “Evaluation of the Evidence”, that appellant’s functional capacity had been reduced. He stated, however, that no impairment had been shown that would prevent appellant from sitting most of an eight hour work day. The AU continued:
“He can do occasional walking and standing and although he appeared at the hearing with a crutch, Dr. Shahabi indicates no ambulation, aids are required. The claimant has good muscle strength and the lifting of up to 10 pounds in a seated position would not seem to be contraindicated. Therefore, I conclude that at all relevant times the claimant has had the residual functional capacity for at least sedentary work as defined by Regulations 404.1567. I further find that he does not have any non-exertional limitations resulting from his impairment.”
On the final page of his decision, under “Findings of Fact and Conclusions of Law”, the AU made the following finding:
“3. The medical evidence shows the claimant has low back pain, however, his complaints of constant, severe and disabling pain [are] not found to be credible.”
The AU determined, after applying Rule 201.27 of Appendix 2 of the regulations, the so-called “Grid Regulations”, that appellant was not disabled.
On January 5, 1982, appellant requested a review of the AU’s decision before the Appeals Council. His request was denied on March 4, 1982. The AU's decision thereby became the final decision of the Secretary.
Appellant commenced the instant action in the district court on April 22, 1982. Both parties moved for summary judgment. On May 31, 1983, the court rendered its decision as stated above. The court stated that the AU’s first conclusion — that appellant’s impairment did not meet the condition found in Listing 1.05(C) —was supported by substantial evidence. As for the AU’s finding regarding appellant’s complaints of pain, the court stated that the AU’s “resolution of the conflicting medical evidence, as well as his decision to discount plaintiff’s subjective complaints of severely disabling pain, are both supported by substantial evidence.” Citing precedent in this Court, the district court added that the AU’s opportunity to observe the demeanor of the complainant should not be discarded lightly.
On this appeal, appellant contends (1) that his impairment meets or equals the impairment in Listing 1.05(C) of the regulations and that the AU’s conclusion to the contrary was not supported by substantial evidence; (2) that all the medical evidence supported his complaints of severe pain and that the AU’s conclusion to the contrary was without support in the evidence; and (3) that the AU did not give proper weight to the medical opinion of appellant’s treating physician.
II.
(A) Medical Opinion of Treating Physician
Turning first to appellant’s third argument listed immediately above, we believe this is not really an independent argument, but rather is interwoven in the evaluation of the first two arguments. To the extent that appellant contends the AU was bound by Dr. Larrick’s opinion that appellant was “permanently and totally disabled”, appellant is mistaken. A determination of “disability” for the purposes of awarding disability insurance benefits is to be made “only if [the claimant’s] physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (1976). This determination obviously involves consideration of many factors, only one of which is medical impairment, and it is reserved exclusively to the Secretary or to various state agencies. Id. § 421. Since it was not Dr. Larrick’s prerogative to make the legal determination of disability, the ALJ was not bound by his conclusory statement. Montijo v. Secretary of Health and Human Services, 729 F.2d 599, 601 (9th Cir.1984) (per curiam); 20 C.F.R. § 404.1527 (1983). This is particularly true where, as here, the ALJ identified good reason for not accepting Dr. Larrick’s determination, i.e., it was not supported by any detailed, clinical, diagnostic evidence.
This is not to say, however, that the medical opinions and diagnoses of treating physicians are not entitled to great weight. Indeed, it has long been the law that substantial deference — and, if the opinion is uncontradicted, complete deference — must be given to such opinions and diagnoses. Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054 (6th Cir.1983); Bowie v. Harris, 679 F.2d 654, 656 (6th Cir.1982); Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981). We shall apply this standard in evaluating appellant’s two substantive arguments on appeal.
(B) Listing At 1.05(C)
Section 404.1520(d) of the Secretary’s regulations provides that, if an applicant’s impairment is listed in Appendix 1, or is equal to one of those impairments, the applicant will be found disabled without any consideration of his age, education or work experience. Appellant’s first argument is that his back condition is listed in Appendix 1 at 1.05(C), or, in the alternative, his condition is equal in severity to the impairment listed at 1.05(C).
The impairment listed at 1.05(C) is as follows:
“C. Other vertebrogenic disorders ... with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.”
In Dr. Larrick’s November 1981 follow-up report, he stated that it was his opinion that appellant’s disability “would be the 105C category.” The ALT did not give this statement full credit because Dr. Larrick had not included in his report the specific findings necessary to support his statement. The ALJ found that there was “no evidence of muscle weakness, sensory or significant reflex loss”, which are necessary symptoms in 1.05(C)(2).
In reviewing the record to check the accuracy of the ALJ’s finding in this respect, we note that Dr. Larrick, the treating physician, never discussed appellant’s muscle strength, sensation or reflexes. According to Dr. Martz, who treated appellant during his hospitalization in late October 1980, muscle testing was “within normal limits” and no reflex changes were noted. Dr. Shahabi’s report in January 1981 stated that no muscle weakness was noted (indeed, he rated it as highly as he could), but he reported some sensory loss and a moderate decrease in reflexes. In short, while the ALJ may not have been entirely accurate in finding there was no evidence of sensory loss, he was correct in other respects. There was no evidence indicating any muscle weakness, a symptom which is necessary to meet the impairment listed at 1.05(C) of Appendix 1. Accordingly, the ALJ’s findings that appellant did not meet the impairment at 1.05(C) is supported by substantial evidence.
The alternative argument asserted by appellant — that his condition equalled the impairment at 1.05(C) — we dispose of quickly, since it is without support in the facts or the law. Section 404.1526 of the Secretary’s regulations provides that an impairment is considered equivalent to a listed impairment if the medical findings — including symptoms, signs and laboratory findings — regarding the claimant’s impairment, are “at least equal in severity and duration to the listed findings.” 20 C.F.R. § 404.1526(a) (1983). Despite the necessity for a showing of specific alternate medical symptoms, which appellant concedes do not exist in this case, appellant argues, relying on Thompson v. Schweiker, 555 F.Supp. 1282 (W.D.Mo.1983), that specific alternate symptoms (“buzz words”) are not necessary and that instead the Secretary should gauge the overall condition of the claimant.
We find Thompson to be inapposite. The doctors in that case could not agree on a reasonably conclusive diagnosis. In view of that, the district court held that it was error to match that claimant’s symptoms against those of any single listed impairment; rather, the combination of impairments was believed to be “equivalent” to the disabling listed impairments “in terms of her ‘total physiological well-being.’ ” Id. at 1290.
Even if the generous concept of “equivalence” used in Thompson were consistent with the concept outlined in the regulations, it does not help appellant in the instant case. Here all the doctors essentially agreed that appellant has sustained a vertebrogenic disorder. Hence it was not error to require that appellant establish either the symptoms listed at 1.05(C) or other symptoms that are equally severe. Not having sustained this burden, appellant cannot be said to have an impairment equal to the impairment at Listing 1.05(C).
(C) Pain Alone as Disabling
We now turn to what we consider the critical issue in this case: whether appellant’s pain alone may be considered disabling. This issue pits the rule that substantial deference must ■ be given to the uncontradicted opinion of the treating physician, see supra, against the rule that an AU’s findings based on the credibility of the applicant are to be accorded great weight. Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383 (6th Cir.1978).
It is well settled that pain alone, if the result of a medical impairment, may be severe enough to constitute disability. Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 538 (6th Cir.1981), cert. denied, — U.S. —, 103 S.Ct. 2428 (1983); Beavers, supra, 577 F.2d at 386; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979).
The AU concluded that appellant was not disabled because he was capable of performing sedentary work as that is defined in the regulations. He reached this conclusion on the basis of his finding that no medical evidence had shown that appellant was incapable of sitting for most of an eight hour workday and his finding that appellant’s complaints of constant, severe and disabling pain were incredible. The district court held that the ALJ was within his power in weighing the conflicting medical evidence and making his decision after considering also the credibility of appellant.
If this were the complete and accurate description of appellant’s case, we would agree with the district court. Significantly, however, we find no conflicting medical evidence in the record on the issue of pain. See Glass v. Secretary of Health, Education & Welfare, 517 F.2d 224 (6th Cir.1975) (per curiam); Noe v. Weinberger, 512 F.2d 588 (6th Cir.1975). Dr. Larrick reported in November 1980 that appellant suffered from “severe low back pain” and in November 1981 that any relief of appellant’s pain through manipulation or traction is only temporary. While it might be said that, without any other data to support these conclusions, the ALJ was justified in not according much deference to them, see Kirk, supra, 667 F.2d at 538, on this record we find that the reports of the other physidans provide ample support for Dr. Larriek’s condusions. Dr. Shahabi, designated by the Secretary to examine appellant, reported that appellant’s pain during the examination was manifest and that the pain significantly restricted appellant’s movement. We do not understand Dr. Shahabi’s statement that ambulatory aids were unnecessary to mean that appellant’s pain was not real, but rather that such aids would have no therapeutic value. Dr. Martz’ hospitalization discharge summary likewise supports the conclusion of substantial pain, manifested in significant restriction of movement.
Thus, unlike in Kirk and Beavers, there were no conflicts in the medical evidence regarding appellant’s claim of pain. The expansive lead given to the AUs in those two cases to rely on their findings of credibility is not wholly applicable here. The medical evidence, all consistent with the treating physician’s opinion of severe and essentially constant pain, fully supported appellant’s own testimony regarding his sedentary lifestyle, which included lying down for up to 14 hours during the daytime. Here “documented [is] a long history of fruitless treatment for severe headaches and leg and back pain.” Beavers, 577 F.2d at 386. In light of this uncontradicted and overwhelming medical and lay evidence of appellant’s severe back pain, we decline to give substantial deference to the ALJ’s unexplained credibility finding. It was error for the AU, without any substantial support, to find appellant not disabled. See Marshall v. Heckler, 731 F.2d 555 (8th Cir.1984) (despite AU’s findings that complaints of pain were incredible, court reversed because of uncontradicted medical evidence of impairments leading to pain).
We hold on this record that there is but one reasonable conclusion: that due to severe and constant back pain, resulting from two laminectomies and degenerative disc disease, for which he has been receiving treatment providing only temporary relief for almost ten years, and which has caused substantial restriction of movement and curtailment of regular activities, appellant lacks the residual functional capacity to perform any substantial gainful activity. He therefore is disabled.
The judgment is reversed and the case is remanded to the district court with instructions to remand to the Secretary for an award of benefits.
Reversed and remanded.
. The ALJ actually wrote that appellant’s impairment did not "equal" the condition of Listing 1.05(C), but it is clear from the context that he was evaluating appellant’s claim that his impairment "met" the condition of Listing 1.05(C). Neither the ALJ nor the district court actually reached the issue of whether appellant’s impairment was equivalent to the 1.05(C) condition.
. In Marcus v. Califano, supra, as well as in Kirk and Beavers, there was conflicting medical evidence which cried out for resolution by the ALJ, a process that would necessitate credibility determinations. In a case in which the medical evidence is entirely consistent, as here, the importance of credibility findings is substantially decreased.
Furthermore, this Court recently has indicated that an AU, in making a finding on the issue of pain, may not rely solely on the demeanor of the applicant as observed by the ALJ at the hearing. Martin v. Secretary of Health and Human Services, 735 F.2d 1008, 1010 (6th Cir.1984); Weaver v. Secretary of Health and Human Services, 722 F.2d 310, 312 (6th Cir.1984). It follows that, where all the medical evidence consistently supports the applicant’s complaint of severe back pain, as here, the ALJ’s observation of the applicant at the hearing will not provide the underpinning for denial of Social Security benefits.
. For example, the evidence of appellant’s work history, which shows a return to work after his 1978 fall despite his continued pain, does not readily support an inference that appellant is a malingerer.
. The Secretary argues that appellant’s pain is purely an exertional impairment, thus justifying the conclusion that appellant is capable of sedentary work. Even if we were to accept the premise, we think it ludicrous, in light of the minimal amount of exertion required to cause the pain, to think of hanging our hats on that distinction.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer: |
songer_bank_r1 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
UNITED STATES of America, Plaintiff-Appellee, v. Dennis Keith FRIED, Defendant-Appellant.
No. 20340.
United States Court of Appeals, Sixth Circuit.
Jan. 22, 1971.
R. George Crawford, Washington, D. C. (Court-appointed) for defendant-appellant; Carol G. Emerling, Cleveland, Ohio, on brief.
Harry E. Pickering, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee; Robert B. Krupansky, U. S. Atty., Cleveland, Ohio, on brief.
Before BROOKS and MILLER, Circuit Judges, and CECIL, Senior Circuit Judge.
BROOKS, Circuit Judge.
This is an appeal by defendant-appellant from his jury conviction for bank larceny (18 U.S.C. § 2113(b)) and entering a bank for the purpose of committing a felony (18 U.S.C. § 2113(a)). He was indicted with a female accomplice as a result of their scheme to purloin bank funds. Allegedly defendant disguised as a woman entered the bank and went to the teller’s window where his female accomplice worked. He then handed her a passbook from a cancelled account which had robbery instructions in it. The accomplice gave him the money in her cash drawer and following his departure from the bank reported the “robbery.” Defendant’s accomplice was indicted and pled guilty to embezzlement and willful misapplication of bank funds (18 U.S.C. § 656). On this appeal two issues are presented.
First, it is contended that an eyewitness in-court identification of defendant was the result of a pretrial photographic identification which was so impermissi-bly suggestive as to make the in-court identification inadmissible. The pretrial identification was from an array of photographs of women and a picture of defendant which was retouched to make him look like a woman (long hair was added to his picture). Defendant relies upon Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) to support his contention.
However, Simmons is distinguishable on its facts from those of- this case. Here, unlike in Simmons, the eyewitness was thoroughly cross-examined in the presence of the jury as to the circumstances surrounding her viewing of the photographs, and the array of photographs from which the identification was made were shown to the jury. In addition, while in Simmons there was a positive identification of the suspect, in the instant case the eyewitness could only declare that a similarity existed between the defendant and the person she saw at the “robbed” teller’s window. The only reason she gave for even having had taken notice of this individual, under otherwise ordinary circumstances, was that the “woman” had her blouse on backwards. The District Court concluded, and we agree, that there was nothing unnecessarily suggestive about this identification method. See, United States v. Black, 412 F.2d 687, 690 (6th Cir. 1969), cert. denied 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). However, even if the method was constitutionally circumspect, there, was other identification evidence which amply corroborated the eyewitness’ testimony (e. g., a positive identification by defendant’s accomplice), and if the pretrial identification method used in this case made admission of the eyewitness’ testimony constitutional error, it was harmless under the standards set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. United States, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). See also, United States v. De Bose (6th Cir. decided October 27, 1970); United States v. Satterfield, 410 F.2d 1351, 1354 (7th Cir. 1969), cert. denied. 399 U.S. 934, 90 S.Ct. 2250, 26 L.Ed.2d 806.
The second issue raised by defendant is that the District Court erred in not dismissing his conviction for entering the bank for the purpose of committing a felony following his conviction for the actual larceny. The District Court imposed sentence for the larceny conviction and suspended sentence on the entry conviction. Relying upon Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), defendant argues that the crime of entering the bank for the purpose of committing a felony “merged completely” into the larceny when the larceny was completed and, therefore, his conviction for entering the bank with felonious intentions should have been dismissed. A conflict among the circuits exists on the question of what is the proper interpretation of the merger concept established in Prince. Several circuits have construed Prince as holding that there is a “merging of sentences” under the Bank Robbery Act thereby prohibiting pryamiding of sentences. See, Smith v. United States, 356 F.2d 868 (8th Cir. 1966), cert. denied, 385 U.S. 820, 87 S.Ct. 44, 17 L.Ed.2d 58; Sawyer v. United States, 312 F.2d 24 (8th Cir. 1963), cert. denied, 374 U.S. 837, 83 S.Ct. 1888, 10 L.Ed.2d 1058; La Duke v. United States, 253 F.2d 387 (8th Cir. 1958); Kitts v. United States, 243 F.2d 883 (8th Cir. 1957); Brunjes v. United States, 329 F.2d 339 (7th Cir. 1964); United States v. Lawrenson, 298 F.2d 880 (4th Cir. 1962), cert. denied, Lawrenson v. United States Fidelity and Guaranty Co., 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406; Purdom v. United States, 249 F.2d 822 (10th Cir. 1957), cert. denied, 355 U.S. 913, 78 S.Ct. 341, 2 L.Ed.2d 273; while other circuits have interpreted the Prince decision as holding that there is an actual merger of offenses with only one offense in various aggravated forms. See United States v. Welty, 426 F.2d 615 (3rd Cir. 1970); United States v. McKenzie, 414 F.2d 808 (3rd Cir. 1969), cert. denied, 393 U.S. 1117, 89 S.Ct. 994, 22 L.Ed.2d 123; Bayless v. United States, 347 F.2d 354 (9th Cir. 1965); United States v. Tarricone, 242 F.2d 555 (2nd Cir. 1957). A conflict over the question appears to exist in the Fifth Circuit, see Counts v. United States, 263 F.2d 603 (5th Cir. 1959), cert. denied 360 U.S. 920, 79 S.Ct. 1440, 3 L.Ed.2d 1536; United States v. Williamson, 255 F.2d 512 (5th Cir. 1958), cert. denied, 358 U.S. 941, 79 S.Ct. 348, 3 L.Ed.2d 349, contra, Hall v. United States, 356 F.2d 424 (5th Cir. 1966). The effect of the two interpretations is that under the “merging of sentences” approach, the Act is treated as creating separate offenses which will permit separate convictions but not multiple sentences, and under the “merger of offenses” approach, only a single conviction can be allowed to stand.
In this Circuit, the two post-Prince cases in point while using language which indicates a merger of offenses approach was being adopted, the actual judgments clearly show that this Circuit has interpreted Prince as holding there is only a merger for sentencing purposes. In United States v. Poindexter, 293 F.2d 329 (6th Cir. 1961), cert. denied, 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392, certain defendants pled guilty to indictments charging two counts — entry with intent to commit a larceny and larceny. The Court concluded the defendants’ “conviction on pleas of guilty were in conformity to law * * In United States v. Machibroda, 338 F.2d 947 (6th Cir. 1964), defendant pled guilty to two indictments with two counts — entry with intent to commit a felony and bank robbery. The Court did not upset the convictions, it only vacated the multiple sentences imposed by the District Court. Thus, it appears that this Circuit has tacitly adopted the approach taken by the Fourth, Seventh, Eighth, and Tenth Circuits that the Prince doctrine of merger applies under the Bank Robbery Act only to sentencing and not offenses. Accordingly, we hold that it was proper not to dismiss defendant’s conviction for entering the bank for the purpose of committing a felony once he was convicted of the larceny.
There remains one aspect of the District Court’s suspending sentence on defendant’s conviction for entering the bank for the purpose of committing a felony that requires comment. Judgment which suspends sentence without imposing probation is improper and is a nullity. See, United States v. Graham, 325 F.2d 922 (6th Cir. 1963). Therefore, the case is remanded to conform the judgment to the provisions of 18 U.S.C. § 3651. We do not see the prohibition against pyramiding sentences established by Prince to be violated by the suspension of sentence and placing defendant on probation, since suspension of sentence with probation under 18 U.S.C. § 3651 is not a sentence. Zaroogian v. United States, 367 F.2d 959, 963 (1st Cir. 1966).
The judgment of conviction is affirmed and the case remanded for further proceedings consistent with this opinion.
Question: Is the first listed respondent bankrupt?
A. Yes
B. No
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
Melvin W. KAHLE, Administrator of the Estate of Moses Joiner, Deceased, Appellant, v. John W. ACTON.
No. 14844.
United States Court of Appeals Third Circuit
Argued Nov. 16, 1964.
Decided Dec. 1, 1964.
James A. Ashton, Pittsburgh, Pa., for appellant.
Harold Gondelman, Pittsburgh, Pa. (Jacobson & Gondelman and Herbert Jacobson, Pittsburgh, Pa., on the brief), for appellee.
Before MARIS, STALEY and GANEY, Circuit Judges.
PER CURIAM.
This is an appeal from the judgment of the district court entered on a directed verdict for the defendant in an action for damages for the death of the plaintiff’s decedent, a pedestrian, who was struck by an automobile being driven by the defendant late at night on the Parkway West, an unlighted limited access highway in the City of Pittsburgh, about eight-tenths of a mile west of the Fort Pitt tunnels. In his charge to the jury the trial judge reviewed the evidence and the applicable principles of Pennsylvania law and reached the conclusion that the evidence was insufficient to support a finding of negligence on the part of the defendant. He accordingly directed the verdict on which the judgment appealed from was entered. Our review of the evidence and the law satisfies us that the action of the trial judge was right for the reasons given in his charge, to which we need add nothing.
The judgment of the district court will be affirmed.
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_usc1sect | 741 | 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 46. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Melba J. KOHL, Individually and as Special Administrator of the Estate of Thomas H. Schlatter, Deceased, Betty E. Doty, Individually and as Special Administratrix of the Estate of Charles Edward Doty, Deceased, and Linda Winters, Individually and as Special Administratrix for the Estate of Terry Lee Winters, Deceased, Plaintiffs-Appellants, v. UNITED STATES of America and Corps of Engineers of the United States Army, Defendants-Appellees.
Nos. 82-1371, 82-1381.
United States Court of Appeals, Seventh Circuit.
Argued March 31, 1983.
Decided July 12, 1983.
See also, 508 F.Supp. 250.
Bernard R. Nevoral, Robert B. Patterson, Chicago, for plaintiffs-appellants.
David V. Hutchinson, Dept, of Justice, Washington, D.C., for defendants-appellees.
Before PELL and CUDAHY, Circuit Judges, and JAMESON, Senior District Judge.
William J. Jameson, Senior District Judge for the District of Montana, is sitting by designation.
PELL, Circuit Judge.
This lawsuit stems from the unfortunate drowning of three fishermen near Lock and Dam 13 (LD13) on the Mississippi River. Plaintiffs filed under the Suits in Admiralty Act, 46 U.S.C. § 741-52, claiming that the accident was the result of inadequate warnings posted in and around LD13 and misconduct by dam employees, who allegedly opened the dam gates in an attempt to wash decedents downstream. The trial court, sitting without a jury, found that the warnings posted on LD13 were adequate under the circumstances and held that there was insufficient evidence to support the allegation of employee misconduct. The court determined that decedents’ own negligence in fishing near the dam was the sole cause of the accident. Plaintiffs now claim that the court’s findings of fact are clearly erroneous.
I. Facts
LD13 spans 1066 feet across the Mississippi River, from Illinois on the east to Iowa on the west. On the eastern portion on LD13 there is an operating lock chamber and an inoperable auxiliary lock. The dam is made up of thirteen movable gates that control the flow of water. The middle gates, numbers 5, 6, and 7, are large, “roller” gates. The gates on either side are smaller, “tainter” gates. The gates are separated by concrete “piers” that extend 40 feet into the river from the gates. Ladder rungs are built into the downstream face of the pier, known as the “piernose.”
Downstream from LD13 there are a series of “baffle blocks” that are built into the concrete foundations in the river. The baffle blocks are designed to prevent erosion by dissipating water energy. The blocks produce varying amounts of surface and subsurface turbulence, depending on factors such as the gate settings and water level. The surface turbulence may be visible as boiling water or white caps, while the subsurface turbulence is not visible to boaters. The dissipation of water energy also produces a phenomenon known as a “break-line.” A breakline is created when the water near the baffle blocks is raised above the level of the water directly in front of the dam, causing the current to flow back to the dam. The water on the downstream side of the breakline continues to flow away from the dam. As there are several sets of baffle blocks there will be several break-lines. The location of the breaklines will vary according to gate settings and water levels, but anyone fishing near the dam will notice that the back-current is carrying fishing lines and debris toward the dam.
Other than the physical design of the dam, the facts were contested. After reviewing the evidence presented by the parties the court made extensive findings of fact. The court found that LD13 is an attractive area for fishing, but is also a hazardous one. Until 1968 the public was advised to stay 300 feet away from the downstream side of the dam. In 1968 the “restricted” area was changed to 100 feet. There was conflicting testimony at trial as to how often fishermen violated the restriction and came within 100 feet of the dam. Plaintiffs presented testimony indicating that boaters frequently entered the restricted area, while dam employees testified that such instances were rare. The court did not resolve this contradiction, but did note that there was no credible proof that anyone had tied up to the pier as decedents did, or had even come as close to the pier as decedents did. The court also noted that the lockmen were supposed to warn boaters observed entering the restricted area, but were under no duty actively to police the area.
On the evening of June 22, 1977, decedents went fishing near LD13 in a 16-foot fiberglass boat. All three men were avid fishers, and decedent Schlatter had fished within the 100 foot restricted area in the past. Around 7:00 p.m. decedents approached Charles Munson, who was fishing 200 feet downstream from LD13, and discussed the fishing conditions with him. After trolling behind Munson for awhile, decedents proceeded to the dam. At about 7:30 p.m. Munson observed one of the decedents tie a line from their boat to the ladder on the piernose between gates 6 and 7. Another fisherman, Terry Cram, arrived in the fishing area about 7:30 p.m. and observed decedents fishing 500-600 feet downstream from the dam, indicating that Munson must have observed decedents tie their boat to the piernose sometime after 7:30 p.m.
Carolyn and Richard Trude observed decedents fishing after they tied to the pier-nose. Carolyn testified that one of the decedents would pull the boat up to the pier and then let it drift downstream for 10-15 feet. Decedents repeated this maneuver several times while Carolyn watched. The Trudes testified that they heard cries for help around 8:00 p.m., as did another fisherman, John Burman. No witness actually saw decedents’ boat capsize. The first person to see a post-accident occurrence was fisherman Matzen, who immediately began unsuccessful rescue efforts. After reviewing Matzen’s testimony the court concluded that it was consistent with an 8:00 p.m. accident.
After being informed of the accident, the lockmen closed the gates. Decedents’ empty boat was caught in the current in front of gate 6 and was being slammed into the gate. The mooring line, trolling motor and part of the gunwale were still attached to the piernose. Decedents’ bodies were recovered three days later. None of the men were wearing life-vests, although the boat was equipped with an ample supply. Trude, Martzen, and Burman all testified that they saw decedents’ heads and arms above water as they were washed downstream.
II. Warnings
Plaintiffs’ principal contention is that the warnings posted on and around LD13 were inadequate in that they did not warn boaters of the type of danger presented by the dam. The complained of warnings consisted of the following:
(1) A sign, eight feet by five feet, posted on the intermediate wall of the auxiliary lock, which read “Restricted. Keep Below This Point.”
(2) Three red lights that appear to be aligned when viewed from the 100 foot restriction line, but which lose their alignment when viewed from within the 100 foot restriction.
(3) Three orange lights that work the same way as the lights in (2), but warn boaters when they are within 300 feet of the dam.
(4) A sign, 20 inches by 28 inches, posted on the downstream face of the river wall next to gate 1 that reads: “Danger. Keep 100 Feet From Dam.”
(5) A sign similar to that in (4), posted on the pier between gates 12 and 13, which advises boaters to keep 300 feet from the dam.
(6) At two different places across the downstream side of the dam the word Restricted appears, which can be read from the river more than 300 feet downstream.
(7) A yellow sign with black letters covers the width of pier 6. Prior to 1968 the sign said: “Restricted. Keep 300 Feet From Dam.” In 1968 the restricted area was reduced to 100 feet and the digit “3” was painted over with white paint. A digit “1”, however, was not painted in, leaving the sign to read “Restricted. Keep 00 Feet From Dam.” Anyone near the sign could see that the “3” had been painted over. Decedents tied their boat to the pier directly below this sign.
At trial various witnesses testified that “Restricted” meant “stay out” and was an absolute prohibition rather than simply a warning of danger. One witness, Raymond Wainscott, saw the sign on pier 6 when fishing with decedent Schlatter several weeks before the accident. Wainscott, who also saw the sign on the intermediate lock wall, testified that he understood the signs to mean not to go within 100 feet of the dam. The one witness who did not read the signs this way was plaintiffs’ expert witness, Dr. Casky. Dr. Casky testified that “restricted” meant “stay off” and that the signs could be read as merely prohibiting boaters from climbing on the dam. The trial court did not credit Dr. Casky’s reading as it required one to ignore “Keep 00 Feet From Dam,” which clearly indicated more than that one should not climb on the dam. The court found that it was sufficient that the decedents were warned of an absolute prohibition against entering the 100 foot restricted area and that it was not necessary that the nature of the danger be specified.
After the trial in this case had ended this court decided Callas v. United States, 682 F.2d 613 (7th Cir.1982). In Callas decedents allowed their boat to drift into the auxiliary lock chamber on LD8 on the Mississippi River, unaware that they would be swept into a roller gate by the back-current created by the dam. Decedents’ boat was swept into the gate and capsized. LD8 was equipped with only one sign, which read “Danger — Keep 00 Feet Away” because the overlay for the digit “1” had not arrived. LD8 also employed warning lights similar to those at LD13. We agreed with the district court that the warnings were inadequate because they did not reveal the nature of the danger they purported to warn of. “Ultimately, we believe that this was a case in which the government induced reliance on a belief that it was providing something which, in fact, it was not providing — an adequate warning of the dangers posed by the dam.” Id. at 623. The Government, having “lulled [decedents] into a false sense of security” with the sign, was responsible for the fatal consequences.
Plaintiffs argue that Callas requires, as a matter of law, that the Government specify the nature of the danger. We do not agree. Callas did nothing more than apply the long recognized rule that when the Government warns the public of a danger, it must do so with due care. 682 F.2d at 622; see also Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). In Callas we agreed with the district court that the Government was negligent in posting the specific sign in issue because it purported to describe the dangers presented without actually doing so. That is not the case here. Unlike a “danger” sign, which merely advises boaters that there are risks attendant upon boating near the dam, a “restricted” sign tells boaters that they may not enter the area under any circumstances. That the other warnings, such as the red and orange lights, may be ineffective is irrelevant.
Plaintiffs’ expert witness admitted that it is sufficient either to apprise boaters of the nature of the danger or to describe what action must be taken to avoid danger. In this case the signs indicated that boaters should keep out of the restricted zone. In fact, Dr. Casky was also a witness in Callas, and in that case stated that the problem with the lone sign at LD8 was that it failed to state that boaters should keep away from the dam, a problem not present with the signs at LD13. The Government, having clearly warned boaters to stay away from the dam, was under no further duty to explain the nature of the danger.
The remaining issue is whether the sign, sans the digit “1,” was sufficient to inform decedents to stay away from the dam. Dr. Casky testified that the sign, reading “Keep 00 Feet From Dam,” simply meant to keep off the dam. The district court did not accept this reading, and neither do we. The sign clearly meant that boaters were to stay away from the dam, not just off of it, and the only ambiguity was the distance boaters were to keep between themselves and LD13. A reasonable interpretation was that boaters should keep at least 100 feet from the dam. Even assuming that the average boater would not read the sign this way, any ambiguity was cleared up by the sign on the intermediate lock wall, a sign that was visible to anyone in decedents’ position.
The district court specifically found that dam employees were not aware that boaters were coming as close to the dam as decedents did and rejected the claim that the lockmen acquiesced in the violations of the restriction. We cannot say that the court’s findings on this are clearly erroneous and must reject plaintiffs’ claim that defendants knew that the warnings were ineffective and were under a duty to take further steps to enforce the 100 foot restriction. Similarly, there was no evidence that any of the lockmen saw decedents tie up the night of the accident. While the lock-men may have been under a duty to warn boaters observed violating the restriction, they were not obliged actively to police the area to protect boaters from their own folly-
III. Opening of Gate 6
Plaintiffs’ second claim before the trial court was that the lockmen, observing decedents fishing in front of the dam, opened the gate in an attempt to wash decedents downstream and out of the restricted zone. The resulting surge of water caused the boat to capsize and led to the drownings. In advancing this theory plaintiffs rely upon an unexplained rise in the water level, fisherman Matzen’s testimony regarding decedents floating downstream on a surge of water, and the type of damage done to the boat.
In rejecting this claim the trial court did not just adopt the defendants’ proposed findings of fact, but rather reviewed the evidence and made extensive findings on its own. On review we are not empowered to retry the case but are instead limited to determining whether the district court’s determination that plaintiffs failed to carry the burden of proof on their claim was clearly erroneous. Fed.R.Civ.P. 52(a). We may not reweigh the credibility of the witnesses, as plaintiffs would have us do, and we may only reverse the court’s decision if we are “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364,395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); see also Nickerson v. Commissioner, 700 F.2d 402, 405-06 (7th Cir.1983).
A recording mechanism located downstream from the dam measured a rise in the water level at 7:42 p.m. The water level did not recede until after the accident was reported and the gates closed around 8:30 p.m. Plaintiffs claim that the rise in the water level was caused by the lockmen opening gate 6, which in turn led to the accident. The linchpin of this claim is, of course, proving that the accident happened contemporaneously with the rise in the water level. The district court considered the testimony of the fishermen near LD13 at the time of the accident, much of which has been set forth in the beginning of this opinion, and determined that the accident occurred at 8:00 p.m., negating any claim that decedents’ boat capsized because of a gate opening.
The testimony of various fishermen was not exact. Nobody actually saw the accident and, of necessity, the district court had to rely on estimates provided by the boaters in determining the time of the accident. Most of this evidence consisted of guesses concerning the amount of time spent on activities prior to and after the accident, so it is not surprising that plaintiffs can now point to evidence that contradicts the court’s conclusion. None of the evidence plaintiffs rely on is the type of irrefutable, physical evidence that would compel us to reverse the court’s findings. We see no reason to discuss the conflicting testimony, but suffice it to say that we do not find the court’s conclusion regarding the time of the accident to be clearly erroneous.
Because the accident did not occur when the rise in the water level took place, there is no reason to spend much time discussing plaintiffs’ remaining evidence in support of the gate opening theory. We certainly would be going beyond our appellate province to try the case de novo, which to some extent the appellants seem to want us to do. The court was not required to credit Matzen’s testimony that he saw a surge of water, and his claim that he heard of lock-men opening gates on boaters 10-15 years earlier is of minimal value. Similarly, the court was not required to disbelieve the express denials of the lockmen, all of whom were engaged in locking through a vessel during the rise in water level — which may account for the increase. We are equally unconvinced that plaintiffs’ expert established that the damage sustained by decedents’ boat could only have been caused by a surge of water rather than being slammed into the roller gate.
Although it is not necessary to review the court’s finding that decedents’ negligence was the sole cause of the accident in light of plaintiffs’ failure to establish any basis for holding defendants liable, we do note that the evidence is clear that decedents, grown men with extensive boating experience, chose to tie their boat in front of the gate of an operating dam despite warning signs and the obvious danger of placing themselves in this position. Decedents’ carelessness was compounded when they failed to take the simple precaution of wearing the life vests that were in the boat, a step that might well have saved their lives. Given decedents’ willingness to take risks with their lives, the resulting tragedy could reasonably have been expected.
For the reasons stated herein, the decision of the district court is Affirmed.
. In addition to the clear message conveyed by the sign, the court found that the cause of the danger was obvious from the surface turbulence. Plaintiffs argue that the court was not permitted to consider testimony concerning the water conditions on the night of the accident because the parties stipulated that several photographs, taken long after the accident, represented conditions similar to those existing the night of the drownings. Plaintiffs argue that this stipulation required the court to accept that the water was calm the night of the accident. In making this argument plaintiffs ignore that the water depicted in the photographs is not calm, and is in fact quite turbulent near the gates. Furthermore, assuming that the water was calm, this does nothing to negate that decedents, experienced boaters, knew that they had tied their boat in front of the gate of an operating dam and must have known that this involved substantial risk. Witnesses at trial testified that decedents had obviously placed themselves in a dangerous situation and that nobody in the past had been so foolhardy as to tie up to a piemose as decedents did. In addition, from decedents’ position the backcurrent and breakline should have been visible and decedents were undoubtedly aware of the risk they were taking. In short, the facts fully support the court’s determination that the danger was open and obvious and that decedents’ own negligence was the sole cause of the accident.
. In Callas the court rejected the Government’s claim that “Keep 00 Feet Away” should be read as indicating a minimum of 100 feet, principally because this interpretation “assumes that boaters would have recognized the operational defect in the sign.” 682 F.2d at 623. In Callas the sole sign was new and was equipped with replaceable digits. The digit “1” had not arrived and there was no indication from the sign itself that a digit was missing. Here, however, the digit “3” had been painted over and it was clear that the sign was incomplete. In this situation it would be unreasonable to read the sign as actually “00 Feet.” Furthermore, the sign was not the only one posted and a reasonable boater would have read it in conjunction with those signs indicating 100 feet.
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 46? Answer with a number.
Answer: |
songer_appbus | 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 appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
TELE-CONTROLS, INC. and Audio Systems Co., Plaintiffs-Appellants, v. FORD INDUSTRIES, INC., DefendantAppellee.
No. 16220.
United States Court of Appeals Seventh Circuit.
Dec. 21, 1967.
Elmer Gertz, Wayne B. Giampietro, Chicago, 111., for plaintiffs-appellants.
Robert L. Stern, Roger W. Barrett, Everett L. Hollis, Jack Guthman, Chicago, 111., for defendant-appellee.
Before HASTINGS, Chief Judge, and ENOCH, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
CUMMINGS, Circuit Judge.
In this diversity action, Audio Systems Co. (“Audio”), an Illinois corporation, has sued Ford Industries, Inc., a Washington corporation, for damages and for injunctive relief against Ford Industries’ termination of Audio’s dealership. This appeal is from the District Court’s denial of a preliminary injunction pendente lite.
In January 1966, the predecessors of Audio and Ford Industries entered into a dealer agreement making Audio’s predecessor the exclusive sales agent in the Chicago area for Code-a-phones, a telephone-answering device manufactured by Ford Industries’ predecessor. Paragraph 13(b) of the contract provided:
“Either party hereto may terminate this Agreement at any time, with or without cause, by giving to the other party a written notice of intention to terminate at least thirty (30) days prior to the effective date of termination specified in such notice. In the event of termination by Code-a-phone, Dealer shall continue to maintain the sales .and service facilities previously maintained until the effective date of the termination.”
On February 1, 1967, Ford Industries sent a notice of termination to Audio, effective at the close of business on March 10. On February 13, this suit was filed. Audio’s motion for a preliminary injunction was supported by the affidavit of its president, and his deposition was taken by Ford Industries on March 13, 1967. The motion for preliminary injunction was denied a month thereafter.
Audio first argues that the District Court should have issued a preliminary injunction to preserve the status quo in order to prevent irreparable injury. Under Illinois law, a trial court’s decision on a preliminary injunction is reversible only for abuse of discretion. Capitol Records, Inc. v. Vee Jay Records, Inc., 47 Ill.App.2d 468, 477, 197 N.E.2d 503 (1964). In exercising his discretion, the trial judge must consider principally the following standards: the adequacy of a remedy at law (Bour v. Illinois Central R. Co., 176 Ill.App. 185, 198 (1912) ); the relative harm to the parties resulting from the denial or grant of the injunction (Fishwick v. Lewis, 258 Ill.App. 402, 409-410 (1930)); and the likelihood that plaintiff will prevail on the merits (Lipkin v. Burnstine, 18 Ill.App.2d 509, 517, 152 N.E.2d 745 (1958)). Under federal law too, similar standards govern. 7 Moore’s Federal Practice, §§ 65.04[2] and 65.18[3]. Therefore, we need not determine whether state or federal law governs the issuance or denial of an injunction in a diversity case. See Dick v. New York Life Insurance Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935.
As to the question of adequacy of remedy at law, Audio stresses the difficulty of computing damages, but the District Court felt that the damages could be sufficiently measured. Both the complaint and the deposition of Audio’s president refer to specific lost dollar amounts, and the amount recoverable as lost profits can be measured on the basis of past performance and present predictions. Therefore, equitable relief was not required. Bour v. Illinois Central R. Co., 176 Ill.App. 185, 198-200 (1912); Tidd v. General Printing Co., 257 Ill.App. 596, 606 (1930); 2 Restatement of the Law of Contracts, § 361.
Ellis Electrical Laboratory Sales Corp. v. Ellis, 269 Ill.App. 417 (1933) is not to the contrary. That case dealt with a permanent injunction and plaintiff’s success on the merits had been assured before an injunction was ordered. There, too, it was uncertain how much of plaintiff distributor’s business would be lost by the manufacturer’s competition, whereas here and in Bour, the plaintiff lost all its business, making computation of damages easier.
As in Ellis, the case of Madsen v. Chrysler Corp., 261 F.Supp. 488 (N.D.Ill.1966), involved a permanent injunction. Also as in Ellis, the court decided after the trial that the defendant had breached the contract and that plaintiff was entitled to some relief. The termination clause in Madsen was dissimilar to the one at bar. Madsen does not support a reversal.
As to balancing the comparative harm to the parties by denying relief, Audio is not precluded from obtaining another telephone-answering device franchise, and Ford Industries is not forced to continue dealing with a dealer it has found to be unsatisfactory. In this connection, the District Court found it should not force Ford Industries to perform this continuous relationship involving many personal contacts. Ambassador Foods Corp. v. Montgomery Ward & Co., 43 Ill.App.2d 100, 105-107, 192 N.E.2d 572 (1963); Almar Forming Machinery Co. v. F. & W. Metal Forming Machinery Co., 308 Ill.App. 151, 164-165, 31 N.E.2d 415 (1941). We cannot say that balancing the equities here compels the issuance of a preliminary injunction. No such showing has been convincingly made.
The third factor with respect to the propriety of issuing a preliminary injunction is the likelihood of success on the merits. Plaintiff insists that termination can be made only in good faith. Paragraph 19(a) of the contract provides that it “shall be interpreted and construed according to the laws of the State of Oregon.” The parties’ intention to be governed by Oregon law should be honored. Lauritzen v. Larsen, 345 U.S. 571, 588-589, 73 S.Ct. 921, 97 L.Ed. 1254. However, instead of relying on Oregon decisional law, plaintiff’s reliance is upon opinions from other jurisdictions. Being inapplicable by the express terms of the contract, they need not be discussed herein. Plaintiff’s other reliance is upon the Uniform Commercial Code, which has been adopted in Oregon and Illinois. Section 1-203 of the Uniform Commercial Code provides: “Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.” This is an overriding provision that applies to the contract termination provisions found in § 2-309(2) and (3) of the Uniform Commercial Code. See 1 Anderson’s Uniform Commercial Code (1961), pp. 38-39.
It is unnecessary to decide whether the Uniform Commercial Code governs this entire dealership contract, for Oregon case law requires that termination must be in good faith. Johnson v. School District #12, 210 Or. 585, 312 P. 2d 591, 593-594 (1957); Lumbermen’s National Bank v. Minor, 65 Or. 412, 133 P. 87, 88 (1913); see also 1A Corbin on Contracts, § 265, note 64; cf. BushwickDecatur Motors v. Ford Motor Co., 116 F.2d 675, 677 (2d Cir. 1940). Under Oregon law, if Audio had been able to establish Ford Industries’ bad faith, a preliminary injunction might have been appropriate. However, no sufficient showing of bad faith has yet been made. The record does show that Ford Industries considered Audio to be an unsatisfactory dealer, inadequately capitalized, not selling enough Code-a-phone units, and not maintaining a sufficient inventory. Of course, if Ford Industries’ bad faith can be established at the trial, the District Court might then properly conclude to grant injunctive relief.
Since no abuse of discretion has been demonstrated, the District Court’s order denying the plaintiffs’ motion for preliminary injunction is affirmed.
. The other plaintiff is Audio’s predecessor, Tele-Controls, Ine., another Illinois corporation.
. Audio does not challenge the validity of this clause. A somewhat similar clause was upheld in Buggs v. Ford Motor Co., 113 F.2d 618 (7th Cir. 1940), certiorari denied, 311 U.S. 688, 61 S.Ct. 65, 85 L.Ed. 444; see also 6 Corbin on Contracts, § 1266, note 73.
. Ore.Stats. § 71.2030; Ill.Rev.Stats. (1965) ch. 26, § 1-203.
. Ore.Stats. § 72.3090(2) and (3); Ill.Rev.Stats. (1965) ch. 26, § 2-309(2) and (3).
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_initiate | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
STATE OF MAINE et al., Plaintiffs-Appellees, v. Robert W. FRI, etc., et al., Defendants-Appellants.
No. 73-1254.
United States Court of Appeals, First Circuit.
Argued Oct. 4, 1973.
Decided Nov. 2, 1973.
William D. Appier, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Peter Mills, U. S. Atty., and Walter H. Fleischer, Atty., Dept, of Justice, were on brief, for defendants-appellants.
Lee M. Schepps, Asst. Atty. Gen., for plaintiffs-appellees.
Before COFFIN, Chief Judge, MOORE, Senior Circuit Judge, and CAMPBELL, Circuit Judge.
Of the Second Circuit sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
For the second time, the Administrator of the Environmental Protection Agency (EPA) appeals from the district court’s interim order of June 29, 1973, requiring him to allot $29,025,000 to Maine in fiscal year 1973 for purposes of the Water Pollution Control Act Amendments of 1972, 33 U.S.C. (Supp. II, 1972) § 1281 et seq. (the “Act”). The order, issued several days before the end of the federal fiscal year, also provides that none of the funds so allotted will be available for obligation until further order of court. We dismissed an earlier appeal for lack of appellate jurisdiction. 483 F.2d 439 (1st Cir. 1973). Several months having passed without further hearing or action in or by the district court, we are now persuaded that the order was or has become an appeal-able preliminary injunction. Id. p. 440.
Maine brought the present suit after the then acting Administrator of the EPA, at the express direction of the President of the United States, had allptted among the states, for the purposes of the Act, two billion dollars for fiscal 1973 and three billion dollars for fiscal 1974. Section 207 of the Act provides that “[t]here is authorized to be appropriated to carry out this subchapter . for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, [and] for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000, . . . ” Maine contends that the President and the Administrator lack authority to reduce the 1973 and 1974 allotments below the sums authorized to be appropriated, especially since § 205 provides: “Sums authorized to be appropriated pursuant to § 207 for each fiscal year . shall be allotted by the administrator . ” [Emphasis supplied.] The merits of Maine’s claim have yet to be heard. The district court has informed the parties that it will expedite their determination.
The only question before us is the appropriateness of the preliminary order directing, in effect, a “paper allotment” of the disputed funds. Maine sought the interim relief because of its fear that if the Administrator was not ordered to make a formal allotment — essentially a bookkeeping entry — before the end of fiscal 1973 on June 30, 1973, the funds might irretrievably be lost. Thereafter the court held a hearing on July 6, 1973, on the Administrator’s motion to vacate the temporary order. It denied the motion. We are satisfied that the order was issued in substantial compliance with required procedures, and that the district court did not abuse its discretion in issuing it.
The Administrator attacks the order on both procedural and substantive grounds. His procedural attack is that the district court’s order, constituting what is by now a preliminary injunction, should be vacated because it was entered without setting out the factual premises and legal conclusions on which it was based, as required by F.R. Civ.P. 52(a). Although the government’s opportunity to present its side before the order issued may have been cramped by the short notice, it had full opportunity on July 6th when the court heard the government’s motion to vacate the order. The latter opportunity was but little removed from the usual hearing on issuance of a preliminary injunction. On the record, the court stated conclusions which were pertinent to in-junctive relief, i. e. irreparable harm, countervailing harm to the defendant, and the probability of success. As to the factual premises underlying those conclusions, the record shows at the very least an awareness by the court and counsel of the relevant statutory provisions and administrative actions. Since the main purpose of Rule 52 is served in this instance, where the record fully explicates the district court’s material assumptions of fact to the extent necessary for appellate review, and neither side has been misled as to the basic issues involved, we will' accept, without encouraging the practice, what might otherwise constitute an insufficient statement of findings in a temporary restraining order which becomes, through lapse of time, a preliminary injunction.
Before granting a preliminary injunction the court must be satisfied, with good reason, that Maine would otherwise suffer irreparable loss, and that it was likely to prevail on the merits. The district court was also required to balance against the possibility of irreparable loss to the plaintiff, if preliminary relief was denied, any harm to defendant that might be caused by the grant of such relief. Whether there would be irreparable loss boiled down to the need, in fiscal 1973, for the Administrator to engage in a formal action called “allotment”. Under the Act, allotment is the first step in a chain of actions required before federal financial aid is available to a particular state project. Maine asserts that if funds authorized to be appropriated in 1973 under § 207 of the Act were not timely allotted by the Administrator under § 205(a), they would cease to be available for obligation during the ensuing fiscal year. See § 205(b)(1). If so, Maine’s primary claim might become academic before it could ever be litigated.
The district court concluded that under the statute as drafted Maine’s fears were well-grounded. We need not and do not decide that issue. It is enough that the statutory language renders the court’s determination reasonable and well within its discretion. Section 205(b)(1) makes available for obligation in a subsequent year “[a]ny sums allotted to a State under subsection (a)” [Emphasis supplied.] There is obvious room for the inference that sums not allotted may not be so carried forward. The Administrator takes the position that funds authorized to be appropriated may be carried forward although never allotted in the relevant years. But without questioning his good faith in this particular, or indeed without foreclosing the possibility that on one theory or another unallotted funds might not irretrievably be lost to Maine, we do not see how either Maine or the district court prudently could have failed to take the positions they did. Maine was faced with a possible loss of millions if a timely allotment turned out to be mandatory. On the other hand, if the allotment turned out not to be mandatory, entry of an interim order would do no harm. The Administrator has been unable to persuade us that the order would injure his agency even were Maine to lose on the merits. The allotment ordered, with an express prohibition against obligating the funds until further order of court, does no more than preserve the possibility of effective final relief until the merits of Maine’s claim are decided. If Maine loses, no valid claims against the United States can have been created.
As to Maine’s probability of success on the merits, when the district court entered its order on July 6, 1973, it considered the rulings of several other district courts in favor of the position Maine was advocating. Today’s head count on the Water Pollution Control Act Amendments of 1972, if that is the proper way to refer to the situation, is for courts awarding relief and one declining to do so. This demonstrates to us sufficient probability of success on the merits to support a preliminary injunction. Comment, Executive Impounding of Funds: The Judicial Response, 40 U.Chi.L.Rev. 328 (1973); Note, Impounding of Funds, 86 Harv.L.Rev. 1505(1973).
We do not intimate that the Administrator’s position may not ultimately prevail. But the Administrator can prevail on appeal from a preliminary injunction only if he can show an abuse of discretion. Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822 (1920). The court did not abuse its discretion by concluding that Maine’s prospects were sufficiently bright to justify issuance of an interim order which, at no appreciable cost to the federal government, might forestall irreparable loss to Maine.
Order affirmed.
. City of New York v. Ruckelshaus, 358 F. Supp. 669 (D.D.C.1973) ; Campaign Clean Water, Inc. v. Ruckelshaus, 361 F.Supp. 689 (E.D.Va.1973) ; Minnesota v. EPA, 5 E.R.C. 1586 (D.Minn.1973) ; Martin-Trigona v. Ruckelshaus, 5 E.R.C. 1665 (N.D.I11.1973). Cf. Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 Yale L.J. 1636, 1652 (1973).
. Brown v. Ruckelshaus, 364 F.Supp. 258 (C.D.Cal.1973).
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_appfed | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Gerardeen M. SNYDER as the Executrix of the Succession of Eric Snyder and Charles Keenan, Plaintiffs-Appellants, and Allen Samuels, Inc., Intervenor-Appellant, v. CHAMPION REALTY CORPORATION, Defendant-Appellee.
No. 79-2514.
United States Court of Appeals, Fifth Circuit. Unit A
Dec. 5, 1980.
Rehearing Denied Dec. 31, 1980.
William F. Wessel, Windhorst, Heisler, De Laup & Wysocki, Frederick P. Heisler, New Orleans, La., for Snyder, et al.
Reynolds, Nelson & Theriot, Charles W. Nelson, Jr., New Orleans, La., for defendant-appellee.
Before WISDOM, GARZA and REAV-LEY, Circuit Judges.
WISDOM, Circuit Judge:
The issue in this diversity case is whether the plaintiffs, real estate brokers, are entitled under Louisiana law to recover a commission from the defendant. We agree with the district court that they are not, and we affirm the grant of summary judgment for the defendant.
The plaintiffs in this case are Eric Snyder, Allen Samuels, Inc. (“Samuels”), and Charles Keenan, three real estate brokers. The defendant is Champion Realty Corp. (“Champion”). Some time in 1974 Champion engaged Snyder and Samuels as non-exclusive agents for the sale of a large tract of land in Louisiana known as the Garyville tract. Champion offered the land for a minimum cash price of $125 an acre, or a total of $3,950,000, with Champion reserving all oil and gas rights. Champion agreed to pay any excess obtained over $125 an' acre to the brokers as their commission. Champion also agreed to “look at” any other deals that the brokers might arrange. Snyder and Samuels in turn obtained Keenan’s assistance and agreed to split the commission with him.
The brokers introduced Champion to a buyer, Brian Investments, Ltd. (“Brian”), willing to pay $150 an acre. The parties reached an agreement and put it into two documents on October 4, 1974. Champion and Brian signed an Agreement to Buy and Sell, calling for sale of the entire tract at $125 an acre, cash, with Champion reserving all gas and oil rights. Champion acknowledged the brokers’ role in arranging the sale but did not promise to pay a commission. At the same time, Brian and the brokers signed a Commission Agreement for $25 an acre.
Champion twice tendered title to Brian (on March 27 and April 28, 1975). Brian defaulted both times. Brian has never performed either of the October 4 agreements.
Sometime after the second default Champion and Brian opened direct negotiations. As a result, on May 4, 1976, they entered into a new agreement. Again the price was $125 an acre, but Champion reserved only half of the oil and gas rights. Champion also promised to pay a commission of $7.50 an acre to a broker to be designated by Brian. This sale took place on October 1, 1976, on a credit basis. Brian later designated itself as the broker to collect the $7.50 commission. The agreement made no provision for payment of any commission to the plaintiffs, nor were they notified of or invited to participate in the negotiations or agreement.
The plaintiffs sued Champion (but not Brian) in Louisiana state court; Champion removed the action to federal district court. The parties made extensive stipulations of fact. On cross-motions for summary judgment, the district court granted judgment for Champion.
The plaintiffs concede that they cannot recover from Champion in contract on the original brokerage agreement. Under that agreement, Champion’s liability for any commission was subject to the condition precedent that the sale price exceed the stated net price of $125 an acre. The plaintiffs brought in a buyer willing to pay $150 an acre, but they could not consummate a sale for any such amount.
Instead, the plaintiffs base their claim on a theory of unjust enrichment. The Louisiana courts have often invoked such a theory in proper circumstances to award equitable commissions to real estate brokers. The general rule is that when a broker brings a buyer and seller together, he is entitled to a commission on the sale even though (1) the sale takes place after the termination of the broker’s agency agreement; (2) the buyer and seller negotiate the deal themselves in the broker’s absence; (3) the sale price is less than that originally asked by the seller or offered by the buyer; or (4) there is no actual fraud or collusion to deprive the broker of his commission. J. R. Grand Agency, Inc. v. Staring, 1924, 156 La. 1094, 101 So. 723; Grace Realty Co. v. Peytavin Planting Co., 1924, 156 La. 93, 100 So. 62; Gottschalk v. Jennings, 1846, 1 La.Ann. 5; Sleet v. Gray, La.App. 1977, 351 So.2d 286; Hamberlin v. Bourgeois, La.App. 1973, 289 So.2d 358; Slimer v. White, La.App. 1973, 275 So.2d 468; Keating v. Lachney, La.App. 1968, 216 So.2d 906; Saturn Realty, Inc. v. Muller, La.App. 1967, 196 So.2d 321.
Assuming that the plaintiffs in this case were instrumental in bringing about this sale, however, it does not follow from these authorities that they may recover in unjust enrichment against Champion. The cases cited all differ from this case in one crucial respect: in every instance there was a promise to pay either a flat sum or a stated percentage of the sale price. In some cases, as in this case, the seller named a minimum net price. But in no case of recovery by a broker or real estate agent was the bargain structured so that the existence and amount of a commission depended directly on the receipt of a sale price exceeding the stated minimum. To restate the distinction: in all the cited cases the sellers were liable for some commission if they sold at any price to buyers procured by the plaintiffs. Those sellers tried to evade that liability by discharging the brokers or by dealing directly with the buyers behind the brokers’ backs. Here, in contrast, the seller agreed to pay a commission only if the brokers brought about a sale for more than $125 an acre. No such sale occurred; Champion received a net price of $117.50 an acre, gave credit instead of receiving cash, and was able to retain only half of the mineral rights. A party is not unjustly enriched because it “evades” a liability that never existed.
The plaintiffs assert that there is a fact issue as to whether Champion committed actual fraud, but they do not draw our attention to any facts that would support the accusation. A bare, conclusory assertion cannot defeat a motion for summary judgment.
The plaintiffs, somewhat uncertain how to pigeon-hole their claim, argue that, despite the terms of the brokerage contract, Champion is guilty of “legal fault”, a kind of constructive bad faith, under the civilian doctrine of culpa in contrahendo. The doctrine is, in general terms, the civilian equivalent of the common law concept of promissory estoppel. It is used as a basis for compensating one party for his expenses incurred in reliance on another party’s offer to form a unilateral contract where that offer is withdrawn before acceptance. See Comment, Culpa in Contrahendo, in German, French and Louisiana Law, 15 Tul.L. Rev. 87 (1940). It has nothing to do with this case.
We recognize that actual fraud is not a necessary element to a broker’s recovery for unjust enrichment. Nevertheless, we cannot agree that, under the Louisiana cases we have cited above, the mere act of selling to the broker’s buyer without cutting in the broker establishes bad faith. Rather, when the cases speak of bad faith, they refer to some active interference with the brokers’ ability to earn their contractual commissions. See J. R. Grand Agency, 101 So. at 724; Grace Realty, 100 So. at 63; Gottsch-aIk, 1 La.Ann. at 6-7. Here the plaintiffs had let the matter drop after Brian’s defaults; there was no continued effort with which Champion could have interfered. Nor do we agree, in the circumstances of this case, that Champion’s failure to notify the plaintiffs of the new negotiations establishes fault. Assuming that Champion had any duty to do so, the plaintiffs suffered no harm from the omission. If Champion could not persuade Brian to pay Champion’s original stated minimum net, it is unlikely that the plaintiffs could have persuaded Brian to pay a price above that minimum.
The plaintiffs complain that this result allows a seller, faced with a balky buyer, to make “price concessions” by bargaining away the broker’s commission. That, however, is an inherent feature of the type of brokerage agreement the plaintiffs made. They agreed to accept only the excess money as their commission. They likewise chose to present Brian as a customer; thereby they took the risk that Brian would back away from its promise to pay $150 an acre. To protect their commission they could have extracted a promise from Brian (as in fact they did), or they could have found another, more reliable buyer (as they did not). The plaintiffs were entitled to expect that Champion would not sell at $125 if they produced a buyer willing and able to buy at $150. They were not entitled to expect such abstinence if they did not produce such a prospect. Perhaps it is not the plaintiffs’ fault that the sale they put together did not go through, but certainly it is not Champion’s fault.
Since we find that Champion received no unjust enrichment at the plaintiffs’ expense, we conclude that Champion is entitled to judgment as a matter of law. We therefore AFFIRM the judgment of the district court.
. Eric Snyder died during pendency of the case in the district court. Gerardeen Snyder was substituted as his Executrix.
. The doctrine of unjust enrichment came from Roman law, flourished in France, had an unfriendly reception in England, is well developed in the common law states and, according to the Louisiana Supreme Court, emerged in Louisiana as early as 1814 in Meunier v. Duperron, 3 Mart. (O.S.) 285. Minyard v. Curtis Products, Inc., 1967, 251 La. 624, 205 So.2d 422. Min-yard, the leading case in Louisiana, states that the civil law action de in rem verso is an action for unjust enrichment. 205 So.2d at 427. The negotiorum gestio action offers another avenue. See Comment, Negotiorum Gestio in Louisiana, 7 Tul.L.Rev. 253 (1933). There is no specific codal article on the subject, although the action could be based on three articles. Article 21, which has no corresponding article in the French or Quebec codes, provides, in part, that “In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity”. Article 1965, defining equity, states, in part, that it rests “on the moral maxim of the law that no one ought to enrich himself at the expense of another”. Article 2294, dealing with the concept of quasi-contract, furnishes a third basis for the unjustified enrichment doctrine. See Comment, Actio De In Rem Verso in Louisiana: Minyard v. Curtis Products, Inc., 43 Tul.L.Rev. 263 (1969). See generally Nicholas, Unjustified Enrichment in Civil Law, Part I, 36 Tul.L.Rev. 603 (1962); Part II, 37 Tul.L.Rev. 49 (1962).
.To recover on an unjust enrichment theory in Louisiana, a broker must be the “procuring cause” of the final sale. Ordinarily a broker is the procuring cause if he brings the parties together. E. g., Keating, 216 So.2d at 909-10. But if the parties fail to make a sale, part ways, and then come together again on their own initiative after a lapse of time, the broker does not earn a commission on the sale if he has no hand in the renewed dealings. Ford v. Shaffer, 1918, 143 La. 635, 79 So. 172; Cramer v. Guercio, La.App. 1976, 331 So.2d 550; Turner v. Swann, 1919, 11 La.App. 689, 124 So. 717. Here there is a factual dispute as to when Brian and Champion resumed negotiations and whether these were a mere continuation of the earlier negotiations or a new start. This alone is enough to defeat the plaintiffs’ motion for summary judgment, since it creates a genuine issue as to a fact material to their right to recover. Fed.R.Civ.P. 56(c). We nevertheless affirm summary judgment for Champion because we find that it is entitled to judgment as a matter of law even if the plaintiffs were the procuring cause of the sale.
. In some cases there was no express agreement as to the amount of the brokers’ compensation. Apparently the courts assumed an implied contract to pay the prevailing percentage rate on realty brokerage agreements.
. In the case of percentage commissions, of course, the recovery is the agreed percentage of the actual sale price, even if that price is less than the original asking price. Where the brokerage agreement calls for a commission stated in dollars on a sale for a stated minimum, and the sale takes place at a lower price, the rule is less clear. In Keating the appellate court awarded the full agreed amount, 216 So.2d at 907, .910. In Grace Realty, though, the supreme court in dictum suggested a pro rata share, 100 So. at 63. In any case, the point is that in all cases there existed some liability for a commission despite sale at below the stated minimum.
. See Grace Realty, 100 So. at 64.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
songer_genapel2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Francis Edward KLIMAS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Corrections, Appellee.
No. 78-1663.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 12, 1979.
Decided May 30, 1979.
Rehearing and Rehearing En Banc Denied Aug. 13, 1979.
See 603 F.2d 158.
Richard F. Quiggle, Little Rock, Ark., for appellant.
Neal Kirkpatrick, Asst. Atty. Gen., Little Rock, Ark., for appellee; Bill Clinton, Atty. Gen., and James E. Smedley, Asst. Atty. Gen., Little Rock, Ark., on brief.
Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, District Judge.
ALBERT G. SCHATZ, United States District Judge, for the District of Nebraska, sitting by designation.
HEANEY, Circuit Judge.
Francis Edward Klimas, an Arkansas state prisoner, appeals from the order of the District Court dismissing his petition for a writ of habeas corpus. On appeal, Klimas contends that the writ should have been granted because his cross-examination of a key prosecution witness at his state trial was impermissibly restricted, and because records of seven Missouri convictions, which were silent as to Klimas’s representation by counsel, were considered by the jury in the enhancement of his sentence under the Arkansas Habitual Criminal Act, Ark. Stat.Ann. § 43-2328. We reverse and remand.
Klimas was convicted of burglary and grand larceny, in violation of Ark.Stat.Ann. §§ 41-1003 and 41-3907 (repealed 1976), in Jefferson County Circuit Court on April 23, 1975. After the verdicts of guilty were returned, the second part of the information, charging Klimas with being a habitual criminal under Ark.Stat.Ann. § 43-2328, was read to the jury. The prosecution then offered into evidence certified copies of records from the Department of Correction, Missouri State Penitentiary, which indicated that Klimas had been previously convicted of seven felonies in Missouri. The defense objected to the introduction of this evidence on the ground that the records were silent as to whether Klimas had been represented by counsel. This objection was overruled. The prosecution also introduced certified copies of records from the Arkansas State Penitentiary, which indicated that Klimas had pled guilty to three burglary-grand larceny transactions, occurring on February 12, 21 and 26 of 1972, for which he received three concurrent, five-year sentences. No objection to the introduction of this evidence was made.
Arguments on the habitual criminal charge were made to the jury by both the prosecution and the defense. The jury was then instructed and sent to deliberate with four verdict forms. The first form provided that if the jury found Klimas guilty of having been convicted of no prior felony offense, his punishment should be fixed at not less than one nor more than twenty-one years for grand larceny, and not less than two nor more than twenty-one years for burglary. The second form provided that if the jury found him guilty of having been convicted of one prior felony offense, his punishment should be fixed at not less than two nor more than twenty-one years for grand larceny, and not less than three nor more than twenty-one years for burglary. The third form provided that if he was found guilty of having been convicted of two prior felony offenses, his punishment for grand larceny should be fixed at not less than four nor more than twenty-one years for grand larceny, and not less than five nor more than twenty-one years for burglary. The fourth form provided that if he was found guilty of having been convicted of three prior felony offenses, his punishment should be fixed at not less than twenty-one nor more than thirty-one and one-half years for grand larceny, and the same for the crime of burglary. The jury found that Klimas had been convicted of three prior felonies and fixed his sentence at thirty-one and one-half years for grand larceny, and thirty-one and one-half years for burglary. The trial judge ordered that Klimas serve these sentences consecutively.
Klimas appealed to the Arkansas Supreme Court, raising, among other grounds, the two grounds for reversal urged here. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976), cert. denied, 429 U.S. 846, 97 5. Ct. 128, 50 L.Ed.2d 117 (1976). The Arkansas Supreme Court held that since the records of Klimas’s Missouri convictions were silent concerning his representation by counsel, they were inadmissible in the sentencing enhancement proceeding under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Court reversed the judgment and remanded the case for a new trial unless the Arkansas Attorney General, within seventeen calendar days, accepted a reduction of Klimas’s sentence to three years, the minimum sentence which he could have received for the burglary and grand larceny charges. 534 S.W.2d at 207. On rehearing, the Court modified its original order and imposed a sentence of forty-two years, twenty-one years for each offense. The Court reasoned that since the six prior Arkansas convictions (three burglary-larceny transactions) were unchallenged by Klimas in the trial court, the minimum sentence which Klimas could have received would have been twenty-one years, making a total of forty-two years for the two offenses. The Court concluded that any possible prejudice to Klimas would be removed by reduction of his sentence to forty-two years. Id. Klimas’s other grounds for the reversal of his conviction were rejected. The State subsequently agreed to this reduction, sentencing Klimas, in effect, to forty-two years imprisonment for the commission of four petty burglaries, three of which occurred within a fourteen-day period and for which he had previously served one five-year sentence.
Klimas then brought this habeas corpus action in federal District Court, raising the same issues which were raised in his state appeal and which he raises now. A hearing was held in the District Court on May 10, 1978. At that hearing, the District Court expressed concern that Klimas had received such a severe sentence for this series of petty crimes. The court believed that it was without jurisdiction, however, both because Klimas’s petition failed to sufficiently allege a violation of a constitutional right and because the United States Supreme Court denied certiorari in his appeal from the decision of the Arkansas Supreme Court. The District Court dismissed Kli-mas’s petition for lack of jurisdiction, and he now appeals.
To the extent that the District Court believed that it was without jurisdiction to consider Klimas’s petition because of the United States Supreme Court’s denial of certiorari, it was in error. If, in exhausting state remedies, a state prisoner unsuccessfully seeks Supreme Court review, no weight is to be given to this denial when considering the prisoner’s later petition for habeas corpus. See 28 U.S.C. § 2244(c); Brown v. Allen, 344 U.S. 443, 488-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 114264 at 631 (1978).
We, therefore, turn to the more difficult question presented by this petition: whether Klimas’s pro se petition, liberally construed, sufficiently states the deprivation of a constitutional right which would justify the granting of federal habeas corpus relief. See 28 U.S.C. § 2254; Louis Serna v. Donald Wyrick, 594 F.2d 869 (8th Cir., 1979); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975).
We agree with the District Court that any error which the state trial court committed in restricting the cross-examination of Arlie Weeks, Klimas’s accomplice and the prosecution’s principal witness against him, did not rise to the level of the deprivation of a constitutional right. Kli-mas’s counsel, in an apparent attempt to show that Weeks expected assistance from the prosecuting attorney in obtaining parole from his current incarceration in exchange for his testimony, asked Weeks whether he was aware that the recommendation of the prosecuting attorney is required before parole is granted in Arkansas. The prosecutor objected to the question; but before the court ruled on the objection, Weeks answered in the negative. The court then sustained the objection. Failure to allow effective cross-examination aimed at eliciting the bias of a prosecution witness can rise to the level of a constitutional violation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Although the objection here was probably erroneously sustained, since Weeks did answer the question prior to the court’s ruling and since no further attempts were made by Klimas’s counsel to elicit Weeks’ possible bias, we cannot say that this error by the state trial court constituted a violation of Klimas’s constitutional rights which would justify the granting of habeas corpus relief.
We find, however, that, under the particular facts of this case, the failure of the Arkansas Supreme Court to follow the sentencing procedure required by the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 41-1005 or § 43-2330.1, in the resentencing of Klimas after the rehearing of his case resulted in a deprivation of due process which justifies the granting of habeas corpus relief.
Generally, the failure of a state court to comply with the provisions of state law in its criminal trials is purely a matter of local concern and is not reviewable by federal courts under the due process clause of the federal Constitution. See Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943); Cox v. Hutto, 589 F.2d 394 at 395 (8th Cir., 1979). The failure of a state to afford a particular defendant the benefit of established procedures under state law may, however, result in a denial of due process when the error made by the state court renders the state proceedings so fundamentally unfair or so fundamentally deficient that they are inconsistent with the rudimentary demands of fair procedure. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Buchalter v. New York, supra, 319 U.S. at 429-430, 63 S.Ct. 1129; DeBerry v. Wolff, supra at 1338; Shirley v. State of N. C., 528 F.2d 819, 822 (4th Cir. 1975).
Under the Arkansas Habitual Criminal Act, an individual who is charged with being a habitual criminal is tried for that offense after a verdict of guilty has been returned for the primary felony charge on which he has just been tried. Ark.Stat. Ann. §§ 41-1005, 43-2330.1. Evidence pertaining to the defendant’s previous felony convictions is submitted to the jury and the defendant has the right to controvert such evidence or to submit other evidence in his support. Id. The jury must then retire; and only upon its finding that the defendant has been convicted of prior felonies may a particular enhanced sentence be imposed. Id. Throughout this procedure, the State bears the burden of proving the prior convictions of the defendant, McConahay v. State, 257 Ark. 328, 516 S.W.2d 887, 889 (1974), and the weighing of the evidence and the ultimate factual finding that the defendant is a habitual criminal are for the jury alone. Id.
Where a state has provided, by statute, that a habitual criminal charge is to be tried to a jury, we do not believe that the state can abrogate that right in a particular case without violating the notions of fundamental fairness inherent in the due process clause. Where a right to trial by jury has been established under state law, the state cannot deny a particular accused that right without violating even the minimal standards of the due process clause. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Berrier v. Egeler, 583 F.2d 515, 522 (6th Cir. 1978); Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975); Shirley v. State of N. C., supra; Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968). While a habitual criminal proceeding is commonly thought of as a sentence-enhancement proceeding, rather than as a trial for a substantive offense, we believe that the highly penal nature of the Arkansas Habitual Criminal Act requires that the statutory requirements for conviction under that Act be strictly construed. See Cox v. Hutto, supra; Parker v. State, 258 Ark. 880, 529 S.W.2d 860, 863 (1975); McConahay v. State, supra, 516 S.W.2d at 889; Higgens v. State, 235 Ark. 153, 357 S.W.2d 499, 501 (1962).
After the Arkansas Supreme Court found that the evidence of Klimas’s seven Missouri convictions were erroneously submitted to the jury, the Court did not remand his case for retrial on the habitual criminal charge. Instead, the court reimposed a sentence under the Habitual Criminal Act on the theory that the evidence of his prior Arkansas convictions, which was also submitted to the jury, could have supported the jury’s finding that he had three prior convictions and, thus, was subject to the harshest penalty available under the habitual criminal law which was in effect at the time of Klimas’s trial. It is impossible to tell from the jury’s verdict, however, which three prior offenses were used by the jury to support its conviction on the habitual criminal charge. There is no way we can assume that the jury found Klimas to be guilty of having been convicted of the prior Arkansas offenses since any three of the Missouri convictions alone would have supported the findings of the jury and the sentence which is imposed.
The State, citing Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975), argues that since the Arkansas Supreme Court modified Klimas’s sentence without affording him a redetermination by jury of the habitual criminal charge, we must assume that such an action was authorized by state law. We do not believe that Rose stands for so broad a proposition. In Rose, whether or not the sentences imposed upon respondents were subject to commutation by the Governor of Tennessee was a disputed question of state law, resolved in favor of commutation by the Tennessee courts. We do not believe that Rose stands for the proposition that where rights under state law are clear, the denial of those rights to a particular accused by the state courts is insulated from federal habeas corpus review. As stated by the Ninth Circuit in Braley v. Gladden, supra :
Emphasizing that tfie jury trial in this case arose solely from * * * the Oregon constitution, the appellee insists that the interpretation by Oregon courts as to that which is required by Oregon’s constitution is firmly controlling. * * *
Unquestionably, the state courts should have the primary responsibility for determining the application of the state constitutions; however, this principle does not diminish our responsibility to insure that state constitutional interpretations are consistent with the federal Constitution.
Id. at 860. See also Ellingburg v. Lockhart, 397 F.Supp. 771, 776 (E.D.Ark.1975).
The question which remains is whether the state court’s failure to afford Klimas a redetermination of the habitual criminal charge by jury was, in any event, harmless error since Klimas did not challenge the existence of the Arkansas convictions at the state trial or on appeal. The Arkansas Supreme Court held that since, in view of the unchallenged Arkansas convictions, the minimum sentence which Klimas could have received under § 43-2328(3) would have been twenty-one years on each charge, the reduction of his sentence from sixty-three years to forty-two years would remove any possible prejudice to him.
Retrial of a criminal defendant on a habitual criminal charge may be a' futile gesture where evidence of convictions, which was properly submitted to the jury, is unchallenged by the defendant. See, e. g., Roach v. State, 255 Ark. 773, 503 S.W.2d 467, 471 (1973). In this case, however, Klimas’s right to a retrial of the habitual offender charge is of importance since the provisions of the Arkansas Habitual Criminal Act were changed between the time of his state court' trial and the time of the modification of his sentence by the Arkansas Supreme Court. Under Ark.Stat. Ann. § 43-2328(3), in effect at the time of his trial, Klimas’s six Arkansas convictions (three burglary-larceny transactions) would, as the Arkansas Supreme Court indicated, require a sentence of at least twenty-one years on each of his current charges. Under the new provisions of the Habitual Criminal Act, Ark.Stat.Ann. § 41-1001 (effective January 1,1976), each of the Arkansas burglary-larceny transactions, of which Klimas had previously been convicted, would be considered only as a single felony conviction, giving him a total of three prior felony convictions. With this record, under the new law, he would appear to be subject to a sentence of not less than five, nor more than thirty, years on each of his current charges. Since neither the briefs filed by the parties nor our questions at oral argument resolved whether the old or new law would govern a retrial of the habitual criminal charge and the penalty to be assessed thereunder, we cannot say, as a matter of law, that the failure to afford Klimas a jury redetermination of this charge was in no way prejudicial to him.
The order dismissing Klimas’s petition is vacated, and the case remanded to the District Court. Upon remand, the District Court shall hold the petition in abeyance in order to afford the State of Arkansas the opportunity to resentence Klimas by jury in accordance with Arkansas law. If the State fails to initiate a resentencing procedure in Arkansas state court within a reasonable time, the District Court shall grant the writ.
. Klimas’s petition was brought under 28 U.S.C. § 2254.
. Evidence introduced at Klimas’s trial indicated that Klimas and an accomplice, Arlie Weeks, burglarized the Dixie Wood Preserving Company plant near Pine Bluff, Arkansas, and stole a check made out to the Potlatch Corporation, ten walkie-talkie radios and coins from two soft-drink dispensing machines. Weeks testified that the men obtained approximately $58.00 from the machines, which they split between them.
. Ark.Stat.Ann. § 43-2328 provides:
Second or subsequent convictions — Sentence. — Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows:
(1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern.
(2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern.
(3) If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one half (IV2) times the maximum sentence provided by law for a first conviction; provided, that any person convicted of a fourth or subsequent offense shall be sentenced to imprisonment for not less than five (5) years.
. These convictions, dating back to 1951, were as follows: grand larceny, sentence — two years, time served — one year; burglary and stealing, sentence — two consecutive two-year terms, time served — two and one-half years; three counts of stealing, sentence — three four-year concurrent terms, time served — more than two years; two counts of robbery, sentence— two concurrent eight-year terms, time served— four and one-half years.
. The February 12, 1972, crime involved theft of two television sets, some clothing and a shotgun from a house after entering through an unlocked garage door. The February 21, 1972, crime involved the theft of cigarettes, an undisclosed amount of money and personal property from an open truck. The February 26, 1972, crime involved the theft of approximately $150.00 from a tavern’s vending machines.
. The District Court stated:
THE COURT: I wish I could find some reason to give this petition consideration. It seems to me like its almost a tentative action taken by the state court on the charge of this nature — forty-two years under Arkansas law. But this Court has no right to disturb the decision of the state court.
******
THE COURT: Well, I simply don’t know if this Court can do anything about it on the charges you bring. The record on which you rely is that the state court sentenced you under the provisions of law. The Supreme Court of Arkansas heard — was in the process of remanding it for you to have a reduction to three years. What was the charge that you were being tried for here?
[MR. KLIMAS]: Burglary and larceny, your Honor.
THE COURT: Were all cases that you’ve been involved burglary and larceny?
[MR. KLIMAS]: Yes, sir.
THE COURT: And you just contend that the Court was in error in presenting it to the jury wherein you were convicted. Unless there’s some showing of [a] constitutional right being violated, this Court just doesn’t have any jurisdiction over the matter. * *
Then you say that the Court was in error contrary to federal law in not reversing the original conviction, with orders to grant a new trial. Well, what you say here is the Supreme Court of Arkansas was wrong, when on a rehearing it modified its previous decision. And that certainly is not a constitutional question here.
I have a great deal of feeling about this because of the sentence. I know the state court probably was trying to carry out the state law and I would suspect that the Supreme Court had in mind that that was a terrible sentence to impose upon .you, and it was looking for some reason to do something about it. * * *
I wish I could suggest some action for you to take to try to do something about this rather severe sentence under Arkansas law. * *
******
THE COURT: Well, I sure would make a pitch before the Parole Board, is about all I can suggest to you. I am sorry I can’t do anything for you under the circumstances.
An order will be entered accordingly dismissing the petition for lack of jurisdiction. 1 hope you will find another reason that you can get some relief anyway.
[MR. KLIMAS]: Thank you, your Honor. Transcript of Proceedings before the Honorable Oren Harris, United States Senior District Judge, May 10, 1978, at 6-9.
. The State conceded below that Klimas has exhausted his state remedies, and no claim to the contrary is made in the briefs before us. In any event, the federal rule that a state prisoner’s state-court remedies must be exhausted before federal habeas corpus relief will lie is based on principles of comity, rather than the absence of federal power. Cage v. Auger, 514 F.2d 1231, 1232 (8th Cir. 1975); Smith v. Wolff, 506 F.2d 556 (8th Cir. 1974). Where it is clear that the state courts have had an opportunity to correct the constitutional error, there has been a sufficient vindication of the state’s interests and the federal courts should proceed to entertain the § 2254 proceeding. Cage v. Auger, supra at 1232-1233. We are satisfied that the substance of Klimas’s claims, concerning the restriction of the cross-examination of his accomplice and the imposition of his forty-two year sentence by the Arkansas Supreme Court, have been fairly considered by the Arkansas courts and that no purpose would be served by their presentation once again to the state courts. See Wolfs v. Britton, 509 F.2d 304, 308 (8th Cir. 1975).
. At the time of Klimas’s trial on April 23, 1975, trial of habitual criminal charges was governed by Ark.Stat.Ann. § 43-2330.1. An extensive revision of the Arkansas Criminal Code was passed by the Arkansas legislature in 1975 and became effective on January 1, 1976. Under the new Criminal Code, the procedure for imposing an extended sentence on a person found to be a habitual offender is set forth in Ark.Stat.Ann. § 41-1005. This section is taken, almost verbatim, from the previous section. Although the new Criminal Code did not explicitly repeal § 43-2330.1, the “Compiler’s Notes” following § 43-2330.1 state that “[t]his section, or portions thereof, may have been impliedly repealed by the Criminal Code of 1976.” See Notes by the Arkansas Statute Revision Commission, 4A Arkansas Statutes 1947 Annotated, at p. 316.
. The definition of a habitual offender and the terms of imprisonment which may be imposed upon habitual offenders are found in Ark.Stat. Ann. § 41-1001 (effective January 1, 1976). The prior provision, which was in effect at the time of Klimas’s trial, is found in Ark.Stat.Ann. § 43-2328.
. This case is, therefore, distinguished from those cases where all of the prior convictions submitted to the jury were necessary to support the jury’s findings. See, e. g., Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972) (evidence of two prior felony convictions submitted to the jury; defendant sentenced by the jury as a “third offender”).
. The fact that an accused does not submit evidence contradicting that submitted by the prosecution does not, of course, eliminate the accused’s right to a jury trial. Where a statutory right to trial by jury exists, that right must be honored, “regardless of the heinousness of the crime charged [or] the apparent guilt of the offender * * Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968).
. In Cox v. Hutto, 589 F.2d 394 (8th Cir., 1979), we held that the failure of the state trial judge to inquire into Cox’s knowledge of and consent to a stipulation of his prior convictions, filed by his counsel in a habitual criminal proceeding, deprived him of his constitutional rights. We remanded the case to the District Court for a determination of whether Cox sustained any prejudice from the defective stipulation of prior convictions. Such prejudice would be presumed unless the state could establish that it possessed evidence at the time of trial establishing the three prior convictions necessary to support Cox’s sentence. Cox’s right to a redetermination by jury of his habitual criminal conviction was not raised in that case and, thus, we did not address that issue.
. Ark.Stat.Ann. § 41-1001 states:
Sentence to imprisonment for felony — Extended term for habitual offender. — (1) A defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows:
(a) not less than ten (10) years nor more than fifty (50) years, or life, if the conviction is of a class A felony;
(b) not less than five (5) years nor more than thirty (30) years, if the conviction is of a class B felony;
(c) not less than three (3) years nor more than fifteen (15) years, if the conviction is of a class C felony;
(d) not exceeding seven (7) years, if the conviction is of a class D felony;
(e) upon conviction of an unclassified felony punishable by less than life imprisonment, not less than three (3) years more than the minimum sentence for the unclassified offense nor more than five (5) years more than the maximum sentence for the unclassified offense;
(f) upon conviction of an unclassified felony punishable by life imprisonment, not less than ten (10) years nor more than fifty (50) years, or life.
# * # # # #
(3) For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt. A conviction or finding of guilt of an offense that was a felony under the law in effect prior to the effective date [January 1, 1976] of this Code shall be considered a previous felony conviction or finding of guilt.
Under the new Arkansas Criminal Code, burglary is a class B felony, and larceny is a class B or C felony. See Ark.Stat.Ann. §§ 41-2002, 41-2203.
Consideration of a burglary and the felony that was the object of the burglary as a single felony conviction for the purposes of the Habitual Criminal Act was instituted to prevent the precise situation which we find here:
Although prior to the Code’s enactment most circuit judges treated convictions for burglary and grand larceny as a single prior conviction for purposes of habitual offender sentencing, a few apparently considered such a disposition to constitute two convictions. To achieve some parity of treatment in calculating the number of prior convictions, subsection (3) consolidates a burglary and the offense that was its object into a single felony conviction for habitual offender purposes.
Arkansas Statute Revision Commission, “Commentary," 4 Arkansas Statutes 1947 Annotated, at p. 123.
. Section 41-102 of the Arkansas Criminal Code of 1975 provides:
Application of provisions. — (1) The provisions of this Code * * * shall govern the prosecution for any offense defined by this Code and committed after the effective date [January 1, 1976] hereof.
(2) Unless otherwise expressly provided, the provisions of this Code shall govern the prosecution for any offense defined by a statute not part of this Code and committed after the effective date hereof.
(3) The provisions of this Code do not apply to the prosecution for any offense committed prior to the effective date of this Code. Such an offense shall be construed and punished in accordance with the law existing at the time of the commission of the offense.
(4) A defendant in a criminal prosecution for an offense committed prior to the effective date of this Code may elect to have the construction and application of any defense to such prosecution governed by the provisions of this Code. * * *
(5) When all or part of a statute defining a criminal offense is amended or repealed, the statute or part thereof so amended or repealed shall remain in force for the purpose of authorizing the prosecution, conviction and punishment of a person committing an offense under the statute or part thereof pri- or to the effective date of the amending or repealing act.
It is unclear, under this section, whether a charge of habitual criminality is an “offense” and, if so, whether its “commission” in a case such as this would be at the time of the commission of the latest underlying felony (here, prior to the effective date of the Code) or at the time that an individual’s status as a habitual criminal is determined (here, at the time of the retrial of the habitual criminal charge). It is also unclear whether the fact that burglary and the larceny which was its object are considered to be a single offense under the new provisions of the Habitual Criminal Act could be argued to the jury in a retrial of Klimas under the old law, as a mitigation of his record and the degree of habitual criminality which the jury might find.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_procedur | 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 rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
AMERICAN BANKERS ASSOCIATION and Tioga State Bank, Appellants v. Lawrence B. CONNELL, Jr., Administrator of the National Credit Union Administration, et al. INDEPENDENT BANKERS ASSOCIATION OF AMERICA, a corporation, Appellant v. FEDERAL HOME LOAN BANK BOARD, et al. UNITED STATES LEAGUE OF SAVINGS ASSOCIATIONS, an Illinois not-for-profit corporation, Appellant v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, an agency of the United States, et al.
Nos. 78-1337, 78-1849 and 78-2206.
United States Court of Appeals, District of Columbia Circuit.
April 20, 1979.
Before McGOWAN, TAMM and WILKEY, Circuit Judges.
JUDGMENT
PER CURIAM.
These causes came on to be heard on their records on appeal from the United States District Court for the District of Columbia, 463 F.Supp. 342, 447 F.Supp. 296, and they were argued by counsel before this panel.
It appears to the court that the development of fund transfers as now utilized by each type of financial institution involved herein, commercial banks with “Automatic Fund Transfers,” savings and loan associations with “Remote Service Units,” and federal credit unions with “Share Drafts,” in each instance represents the use of a device or technique which was not and is not authorized by the relevant statutes, although permitted by regulations of the respective institutions’ regulatory agencies. Specifically, the transfer from an interest-bearing time deposit (savings) account to a noninterest-bearing demand (checking) account by the Automatic Fund Transfer system, authorized by the Board of Governors of the Federal Reserve System in 43 Fed.Reg. 20,001 (1978) (to be codified in 12 C.F.R. § 217.5(c)(2) and (3)), is that “indirect[ ] . . . device” prohibited by 12 U.S.C. § 371a (1976); the Remote Service Units utilized by many savings and loan associations, pursuant to Federal Home Loan Bank Board regulations (12 C.F.R. § 545.4-2 (1978)) which permit the withdrawal of funds from an interest-bearing time deposit account by a device functionally equivalent to a check, are in violation of the prohibition against checking accounts contained in Section 5(b)(1) of the Home Owners’ Loan Act of 1933 (12 U.S.C. § 1464(b)(1) (1976)); and the Share Drafts utilized by some federal credit unions, pursuant to National Credit Union Administration regulation (12 C.F.R. § 701.34 (1978)), are the practical equivalent of checks drawn on these interest-bearing time deposits in violation of the provisions of the Federal Credit Union Act, 12 U.S.C. §§ 1751-90 (1976).
The history of the development of these modern transfer techniques reveals each type of financial institution securing the permission of its appropriate regulatory agency to install these devices in order to gain a competitive advantage, or at least competitive equality, with financial institutions of a different type in its services offered the public. The net result has been that three separate and distinct types of financial institutions created by Congressional enactment to serve different public needs have now become, or are rapidly becoming, three separate but homogeneous types of financial institutions offering virtually identical services to the public, all without the benefit of Congressional consideration and statutory enactment.
This court is convinced that the methods of transfer authorized by the agency regulations have outpaced the methods and technology of fund transfer authorized by the existing statutes. We are neither empowered to rewrite the language of statutes which may be antiquated in dealing with the most recent technological advances, nor are we empowered to make a policy judgment as to whether the utilization of these new methods of fund transfer is in the overall public interest. Therefore, we have no option but to set aside the regulations authorizing such fund transfers as being in violation of statute. We do so with the firm expectation that the Congress will speedily review the overall situation and make such policy judgment as in its wisdom it deems necessary by authorizing in whole or in part the methods of fund transfer involved in this case or any other methods it sees fit to legitimize, or conversely, by declining to alter the language of existing statutes, thus sustaining the meaning and policy expressed in those statutes as now construed by this court.
We recognize that enormous investments have been made by various financial institutions in the installation of new technology, that methods of financial operation in the nation have rapidly grown to rely on much of this, and that a disruption of the offered services would necessarily have a deleterious impact on the financial community as a whole, in the absence of the certainty that new procedures are authorized for the foreseeable future, which certainty only a Congressional enactment can give.
We recognize that there are arguments that Congress has, at some times and in some measure, tacitly approved part of these regulatory authorizations, but by no means directly, explicitly, or in the whole. We further recognize that the wisdom of the transfer procedures permitted by the regulations of the several agencies is a matter of high public financial policy, involving the financial interests not only of the parties before this court in these proceedings, but also of other large groups in the nation. It is the responsibility of the Congress and not the courts to determine such policy.
On consideration of the foregoing, it is
ORDERED AND ADJUDGED by this court that the judgments of the district courts under review herein are reversed and the cases are remanded to the respective district courts with instructions to vacate and set aside the applicable portions of the following regulations:
(1) 43 Fed.Reg. 20,001 (1978) (to be codified in 12 C.F.R. § 217.5(c)(2) and (3)) of the Board of Governors of the Federal Reserve System;
(2) 43 Fed.Reg. 20,222 (1978) (to be codified in 12 C.F.R. § 329.5(c)(2)) of the Board of Directors of the Federal Deposit Insurance Corporation;
(3) 12 C.F.R. § 545.4-2 (1978) of the Federal Home Loan Bank Board; and
(4) 12 C.F.R. § 701.34 (1978) of the National Credit Union Administration; and it is
FURTHER ORDERED, by the Court, that the effectiveness of this Judgment, insofar as it directs that the subject regulations be vacated and set aside, is stayed until 1 January 1980 in the expectation that the Congress will declare its will upon these matters; and it is
FURTHER ORDERED, by the Court, that the Clerk is directed to enter copies of this Judgment in each of the captioned cases.
. Similarly, the Automatic Fund Transfer system authorized by the Federal Deposit Insurance Corporation in 43 Fed.Reg. 20,222 (1978) (to be codified in 12 C.F.R. § 329.5(c)(2)) is in violation of 12 U.S.C. § 1828(g) (1976), which directs the Board of Directors of the FDIC to prohibit the payment of interest on demand deposits. The court is of the view that the Automatic Fund Transfer system allows, in effect, for interest to be paid on demand deposits.
The Automatic Fund Transfer system also, in its effect, violates 12 U.S.C. § 1832(a) (as amended by Pub.L.No. 95-630, § 1301, 92 Stat. 3712, 10 Nov. 1978), which provides that, except in seven New England states, withdrawals from savings accounts may not be made by negotiable or transferable instruments for the purpose of making transfers to third parties.
. The Act does not contain an express grant of power to offer share drafts, nor can that power be implied in view of the legislative history of laws regulating financial institutions (see Brief for Appellant in No. 78-1337, at 9-26), which demonstrates an intent on the part of Congress not to authorize federal credit union share draft programs.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_usc1 | 28 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
METROPOLITAN LIFE INSURANCE COMPANY v. Rhoda J. CHASE, Appellant and Charles W. Chase, Elinor R. Chase Jones, Georgia E. Chase Snell and Lawson W. Chase.
No. 13542.
United States Court of Appeals Third Circuit.
Argued June 5, 1961.
Decided Sept. 19, 1961.
Raymond Godbersen, Washington, D. C. (William F. Davey, Washington, D. C., on the brief), for appellant.
Eugene M. Haring, Newark, N. J. (McCarter & English, Nicholas Conover English, Newark, N. J., on the brief), for plaintiff-appellee.
Louis Lebowitz, Elizabeth, N. J. (Bassin & Bassin, Elizabeth, N. J., on the brief), for defendants-appellees.
Before MARIS, KALODNER and FORMAN, Circuit Judges.
MARIS, Circuit Judge.
This interpleader suit was instituted by the plaintiff, the Metropolitan Life Insurance Company, in the District Court for the District of New Jersey to secure an adjudication of the claims of five individuals alleging themselves to be entitled to the proceeds of certain insurance on the life of Lawson W. Chase, deceased, issued under the Federal Employees’ Group Life Insurance Act. 5 U.S.C.A. § 2091 et seq. Under the Act and the policy the insurance was payable to the beneficiary designated by the insured, or, if no beneficiary had been designated, to the widow of the insured or, if none, to his children. No person had been designated by the insured as beneficiary. Named as defendants were Rhoda J. Chase, claiming as the widow of the insured, and Charles W. Chase, Elinor R. Chase Jones, Georgia E. Chase Snell and Lawson W. Chase, claiming as his children by a prior marriage. Defendant Rhoda J. Chase had instituted an action against the plaintiff in the District Court for the District of Columbia to recover the insurance proceeds. Upon deposit of the insurance proceeds into the registry of the district court in the present action the plaintiff secured from the court an injunction restraining the further prosecution of the suit in the District of Columbia. The plaintiff is a New York corporation. Defendants Rhoda J. Chase, Charles W. Chase, Elinor R. Chase Jones and Georgia E. Chase Snell are citizens and residents of New Jersey. Defendant Lawson W. Chase is a citizen and resident of California.
The question at issue in the interpleader proceeding was whether defendant Rhoda J. Chase was the widow of the insured. If so, she was entitled to the insurance proceeds but, if not, those proceeds go to the other defendants as children of the insured. Upon consideration of the facts which were stipulated by the parties, together with annexed exhibits and affidavits, the district court found that defendant Rhoda J. Chase was not the widow of the insured and awarded the insurance proceeds to the children. 189 F.Supp. 326. This appeal by defendant Rhoda J. Chase followed.
Preliminarily the appellant asserts that the district court did not have jurisdiction to entertain this interpleader suit while litigation involving the same subject matter was pending in the District Court for the District of Columbia. This contention is completely devoid of merit. The suit in the District of Columbia was an ordinary civil action brought to recover the insurance proceeds. It was the type of action the further prosecution of which the district court in the present interpleader suit was expressly authorized by law to enjoin. 28 U.S.C. § 2361. The appellant asserts that the District Court for the District of Columbia -could have acquired jurisdiction by counterclaim filed under Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A., of the interpleader controversy between the appellant and the other defendants to the present lawsuit. We do not agree. For the latter individuals were not amenable to personal service in the District of Columbia, and such personal service upon them in the District would have been a prerequisite to the acquisition by that court of jurisdiction of such a counterclaim under Rule 22. 3 Moore’s Federal Practice, 2d ed., j[ 22.04. A counterclaim for interpleader under Rule 22 is to be distinguished in this respect from an original action of interpleader brought under 28 U.S.C. § 1335 in which latter action process may be served upon defendants in any district as specifically authorized by 28 U.S.C. § 2361. Moreover, the venue of an original action of interpleader could not properly have been laid in the District of Columbia under 28 U.S.C. § 1397 since none of the claimants resides in the District. The district court did not err in enjoining the further prosecution of the District of Columbia action.
We turn then to the appellant’s principal contention, which is that the court erred in finding that she was not the widow of the insured. The pertinent facts as stipulated and found by the district court are these:
The insured and the appellant, then Rhoda J. Green, went through the form of a ceremonial marriage in the District of Columbia on October 29, 1941, and thereafter lived together and held themselves out as man and wife until the death of the insured on July 9, 1957. During this entire period they were residents and domiciliaries of the State of New Jersey although twice a year or oftener they visited friends in the District of Columbia for a week or longer. During these visits they cohabited in the District and held themselves out as husband and wife there. Prior to 1931 the insured had married Georgia E. Chase. This marriage was still subsisting on October 29, 1941 when he went through the form of a ceremonial marriage with the appellant and it was not terminated until February 19, 1948 when he obtained a decree of divorce from Georgia in the Court of Chancery of New Jersey. At the time of her marriage in 1941, the appellant knew that the insured had previously been married and that four children had been born of that marriage, but she had been given to understand and believed that the marriage had been terminated by divorce. She had no knowledge of the actual divorce in 1948, however, until after his death and no formal ceremonial marriage was entered into by her with him between February 19, 1948 and his death in 1957. It was further stipulated that Georgia E. Chase, the first wife of the insured, had married one Robert R. Dill on March 2, 1931 in the State of New York and in her affidavit for a license to marry had stated that she was divorced in 1928 and that her former husband was dead.
It appears to be the law of the District of Columbia that when a ceremonial marriage has taken place which is invalid by reason of the impediment of a prior undissolved marriage, the subsequent removal of the impediment while the parties continue to live together as husband and wife will give rise to a valid common law marriage. Thomas v. Murphy, 1939, 71 App.D.C. 69, 107 F.2d 268; Parrella v. Parrella, 1941, 74 App.D.C. 161, 120 F.2d 728; McVicker v. McVicker, 1942, 76 U.S.App.D.C. 208, 130 F.2d 837. In New Jersey, however, where common law marriages have been abolished by statute since December 1, 1939, N.J.S.A. 37:1-10, the subsequent removal of such an impediment does not have that result and the marriage remains invalid unless and until a subsequent ceremonial marriage takes place. Dacunzo v. Edgye, 1955, 19 N.J. 443, 117 A.2d 508.
It is the contention of the appellant that when she and the insured first went to the District of Columbia after the impediment to their marriage had been removed by the 1948 divorce, and there held themselves out as man and wife, the law of the District operated in their case to give rise to a valid common law marriage. She asserts that this result followed even though their presence in the District of Columbia was merely for a temporary visit to friends and that their changed status was entitled to recognition upon their return to their domicile in New Jersey. This is the basis of her claim that she was lawfully married to the insured at the time of his death and is, therefore, entitled to the proceeds of the insurance. The appellees, on the other hand, urge that the local law of New Jersey, the domicile of the parties, is the law which determines the validity of their marriage and that since under that law the alleged common law marriage is not recognized the appellant is not the lawful widow of the insured and is accordingly' not entitled to the insurance proceeds.
A choice of law problem is thus presented which must be resolved in accordance with the conflict of laws rules of New Jersey, the State in which the district court sat. Klaxon Co. v. Stentor Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. It is a general rule of conflict of laws that a marriage which is valid under the law of the place where it is contracted is recognized as valid everywhere. Loughran v. Loughran, 1934, 292 U.S. 216, 223, 54 S.Ct. 684, 78 L.Ed. 1219; Restatement, Conflict of Laws, § 121. But where the parties, while retaining their domicile in one state, pay a temporary visit to another state and there enter into a marriage which would not be recognized by the law of the state of their domicile if entered into therein, the latter state does not always look to the law of the place of the marriage to determine its validity. On the contrary, when the state of their domicile has a strong public policy against the type of marriage which the parties have gone to another state to contract, which policy is evidenced by a statute declaring such marriages to be void, the former state as the one most interested in the status and welfare of the parties will ordinarily look to its own law to determine the validity of the alleged marriage. Cunningham v. Cunningham, 1912, 206 N.Y. 341, 99 N.E. 845, 43 L.R.A.,N.S., 355; In re Vetas’ Estate, 1946, 110 Utah 187, 170 P.2d 183; Wilkins v. Zelichowski, 1958, 26 N.J. 370, 140 A.2d 65; Restatement, Conflict of Laws, § 132, Annotation 117 A.L.R. 186.
In the Wilkins case it appeared that the plaintiff who was a New Jersey domiciliary under the age of eighteen years went temporarily to Indiana and was there married after which she and her husband returned to New Jersey and lived there. The marriage was valid under the laws of Indiana but the statute of New Jersey expressly prohibited the marriage of persons under the age of eighteen years. The court held that the New Jersey statute expressed a strong public policy of that State against recognizing marriages by persons under eighteen years of age and that accordingly the validity of the marriage was to be determined by the law of New Jersey the domicile of the parties rather than by the law of Indiana where it was celebrated. In so holding the court said: [26 N.J. 370, 375-376, 140 A.2d 65, 67-68]
“It is undisputed that if the marriage between the plaintiff and the defendant had taken place here, the public policy of New Jersey would be applicable and the plaintiff would be entitled to the annulment; and it seems clear to us that if New Jersey’s public policy is to remain at all meaningful it must be considered equally applicable though their marriage took place in Indiana. While that State was interested in the formal ceremonial requirements of the marriage it had no interest whatever in the marital status of the parties. Indeed, New Jersey was the only State having any interest in that, status, for both parties were domiciled in New Jersey before and after the marriage and their matrimonial', domicile was established here. The-purpose in having the ceremony take place in Indiana was to evade New Jersey’s marriage policy and we see-no just or compelling reason for permitting it to succeed.”
The question upon which the present case turns, therefore, is whether the New Jersey courts will take a similar-view with respect to the determination of the validity of a common law marriage of New Jersey domicilian es alleged to-have been created under the law of another jurisdiction, in this case the District of Columbia. It appears that New Jersey has recognized, since the passage-of its statute abolishing common law marriages, a common law marriage arising after the removal of an impediment to the validity of a ceremonial marriage-when the parties were domiciled at the-time the impediment was removed in a. state having a rule that a common law marriage should result under those circumstances. Tegenborg v. Tegenborg, 1953, 26 N.J.Super. 467, 98 A.2d 105. See the explanation of the Tegenborg case in Danes v. Smith, 1954, 30 N.J.Super. 292, 298-300, 104 A.2d 455, 459-The fact that in the Tegenborg case-Florida was the domicile of the parties, at the time of their alleged common law-marriage as well as the place where that, marriage was claimed to have taken, place, made it unnecessary for the court in that ease to choose between the law of the domicile and that of the place of celebration of the marriage.
With respect to parties domiciled im New Jersey, however, the Supreme Court, of that State in Dacunzo v. Edgye, 1955, 19 N.J. 443, 117 A.2d 508, held, as we-have seen, that the New Jersey statute-which abolished common law marriage-prevents the recognition of such a marriage by parties who continue to live together and hold themselves out as husband and wife after an impediment to* their prior ceremonial marriage has been removed. It is true that in the Dacunzo ■case the parties were domiciled in New Jersey and their common law marriage was alleged to have taken place in that State. The defendant in that case could, therefore, not rely upon the law of any other state to support the validity of the alleged marriage.
In Winn v. Wiggins, 1957, 47 N.J.Super. 215, 135 A.2d 673, the parties were likewise domiciled in New Jersey but the plaintiff claimed that their common law marriage had taken place in Georgia or Florida, each of which States recognized such marriages. The trial court held the plaintiff’s claim of a common law marriage was totally incapable of belief and found as a fact that a common law marriage had not been created in either State. On appeal this finding was affirmed. Under the circumstances the Appellate Division found it unnecessary to decide whether the law of Georgia or Florida would be recognized to uphold a common law marriage entered into by New Jersey domiciliaries. But the court took occasion to say that, while not finding it necessary to decide the point in view of the decision on the facts, [47 N.J.Super. 215, 224, 135 A.2d 673, 678] “we are of the opinion that the strong public policy evinced by the enactment of the 1939 statute, N.J.S.A. 37:1-10, is best effectuated by declaring that persons domiciled in New Jersey cannot leave this State, enter into a common-law marriage in a state where such marriages are allowed, and then return home and ask our courts to recognize that marriage”. While technically obiter dictum we think that this statement is adequate evidence that the courts of New Jersey in the situation before us, in line with the decision in the Wilkins case, would apply the law of the domicile of the parties at the time their alleged common law marriage took place, i. e. New Jersey law, to determine the validity of that marriage. It was, therefore, right for the district court to do so.
The judgment of the district court will be affirmed.
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_usc1 | 26 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff-Appellant, v. UNITED STATES of America and Sandra Baker, Revenue Officer, Defendants-Appellees.
No. 90-55514.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 5, 1990.
Decided Dec. 12, 1990.
William T. Drescher, Calabasas, Cal., and Kendrick L. Moxon, Bowles & Moxon, Hollywood, Cal., for plaintiff-appellant.
Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, William A. Whitledge, and Teresa E. McLaughlin, Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendants-appellees.
Before ALARCON and NORRIS, Circuit Judges, and GEORGE, District Judge.
Honorable Lloyd D. George, United States District Judge for the District of Nevada, sitting by designation.
ALARCON, Circuit Judge:
The Church of Scientology of California (Church) appeals from the denial of its request for a preliminary injunction against the Internal Revenue Service (IRS). The district court concluded it lacked subject matter jurisdiction and, therefore, was precluded from granting this relief by the Anti-Injunction Act, 26 U.S.C. § 7421. The Church contends that the record demonstrates that the district court has the jurisdiction to grant equitable relief pursuant to the judicial exception to the Anti-Injunction Act. We disagree and affirm.
I
This case arises from an action filed by the Church against the IRS in which it alleged:
1. Wrongful disclosure of taxpayer information under 26 U.S.C. § 6103 by improperly issuing bank levies and individual assessments.
2. Violation of the First Amendment of the United States Constitution by engaging in unlawful and arbitrary actions against the Church motivated “by an impermissible hostility to the Scientology religion.”
3. Violation of the due process clause of the Fifth Amendment by treating the Church and its parishioners differently from other religions.
4. Violation of the due process clause by failing to follow established IRS policy.
5. Violation of the “Taxpayers Bill of Rights” by improperly assessing the bank levies and individual assessments.
The Church presented the following version of the facts in its complaint and supporting declarations: On March 9, 1989 the IRS issued a notice of proposed adjustment of Federal Insurance Contribution Act (FICA) and Federal Unemployment Tax Act (FUTA) taxes for the tax years of 1976-1986 based upon a disallowance of the Church’s tax exempt status. On April 7, 1989, the Church filed a protest with the IRS challenging each proposed adjustment. The IRS rejected the protest. A supplemental protest filed on May 22, 1989, was also rejected.
Assessments were made by the IRS in July and August of 1989. Thereafter, the Church entered into discussions with Stanley Kong, IRS Examinations Branch Chief. Kong told the Church that if it made a token payment of the FICA and FUTA taxes for one employee for the period in question and submitted claims for refund and abatement the IRS would forbear attempting to collect the balance of the assessment while such claims were being considered. On September 22, 1989, the Church made payment of the FICA and FUTA taxes for one employee for the period in question and submitted claims for refund and abatement.
On October 23, 1989, Revenue Officer Sandra Baker contacted Church representatives in order to commence collection of the claimed deficiency. The Church alleges that Baker agreed that pursuant to IRS policy P-5-16, as set forth in the Internal Revenue Manual, she would forbear from attempting to collect additional funds while the administrative refund claims were pending. On January 5, 1990, Baker wrote the Church’s counsel and requested a list of the Church’s officers so that the IRS could make assessments for the asserted tax deficiencies directly against the responsible Church officials as authorized by 26 U.S.C. § 6672. The Church informed Baker that it challenged both the legitimacy of the individual assessments, and the appropriateness of any other tax collection activities while its refund claim was under consideration.
On April 4, 1990, Baker served seven notices of levy to selected banks. On April 6, 1990, the IRS mailed assessments against twenty-four individuals, including the late L. Ron Hubbard, for the purported tax deficiencies. The Church requested that the IRS release the levies. The IRS refused to do so.
On April 24, 1990, the Church filed this action in the district court. On the same date, the district court granted the Church’s ex parte request and issued a temporary restraining order (TRO) to maintain the status quo of the parties and an order to show cause (OSC). On May 5, 1990, the Government filed its response to the OSC. The Government asserted that the district court lacked subject matter jurisdiction to grant injunctive relief under the Anti-Injunction Act, 26 U.S.C. § 7421. In support of its claim the Government submitted a declaration signed by Baker. Baker declared that all applicable IRS regulations were complied with in making the assessment against the Church. She also declared that the Church was challenging only a part of the asserted deficiency. She declared further that the Church did not dispute that it owed $6,500,000 in taxes and interest to the Government. Baker’s declaration also sets forth the factual basis for levying on each bank and how the identities of the individuals to be assessed were determined. The declaration did not include any discussion of Baker’s representations to the Church concerning forbearance. The district court denied the Church’s request for injunctive relief before the date set for filing of the Church’s reply to the IRS’s response to the OSC.
II
The Church contends that the Anti-Injunction Act does not apply when the record shows an unlawful or unconstitutional levy and extraordinary circumstances. The Church also asserts that it has met the judicial exception to the Anti-Injunction Act.
The Anti-Injunction Act, 26 U.S.C. § 7421(a) provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” The Anti-Injunction Act sets forth specific exceptions which, if present, will support the granting of equitable relief. The Church does not contend that the statutory exceptions are applicable to this case.
The Supreme Court has explained that the principal purpose of the Anti-Injunction Act is to preserve the Government’s ability to assess and collect taxes expeditiously with “a minimum of preenforcement judicial interference” and “to require that the legal right to the disputed sums be determined in a suit for refund.” Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974) (citing, Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962)).
We review de novo the denial of a motion for preliminary injunction for lack of subject matter jurisdiction. Elias v. Connett, 908 F.2d 521, 523 (9th Cir.1990) (citing Jensen v. IRS, 835 F.2d 196, 198 (9th Cir.1987). The district court’s factual findings on jurisdictional issues must be accepted unless clearly erroneous. Id.
The Church relies upon Singleton v. Mathis, 284 F.2d 616, 618-19 (8th Cir.1960), Lassoff v. Gray, 266 F.2d 745, 747 (6th Cir.1959), and Monge v. Smyth, 229 F.2d 361, 366 (9th Cir.), cert. denied, 351 U.S. 976, 76 S.Ct. 1055, 100 L.Ed. 1493 (1956) in support of the proposition that an injunction may be ordered if the court finds that an unlawful or unconstitutional levy has been issued and if extraordinary circumstances are shown. The Church’s reliance on the continued vitality of these decisions is misplaced. Each of these cases was decided prior to the 1962 Supreme Court decision in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). Rather than providing a separate and independent exception to the Anti-Injunction Act, the Supreme Court has instructed that these decisions are part of an earlier generation of dissonant case law which was harmonized in the Williams Packing decision. In Bob Jones University, the Supreme Court stated that:
the Court’s unanimous opinion in Williams Packing indicates that the case was meant to be the capstone to the judicial construction of the Act. It spells an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by a judicial departure from that meaning, and followed in turn by the Court’s rediscovery of the Act’s purpose.
416 U.S. at 742, 94 S.Ct. at 2048. The Court’s decision in Bob Jones forecloses any reliance on the pre-Williams Packing decisions cited by the Church. In 1964, the Sixth Circuit disavowed its decision in Las-soff v. Gray as being in conflict with the Williams Packing test. Vuin v. Burton, 327 F.2d 967, 970 (6th Cir.1964). Similarly, in United States v. Dema, 544 F.2d 1373, 1376 (7th Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977), the Singleton case was only cited within the context of requirements of the Williams Packing test. We have not applied that portion of the Monge decision that recognized an exception to the Anti-Injunction Act based on unusual and extraordinary circumstances since the Williams Packing decision was published.
The Supreme Court now recognizes a single, narrow judicial exception to the Anti-Injunction Act.
[A]n injunction may be obtained against the collection of any tax if (1) it is “clear that under no circumstances could the government ultimately prevail” and (2) “equity jurisdiction” otherwise exists, i.e., the taxpayer shows that he would otherwise suffer irreparable injury.
Commissioner v. Shapiro, 424 U.S. 614, 627, 96 S.Ct. 1062, 1070, 47 L.Ed.2d 278 (1976) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)).
Under the first prong of the Williams Packing test, the district court must determine the possibility of success of the Government’s assessment based upon the information available to the court at the time of the filing of the action. “Only if it is then manifest, under the most liberal view of the law and the facts, that the government cannot prove its claim” is the first part of the test satisfied. Thrower v. Miller, 440 F.2d 1186, 1187 (9th Cir.1971). The burden of showing that the Government’s claim is baseless is on the taxpayer. Schildcrout v. McKeever, 580 F.2d 994, 997 (9th Cir.1978) (citing Shapiro, 424 U.S. at 627-29, 96 S.Ct. at 1070-72.)
To meet the second prong of the Williams Packing test, the taxpayer must demonstrate that it is entitled to equitable relief. “The taxpayer must show that he has no adequate remedy at law and that the denial of injunctive relief would cause him immediate, irreparable harm.” Jensen v. IRS, 835 F.2d 196, 198 (9th Cir.1987) (citing Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313-14 (9th Cir.1982)). Both prongs of the test must be met or a suit for injunctive relief must be dismissed. Alexander v. “Americans United” Inc., 416 U.S. 752, 758, 94 S.Ct. 2053, 2057, 40 L.Ed.2d 518 (1974).
The limitations imposed by the Anti-Injunction Act also apply to the Church’s attempt to enjoin “wrongful disclosures” in the form of the bank levies and individual assessments claimed to be made in violation of 26 U.S.C. § 6103. In Blech v. United States, 595 F.2d 462 (9th Cir.1979), we stated that where the underlying action was one to enjoin assessment and collection activities, it fell within the scope of the Anti-Injunction Act’s prohibitions. Id. at 466.
To hold otherwise would enable ingenious counsel to so frame complaints as to frustrate the policy or purpose behind the Anti-Injunction Statute_ Likewise, this statutory ban against judicial interference with the assessment and collection of taxes “is equally applicable to activities which are intended to or may culminate in the assessment or collection of taxes.”
Id. (quoting United States v. Dema, 544 F.2d 1373, 1376 (7th Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977)). Accord, Lowrie v. United States, 824 F.2d 827, 830 (10th Cir.1987). The Fifth Circuit has also held that an injunction sought under § 6103 was barred by the Anti-Injunction Act. Kemlon Products & Development Co. v. United States, 638 F.2d 1315, 1320 (5th Cir.), modified, 646 F.2d 223 (5th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981).
The Church relies on Husby v. United States, 672 F.Supp. 442 (N.D.Cal.1987) for the proposition that an injunction may issue to prevent further disclosure of tax return information through collection activities. In Husby however, the Government agreed with the taxpayer that no taxes were in fact owing. The Government further admitted in court, prior to the issuance of the injunction, that the assessment and all collection activity pursuant to it were due to computer error. Id. at 444. No challenge under the Anti-Injunction Act was made, and the court expressly stated that “[t]he case at hand presents no problem as to collateral attack of a levy or assessment.” Id. at 445. The only issue before the district court was whether the statutory remedies of 26 U.S.C. § 7431 applied to the erroneous levy. Id. at 442.
To avoid the bar of the Anti-Injunction Act, the Church has the burden of establishing that “under the most liberal view of the law and the facts, the United States cannot establish its claim....” Schildcrout v. McKeever, 580 F.2d 994, 998 (9th Cir.1978) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). As noted above, the declaration of Baker is in conflict with that relied upon by the Church concerning the appropriateness of the levy, and whether wrongful disclosures were made, as well as the circumstances surrounding the issuance of the individual assessments. Baker declared that since $6,500,000 in assessed taxes were not challenged by the Church, it was determined that efforts to collect the amount were thought to be appropriate.
Where the record presents “material issues of disputed fact” the district court lacks jurisdiction to grant an injunction. Kaestner v. Schmidt, 473 F.2d 1294, 1296 (9th Cir.1973) (Anti-Injunction Act bars jurisdiction where evidence in Government affidavits established material issues of disputed fact.) Accord, Thrower v. Miller, 440 F.2d 1186, 1187-88 (9th Cir.1971) (Anti-Injunction Act barred relief where affidavits of appellee and his attorney conflicted with affidavit of IRS officer.)
The Church asserts that because the IRS represented that it would forbear collecting the asserted deficiencies pending IRS determination of the Church’s refund claim, the Government’s attempts to levy an assessment thereafter constituted “fraudulent coercion” or “fraudulent representations” as a means of tax collection. This contention cannot be supported under the most liberal view of the record in favor of the Government.
The cases cited by the Church in which injunctive relief was granted based on proof of coercion or fraud are distinguishable from the facts in the record before us. In Mitsukiyo Yoshimura v. Alsup, 167 F.2d 104 (9th Cir.1948) the taxpayer was coerced into signing incriminating documents and falsely threatened with internment. Id. at 105. No showing of similar misconduct appears in the record. The Church has not demonstrated how the representation that the IRS would temporarily forbear collecting the disputed deficiencies coerced or defrauded the Church in any manner.
In Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932), the taxpayer commenced its business acting in reliance upon assurances from the Commissioner of Internal Revenue of the nontaxable nature of its product. Id. at 510, 52 S.Ct. at 263. No showing has been made that the IRS assured the Church that no taxes were owing. Likewise, there has been no showing that the Church relied on the claimed assurance to its detriment. Viewing the facts and law in the most liberal light as required by Williams Packing, the Church has failed to demonstrate that the Government cannot succeed on its claim on the basis of the cited authority.
The Church next argues that it has met the first prong of the Williams Packing test because the Government has conceded that it could not prevail on the merits regarding the alleged violations of the rule set forth in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). We find no such concession by the Government in its brief before this court or in the record of the proceedings before the district court.
Pursuant to the Accardi doctrine, an administrative agency is required to adhere to its own internal operating procedures. Id. at 268, 74 S.Ct. at 504. The Church alleges that the IRS violated Policy Statement P-5-16, Policies of the IRS Handbook, reprinted in 1 Administration Internal Revenue Manual (CCH) at 1305-11, which states that when a taxpayer raises a question or presents information creating reasonable doubt about the accuracy or validity of an assessment “reasonable forbearance will be exercised with respect to collection provided (1) adjustment of the taxpayers claim is within the control of the service, and (2) the interests of the Government will not be jeopardized.” Id.
The Church argues that United States v. Heffner, 420 F.2d 809 (4th Cir.1969) provides that when the IRS publicizes a policy that it has promulgated for the express benefit of taxpayers, the Government must act in compliance with that policy. The Church’s reliance on Heffner is misplaced. Heffner is a criminal case. It does not involve an application of the Anti-Injunction Act. Id. at 810. The IRS regulation applied in Heffner concerned the requirement that Miranda warnings be given to suspects in criminal tax fraud investigations. Id. at 811. The remedy invoked in Heffner was reversal of the criminal conviction. Id. at 814.
The Church asserts that it is undisputed that IRS Policy Statement P-5-16, is a “procedural safeguard” which bars any collection activities until its claims for refund are resolved. The Government argues that P-5-16 indicates on its face that collection will be made if it is in the Government’s interest. Accordingly, the policy was not promulgated for the express benefit of taxpayers. The Government further argues that it has not violated the forbearance policy. It is the Government’s position that IRS Policy Statement P-5-16 does not require it to forbear collection of approximately $6,500,000 as to which there is no dispute. These conflicting contentions readily demonstrate that the Church’s representation that the Government has made a concession concerning the application of the Accardi doctrine is without merit.
Viewing this conflict of law in the most liberal light, it cannot be said that there is no possibility that the Government will prevail on this issue. Thus, the Church has failed to demonstrate that it has met the burden imposed by the Williams Packing test.
Ill
The Church argues that the levies violate the establishment clause of the First Amendment and the due process clause of the Fifth Amendment, and that therefore irreparable injury to the Church is presumed as a matter of law.
The Church relies on Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) in support of this argument. In Elrod, the Supreme Court stated that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Id. at 373, 96 S.Ct. at 2689. Elrod did not involve an attempt to restrain tax assessments. Instead, the court was concerned with the free speech rights of public employees threatened with discharge because of political party affiliation. Id. at 349, 96 S.Ct. at 2678. A more important distinction, however, is the different standard that is applicable in granting injunc-tive relief in cases where that remedy is not barred by the Anti-Injunction Act. The test applicable in Elrod was “probability of success on the merits.” Id. at 374, 96 S.Ct. at 2690. As noted above, under Williams Packing, a person seeking in-junctive relief must demonstrate “under the most liberal view of the law and the facts, [that] the United States cannot establish its claim.” Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962).
The Church also argues that it has established violations of the due process clause of the Fifth Amendment. The Church asserts that when “an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2nd Cir.1984).
In Mitchell, in affirming an order granting an injunction preventing a prison closure, the Second Circuit stated: “[g]iven the evidence of increasing overcrowding... which constitute^] the alleged threat to plaintiffs’ eighth amendment rights, the district judge’s finding of irreparable harm is not clearly erroneous.” Id. at 806. The issuance of an injunction to prevent the closure of a prison is not expressly barred by the Anti-Injunction Act. Furthermore, the Second Circuit concluded an award of damages would be inadequate to remedy the harm that would flow from the closure of a 1000-bed facility and the transfer of its 475 inmates to other over-crowded prisons. Id. at 805. As discussed below, the Church has adequate remedies at law for all of its tax related claims.
In Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), the Supreme Court stated that the Williams-Packing test was applicable to First Amendment and Due Process claims raised by the taxpayer. Id. at 749, 94 S.Ct. at 2052. The Court held that the taxpayer had an adequate remedy at law in an action for a refund. Id. at 746, 94 S.Ct. at 2050. No special consideration is granted to injunctions against tax collection sought on constitutional grounds. “[Decisions of this Court make it unmistakably clear that the constitutional nature of a taxpayer’s claim, as distinct from its probability of success, is of no consequence under the Anti-Injunction Act.” Alexander v. “Americans United” Inc., 416 U.S. 752, 759, 94 S.Ct. 2053, 2058, 40 L.Ed.2d 518 (1974) (claim that statutory prohibition against lobbying by tax exempt organization is unconstitutional); accord, United States v. American Friends Serv. Comm., 419 U.S. 7, 11, 95 S.Ct. 13, 15, 42 L.Ed.2d 7 (1974) (claim that withholding tax interfered with Quaker’s free exercise of religion).
The Church also argues that the fact that the assessment exceeds $9,000,-000 demonstrates irreparable harm. Mere allegations of financial hardship are insufficient to support a finding of irreparable harm. Bob Jones Univ., 416 U.S. at 745, 94 S.Ct. at 2050. See, Cool Fuel, Inc. v. Connett, 685 F.2d 309, 314 (9th Cir.1981).
The Church further argues that the levies and assessments constitute injuries to the Church’s privacy and reputational interests. The only case cited in support of this proposition is Husby v. United States, 672 F.Supp 442 (N.D.Cal.1987). As discussed above, the applicability of the Anti-Injunction Act was not an issue in Husby. The district court stated in Husby that the “sole question” before it was whether the statutory remedies of 26 U.S.C. § 7431 applied to the erroneous levy. Id. at 442.
In Kemlon Products & Development Co: v. United States, 638 F.2d 1315 (5th Cir.), modified, 646 F.2d 223 (5th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981), the taxpayer also claimed that an injunction should issue because, without that remedy, it would suffer a “loss of business reputation.” Id. at 1318. The Fifth Circuit rejected the taxpayer’s argument that a mere conclusory allegation of reputational harm demonstrates irreparable harm. Id. at 1322-23. The same result was reached in Church of Scientology Celebrity Centre v. Egger, 539 F.Supp 491 (D.D.C.1982). “As is well settled in the tax field, irreparable injury cannot be established by an allegation of injury to reputation_ [T]o establish irreparable injury, plaintiffs must allege that the financial penalties likely would cause Scientology ministers, churches or members financial ruin or other serious consequences.” Id. at 496 (citations omitted).
The courts have repeatedly held that the opportunity to sue for a refund is an adequate remedy at law which bars the granting of an injunction.
[Pjetitioner may pay income taxes, or, in the their absence, an installment of FICA or FUTA taxes, exhaust the Service’s internal refund procedures, and then bring suit for a refund. These review procedures offer petitioner a full, albeit delayed, opportunity to litigate the legality of the Service’s revocation of tax-exempt status and withdrawal of advance assurance of deductibility.
Bob Jones Univ., 416 U.S. at 746, 94 S.Ct. at 2050; see also Americans United, 416 U.S. at 762, 94 S.Ct. at 2059 (taxpayer has adequate remedy in a refund suit following FUTA payment); American Friend Serv. Comm., 419 U.S. at 11, 95 S.Ct. at 15 (full opportunity to litigate tax liability in a refund suit bars equitable relief); Zimmer v. Connett, 640 F.2d 208, 210 (9th Cir.1981) (“Tax assessments must be contested... in an action for a refund in the Federal District Courts.... Absent a clear and explicit congressional mandate, we shall not depart from these well marked pathways.”) (citations omitted); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 314 (9th Cir.1981) (“Since the Supreme Court decision in Bailey v. George, 259 U.S. 16, 42 S.Ct. 419, 66 L.Ed. 816 (1922), it has been established law that payment of the tax followed by a suit for refund constitutes an adequate remedy at law.”)
The Government challenges the Church’s standing to seek relief for the Church officials who have been assessed under 26 U.S.C. § 6672. The Church argues that the section 6672 claims are derivative from the Government’s main claim against the Church for the FICA and FUTA taxes since the Government may only satisfy the tax liability once. Wollman v. United States, 571 F.Supp. 824, 826 (S.D.Fla.1983). The Church further asserts that, since the individuals assessed can seek indemnity from the Church, standing exists. Reid v. United States, 558 F.Supp. 686, 688-89 (N.D.Miss.1983). Inasmuch as one of the injuries claimed by the Church is the wrongful disclosure of taxpayer information to the third parties who received the assessments, the Church has asserted a direct injury from the issuance of the assessments. Likewise, to the extent that an individual who pays a penalty assessment may be indemnified by the Church, the Church has standing to challenge the validity of the claim because it will be injured economically, albeit indirectly. However, as discussed swpra, the fact that the Church or the individuals may challenge the correctness of the assessment in a court action for refund provides an adequate remedy as a matter of law. Bob Jones Univ. v. Simon, 416 U.S. at 746, 94 S.Ct. at 2050; Cool Fuel, 685 F.2d at 314.
Remedies at law for wrongful disclosure in violation of 26 U.S.C. § 6103 are found in 26 U.S.C. § 7431(a). Section 7431(a) provides for damages for knowing or negligent disclosure of tax return information. We have previously stated our “reluctance to imply a judicial remedy for violations of § 6103 given Congress’ explicit provision of a remedy.” United State v. Michaelian, 803 F.2d 1042, 1049 (9th Cir.1986). See also, South Carolina v. Regan, 465 U.S. 367, 374, 104 S.Ct. 1107, 1112, 79 L.Ed.2d 372 (1984) (the Anti-Injunction Act prohibits injunctions in the context of a statutory scheme which provides an alternative remedy).
The Church has not met its burden under Williams Packing to demonstrate that it will suffer irreparable injury unless an injunction is issued. Thus, neither prong of the Williams Packing test has been satisfied.
IV
The Church argues that the district court violated its right to due process of law by dissolving the TRO and denying the preliminary injunction before the Church had the opportunity to file its reply to the Government’s response as permitted by the local rules. The Government argues that there was no violation of due process as the district court must dismiss an action sua sponte if it lacks subject matter jurisdiction, even if the parties do not raise the issue. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986).
The district court granted the Church’s request for a TRO on April 24, 1990 and issued a minute order setting a hearing date for the OSC for May 21, 1990. The parties were directed to follow the local rules regarding the timely filing of their documents. Simultaneously, the district court ordered that no appearance would be necessary. The Church alleges, and the Government does not contest, that the briefing schedule established by these dates under Local Rule 7 required that the Government file its response to the OSC by May 7, 1990. The Church’s reply was due on May 14, 1990. The district court received the Government’s response to the Order to Show Cause on May 7, 1990. Pri- or to the filing of the Church’s reply, the district court issued its order on May 10, 1990, vacating the TRO and dismissing the request for a preliminary injunction.
Whether the district court had subject matter jurisdiction is a question of law which this court considers de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The Church has had a full opportunity to present its legal arguments in the briefs filed in this court. The Church does not contend that it was denied the opportunity to present facts showing that the court had subject matter jurisdiction under the Williams Packing test, but rather that, to “the extent that the District Court’s denial of the preliminary injunction was based on ‘the reasons and legal authorities cited in the Government’s response to OSC,’ it relied upon erroneous legal premises.” Appellants Op.Br. at 20.
Assuming arguendo that the district court erred in not allowing the Church an opportunity to file a reply to the Government’s response to the OSC, the Church must show that it has been prejudiced. Patel v. I.N.S., 790 F.2d 786, 789 (9th Cir.1986) (“Because the petitioners can demonstrate no prejudice, we reject their due process claim.”) The Church presented its contention that the Anti-Injunction Act was inapplicable in its Memorandum of Points and Authorities in Support of Application for Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction. It does not claim before this court that a remand is required so that it may present additional facts in response to the issues raised by the Government. Because the district court was correct in ruling that it lacked subject matter jurisdiction, the rights of the Church were not prejudiced by the dismissal of the action without permitting it to file its reply to the Government’s response to the OSC.
CONCLUSION
The Anti-Injunction Act precludes the granting of an injunctive relief unless the requirements of the Williams Packing test are met. The Church has not demonstrated that under no circumstances could the Government prevail. The Church has also failed to establish that it will suffer irreparable harm unless an injunction is issued. Thus, the district court correctly determined that it lacked subject matter jurisdiction to restrain the tax assessments in issue.
AFFIRMED.
. In 1987, in Church of Scientology of California v. Commissioner of Internal Revenue, 823 F.2d 1310 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988), we upheld a revocation of the Church's tax exempt status for the years 1970-1972. Among the factual findings in that case were that significant sums of Church money had inured to the benefit of the Church’s founder L. Ron Hubbard and his family during the years in question. These benefits included the transfer of several million dollars in Church funds to a sham corporation controlled by Hubbard and a plan by which 10% of the gross income of all Scientology congregations, franchises and organizations were to be paid directly to Hubbard as "debt repayments.” Id. at 1318-19.
. "Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect any such tax,... or willfully attempts in any manner to evade or defeat any such tax or payment thereof, shall... be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over."
. In Monge, we followed the line of cases which stated that an injunction may be granted where "unusual and extraordinary circumstances appear.” 229 F.2d at 366. While Monge has been cited four times by this court since Williams Packing, it has never been for that proposition. See, Whitney v. United States, 826 F.2d 896, 897 (9th Cir.1987) (whether Form 870-AD standing alone estops taxpayer from seeking a refund); Meridian Wood Prod. Co. v. United States, 725 F.2d 1183, 1186 (9th Cir.1984) (waiver obviated need for sending formal deficiency notice); Wood v. Sargeant, 694 F.2d 1159, 1161 (9th Cir.1982) (inability to pay tax is not a basis for invoking equity jurisdiction); Richmond v. Weiner, 353 F.2d 41, 45 (9th Cir
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_appel1_1_3 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
CONTINENTAL AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Western Air Lines, Inc., Hughes Air Corporation, d/b/a Hughes Airwest, United Air Lines, Inc., Trans World Airlines, Inc., City of Kansas City, Missouri and Chamber of Commerce of Greater Kansas City, City and County of Denver, Colorado, Public Utilities Commission of the State of Colorado, San Diego Unified Port District, the City of San Diego, San Diego Chamber of Commerce, Interve-nors.
No. 74-1651.
United States Court of Appeals, District of Columbia Circuit.
Argued April 11, 1975.
Decided Sept. 22, 1975.
Thomas D. Finney, Jr., Washington, D.C., with whom Lee M. Hydeman and James T. Lloyd, Washington, D.C., were on the brief for petitioner.
Glen M. Bendixsen, Associate Gen. Counsel, Civ. Aeronautics Bd., Thomas J. Heye, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel and David E. Bass, Atty., Civ. Aeronautics Bd., were on the brief for respondent. Robert L. Toomey, Atty., Civ. Aeronautics Bd., also entered an appearance for respondent.
Emory N. Ellis, Jr., Washington, D.C., with whom Gerald P. O’Grady, Los An-geles, Cal., was on the brief for inter-venor Western Air Lines, Inc. Howard L. Culver, Los Angeles, Cal., also entered an appearance for intervenor Western Air Lines, Inc.
William M. Dickson, Chicago, 111., was on the brief for intervenor United Air Lines, Inc., Henry L. Hill, Chicago, 111., also entered an appearance for interve-nor United Air Lines, Inc.
John P. Moore, Atty. Gen. of Colorado and Tedford Dees, Asst. City Atty., Denver, Colo., were on the brief for interve-nors City and County of Denver, Colo, and The Public Utilities Commission of the State of Colorado.
Aaron A. Wilson, City Atty., Kansas City, Mo., and Nordahl E. Holte, Asst. City Atty., were on the brief for interve-nors City of Kansas City, Missouri and the Chamber of Commerce of Greater Kansas City.
Joseph D. Patello, San Diego, Cal., was on the brief for intervenors San Diego Unified Port District, City of San Diego and San Diego Chamber of Commerce.
Richard A. Fitzgerald, San Mateo, Cal., and John W. Simpson, Washington, D.C., entered an appearance for intervenor Hughes Air Corporation, d/b/a Hughes Aiiwest.
Edmund E. Harvey, New York City, entered an appearance for intervenor Trans World Airlines, Inc.
Laurence K. Gustafson and Howard E. Shapiro, Attys., Dept, of Justice, filed a brief on behalf of the United States of America as amicus curiae urging reversal.
Before WRIGHT and LEVENTHAL, Circuit Judges, and WEIGEL, United States District Judge for the Northern District of California.
Sitting by designation pursuant to 28 U.S.C. § 292(d).
LEVENTHAL, Circuit Judge:
Continental Air Lines, Inc. petitions for review of two orders of the Civil Aeronautics Board (CAB) entered in the Board’s Additional Service to San Diego Case. The challenged orders — Order 72-12-29, December 8, 1972, and Order 74r-5 — 17, May 3, 1974 — rejected the recommendations of the Administrative Law Judge (ALJ) that competitive nonstop authority be certificated between San Diego and Denver. The ALJ had selected Continental to provide the competitive service.
Petitioner contends that the Board’s order should be set aside on the ground that the CAB “failed to give adequate weight to the statutory mandate favoring competition” and “failed to engage in reasoned decision-making.” The Board responds that its orders were adequately supported by the need for caution at a time when the industry was “plagued by retrenchment and lagging traffic growth” and by the “crucial problem of diminished fuel supplies.”
We find that, as a general matter, § 102 of the Federal Aviation Act requires the Board to foster competition as a means of enhancing the development and improvement of air transportation service on routes generating sufficient traffic to support competing carriers. We are cognizant that in some circumstances the other considerations set forth in § 102 may conflict with and predominate over the public interest in competition. The Board urges in effect that here the need to foster sound economic conditions in view of the industry’s financial posture and the fuel situation overrides the benefits of competition. After a careful examination of the record, we conclude that the Board’s position is not supported by substantial evidence and that its rejection of competitive nonstop service in the San Diego-Denver market is not in accord with the public interest considerations set forth in § 102 of the Act. Accordingly, we remand the case for further proceedings consistent with Part IV of this opinion.
I. Background
We begin with a summary of the seven years of administrative proceedings culminating in the orders under review.
The challenged orders are the last of a series of CAB rulings entered in the Additional Service to San Diego Case. That proceeding arose out of an application filed by United Air Lines on January 12, 1967, requesting permission to provide nonstop service in several San Diego markets. On May 26, 1967, the CAB issued a show cause order which rejected United’s San Diego-Denver nonstop request, but proposed to give United nonstop authorization for the San Diego-New York and San Diego-Chicago routes. In response to the City of Denver’s petition for reconsideration, the Board sua sponte issued a second order to show cause why Western Air Lines, the primary San Diego-Denver carrier, should not be permitted to provide nonstop service in that market. The Board’s proposals prompted numerous objections and competitive filings from other airlines. By order of April 3, 1968, the CAB instituted the Additional Service to San Diego Case, setting a consolidated hearing on applications for nonstop authority between San Diego and New York/Newark, Washington/Baltimore, Chicago and Denver.
Following the submission of briefs by numerous carriers and local groups and three days of hearings, the ALJ issued his initial decision on September 4, 1969. The ALJ recommended that competitive nonstop authority be authorized in all four markets under consideration. With regard to the San Diego-Denver market, he adopted the Bureau of Operating Rights’ forecast that there would be “not less than 100,335 passengers in 1970.” Based on this “conservative” estimate he found “ample traffic to support two carriers on an economic basis without regard to the support of through traffic flowing over the route.” The ALJ selected Western and Continental to provide the competing nonstop service. Western was a “logical choice” because it carried the great bulk of the San Diego-Denver passengers on its one stop flights routed via Phoenix. Continental was chosen ahead of United, TWA and Air West as the second carrier because of United’s past “record of neglect and indifference” toward the market and because of Continental’s superior proposed pattern of service; attractive fare schedules; substantial beyond market benefits; and history as “an extremely vigorous, aggressive, and efficient carrier."
The CAB exercised its right of discretionary review of the ALJ’s initial decision, issuing its opinion on April 9, 1970. The Board adopted the ALJ’s findings regarding the need for competitive nonstop service in the Chicago, New York/Newark, and Washington/Baltimore markets but decided, by a vote of 3 — 2, to certificate only one nonstop carrier, Western, in the San Diego-Denver market. This departure from the ALJ’s determination rested primarily on the majority’s view that “the examiner’s forecast may be too optimistic” given “the recent lag in nationwide traffic growth.” Although the CAB noted that a competitive authorization would provide a spur to better service and significant benefits to beyond segment markets, it concluded that Western’s possible “sizeable operating loss if competitive service is instituted” in conjunction with the adequacy of Western’s proposed service to meet the needs of the market rendered a denial of a competing nonstop carrier certification “more consistent with the goal of fostering sound economic conditions in air transportation. ” The dissenting Board members emphasized that the projection of 100,335 passengers (275 per day) in 1970 was “a very conservative estimate” which did not include either “true San Diego passengers who are reported as Los Angeles passengers (because they traveled from Los Angeles to San Diego by surface transportation or intrastate airlines) or “the substantial number of passengers carried between these points who will move beyond Denver to points on the routes of both Western and Continental.” In addition, the dissent noted that within the past year the Board had made grants of competitive nonstop service in a number of substantially smaller markets.
A number of parties, including Continental, sought reconsideration of the Board’s determination. Petitioner claimed that the majority lacked substantial evidence to support its determination that the traffic forecast of the ALJ and the Bureau of Operating Rights was too optimistic. It noted that the lag in national traffic had not affected the market at issue — the San Diego-Denver market had grown 34% between 1967 and 1968 and both San Diego and Denver experienced an increase in total traffic well in excess of the national average. Continental reinforced its argument by pointing out that the traffic estimates of three other carriers paralleled or exceeded the ALJ’s forecast and that the ALJ’s figure was significantly understated because of the factors noted by the dissenting members.
The CAB, by order of June 5, 1970, deferred action on the petitions to reconsider certification of a second nonstop carrier between San Diego and Denver. In its Supplemental Opinion and Order on Reconsideration of March 23, 1971, the Board, by an identical 3 — 2 vote, reaffirmed its previous denial of competitive service. The majority conceded that the San Diego-Denver market “maintained a healthy growth rate in calendar year 1968,” but argued that 1969 traffic data demonstrated that “the market is by no means an exception to the nationwide slowdown.” Using more recent traffic figures and a 1971 forecast year, the majority calculated that “Continental’s certification would produce an operating loss of about $84,000 for Western in 1971... ” The Board concluded that harm to Western “at a difficult period for the industry as a whole and Western in particular” outweighed the “significant factors” favoring certification such as substantial beyond segment benefits and profitable operation for Continental. The dissenters claimed that “[tjhere can be no serious question that this market is large enough to support competition,” emphasizing that the majority’s projection for 1971 yielded a larger traffic volume than the ALJ had found sufficient to support competition using a 1970 target year. They found that the possibility of a temporary loss by Western in 1971 was overshadowed by public benefits from improved service which Continental’s competitive flights would provide in the San Diego-Denver market and in other related markets.
Shortly after issuance of its supplemental opinion, the Board discovered that its financial calculations had erroneously rested on fiscal rather than calendar 1971 traffic estimates and consequently had underforecast 1971 traffic volume. Corrected estimates revealed that, in competition with Continental, Western’s 1971 profits would range from slightly below to somewhat above the break-even level. The CAB stated: “These revised figures render extremely close the balance of decisional criteria— harm to Western under existing economic conditions weighed against public benefit factors favoring competition and improved beyond service — in determining whether such competition should be authorized.” Under these circumstances, the Board, by order of April 16, 1971, remanded the competition question to the ALJ for an analysis of “the most recent traffic and cost data and Western’s actual experience with nonstop service in the market.”
The remand proceeding culminated in a 92-page Supplemental Initial Decision issued on March 20, 1972. The decision found a second nonstop carrier warranted by the size of the market in the 1972 and 1973 forecast years, the serious deficiencies and omissions in Western’s service, and Western’s ability “to achieve a substantial operating profit” in each of the forecast years in competition with another nonstop carrier. The ALJ accepted as reasonable the Bureau of Operating Right’s traffic estimate of 118,-520 passengers in 1972 and 127,409 in 1973 and its related projection of an operating profit for Western of $417,000 in 1972 and $325,000 in 1973. The supplemental decision faulted Western’s San Diego-Denver service for scheduling inadequacies and high load factors. The ALJ selected Continental to compete with Western for substantially the same reasons contained in his initial decision.
The Board, 3 — 2, again reversed the ALJ and declined to authorize competitive nonstop service. The majority members expressed concern that, “during a period of lagging traffic growth and retrenchment within the industry, and during the subsequent period of recovery before an adequate upward trend has been assured,” the agency “must be more than usually careful to avoid impeding the industry’s opportunities for full recovery.” It concluded that certification of competition would be imprudent since Western’s service had been “reasonably responsive to the needs of the market” and since competitive service was “likely to produce, at best, only marginal financial results.” The Board found the ALJ’s and the Bureau’s traffic forecast “too optimistic” and set forth a number of adjustments in their growth and stimulation percentages which reduced the 1973 traffic estimates by 29,000 passengers. Although the Board made no profit or loss calculations of its own, it concluded that “the prospect for profitable two-carrier operation is tenuous at this time.”
Continental’s detailed petition for reconsideration took issue inter alia with the Board’s adjustments to the ALJ’s traffic forecast. In particular, it questioned the majority members’ reliance on experience during recession years to support its forecast of a 3 percent growth rate for 1972 and 1973, in view of the Board’s earlier finding that the recession was a “temporary phenomenon.” As proof of the Board’s error, Continental noted that, as a result of substantial growth, Western’s traffic figures revealed that the market was significantly larger at the end of 1972 than the Board had predicted it would be a year later.
On May 3, 1974, fifteen months after the opinion following the remand, the Board issued an Opinion and Order on Reconsideration reaffirming, by a 2-1 vote, its denial of a competitive nonstop certification. This final opinion in these extended proceedings reiterates the Board’s “policy of caution” and expresses its “resolve to avoid making unnecessary awards of competitive authority on routes which are adequately served. Noting recent traffic growth data, the Board conceded “that the prospects for profitable competitive operations are far stronger than earlier believed” and that “competitive service would be more profitable than originally anticipated — although not as profitable as Continental claims.” However, without further explication, it stated that “the Board’s original decision did not turn on profitability alone.... ” Despite the improved financial outlook for competition and the benefits it offered, the Board determined that, given the general state of the industry and the recent onset of the fuel shortage, “a competitive authorization is unnecessary and undesirable at this time.”
The dissenting member emphasized that traffic data indicated that the ALJ’s 1973 forecasts “were on sound ground, indeed if anything conservative” and that there would likely be “well over 150,000 annual passengers” for fiscal 1975, the earliest possible first year of competitive operations. He commented: “Overall, it is hard to avoid the impression that the majority is not really interested in whether competitive service would be profitable, and has effectively eliminated this as a decisional factor.” Nor did he find any warrant for a denial of competitive service in the fuel situation. In view of Western’s scheduled four and a half nonstop roundtrips, the dissent noted that “competitive service in this market is possible today without materially increasing overall jet fuel consumption or reducing service in other, perhaps more essential markets.”
On June 25, 1974, Continental filed a petition for review of the Board’s 1972 order and its 1974 order on reconsideration.
II. Competition and the Public Interest Standard of the Federal Aviation Act
Continental urges that the challenged orders must be set aside in part because the Board failed to give adequate weight to the governing statute’s mandate favoring competition. Petitioner’s contention rests both on an assessment of the general importance of competition in the statutory scheme and an- analysis of the Board’s treatment of the record in view of that scheme. As shall be seen, these two aspects of petitioner’s argument implicate distinct questions of statutory interpretation and substantial evidence. We turn first to an examination of the role of competition, in order to develop a framework for evaluating the record to determine whether the Board’s decision is supported by substantial evidence and evinces a “fidelity to the functions assigned to the regulatory agency by the Congress.”
“Competition to the extent necessary” is one of the six public interest factors set forth in § 102 of the Federal Aviation Act to guide the CAB “[i]n the exercise and performance of its powers and duties.” The parties present divergent interpretations of § 102 and its competition subsection, § 102(d). Continental contends that the Act creates “a ‘strong presumption’ in favor of competition.” The CAB’s brief argues that the statute “contemplates that competition may or may not be ‘necessary’ ” and that competition is not per se favored “where it endangers other policy goals in the public interest, such as the achievement of efficient, economical service or the fostering of sound economy of operations.” Intervenor Western opines that in view of the origin of the Act “it is apparent Congress contemplated that as to Section 102(d) the emphasis would be, not on the word ‘competition,’ but on the remainder of the phrase: to the extent necessary to assure the sound development of an air transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense.” An examination of the origins of the statute and of its “contemporaneous construction” by persons “charged with the responsibility of setting its machinery in motion” clarifies the intended meaning of § 102(d) and the relationship between competition and the other public interest factors.
Congress first established a comprehensive system for regulation of air transportation through the Civil Aeronautics Act of 1938. The legislative history of that act makes clear that the statute was designed to correct the abuses of unrestrained competition among carriers. The Senate Report on the proposed legislation warned that “[cjompetition among air carriers is being carried to an extreme, which tends to jeopardize and render unsafe” air transportation and urged the “immediate enactment” of the bill to “promote an orderly development of our Nation’s civil aeronautics” and to “prevent the spread of bad practices and of destructive and wasteful tactics resulting from the intense competition now existing within the air-carrier industry.” In floor debates, Congressman Randolph cited “rate war, cutthroat devices, and destructive and wasteful practices” as evidence that “[t]he industry has reached the point where unbridled and unregulated competition is a public menace.”
However, Congress made it clear that while it was moving to safeguard against the excesses of destructive and unrestrained competition, it was in favor of the competitive principle and opposed to a policy of monopoly. In the debates, Senator McCarran stressed that the Act established a “nonpolitical agency” that would focus on the public interest of avoiding destructive competition where e. g., United Air Lines already serves Chicago to Salt Lake City, and the agency rejects another applicant who wants to serve the route, “because if you do both lines will fail.... ” He added:
[This] is not to say that any line may be “frozen” nor that any line may be ■perpetuated, nor that any monopoly over any terrain may be established to the exclusion of the necessity which the public may present.
Other speakers likewise evinced a clear intent to protect against the evils of monopoly. Senator Borah, for example, stated: “I have no doubt of the intent of the framers of this proposed legislation to inhibit or prohibit monopoly.... ” And Senator Copeland, Chairman of the pertinent committee, pointed to the “competition to the extent necessary” language in the declaration of policy section — § 2 of the 1938 Act which was reenacted in 1958 as § 102 of the Federal Aviation Act — as one of “five places in the pending bill where the question of monopoly is dealt with in one way or another with the view to its control and prevention.”
The central point is that this was one of an emerging group of statutes that did not regulate the so-called “natural monopolies” that identified conventional public utility regulation, but instead called for “regulated competition,” achieving the benefits of competition without the evils of unrestrained entry or under-cost rate wars.
It is significant that Congress, addressing itself to the air transport industry, deliberately fashioned this 1938 law so as to identify competition in express language as a key element of the public interest. During the Senate debate it was emphasized that both of the 1938 bills — the McCarran bill and the Administration substitute — altered the general declaration of policy contained in earlier bills to take “explicit recognition of the importance of competition to the extent necessary to assure the sound development of air transport.”
Numerous early CAB opinions provide insight into the intended role of competition in the new regulatory scheme. In one of its first decisions the Board stated: “Reference to both the legislative history and to the text of the act demonstrates the congressional intent to safeguard an industry of vital importance to the commercial and defense interests of the Nation against the evils of unrestrained competition on the one hand, and the consequences of monopolistic control on the other.” The CAB read the inclusion of an express reference to competition in § 2 to render inapplicable doctrine developed under other transportation regulatory schemes that competition should not be authorized where an existing carrier was furnishing adequate service and stood ready to meet any additional service needs of the public. The Board stated explicitly that when “competition will be neither destructive nor uneconomical. the Board is directed to implement competition” because it generally promotes the other public interest factors set forth in § 2. Thus the CAB concluded in the Additional North-South California Services Case:
While no convenient formula of general applicability may be available as a substitute for the Board’s discretionary judgment it would seem to be a sound principle that, since competition in itself presents an incentive to improved service and technological development, there would be a strong, although not conclusive, presumption in favor of competition on any route which offered sufficient traffic to support competing services without unreasonable increase of total operating cost.
And it further explained in the Hawaiian Case:
The greatest gain from competition. is the stimulus to devise and experiment with new operating techniques and new equipment, to develop new means of acquiring and promoting business, including the rendering of better service to the customer and to the Nation.... Competition invites comparison as to equipment, costs, personnel, methods of operation, solicitation of traffic, all of which tend to assure the development of an air transportation system as contemplated by the Act.
The legislative history and the early CAB decisions indicate that there is no presumption in favor of competition per se because competition may prove uneconomical and destructive of the healthy development of the industry if the relevant market is too small to support competing carriers. But when sufficient traffic exists to support competition, certification of competing carriers is mandated by the Act as providing the best means of effectuating the other public interest goals contained in § 102.
We place substantial reliance on this view of the role of competition both because of the particular respect due a “contemporaneous construction of a statute by men charged with the responsibility of setting its machinery in motion” and because the Board “has from the outset consistently taken” that position. Although Continental and the Department of Justice, as amicus curiae, charge that this case is indicative of the Board’s recent unannounced abandonment of this view and adoption of a route freeze policy, we need not address that claim in view of the Board’s failure to articulate its actions as a fundamental change in policy. “In our reviewing role, it is peculiarly appropriate for us to take the Board at its own word as to what it was doing, and to scrutinize the result in terms of that process.” We thus proceed to an examination of the Board’s treatment of the record to determine whether there is substantial evidence indicating either that the San Diego-Denver market lacks sufficient traffic potential for healthy competition or that another public interest consideration outweighs the significant benefits afforded by competition.
III. Lack of Substantial Evidence to Support Rejection of Competition
The post-remand orders under review in this case ^set forth two justifications for rejecting the ALJ’s reeommen-dation that competitive nonstop service be certificated for the San Diego-Denver market — maintenance of the economic health of the industry and the fuel shortage. Although a comprehensive analysis would pinpoint a number of shortcomings in the CAB’s opinions, we find that a focused examination of the evidence supporting these two core rationales is entirely sufficient to demonstrate the lack of substantial evidence to underpin the Board’s rejection of competition.
A. Promotion of Sound Economic Conditions
In its initial orders culminating in a remand for further proceedings on the issue of competitive nonstop service, the Board concentrated on the economic threat to Western posed by authorization of a competing carrier. Although the ALJ had found that the market would be large enough to support competition in 1970, the initial forecast year, the Board concluded that the projection was too optimistic “[i]n view of the recent lag in nationwide traffic growth” and credited Western’s “gloomy forecast” of “a sizeable operating loss if competitive nonstop service is instituted.” When Continental petitioned for reconsideration on the basis that the record showed substantial growth in the San Diego-Denver market contrary to the national trend, the Board responded that “more recent O & D data demonstrates [sic] that the market is by no means an exception to the nationwide slowdown.” The CAB went on to project an $84,000 operating loss for Western in 1971 under competition with Continental and to conclude that “Continental’s advantages” were outweighed “by the harm the carrier would cause to Western’s operations at a difficult period for the industry as a whole and for Western in particular.” When discovery of an error erased the $84,000 loss projection, the Board altered its analysis of the competition issue. It remanded the question for further proceedings, stating that “[t]hese revised figures render extremely close the balance of decisional criteria — harm to Western under existing economic conditions weighed against public benefit factors favoring competition and improved beyond service.... ”
Significantly, by the time of the last CAB order in May, 1974, the Board had abandoned its reliance on the threat of competition to the profitability of Western’s San Diego-Denver service. The AU and the CAB’s Bureau of Operating Rights again found that there would be substantial growth in the market in both the 1972 and 1973 forecast years and projected that both Western and Continental would achieve sizeable profits in each of those years. The Board again deemed the ALJ and Bureau of Operating Rights’ traffic forecast “too optimistic”, making numerous downward revisions in the ALJ’s forecasting assumptions and concluding that the competitive service was “likely to produce, at best, only marginal financial results.” In contrast to its pre-remand orders, the Board did not make the key bottom line profit and loss calculation in its 1972 order or include any reference to the financial status of Western and Continental. Implicit in the Board’s decision was its belief that any doubts as to the profitability of competition should be resolved against certification of a second carrier “to avoid impeding the industry’s opportunities for full recovery.”
The CAB argues that its analysis of traffic projections and balancing of public interest factors involve a “specialized task” that is “within the Board’s special province” and that the court should defer to the agency’s expertise in these technical matters. In response, Continental identifies a number of danger signals that serve to alert the court to the Board’s failure to engage in a reasoned application of its expertise — a predicate to restrained and deferential judicial review of an agency’s actions. It points to the ever-shifting basis of the Board’s decisions, the inexplicable delay in preparation of agency orders, and the persistent conservative downgrading of the ALJ’s and staff’s traffic forecasts in the teeth of data revealing significant growth as danger signals indicating that the Board’s adjustments and conclusions are a product of “result-oriented” rationalization.
We are not required to rule on this contention, to evaluate the strength of these danger signals or to consider whether they undercut the deference normally accorded to agency analyses of technical traffic matters. These matters have been obviated by the Board’s May, 1974 Opinion and Order on Reconsideration, which concedes the need for adjustment of its forecast and states that competition would be profitable. Subsequent additions to the traffic data that were before the Board prior to its 1972 order convincingly demonstrated that the majority members severely underestimated the size of the market. Faced with these figures, the Board acknowledged what could not fairly be denied— “the prospects for profitable competitive operations are far stronger than earlier believed” and “competitive service would be more profitable than originally anticipated.”
But then the Board brushed these developments aside, stating that its “original decision did not turn on profitability alone.... ” Since the profitability of Western was the crucial reason for the original remand, we do not see how this fairly could be discarded without explication of why the change in this factor did not alter the conclusion The only factor identified in the Board’s April, 1971 order authorizing the remand of the competition question was profitability — “harm to Western under existing economic conditions.... ” The March, 1971 Supplemental Opinion and Order on Reconsideration had pointed to the related factor of “a difficult period... for Western in particular,” but by May, 1974, Western’s financial situation had brightened with earnings in excess of the 12% level found “reasonable” by the Board in its Domestic Passenger-Fare Investigation.
The only remaining factor mentioned in the CAB’s prior decision in this matter was the financial condition of the industry as a whole. But that consideration had been relied upon solely in terms of justifying a “more than usually careful” approach to evaluating the competition question in the San Diego-Denver market. That approach may have validity, if not carried to extremes, for it still leads up to an ultimate' decision focused on the subject market. But we are unable to discern on what basis the Board can glean any support from this factor of general conditions once it has recognized, as it now apparently has, that the particular market will sustain competition and still be profitable. If an air transport market is substantial and thriving, we do not see how the fact that other markets are over-served, can justify leaving this market under-served, of depriving it of the public-interest benefits of competition.
Is the Board obliquely saying that monopoly profits are needed in this market to sustain overall industry earnings when shaky?
This would not only raise serious questions of Congressional intent, and adequacy of articulation of reasoning, but present the question whether there is evidence to show that competition in this market will not maintain overall profits, by enhancing efficiency, quality of service, and the size of this and connecting-beyond markets. In the end we are left with the conviction that the Board’s reference to general industry conditions is “local color” to gain an atmosphere of acceptability for the result, rather than a novel, independent ground of decision resting on substantial evidence.
We have not ignored the passage, in the Board’s opinion denying reconsideration, which says that the industry’s faltering in its effort to achieve recovery “fortifies our resolve to avoid making unnecessary awards of competitive authority on routes that are adequately served.” The structure of this sentence suggests that the general faltering of industry factor (which we have already discussed and found wanting) was taken in conjunction with, and as fortifying, a separate regulatory notion that competition is “unnecessary” when existing (monopoly) service is “adequate.” Such a concept would not only constitute a fundamental change in doctrine that requires a more direct address and reasoned analysis than this elliptical reference but more important would conflict with the intent of Congress as we discern it.
B. The Fuel Shortage
We come, finally, to the fuel shortage issue to which the Board referred in ultimately denying reconsideration. The onset of the oil embargo in late 1973 diminished the fuel supplies available for air transportation. The Board’s May, 1974 opinion grasped the fuel problem as an independent reason for rejecting competitive service. As the Justice Department brief remarks, since fuel shortages are a permanent fixture of American life, this is tantamount to writing § 102(d) out of the act. Moreover, the Justice Department aptly comments that there is no support for the Board’s alleged fear that certificating competitive service would increase fuel consumption at the expense of more “essential service elsewhere” to the “overall detriment of the public interest.” The crisis of late 1973 may have justified temporary orders to preserve the status quo pending analysis, but not an indefinite abdication by CAB. We have recently noted in another context that the existence of an energy crisis does not excuse a regulatory agency’s “failure to seek answers” pertinent to the exercise of its duties or its “abdication of its duty to ‘indicate fully and carefully the methods by which, and the purposes for which, it has chosen to act.’ ”
The CAB contends that its reference to the Remanded Atlanta/Detroit/Cleveland/Cincinnati Investigation was sufficient since “there was no reason for the Board to repeat in this case what it had already said in a companion case issued on the same day.” However, in the companion case the Board found that the proposed competitive flights “would consume well over 10 million gallons of fuel annually.” In addition, it noted that the markets under consideration there were experiencing load factors “only moderately if at all above the Board’s rate-making standard of 55 percent.” Here, by contrast, additional fuel was not required to institute competition. At the time of the final order, Western was planning to run four and a half nonstop trips in the San Diego-Denver market. This exceeded the two round trip flights each which the carriers had proposed to institute in the remand proceedings. Moreover, the monthly on board coach load factors on Western’s San Diego-Denver flights were repeatedly well in excess of the 55% level during the 14 months ending with July, 1973. In this context, the Board’s bare reference to the fuel shortage rationale set forth in the Atlanta-Detroit case is not sufficient to constitute reasoned decisionmaking for the disparate conditions of the San Diego-Denver market.
Section 102 sets forth six public interest factors to guide the CAB in the exercise of its statutory duties. We are cognizant that in reviewing agency orders “[t]he court’s responsibility is not to supplant the [Board’s] balance of these interests with one more nearly to its liking,” but the state of the record establishes that the Board recited the public benefits to be derived from competition, and did not itself accord them any real weight in the balance, dismissing them, in effect, as overborne by considerations, of the health of the industry and the fuel situation, which lacked any support in substantial evidence. Accordingly, the challenged orders are set aside and the record is remanded for further proceedings.
IV. Remand Proceedings
The agency proceedings eventuating in Continental’s petition for review were commenced over 8V2 years ago. Two complete evidentiary hearings have been conducted and the ALJ has issued two thorough initial decisions detailing the characteristics of the market, analyzing traffic forecasts, and comparing the strengths of carriers seeking certification. The record before us contains ample evidence of the need for competing nonstop service. We agree with Interve-nor Western Air Lines that “[p]ublic policy dictates that the case be brought to an end.” We thus contemplate that the CAB will proceed expeditiously on remand with selection of a competing nonstop carrier. To avoid any unnecessary delay, we note that if the Board should invoke the procedure of petitioning this court to modify its mandate to permit taking of additional evidence on the pendency of this appeal, it should set forth with particularity the matters involved and their relationship to the desirability and feasibility of implementing competition.
Turning finally to the question of carrier selection, we note that this issue has also been fully fleshed out in the previous hearings. The ALJ has twice selected Continental over the other carriers seeking nonstop authorization to compete with Western. The Board has repeatedly noted the substantial beyond market benefits offered by Continental and has spoken in terms of the advantages provided by Continental in addressing the related competition question. Nonetheless, as Intervenor United Air Lines, points out, the Board has not squarely examined the ALJ’s findings on the carrier selection issue. On remand the CAB should review the record and render a supplemental order either adopting the ALJ’s determination or setting forth its separate reasons for accepting or rejecting the ALJ’s selection. In view of the comprehensive record before the agency and the public interest in a
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_search | E | 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.
Gloria CONWAY, Individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. Patricia HARRIS, et al., Defendants-Appellees.
No. 78-1473.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 25, 1978.
Decided Nov. 13, 1978.
Lawrence G. Albrecht and Thomas P. Donegan, Milwaukee, Wis., for plaintiffs-appellants.
Bruce G. Forrest, Civil Div., Dept, of Justice, Washington, D. C., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, and TONE and WOOD, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
Plaintiff-appellant Gloria Conway appeals from the district court’s dismissal of her complaint for failure to state a claim for which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On behalf of herself and all other persons similarly situated, plaintiff alleged in her complaint that she was unlawfully denied assistance and service benefits provided by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601, et seq. (Uniform Relocation Act or URA).
The facts of this case are not contested. The plaintiff was a tenant in a small apartment building in Waukesha, Wisconsin, and on March 15, 1977, she and other tenants received a 60-day eviction notice from their landlord. On March 30, 1977, the tenants received another letter from another private party, Architektur-80, advising them that this firm had optioned the property on which the tenants’ residences were situated and that financing for the development of a senior citizens’ housing project had been approved. Apparently Architektur-80 and the Wisconsin Housing Finance Agency (HFA) had already signed an agreement, which was later approved by the Department of Housing and Urban Development (HUD), wherein the parties contracted that the new owner would receive Section 8 housing assistance payments following completion of the new housing construction. Some time after the plaintiff moved, the apartment building was taken down and a new 43-unit, Section 8 housing project for the elderly was constructed.
Counsel for plaintiff requested in a May, 1977, letter to the Milwaukee Area Department of Housing and Urban Development that full URA benefits be granted the tenants who were being displaced by construction of the Section 8 project. Shortly thereafter the HUD Milwaukee Area Director responded that persons displaced due to a private Section 8 project were not eligible to receive benefits under the Uniform Relocation Act.
The Section 8 program was established by Congress as part of the omnibus Housing and Community Development Act of 1974, 42 U.S.C. § 1437, et seq., and was created to alleviate the acute shortage of decent, safe and sanitary dwellings for lower income families. To fulfill the mandate of this Act, Congress authorized the Secretary of the Department of Housing and Urban Development to provide financial assistance to owners or prospective owners who agree to construct or substantially rehabilitate housing for lower income families.
Relying on the recommendations of HUD, Congress designed the Section 8 program to provide a profit incentive for private developers to participate in the construction and management of lower income housing by using monthly housing assistance payments. S.Rep.No.93-693, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 4273, 4275. One means, and the one used here, by which HUD furnishes rental subsidies directly to housing owners on behalf of the tenants is contracting with a State Housing Finance Agency (HFA) for the HFA to administer the program throughout its jurisdiction. The intermediary HFA then contracts with private owners.
In the district court plaintiff sought declaratory relief establishing her right to relocation assistance and services under the Uniform Relocation Act. She also asked for injunctive relief enjoining defendants from following those provisions of the Code of Federal Regulations which precluded the plaintiff from receiving benefits under URA. Contending that the purposes of the Uniform Relocation Act were contravened, plaintiff specifically objected to the regulations set forth in 24 C.F.R. § 880.113(b) and 24 C.F.R. § 883.210(b) which require that relocation and assistance payments be provided if the owner of a new project is a Public Housing Authority (PHA). The regulations, however, contain no comparable requirement in the case of either a privately owned project or a private owner/PHA project.
Relying on statutory construction, legislative history, and case law, the district court, found that persons displaced by real property acquisition undertaken by private parties for projects which receive federal assistance are not entitled to the benefits established in the Uniform Relocation Act. We affirm.
On appeal the issue presented is whether a person dispossessed from real property by a private acquisition, which leads to the construction of a Section 8 housing project that upon completion is aided by federal financial assistance through rent subsidy payments, is a “displaced person” under 42 U.S.C. § 4601(6) entitled to Uniform Relocation Act benefits.
I.
In 1971, Congress enacted the Uniform Relocation Act and declared:
The purpose of this subchapter is to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.
46 U.S.C. § 4621. In following that far-reaching policy statement, plaintiff urges that we afford her benefits as a “displaced person” who in 42 U.S.C. § 4601(6) is defined as “any person who moves from real property . . . as a result of the acquisition of such real property . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance . . . .” Under this section plaintiff claims that she was forced to move from her apartment as a result of the acquisition of real property for a program or project undertaken either by a federal agency or with federal financial assistance. We disagree with the plaintiff as we cannot disregard the plain meaning of the Act’s operational sections that govern the scope of eligibility.
The Eighth Circuit in Moorer v. Department of Housing and Urban Development, 561 F.2d 175 (8th Cir. 1977), cert, denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978), considered the same issue of statutory construction that we face here. Discussing the operational sections of the Act in regard to a Section 236 housing project of the National Housing Act, the Moorer court stated:
The statute mandates that benefits shall be extended to persons displaced by real property acquisition when the real property is acquired “for a program or project undertaken by a Federal agency” (§ 4622(a)) or “[w]henever real property is acquired by a State agency . . . .” (§§ 4627, 4628). Under § 4630 benefits inure when a person is displaced by action of a State agency operating with a grant “under which Federal financial assistance will be available . . . .” We are therefore drawn to the conclusion that the plain statutory language indicates that the URA benefits are available to displaced persons only on projects undertaken by federal agencies or by state agencies receiving federal financial assistance.
This conclusion is supported by other sections of the statute. Section 4633(a) provides that the heads of federal agencies concerned with federal projects “or programs or projects by State agencies receiving Federal financial assistance shall consult together on the establishment of regulations and procedures for the implementation of [programs for relocation assistance].” Section 4633(b)[8] provides
that any person aggrieved by a determination as to eligibility for a payment authorized by this chapter, or the amount of a payment, may have his application reviewed by the head of the Federal agency having authority over the applicable program or project, or in the case of a program or project receiving Federal financial assistance, by the head of the State agency.
In addition, § 4625(b) provides:
(b) Federal agencies administering programs which may be of assistance to displaced persons covered by this chapter shall cooperate to the maximum extent feasible with the Federal or State agency causing the displacement to assure that such displaced persons receive the maximum assistance available to them.
561 F.2d at 178-79 (footnotes omitted) (emphasis added).
Clearly, no section provides that benefits should be extended to a person such as the plaintiff who was displaced by the acquisition of real property by a private party who would receive federal assistance in the future. Parlane Sportswear Co. v. Weinberger, 381 F.Supp. 410, 412 (D.Mass.1974), aff'd 513 F.2d 835 (1st Cir.), cert, denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975). In the present case a federal agency such as HUD neither acquired the real property nor gave the plaintiff written notice of her eviction for the construction of a federal housing project. See 381 F.Supp. at 411. Furthermore, this is not a case where the Wisconsin Housing Finance Agency acquired the property or gave written notice of eviction to the plaintiff for the construction of a state housing project for which the state received federal financial aid. Id. This court is not deciding those cases today.
From the language of the implementing sections of the Act, we agree with the Eighth Circuit that Congress intended to provide URA assistance only to persons displaced by projects undertaken by federal agencies or by state agencies receiving federal financial assistance. Moorer, 561 F.2d at 176-77. We will leave any extension of the statute to Congress.
II.
Plaintiff argues this case is one of first impression and not governed by other judicial decisions interpreting the coverage of the Uniform Relocation Act. We cannot accept that contention. Although this is the first time this court has considered the circumstances where a person was displaced by a Section 8 housing project, the question of law presented here is not novel as other courts have already determined the applicability of the Uniform Relocation Act to similar privately developed housing projects.
The Eighth Circuit in Moorer v. Department of Housing and Urban Development held that tenants, who were dispossessed from their apartment buildings by private acquisitions of real property, were not “displaced persons” entitled to benefits under the Uniform Relocation Act. Through HUD’s Project Rehab, the defendant American Development Corporation (ADC) was rehabilitating existing structures to provide adequate housing for low and moderate income persons and was aided by federal financial assistance in the form of rent subsidy and interest payments and mortgage insurance under Section 236 of the National Housing Act. 561 F.2d at 177.
The court of appeals found that the emphasis in the legislative history “was on the acquisition of real property by federal or federally assisted programs through eminent domain procedures.” Id. at 181. The court concluded:
The URA was intended to benefit those displaced in public agencies with coercive acquisition power, such as eminent domain. It was intended to benefit individuals who were not willing sellers. Project Rehab played a significant role in procuring Section 236 benefits for ADC. However, as mentioned elsewhere in this opinion, ADC acquired the property by negotiation with the sellers. ADC is a private entity without power of eminent domain. Therefore, we conclude the appropriate inquiry in determining whether URA benefits attach in this case is: Was the real property acquired by a governmental entity with the power of eminent domain. The focus is not on the degree of involvement by a federal or state agency, or a program of such agency, which results in the acquisition, but is instead on whether the person involved was displaced by governmental action either acquiring the property or issuing an order to vacate the property. Neither situation is present in this case.
561 F.2d at 182-83 (footnote omitted) (emphasis added). See also Dawson v. Department of Housing & Urban Development, 428 F.Supp. 328 (N.D.Ga.1976).
The First Circuit in Parlane Sportswear Co. v. Weinberger, 513 F.2d 835 (1st Cir.), cert, denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975), also decided the issue of whether the Uniform Relocation Act provides benefits to persons displaced by a private entity receiving federal financial assistance. In that case the Department of Health, Education and Welfare (HEW) provided Tufts University, a private institution, with large federal grants for a Cancer Research Center. A manufacturer who was evicted by the project brought suit seeking relocation assistance under the Act. From the district court’s dismissal of the complaint, the court affirmed on appeal declaring:
The statute extends assistance to persons displaced by the acquisition of real property “for a program or project undertaken by a Federal agency," 42 U.S.C. § 4622(a). HEW’s regulations refer to “direct projects of the Department,” 45 C.F.R. 515.5(a), and deny aid to persons displaced by federally assisted projects of private entities, 45 C.F.R. § 15.6. We find no compelling indications that HEW’s contemporaneous construction of the statute is wrong.
513 F.2d at 836-37 (emphasis added).
In this case the private entity Architektur-80 acquired the property from a private party, and a private entity issued the plaintiff a written order to vacate the premises. Thus plaintiff plainly fails both the acquisition and notice tests of 42 U.S.C. § 4601(6). Architektur-80 negotiated with the Wisconsin Housing Finance Authority so that following the completion of the new housing project for the elderly, Architektur-80 would receive Section 8 rental assistance payments from HUD. These facts demonstrate a series of private, not governmental, decisions. Although there is some degree of federal and state involvement, we must reject plaintiff’s fanciful causation theory that the federal government somehow acquired the property.
For the above reasons, the decision of the district court is affirmed.
. Federal financial assistance is defined by 42 U.S.C. § 4601(4) as “a grant, loan, or contribution provided by the United States, except any Federal guarantee or insurance and any annual payment or capital loan to the District of Columbia.”
. “Owner” as defined in 42 U.S.C. § 1437f(f)(4) includes an entity, a public housing agency or a private person.
. Basically these payments subsidize the owner with the difference between the fair market value of the rental unit and approximately 25 percent of the renter’s monthly income. 42 U.S.C. § 1437f(b)(2) and (c)(3); 24 C.F.R. §§ 883.204, 883.205, 883.206. Federal assistance does not begin until the satisfactory completion of housing rehabilitation or construction.
From the record, the developer was to receive only this form of federal assistance.
. Plaintiff contends displaced persons who qualify for relocation assistance are entitled to the following benefits: (1) actual reasonable moving expenses, 42 U.S.C. § 4622(a), or a moving expense allowance not exceeding $300 and a dislocation allowance of $200, id. § 4622(b); (2) payment of an amount not to exceed $4,000 up to a four-year period to compensate the displaced person for any increase in rent she pays for her replacement dwelling, id. § 4624(1), or the amount necessary to make a downpayment on a replacement dwelling not to exceed $4,000, id. § 4624(2); (3) a relocation advisory service to aid her to locate comparable replacement housing, id. § 4625; and (4) if none of the previous provisions succeed in assuring a replacement dwelling, HUD must act as the houser of last resort, id. § 4626.
. 42 U.S.C. § 4601(6) reads in full:
The term “displaced person” means any person who, on or after January 2, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; and solely for the purposes of sections 4622(a) and (b) and 4625 of this title, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project.
. Plaintiff argues that Moorer’s eminent domain eligibility test is disputed by our recent decision in Alexander v. U. S. Department of Housing and Urban Development, 555 F.2d 166 (7th Cir. 1977), cert, granted, — ■ U.S.----, 98 S.Ct. 3087, 57 L.Ed.2d 1132 (1978). In that case, however, we decided that URA benefits were inapplicable to the closing of a failed public housing project and we noted:
Several cases have discussed the eligibility aspects of URA. . Further, a person displaced by a project undertaken by a private institution receiving federal financial assistance for that project was found ineligible to receive relocation benefits. Parlane Sportswear Co. v. Weinberger .
555 F.2d at 168 69.
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Jack D. BROCKSMITH, Defendants-Appellant.
No. 91-2208.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 6, 1992.
Decided May 5, 1993.
Rehearing and Rehearing In Banc Denied July 15, 1993.
Patrick J. Chesley and Rodger A. Heaton (argued), Asst. U.S. Attys., Office of the U.S. Atty., Springfield, IL, for plaintiff-appellee.
Kenneth A. Kozel (argued), LaSalle, IL, for defendant-appellant.
Before POSNER and FLAUM, Circuit Judges, and WILLIAMS, District Judge.
The Honorable Ann Claire Williams, District Judge for the Northern District of Illinois, sitting by designation.
FLAUM, Circuit Judge.
Jack D. Brocksmith owned several agencies in Quincy, Illinois, that specialized in selling insurance and annuities to the elderly. Unfortunately for his customers, Brocksmith began playing a shell game with their accounts. Brocksmith would receive premium payments from individuals who wanted to purchase insurance policies. He would delay submitting their insurance applications for six to eight weeks, in the meantime drawing on their money to pay for his personal expenses. If the customers complained that they were not receiving their policies, Brocksmith would say there was a problem with the insurance company; to handle things on that end, he would omit the date on the applications he forwarded, or white-out the real date and replace it with a later one. Eventually, when premiums from other customers came in, he would send their money to the carriers to cover the earlier applications, and repeat the cycle again.
In late 1986, Brocksmith sold several large policies or annuities issued by Fidelity Bankers Life Insurance Company. To Mary and Paul Sill, he sold two $25,000 single-premium deferred annuities. The $50,000 in premium checks were deposited into the general operating account of Brocksmith’s business. Brocksmith used the money to pay for all the insurance policies he had delayed up to that point and to pay his office expenses. That left only $18,000 remaining in the account.
In November of 1986, Brocksmith sold Jean and Irvin Klingler each a $50,000 single-premium life insurance policy. The Klinglers gave Brocksmith a $30,000 check up front, made out to his business rather than the insurance company. That way, Brocksmith explained, they would receive their interest immediately. In fact, Fidelity’s application form contained a tear-off receipt for the purchaser stating that the premium check should be made out to Fidelity, not the agent, and that Fidelity would decide within sixty days whether to issue the policy. This receipt was already torn off before the application reached the Klinglers. On December 1, Brocksmith sent a letter to the Klinglers indicating that he was forwarding their medical examination forms. He encouraged the Klinglers to take their time completing them, which they were forced to do anyway since Brock-smith did not actually mail the forms until four weeks later.
On December 4, Brocksmith sold Willade-an and Carl Sattman each a $50,000 single-premium life insurance policy. They gave Brocksmith a check for $25,000 as a down payment. He used this money to cover the Sills’ annuities. Later in the month, the Sattmans sent in the rest of their premium payment. At the beginning of January 1987, the Klinglers mailed a check for the $70,000 balance they owed. Brocksmith used these funds to pay for the Sattmans’ policies. Now all of his customers were accounted for, except the Klinglers, whose account (after all of Broeksmith’s machinations) was $78,000 short of the amount needed to complete their applications.
On February 6, the Klinglers mailed in their medical forms. Jean Klingler became worried because she had not received their policies. She tried several times, unsuccessfully, to reach Brocksmith on the phone. Eventually, on March 23, Brock-smith sent a postcard announcing that he would visit the Klinglers during April. When that date arrived, he sent a letter stating that due to an illness in his family he could not meet them until May. After a few more attempts to set up a meeting, Brocksmith sent another postcard to confirm a date of May 25.
During this time, Brocksmith was engaged in a last-ditch effort to avoid disaster. He conceived a plan to fake a robbery of his office — or, more precisely, of the Klinglers’ premium checks. Brocksmith told William Ratcliff, a former employee and current brother-in-law of his, that a large sum of money was missing from his account and was causing trouble between him and his wife. Brocksmith offered to pay Ratcliff if he would leave town and write a letter to his sister saying that he had taken the money. Ratcliff agreed. Brocksmith drove him to the train station in Burlington, Iowa, and bought him a ticket; from there, Ratcliff sent the deceitful letter to Mrs. Brocksmith.
Accompanied by his attorney, Brock-smith sat down with the Klinglers in late May to tell them the sad news that someone had broken into his office and stolen their premium checks. He confessed that he had endorsed the checks and left them in his office, and, showing them Ratcliff’s letter, speculated that his former employee was the thief. He tried to comfort the Klinglers with an offer to pay back $10,000 at once and $1000 a month thereafter. To show his good faith, he handed the Klin-glers a check for $10,000. Incredulous at his story, Jean Klingler refused to accept the offer. In the end, it would not have mattered if she had. The check bounced, and a replacement $10,000 money order sent via Federal Express had payment stopped on it a few days later.
Brocksmith called his insurance practice “rob[bing] Peter to pay Paul,” Tr. 130-31; a jury called it mail fraud. Brocksmith was convicted of five counts of violating 18 U.S.C. § 1341. Count 1 alleged that the Klinglers mailed a $70,000 check to Brock-smith; count 2 alleged that they mailed medical exam forms to him; count 3 alleged that Itatcliff mailed a letter to Brock-smith's wife; and counts 4 and 5 alleged that Brocksmith mailed two postcards to the Klinglers. Brocksmith was sentenced to three consecutive sentences of five years on counts 1 through 3, and suspended sentences on counts 4 and 5. He was also ordered to pay restitution to the Klinglers in the amount of $7100.
Brocksmith raises sixteen different arguments on appeal, some containing as many as eight subparts. He challenges the sufficiency of the evidence on all counts and the length of his sentence, objects to five witnesses' testimony, claims his trial attorney was ineffective and should have been disqualified, alleges prejudicial comments and ex parte communications by the district judge, and criticizes the jury instructions and voir dire questions. Many of these arguments were not made before the district court, are barely a page long in Brocksmith's oversized brief, and are wholly unsupported with case authority. Counsel bears responsibility for narrowing the issues presented on appeal from the entire universe of possible objections to the proceedings below to the small set of arguments that offer a legitimate chance for success. A client is disserved when the most meritorious arguments are drowned in a sea of words. "The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.)), cert. denied, - U.S. -, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). Undeveloped and unsupported claims are waived. See id.
Brocksmith's first argument is that his federal prosecution violated the Double Jeopardy Clause of the Fifth Amendment. Two years before this prosecution, the Assistant State's Attorney charged him with knowingly exerting unauthorized control over the Klinglers' assets. Brocksmith was found not guilty of this charge. He now contends that successive prosecutions for the same offense violate the Fifth Amendment. This argument, however, ignores the dual sovereignty doctrine, under which two sovereigns (such as the states and the federal government, see Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985)) may prosecute an individual for the same conduct if it violates the laws of each. "The dual sovereignty doctrine has been a fixture of constitutional law for decades." United States v. Bafia, 949 F.2d 1465, 1478 (7th Cir.1991) (citing United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922)), cert. denied, - U.S. -, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992).
Brocksmith contends that the district court should at least have held an eviden-tiary hearing to determine whether his federal prosecution was a "sham." The case of Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), supposedly recognized an exception to the dual sovereignty doctrine in situations where one sovereign's prosecution serves as a tool for a second sovereign that previously prosecuted the defendant. See id. at 123-24, 79 S.Ct. at 678. We have questioned whether Bartkus truly meant to create such an exception, and we have uniformly rejected such claims. See United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). In any event, conversations and cooperative efforts between state and federal investigators of the kind Brocksmith alleges are “undeniably legal” and are, in fact, “a welcome innovation” in law enforcement techniques. See id. at 1024 (quotation omitted).
Relatedly, Brocksmith argues that his federal prosecution was barred under the doctrine of collateral estoppel. The Double Jeopardy Clause has been held to embrace principles of issue preclusion, such that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970); United States v. Bailin, 977 F.2d 270, 273-74 (7th Cir.1992). Collateral estoppel cannot apply here because it holds only between the same parties, whereas the United States was not represented in the prior case. See United States v. Sherman, 912 F.2d 907, 909 (7th Cir.1990).
Brocksmith’s next set of arguments challenge the sufficiency of the evidence used to prove him guilty of mail fraud. Brocksmith makes several claims that apply to one or another, or all, of the five counts: he argues (1) that the particular mailing occurred after the scheme to defraud had reached fruition; (2) that the particular mailing was not itself unlawful or fraudulent, and thus cannot form the basis of a mail fraud violation; and (3) that no pecuniary loss resulted from the mailing. Brocksmith can only succeed on these claims by demonstrating that no rational trier of fact could find the essential elements of the crime proved beyond a reasonable doubt. See United States v. Johnston, 876 F.2d 589, 593 (7th Cir.), cert. denied, 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989).
Brocksmith has, however, misconceived the elements of mail fraud. To establish a violation, the government must prove that a defendant “knowingly caused the mails to be used in furtherance of a scheme to defraud or to obtain money through false or fraudulent pretenses.” United States v. Kuzniar, 881 F.2d 466, 472 (7th Cir.1989). The use of the postal service need not be indispensable to the success of the scheme; a mailing may be merely “incident to an essential part of the scheme” or “a step in [the] plot.” Schmuck v. United States, 489 U.S. 705, 711, 109 S.Ct. 1443, 1448, 103 L.Ed.2d 734 (1989) (quotations omitted). The Schmuck Court held that an individual who purchased cars, turned back their odometers, and then sold them, committed mail fraud when the dealers sent the title-application forms to the state department of transportation. The Court distinguished the defendant’s ongoing fraud in Schmuck from other cases in which the pertinent mailings involved mere “accounting among the potential victims” of the scheme, occurring after the fraudulent scheme had reached fruition. Id. at 714, 109 S.Ct. at 1449. In Schmuck, by contrast, sending the registration forms to the transportation department was a key step in the successful passage of title — “a failure of this passage of title would have jeopardized Schmuck’s relationship of trust and goodwill with the retail dealers upon whose unwitting cooperation his scheme depended.” Id., 489 U.S. at 714-15, 109 S.Ct. at 1450.
Each of the mailings for which Brock-smith was indicted constituted a “step in the plot.” Receiving the $70,000 check was surely instrumental to Brocksmith’s scheme; indeed, it was his scheme. The mailing of the medical forms was also instrumental because it allowed Brocksmith to hold onto Klinglers’ money for a longer time; if the Klinglers failed to submit the forms, they would be entitled to a refund of their premiums. Paying Ratcliff to fabricate a story that he stole the Klinglers’ checks was plainly motivated by Brock-smith’s desire to buy time and, more importantly, an excuse for the missing money. Finally, the postcards were used to put the defendants at ease about the delays, as well as to gain more time for himself, and to conceal his misappropriation of the funds. Use of the mails to lull victims into a false sense of security, we have held, violates the mail fraud statute, even if it occurs after the money has been fraudulently obtained. United States v. Chappell, 698 F.2d 308, 311 (7th Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983). It does not matter that some of these mailings contained no false or misleading information, and individually caused no pecuniary loss; routine and innocent mailings can also supply an element of the offense of mail fraud. See Schmuck, 489 U.S. at 714-15, 109 S.Ct. at 1450 (citing Parr v. United States, 363 U.S. 370, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960)).
Brocksmith levels several charges against his appointed trial attorney, Ronald J. Stone. To begin with, Brocksmith alleges that Stone should have been disqualified due to a conflict of interest, because he occasionally acted as a Special Assistant Attorney General for the state of Illinois, representing state agencies in civil rights cases. Brocksmith says he wrote a letter to the clerk of the district court requesting that Stone be released, and a hearing on the matter was held before the district court, but all to no avail-the judge told Stone to continue representing him. Brocksmith neglects to mention one crucial fact in this story: he decided at the hearing to have Stone remain his lawyer. The district court advised Brocksmith that "[i]t would be very simple, very easy for the Court to relieve Mr. Stone of further providing representation to you and appoint another attorney to take over immediately and proceed ahead," Tr. 16, should Brock-smith so desire. Brocksmith responded that he was satisfied with Stone. Tr. 17. This argument is therefore waived. See United States v. Cirrincione, 780 F.2d 620, 624 (7th Cir.1985).
Brocksmith also accuses Stone, for the first time in this appeal, of rendering ineffective assistance of counsel. We have explained that ineffective assistance claims are better addressed at the district court level than on appeal, through a motion for new trial or collateral relief, due to the trial judge's superior opportunity to observe counsel's performance firsthand. See United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1962, 118 L.Ed.2d 563 (1992). In the interest of judicial efficiency, however, we will resolve an ineffective assistance claim "if the issue is sufficiently clear-cut." Johnson v. United States, 805 F.2d 1284, 1290 (7th Cir.1986). That is the case here. As discussed above, Brocksmith has waived any claim of conflict of interest on the part of his attorney. Brocksmith's other allegations are meritless. He complains that fifty-two out of the fifty-five exhibits offered by the government were irrelevant, and that his attorney should have objected to their introduction. Brock-smith cites no cases in support of his argument, nor elaborates on why the exhibits were irrelevant. Because he has shown neither cause nor prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this argument fails.
The final challenges Brocksmith raises relate to his sentence. Brocksmith protests the district court's order that he pay restitution of $7100, claiming that the court did not consider the factors listed in 18 U.S.C. § 3580(a), such as the defendant's financial resources, needs, and earning ability. We have ruled that a sentence will be reversed when the defendant can show that it was "not improbable" that the judge failed to consider the requisite statutory factors and that the sentence was affected by this failure. See United States v. Studley, 892 F.2d 518 (7th Cir.1989). Brocksmith has made no such showing here. The one case he cites in support of reversal, United States v. Mahoney, 859 F.2d 47 (7th Cir.1988), involved a restitution order of $288,000 entered against a defendant who earned $30,000 a year. In those circumstances, we were persuaded that the district court had overlooked the defendant's financial capabilities when arriving at a dollar figure for restitution. An order to repay $7100, on the. other hand, does not invite the same inference.
Brocksmith also complains that three consecutive terms of 5 years yielded an excessive sentence. In this case, however, five separate violations of the mail fraud statute occurred. We have held that each mailing is a separate offense even if there is only one fraudulent scheme encompassing all the acts. See United States v. Ledesma, 632 F.2d 670, 679 (7th Cir.), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980). The Sentencing Guidelines do not apply in this case because Brocksmith’s offenses occurred before November 1, 1987. See United States v. Stewart, 865 F.2d 115, 118 (7th Cir.1988). In the absence of the Guidelines’ mandatory penalty scheme, the district court retains great discretion to mete out punishments. 18 U.S.C. § 1341 authorizes a term of imprisonment of up to 5 years for each violation. Since Broeksmith’s sentence was within the statutory range, even if at the upper end, his total term of imprisonment was not improper.
Brocksmith’s conviction and sentence are Affirmed.
. For example, argument number fifteen states that 18 U.S.C. § 1341, the mail fraud statute, is unconstitutionally vague. It is disturbing enough that Brocksmith ignores the cases in which we have held expressly to the contrary. See, e.g., United States v. Suter, 755 F.2d 523, 527 n. 5 (7th Cir.), cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985); United States v. Feinberg, 535 F.2d 1004, 1010 (7th Cir.), cert. denied, 429 U.S. 929, 97 S.Ct. 337, 50 L.Ed.2d 300 (1976). But the real puzzle is why this argument does not appear until page 47 of Brocksmith's appellate brief, since it would moot all the other claims.
. The amount of restitution was only $7100 because Fidelity Bankers Life Insurance Company reached a settlement with the Klinglers whereby they received $92,900 in annuities. During her direct examination, Jean Klingler recalled the meeting when Brocksmith told her and her husband that their premium checks had been stolen. Jean Klingler testified that she told the defendant she could not accept his repayment offer because "it was our [life] savings. I was going to live on it for old age.” Tr. 182. Brock-smith did not object at the time, but argued later that he should be allowed to elicit on cross-examination the fact that the Klinglers obtained reimbursement from Fidelity. The district court refused to allow the question. We find no error. The amount of loss sustained by a victim is relevant and admissible evidence in a mail fraud prosecution. See United States v. Elliott, 771 F.2d 1046, 1051 (7th Cir.1985). The fact that a victim received partial reimbursement from another party is not ordinarily relevant. Even if the original testimony was prejudicial because it led the jury to believe, incorrectly, that the Klinglers never recovered their loss, counsel waived the argument by failing to object at the proper time. See United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988).
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_two_issues | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean 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.
Anthony PANCI, Appellant, v. UNITED STATES of America, Appellee.
No. 16892.
United States Court of Appeals Fifth Circuit.
June 3, 1958
Thomas M. Brahney, Jr., Edw. J. Boyle, Clem H. Sehrt, New Orleans, La., for appellant.
Rene A. Pastorek, Asst. U. S. Atty., Jack C. Benjamin, Asst. U. S. Atty., New Orleans, La., M. Hepburn Many, U. S. Atty., New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.
HUTCHESON, Chief Judge.
This appeal is from a conviction and sentence imposed upon a verdict of guilty, on two counts charging substantive violations of the narcotic laws, and one count charging a conspiracy to violate them. By it appellant seeks to test whether a conviction, which, as he claims, because of the admission of highly prejudicial hearsay testimony and the denial of the motion to acquit for want of evidence to convict but keeps the promise of due process to the ear while it breaks it to the hope, may stand.
Urging upon us: that extrajudicial inadmissible hearsay statements were erroneously admitted over his objection; that without them the record is devoid of evidence tending to establish his guilt, and the conviction was one of guilt by association, resting entirely on inadmissible hearsay, and supported by no substantial admissible evidence; the defendant thus earnestly concludes his brief:
“This case and the evidence adduced at the trial thereof demonstrates very vividly the abuses which arise when the Government uses a conspiracy count and the evidentiary abuses which are permitted thereunder to seek a conviction. It is cases such as this that has prompted the Supreme Court of the United States to criticize its use and various commentators to deplore the abusive use of the conspiracy charge.
“It is conceivable that a conviction could be or rather should be had in a case such as this where not one witness could be cross-examined as to the statements testified to, as involving the defendant, for each and every one of those statements were hearsay? Is it American justice to sentence a man to the penitentiary, to deprive him of his liberty when not one witness testified that they knew the defendant, that they ever spoke to the defendant, that they ever heard anyone speak to the defendant, or that they saw or, personally of their own knowledge, knew the defendant to have committed a violation of the law? Counsel beHeves, as does every law abiding citizen, that the vicious narcotic traffic should be stamped out and that narcotie violators should be dealt with, harshly but counsel does not concede,, that the sacred and fundamental' principles of a fair and impartial trial, which is guaranteed to every citizen, should be violated even in a narcotic case. Counsel sincerely beHeves that if this case had been anything but a case involving narcotics that a judgment of acquittal would have been granted and, if not, the iury would have returned a verdict °t n°t guilty as to all counts.”
Here, presenting under six numbered specifications, three grounds of error: (1) the denial of his motion for bill of particulars; (2) the admission over objection of prejudicial hearsay testimony; and (3) the refusal to direct a verdict acquittal for want of evidence; appellant urges upon us that the judgment must be reversed with directions to ac-h™1-
Emphasizing that the government did not produce a single witness who could or would testify: that he had spoken to defendant or heard him speak to anyone; that he had purchased, or seen anyone purchase, heroin from him; that he saw him transfer heroin to anyone or have any heroin in his possession; that he saw the defendant in possession of marked and identified money used to purchase heroin or saw him sell or deliver heroin to anyone; appellant insists that it was error to deny his motion for acquittal, In further support of his claim, he points to the undisputed, indeed the admitted fact that the only testimony relied on at the trial as tending to implicate defendant in the crimes charged was the hearsay statements, admitted over defendant’s repeated objections, of the co-defendant Giardina who pleaded guilty and of Lena and Carol Giardina, who. were named but not indicted as co-conspirators, none of whom testified at the trial and therefore could not be cross-examined.
We agree with the appellant that, under the rule established and prevailing in this court, it was error to overrule his objections to the hearsay testimony of the Giardinas, and that it was error on this record not to direct a verdict in his favor. In Montford v. United States, 5 Cir., 200 F.2d 759, 760, this court thus correctly laid down the rule governing the trial of cases where, as here, it was sought to prove a defendant’s connection with a conspiracy or his complicity in a crime by the hearsay statements and declarations of persons named or charged as co-conspirators or accomplices, but not otherwise proven to be such:
“The declarations of one conspirator made in furtherance of the objects of the conspiracy, and during its existence, are admissible against all members of the conspiracy. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But a defendant’s connection with a conspiracy cannot be established by the extra-judicial declarations of a co-conspirator, made out of the presence of the defendant. There must be proof aliunde of the existence of the conspiracy, and of the defendant’s connection with it, before such statement becomes admissible as against a defendant not present when they were made. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680, 701; Minner v. United States, 10 Cir., 57 F.2d 506; May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994; United States v. Nardone, 2 Cir., 106 F.2d 41, reversed on other grounds 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.”
Under that rule we think it clear beyond question that the admission of the hearsay testimony fatally impregnated the case with prejudicial and reversible error. In addition, with this evidence ex-eluded and eliminated from the record, the case was completely circumstantial and there was no evidence pointing, with the degree of clarity required for conviction in such cases, to appellant’s guilt. U was error’ therefore, not to direct an acquittal and because of this error the Judgment must be reversed with directions to acquit.
The United States, in an attempt to demonstrate that the evidence was sufficient to convict appellant, undertakes, as it declares, “to set out without including therein any of the hearsay matters, a statement of the evidence in the case”, A reading of this statement, as its brief sets H out> wdb we think, demonstrate that it has not done, it cannot do, this. Leaving the hearsay testimony out of consideration destroys the case in fact. Taking it into consideration destroys it in law. To see that this is so, it is only necessary to look at the case as the gov-eminent sets it ^ out on page 13 of its brie There it is stated:
“It was established, and appellant made no issue that the goods reeeived by Gjertsen, Sansone and Picini was heroin and appellant had no authority to transfer the narcotics, The issue presented to the Court below and the jury was principally that °I appellant’s criminal connection with the transfer of heroin and the conspiracy for that purpose,
“It should be noted that in the summary of the evidence just presented all of the hearsay statements complained of by appellant have not been mentioned.”
Unfortunately for the government’s case, this is not, it cannot on this record be, so. It is true, as the government points out on page 10 of its brief: that there was testimony that an agent saw Giardina go into a place where he spoke to Panci; that he saw Panci and Giar-dina leave the store; that he saw them sit on stools next to each other at the Toddle House cafe; that while they were sitting there drinking coffee, the defendant withdrew his left hand from his pocket and passed a small brown paper bag behind his back to Giardina; and that they thereafter left the Toddle House and returned to the barbecue stand. It is true, too, that there was If ^°”y: *hat PÍdnÍ ga? Giardina $1,050 for the purchase of three ounces of heroin; and that sometime afterward Giardina went into his own house and to* one ounce of heroin from the total of three in a brown paper bag. The record does not support the government s contention that the brown paper bag from which the heroin was taken was identified by anyone as the^ one given Giardina by defendant. If it did, this would not be important. What is important here is that no one testified that the brown paper bag given Giardina by defendant had narcotics in it when it was given to him. In short, the testimony of the government agent that Giardina was seen with Panci and that Panci passed a paper bag to him was wholly insufficient to establish his guilt. While, therefore, the testimony of the government witness well served its purpose of smearing Panci because he was seen associating with Giardina, no evidence whatever was offered to support its claim . that Giardina or anyone else obtained , . „ „ heroin from Panci.
Giving the evidence its fullest force, it amounts to no more than that Panci was seen associating with characters of low repute, and, if this conviction is allowed to stand, the result would be to convict him on suspicion. There is a proverb that a man is known by the company he keeps, and another one, “Give a dog a bad name and kill him”, but these are not legal principles which will serve to convert inadmissible hearsay into admissible testimony or support a conviction on testimony merely that a defendant is seen in bad company. Kassin v. United States, 5 Cir., 87 F.2d 183. In that case and in other circumstantial evidence cases this court has without wavering declared that the test to be applied is whether the j'ury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt, and equally without wavering has applied it. Cf. Vick v. United States, 5 Cir., 216 F.2d 228, and Lloyd v. United States, 5 Cir., 226 F.2d 9, at page 13.
The government might have made Qut a case if> in the ordinary way g0 often SUCCessfully used in informer type cases, the agents had given the informer marked Qr otherwise identified money, had searched him carefully before he left on hig miggion to ingure that ^e kad no narcotics concealed on or about him> had kept him in gight at all times so ag £0 exclude his having obtained the narcotics elsewhere, and then made the arregt to find the identified money in the possession of the defendant and the narcoticg in that of the informer. Nothing of that kind wag done here. Instead the government brought and testified to its cage wjth no more real support in the evidence íor a finding of guilt than there wag |or ^.ke f^ndjng that a ghost had been geen |n the story of the man who said, «My friend gaw a ghogt eating off a plate at hig houge lagt night> and if you don>t believe it, here is the plate he says he saw the ghost eating from”.
„ .. For the failure of the court to grant , „ . ,, defendant s motion to direct a verdict, the . , . . judgment is reversed with directions to acquit him.
. The indictment brought against the appellant and one Giardina, who pleaded guilty and was not therefore tried, contained nine counts.
The first eight counts charged substantive violations of the narcotic laws in respect of three alleged quantities of heroin; the ninth was laid under the conspiracy section of the code.
Counts one, two, and five, respectively, charged the illegal obtaining, the illegal selling, and the illegal concealing on or about December 22, 1955, of 360 grains of heroin in violation of Secs. 4704(a) and 4705(a), Title 26 U.S.C.A. and Sec. 174, Title 21 U.S.C.A.
Counts three and four charged the illegal obtaining and the illegal selling on Dec. 24, 1955, of 31 grains of heroin.
Counts six, seven, and eight, charged illegal purchase, the illegal concealment and the illegal selling on Dec. 29, 1955, of 3 ounces 68 grains of heroin.
Count nine, the conspiracy count, charged that, beginning about Dec. 20, 1955, and continuing thereafter until the date of the indictment, Nov. 29, 1956, the defendant and Giardina with John San-sone, Lena Giardina and Carol Giardina, who were named but not indicted, conspired to unlawfuly acquire, conceal and transfer to the said John Sansone, an admitted addict and paid government informer, John Gjertsen and Michael Pi-cini, also a government agent, and to one Lena Giardina, in violation of Sec. 371, Title 18 U.S.C.A., the narcotics referred to in the substantive counts.
Twenty-seven overt acts which covered a period from Dec. 20, 1955 to April 30, 1956, were alleged to have been committed in furtherance of the alleged conspiracy.
Upon completion of the Government’s case in chief and at the end of the case, defendant moved for a judgment of acquittal. Both motions were denied.
The jury returned its verdict acquitting appellant on counts one through five and finding him guilty on charges 6 through 9, and the court denied defendant’s motion for a new trial, but granted his motion for judgment of acquittal as to count seven.
Sentenced to imprisonment for a period of three years on each of counts six and eight, to run concurrently, and five years on count nine, the execution of the sentence imposed on count nine suspended, and appellant placed on probation for ° period of five years to commence after the completion of the sentence on counts six and eight, he appealed.
Question: Are there two issues in the case?
A. no
B. yes
Answer: |
songer_usc1sect | 2000 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Luba S. Kowalyszyn De MEDINA, Appellant, v. John E. REINHARDT, Director, United States International Communication Agency, et al. Carolee Brady HARTMAN, Individually and on Behalf of All Other Persons Similarly Situated, et al. Rose Kobylinski and Luba Medina, Appellants, v. John REINHARDT, Director United States International Communication Agency. Toura KEM, Luba Medina and Rose Kobylinski, Appellants, v. John REINHARDT, Director United States International Communication Agency.
Nos. 81-1909 to 81-1911.
United States Court of Appeals, District of Columbia Circuit.
Argued March 25, 1982.
Decided Aug. 27, 1982.
As Amended Aug. 27, 1982.
Bruce A. Fredrickson, Washington, D. C., for appellants.
Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., at the time the brief was filed, Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.
Before WRIGHT and WALD, Circuit Judges and ANTHONY J. CELEBREZZE, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit.
Opinion for the Court filed by Circuit Judge WALD.
Opinion concurring in part and dissenting in part filed by Senior Circuit Judge CELE-BREZZE.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
WALD, Circuit Judge:
These appeals contest the district court’s dismissal of consolidated individual and class sex discrimination claims against the Director of the United States International Communication Agency (“ICA” or “Agency”), formerly the United States Information Agency. Appellants contend that the district court (1) evaluated under inappropriate legal standards the statistical and testimonial evidence of a pattern and practice of discrimination in hiring, (2) failed to make required fact findings on the class promotion discrimination and retaliation claims, (3) improperly dismissed an individual claim for failure to exhaust administrative remedies, and (4) misapplied the requirements for a prima facie showing of discrimination to another individual claim. We find merit in certain of appellants’ objections and therefore remand the class claims and the individual claim of Rose Kobylinski for further consideration. We affirm, however, the district court’s dismissal of Luba Medina’s individual claim.
I. Background
In March 1977, Luba Medina, a former Agency employee, filed an individual claim for damages and declaratory and injunctive relief under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e-2000e-17. Her complaint alleged that, since 1974, the Agency had refused to rehire her in retaliation for her own prior charges of sex discrimination and her husband’s work on behalf of Agency minority employees. She also claimed that she had personally suffered from the Agency’s discriminatory practices against the foreign-born and women. In late 1977, another job applicant, who had been denied employment by the Agency earlier in the year, filed a Title VII class claim on behalf of female applicants and employees against whom the Agency had discriminated in hiring and promotion. In April 1978, the class was conditionally certified “to include all women who have applied for employment with or are currently employed by the United States Information Agency and who have been or continue to be adversely affected by the discriminatory employment practices of the defendant.” Joint Appendix (“J.A.”) at 22. Later that month, an Agency contract employee filed a complaint charging that she had been denied a permanent Agency position on account of sex. In November the three cases were consolidated. In the interim, the district court had permitted Medina and two Agency employees, Josefina Martinez and Rose Kobylinski, to intervene as named plaintiffs and had allowed plaintiffs to supplement the class complaint to include a claim that the Agency maintained “a practice of reprisals against women who have filed sex discrimination charges against the Agency.” J.A. at 28. On April 19, 1979, plaintiffs filed a motion for preliminary injunction to enjoin the defendant “from taking any retaliatory action against individuals who oppose the defendant’s discriminatory practices or otherwise exercise their rights under Title VII.” On May 16, the motion was denied orally without prejudice.
The parties agreed to bifurcate trial of the class claims into “liability” and “remedial” stages, and a bench trial on liability was conducted from May 29, 1979 through June 5, 1979. On October 24, 1979, the district court issued an opinion and order which redefined the class to exclude women in clerical positions and dismissed the class claims. Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. Oct. 24, 1979) (Medina I), J.A. at 68.
Plaintiffs filed appeals on December 21, 1979, but on September 19, 1980, this court dismissed the appeals under Fed.R.Civ.P. 54(b) because the residual individual claims remained to be heard. Three of the named plaintiffs voluntarily dismissed their individual claims, and trial of Medina’s and Kobylinski’s claims was conducted on December 15 and 16, 1980. On June 15, 1981, the district court rendered its decision dismissing Medina’s claim on the merits and Kobylinski’s claim because she had failed to exhaust her administrative remedies. Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. June 15,1981) (Medina II), J.A. at 118. This appeal followed.
II. The Class Claims
Although the district court’s “Findings of Fact” discussed rebuttal evidence as well as evidence introduced by plaintiffs to establish their threshold case, the court ruled in its “Conclusions of Law” that the plaintiff class had failed to establish “a prima facie case of discrimination on the basis of sex,” Medina I at 13, J.A. at 80. The court’s conclusion.rested primarily on rejection of both parties’ statistical studies on hiring patterns as “misleading due to a failure to define adequately the relevant labor market from which the Agency draws for qualified personnel,” id. at 3, J.A. at 70. The court’s objection was that the Census occupational categories used for comparison “with the jobs in issue at the Agency simply do not match.” Id. at 6, J.A. at 73. We find, however, that the district court’s opinion reflects a basic misperception of the relevancy and role of statistical evidence in the plaintiffs’ prima facie showing; hence, we remand for a redetermination of whether plaintiffs can make out a prima facie case of sex discrimination. Further, we must remand because the court made no findings or comment on plaintiffs’ evidence of Agency reprisals against women asserting their rights under Title VII.
Had the court credited either appellants’ or appellee’s definition of the relevant labor market, it would have found “disparities between the women employed at the Agency and the external labor pool of (1) Electronic Technicians, (2) Radio Broadcast Technicians, (3) Writers/Editors, and (4) Foreign Information Specialists.” Id. at 8, J.A. at 75. In 1977, when the class action was initiated, these four categories accounted for a major part of the Agency’s nonclerical positions. See, e.g., United States Information Agency FY-1978 Affirmative Action Report (Plaintiff’s Exhibit No. 22(b)). Consequently, on remand, the district court should reconsider whether these disparities alone or in combination with testimonial evidence are sufficient to raise an inference of discrimination in hiring and, if so, whether that inference was adequately rebutted. Upon remand, the court should also address the class retaliation claim.
A. Relevant Labor Market
The 1972 amendments to the Civil Rights Act of 1964 came in response to the “persistence of discrimination” and the consequent need for more effective enforcement, H.R.Rep.No.238, 92d Cong., 1st Sess. 3 (1971), U.S.Code Cong. & Admin.News 1972, p. 2137. The legislative history particularly focused on the seriousness of sex discrimination, id. at 4-5, and explicitly recognized the need “[t]o correct... entrenched discrimination in the Federal service.” Id. at 24, U.S.Code Cong. & Admin.News 1972, p. 2159. It is noteworthy that Congress itself relied on “statistical evidence” to prove the existence of sex discrimination in higher level government jobs.
Statistical evidence shows that minorities and women continue to be excluded from large numbers of government jobs, particularly at the higher grade levels.
This disproportionate distribution of minorities and women throughout the Federal bureaucracy and their exclusion from higher level policy-making and supervisory positions indicates the government’s failure to pursue its policy of equal opportunity. Id. at 23, U.S.Code Cong. & Admin.News 1972, p. 2158. See S.Rep.No.415, 92d Cong., 1st Sess., 421-23 (1971). Congress thus extended to federal employees the right to bring individual and class actions under Title VII.
In a Title VII suit, the claimant “carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that... the employer is treating ‘some people less favorably than others because of their race, color, religion, sex or national origin.’ ” Furnco Const. Corp. v. Waters, 438 U.S. 567, 576-77, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977)). When a plaintiff submits sufficient evidence to permit such an inference, Title VII gives it the status of a “legally mandatory, rebuttable presumption.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 n.7, 101 S.Ct. 1089, 1094 n.7, 67 L.Ed.2d 207 (1981). Because unlawful discriminatory intent is typically elusive of direct proof, Congress has deemed it appropriate to then require an explanation of the defendant.
In a sex discrimination class action charging disparate treatment, appropriate statistical comparisons may be used to indicate whether similarly situated men and women have been treated similarly, see, e.g., Valentino v. United States Postal Serv. (USPS), 674 F.2d 56, 69 (D.C.Cir.1982) (quoting Valentino v. United States Postal Serv., 511 F.Supp. 917, 940 (D.D.C.1980)), and, if not, whether the difference in treatment shown supports an inference of discriminatory intent. See, e.g., Teamsters, 431 U.S. at 325 n.15, 97 S.Ct. at 1854 n.15. Where specialized skills are legitimately required for employment, “[t]he proper comparison is between the composition of the [employer’s] work force and the qualified population.” Davis v. Califano, 613 F.2d 957, 963 (D.C.Cir.1979) (As Amended Feb. 14, 1980). See Valentino v. USPS, 674 F.2d at 68. (“When the job qualifications involved are ones that relatively few possess or can acquire, statistical presentations that fail to focus on those qualifications will not have large probative value.”) We have recently restated, however, that not every conceivable qualification for every separate job must be taken into account in making out a prima facie class claim of discrimination: “[T]he qualifications a Title VII plaintiff must grapple with... are threshold or ‘minimum objective’ qualification.” Id. at 71 n.24 (quoting Davis v. Califano, 613 F.2d at 964)). Thus, plaintiffs must identify the population likely to possess the minimum objective qualifications required of Agency employees (the relevant labor pool) and compare the proportion of women in that population with the proportion of women employed in the Agency. The comparisons in turn must show disparities of sufficient magnitude that they are statistically unlikely to have occurred by chance. We are then entitled to assume that “absent discriminatory employment practices, the proportion of the protected group in each of the job classifications and grade levels would approximate the proportion of the protected group with the minimum necessary qualifications.... ” Id. at 964. See, Teamsters, 431 U.S. at 339 n.20, 97 S.Ct. at 1856 n.20. Thus, statistically significant disparities between the composition of an employer’s work force and the labor pool from which the employer draws indicate that similarly situated people have been treated differently and “alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977).
Here, because the district court did not reach the issue, we have no occasion to consider whether the magnitude of the statistical disparities shown was adequate to infer discriminatory motive. We are concerned in this appeal only with whether there is “a basis for a reasonable assumption” that the comparison population was qualified for Agency positions. Metrocare v. Washington Metropolitan Area Transit Auth. (WMATA), 679 F.2d 922, 930 (D.C.Cir.1982). In this case, the experts testifying on both sides proceeded through trial on the assumption that the population sufficiently well-qualified to be employed in Agency occupational categories was the population employed in those same occupations outside the Agency. We think this is a reasonable threshold assumption which follows from the Supreme Court’s reasoning in Hazelwood School Dist. v. United States. In Hazelwood, a school district was charged with racial discrimination in teacher hiring, and United States Census data recording employment in the relevant occupational categories were used to calculate the disparities that formed the basis for plaintiffs’ prima facie case. The Supreme Court specifically approved the technique, noting that “[t]he comparative statistics... were properly limited to public school teachers, and therefore this is not a case... in which the racial-composition comparisons failed to take into account special qualifications for the position in question.” 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13. Thus, Hazel-wood established that the proportion of a protected group actually employed elsewhere in the relevant occupation(s) is a meaningful measure of the proportion of the protected group qualified for employment by the defendant. The district court’s opinion here, however, raises the question whether there is too much diversity within the occupations involved in this case to permit reliance on the Hazelwood assumption as a basis for the plaintiffs’ prima facie showing. The district court concluded that the Census data used by the experts on both sides here was not sufficiently reflective of the qualifications required for Agency positions. The court insisted on “statistical data which matches those job categories at the Agency and the specific requirements thereof,” Medina I at 7, J.A. at 74 (emphasis supplied), and concluded in its “Findings of Fact”:
10.... The job categories used by the parties’ experts do not correspond with the jobs in the defendant Agency. Neither do plaintiffs’ nor defendant’s experts adequately explain that the tasks actually performed by the employees at the Agency, in the job categories analyzed, correspond in any more than a very general and speculative way to those utilized by the parties’ experts.
11. Cross-mapping of actual employee activities for purposes of comparison with statistics concerning available labor pools is appropriate and useful where the inquiry is of general non-specialized skills. While statistics are helpful and useful in many cases, it must be understood that it cannot be argued or found in this case that precise labor pool availability figures can be derived to determine the number of females available for employment in such specialized fields as, for example, Cambodian language news analyst/writer/broadcaster.
Id. at 8-9, J.A. at 75-76 (footnote omitted) (emphasis supplied).
While definition of the relevant labor market is normally reviewable under the “clearly erroneous” standard as an “essentially factual matter within the special competence of the district court,” Castaneda v. Pickard, 648 F.2d 989, 1003 (5th Cir. 1981); see Hazelwood, 433 U.S. at 312-13, 97 S.Ct. at 2744, “if the trial court bases its findings upon a mistaken impression of applicable legal principles, the reviewing court is not bound by the clearly erroneous standard.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., - U.S. -, - n.15, 102 S.Ct. 2182, 2189 n.15, 72 L.Ed.2d 606 (1982). A close scrutiny of the legal underpinnings of the district court’s fact finding is appropriate here because the court’s decision was expressly based on its interpretation of the standard of proof enunciated in Hazelwood and Teamsters. The district court observed that Hazelwood “indicated that statistics comparing the employer’s work force and the relevant labor market must be based on the labor pool truly relevant to the employer’s potential work force,” and concluded that “the statistics suffer from the following deficiency, as noted by the Supreme Court in Teamsters : Imprecise definitions of the relevant labor market when particular qualifications are required for the job(s) in question.” Medina I at 12, J.A. at 79. We conclude, however, based on our examination of these cases, that the standard of precision the district court demanded, far from being mandated by these cases, is unprecedented and unjustifiable, insofar as it results in a total rejection of the Census data as a basis for statistical comparisons to establish a prima facie case.
The methods employed in this case by the experts on both sides to identify Census categories comparable to Agency positions, in fact, closely track that adopted in Hazel-wood and by other courts, see, e.g., Rivera v. City of Wichita Fails, 665 F.2d 531 (5th Cir. 1982); Croker v. Boeing Co. (Vertrol Div.), 437 F.Supp. 1138 (E.D.Pa.1977), aff’d, 662 F.2d 975 (3d Cir. 1981). Both experts subdivided the Agency work force into occupational categories and sought to translate each Agency category into Census terminology (“cross-map”) by reference to the U. S. Department of Commerce, Bureau of the Census, Alphabetical Index of Industries and Occupations (1971) (Defendant’s Exhibit No. 2) which lists “approximately... 23,000 occupation titles in alphabetical order.” Id. at iii. The Alphabetical Index explains the design of the Census classification system which groups those titles under some 440 occupational categories. Each category includes all the titles considered to be part of the same occupation.
To organize and make understandable the information relating to the many thousands of industries and occupations, a system of homogeneous grouping or classification must be used. Homogeneous titles are grouped together to form the various categories which comprise the system.... In this Index each title is identified by the code for that category to which it is assigned.
For example, plaintiffs’ expert explained the composition of the Census category “Editors and Reporters.”
Census Code 184, covering editors and reporters, is a list of about 100 titles which all fit into a journalistic type of occupational group, including just, for example, editor, feature writer, foreign correspondent, newspaper writer, and newspaper editor.
Trial Transcript (“Tr.”) at 82 (May 29,1979) (testimony of M. Rosenblum).
The defendant’s expert testified that in the “overwhelming majority of occupations” cross-mapping is accomplished by looking up the Agency position title in the Index and identifying the Census category to which it belongs. Tr. at 19 (June 1,1979) (testimony of S. Wolfbein). Where relevant Agency job titles were not included in the Alphabetical Index, defendant’s expert testified that he translated Agency categories into Census terminology based on job descriptions provided by the Agency. Tr. at 23 (June 1, 1979) (testimony of S. Wolfbein). Plaintiffs’ expert testified that he consulted job descriptions in order to cross-map all the relevant positions.
I consulted the 118 Manual to read the job description, as published by Civil Service, covering those Civil Service titles and codes that are used by all federal agencies.
In a number of these instances I also consulted material published by the Agency, itself, to augment and fill in additional descriptions.
So that I got a better sense in my own mind of specifically which Census occupational category would be appropriate for this cross-mapping exercise.
Tr. at 83 (May 29, 1979) (testimony of M. Rosenblum). Plaintiffs’ expert testified that he also consulted an Office of Personnel Management (“OPM”) study that translated white collar civil service jobs into Census terms, although he disagreed with OPM’s cross-mapping in one instance.
Because the Census has fewer occupational categories (approximately 440) than the more detailed Civil Service system (over 1,000), the cross-mapping necessarily involved fitting some Agency occupational categories at issue in the class action into broader Census categories. For example, based on Census coding, the defendant’s expert placed both the Agency positions entitled “Radio Broadcast Technician” and “Electronic Technician” in the Census category entitled “Electrical and electronic engineering technicians.” Tr. at 20, 93-94 (June 1, 1979) (testimony of S. Wolfbein). He also placed both “Writers/Editors” and “Foreign Information Specialists” in the Census category “Editors and Reporters.” Id. 103-04. We are satisfied that comparing Agency occupational categories to the broader Census categories is appropriate because all types of jobs the Census includes within any given Census occupational category are sub-specialties of that occupation; thus, such aggregations retain “generally similar job skills” in common. Valentino v. USPS, 674 F.2d at 68. (“The burden of comparing appropriate groups in terms of minimum objective qualifications, onerous here because of the disparate occupational categories involved, is far more tractable when all members of the class are professional, administrative or technical employees with generally similar job skills and seek [employment in or] advancement to positions involving those same skills.”). Our conclusion is supported in this case by the more refined cross-mapping attempted where Agency occupations involved skills arguably reflected in more than one Census occupational category. As we have pointed out, the experts agreed on the basic methodology involved in identifying the relevant labor pool although they disagreed as to which Census occupational category more properly encompassed certain Agency positions. As these disagreements came only in fine-tuning the comparisons, however, they do not deprive the statistics of probative value, but, in fact, enhance it since the disagreements caused the experts to focus on specific Agency job requirements and tasks and thus accomplish the cross-mapping with considerable attention to detail.
To the extent that the experts disagreed on the appropriate Census category to which Agency categories should be compared, we of course defer under the “clearly-erroneous” standard, see Fed.R.Civ.P. 52(a), to the district court’s judgment as to which comparison has the greater probative value. And, we would not second-guess the district court as to other areas of disagreement between the experts which the court did not decide, e.g., whether 1970 Census data or 1978 Labor Department data provided the appropriate set of figures. We decide only that the cross-mapping by both experts here provided an adequate basis from which to derive meaningful disparity figures in order to decide if a prima facie case of discrimination in hiring was made out.
A review of the statistical comparisons sanctioned in Hazelwood bolsters our conclusion that the district court imposed an inappropriately high standard of precision between Agency and Census job categories. The Hazelwood Court was satisfied with data that limited the relevant labor pool to those in the general Census occupational category of secondary school teachers although this data aggregated diverse teaching positions not subdivided on the basis of subject matter taught. Thus, the district court mistakenly relied on Hazel-wood for authority that plaintiffs must provide data comparing the labor market for every combination of skills required in every one of the more than 2,000 Agency jobs at issue. We do not believe a plaintiff is required to prove that each individual in the comparison pool is qualified in every way for a particular Agency position. The objective is to define “a population that closely approximates the characteristics of those who would be likely to apply” and “meet legitimate threshold qualification requirements.” D. Baldus & J. Cole, Statistical Proof of Discrimination 120 (1980) (emphasis supplied). The focus thus should be on whether the Census statistics give us a meaningful estimate of the proportion of women in the labor market reasonably likely to possess the minimum qualifications needed for the Agency jobs in question.
We agree with the district court that the ICA positions at issue are properly treated differently from the bulk of federal government jobs which are generally professional, administrative and managerial positions for which no differentiated training or educational standards are imposed as minimal qualifications. And we agree as well that the test was not met in a case like Valentino, where the statistics “did not group employees by job category,” 674 F.2d at 70, nor “hone in on the wide variety of minimum objective qualifications required of applicants for the diverse... positions” at issue. Id. at 61. In Valentino, where discrimination in promotion was charged, it would indeed have been “irrational to assume ‘equal qualifications’ to fill engineering or secretarial vacancies,” as the plaintiffs urged, simply because employees were “educated the same number of years and employed by the government for the same length of time.” Id. at 71. See also Metrocare v. WMATA, 679 F.2d at 980 (no showing that “persons now holding secretarial or clerical jobs are qualified for [promotion to] managerial positions”). The data in this case, however, did hone in on the basic technical skills — “the minimum objective qualifications," Valentino v. USPS, 674 F.2d at 68 (quoting Davis v. Califano, 618 F.2d at 964) — prerequisite to employment in particular Agency occupational categories. The expert testimony reveals the comparisons of Agency and Census occupational categories were based on common job requirements and were accomplished in some instances with much greater precision than in Hazel-wood. It should be noted again that in Hazelwood the comparison pool included public school teachers whether they taught, for example, natural science or a foreign language.
Therefore we do not deem it fatal to plaintiffs’ prima facie case that the Census occupational data failed to take account of foreign language skills prerequisite to employment in certain Agency positions. “[N]ot every conceivable factor relevant to [an employment] decision must be included in the statistical presentation.... ” Davis v. Calif ano, 613 F.2d at 964. See, e.g., Trout v. Hidalgo, 517 F.Supp. 873 (D.D.C.1981):
Certainly, plaintiffs’ expert did not, in his analysis, account for each of the factors that the government suggests should have been considered. It is also true that a model which incorporated additional potentially relevant factors (such as type or quality of education and experience) would form a more perfect foundation for determinations regarding allegations of discrimination. However, defendants have furnished no evidence that inclusion of the missing variables or refinement of others would have altered rejection of the hypothesis of no discrimination. Indeed, they failed to offer any evidence indicating that type of education and experience or quantity of experience per age was distributed unequally among... women and men in the... population.
517 F.Supp. at 881 (emphasis supplied).
Here, many, if not most, of the jobs involved do not require foreign language skills at all. Thus, to the extent that the district court rejected the statistics for failure to account for such skills, the court imposed an additional and unnecessary requirement for a large number of Agency positions. Further, with respect to positions which include specific foreign language skills among the minimum objective qualifications (e.g., “Cambodian language news analyst/writer/broadcaster”), the court articulated no basis for the assumption that such skills are in fact unevenly distributed between men and women generally or in the particular occupations involved. The more logical assumption, barring proof to the contrary, is that equal numbers of men and women possess skill in any given language; thus, the proportion of women qualified for Agency positions would not necessarily change if this variable were included in the occupational data. And, practically, statistical data, so far as we can tell from the record, are simply not available correlating 440 Census occupational categories with several dozen foreign language skills; in their absence, we think it appropriate here to afford plaintiffs the benefit of a rebuttable presumption of an equal distribution of the relevant language skills. We underline that we are dealing here with the showing necessary for a prima facie case only. “In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dept of Community Affairs v. Burdine, 450 U.S. at 225 n.8, 101 S.Ct. at 1094 n.8 (emphasis supplied). Exactness is not required at the prima facie stage. As a consequence, in rebuttal, a defendant need only raise “a genuine issue of fact as to whether it discriminated” and need not even “persuade the court that it was actually motivated” by nondiscriminatory reasons. Id. at 254,101 S.Ct. at 1094. The defendant here is certainly entitled to rebut plaintiffs’ showing with evidence, more readily available to it than to plaintiffs, that, as to certain jobs with foreign language requirements, there are disproportionately fewer qualified women candidates available or even that bona fide recruitment efforts have resulted in a proportionately lower number of qualified female applicants than men. Cf. EEOC v. Radiator Specialty Co., 610 F.2d 178, 185 n.8 (4th Cir. 1979) (“Requiring the defendant to show the inappropriateness of general population statistics in such situations follows the principle of allocation of proof to the party with the most ready access to the relevant information.”). We find it significant here, however, that the defendants themselves did not argue to the trial court that failure to control for language invalidated the occupational comparisons.
We therefore cannot accept the district court’s total rejection, as too imprecise, of both experts’ comparisons of Agency occupational categories with Census occupational categories. Were trial courts to apply Hazelwood and Teamsters as the court did here, statistical evidence would rarely be acceptable in Title VII class actions because statistical evidence is virtually always lacking in the degree of precision demanded by the district court. “[I]n most cases, conditions are far from ideal, with incomplete qualification data and non-random samples being the rule rather than the exception,” D. Baldus & W. Cole, supra, at 26-27. And yet the Supreme Court’s “cases make it unmistakably clear that ‘[statistical analyses have served and will continue to serve an important role’ in cases in which the existence of discrimination is a disputed issue.” Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856 (quoting Mayor of Philadelphia v. Education Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974)).
Thus relevant labor pool statistics are commonly used although it is rarely possible to be exact in the definition of the relevant labor pool. Sometimes imprecision works to the detriment of plaintiffs as well as defendants. For example, a comparison labor pool based on Census employment statistics does not include all those qualified. “[Census statistics analyzing the population by job skill include[] in each skill category only people actually employed in those skill categories. People qualified for, but not employed in, such positions [are] omitted from the statistics quantifying the proportion of the population eligible for the type of employment in question.” Rivera v. City of Wichita Falls, 665 F.2d at 544 n.19. Certain defects in statistical evidence may, of course, be fatal to a plaintiff’s case, as in Valentino where comparisons were grossly imprecise or in a case, hypothesized in Va lentino, where the sample size is inordinately small. Valentino v. USPS, 674 F.2d at 66 n.12 (citing Wilkins v. University of Houston, 654 F.2d 388, 409 n.37 (5th Cir. 1981)) (“[T]he breakdown of highly specialized workplaces into occupational categories for the purpose of examining the treatment of similarly qualified employees may yield numbers too small to conduct certain types of statistical analyses relied upon to show discrimination in workplaces less specialized.”) But because “statistical measures are necessarily imperfect in differing ways and varying degrees,” the courts generally “accept what figures are available; allow for imperfections, skewing factors, and margins of error; and then take the figures for what they are worth. Sometimes this is much, sometimes little.” Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F.2d 1014, 1025 (5th Cir. 1981), cert. denied,- U.S. -, 102 S.Ct. 2233, 72 L.Ed.2d 845 (1982).
In the usual case, statistics are not intended to “conclusively prove intentional discrimination.... In recognition of [the] limits on the potential of statistics as a basis for an inference, the courts have given statistical proofs a question-raising, burden-shifting function.” D. Baldus & W. Cole, supra, at 26-27. We find the base data here to be sufficiently precise and consistent with statistical and legal norms to permit an inference of discrimination if statistically significant disparities exist. We therefore remand for reconsideration of whether plaintiffs made a prima facie showing of Agency discrimination in hiring.
B. Required Findings
Plaintiffs also protest on appeal that, with respect to the class claims of promotion discrimination and retaliation, the district court’s opinion was deficient under Fed.R.Civ.P. 52(a) which requires that a court sitting without a jury “find the facts specially and state separately its conclusions of law thereon.” It is established that the requirement of fact findings cannot be met by a “statement of ultimate fact without the subordinate factual foundations for it which must be the subject of specific findings.” O’Neill v. United States, 411 F.2d 139, 146 (3d Cir. 1969). Further, the fact findings must touch all material issues. “For this court to exercise adequately its power of review, the district court must make specific findings about the nature and truth of [plaintiffs’] allegations.” Borrell v. ICA, 682 F.2d 981 at 992 (D.C.Cir.1982). Because the district court’s opinion is bereft of reference to the retaliation claim, we must remand for findings on this issue. We are satisfied, however, with the court’s findings on the promotion discrimination claim.
To support an inference of discriminatory promotion practices, the plaintiffs introduced undisputed government statistics showing the small percentage of women in higher level Agency positions. E.g., the Agency’s FY-1978 Affirmative Action Plan, Sec. C, Table 3 (Plaintiffs’ Exhibit No. 22(b)); U. S. Civil Service Commission, Report on Review of Personnel Management in the United States Information Agency (Plaintiffs’ Exhibit No. 23). The plaintiffs’ proposed findings of fact with respect to the promotion claim were based on this statistical evidence and they object on appeal that the district court’s opinion failed to include any reference to the data or the inferences to be drawn therefrom. We, too, find it troubling that, while the district court devoted five pages of fact findings to the statistical evidence related to the hiring discrimination claims, the court ignored the statistical evidence presented on the promotion claims. The court, however, acknowledged the allegation of promotion discrimination, stating the issue before it as “[w]hether the defendant’s hiring, promotion and salary practices constitute patterns or practices of discrimination.... ” Medina I at 3, J.A. at 70. And, although the court did not specifically discuss the statistical evidence on promotion practices, it made findings based on defendant’s testimonial evidence, concluding:
In addition to [defendant’s witnesses] very credible testimony, the fact that these women have attained the positions they now occupy, and have done so by rapid and consistent advancement, is dis-positive of the absence of any pattern or practice of discrimination based on sex at the Agency at all relevant periods in this litigation.
Medina I at 11, J.A. at 78. The “ultimate fact,” that there existed no pattern or practice of discrimination, was
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer: |
songer_casetyp1_5-3 | H | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "privacy".
Kathleen STRANG, Appellant, v. UNITED STATES ARMS CONTROL AND DISARMAMENT AGENCY.
No. 88-5098.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 2, 1988.
Decided Jan. 10, 1989.
George A. Lehner, for appellant.
Robert E. L. Eaton, Jr., Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellee.
Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and GIBSON, Senior Circuit Judge.
Of the United States Court of Appeals for the Eighth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge:
Kathleen Strang is a foreign affairs officer at the United States Arms Control and Disarmament Agency (ACDA). In June 1985, ACDA security officer Berne M. In-dahl began an internal investigation into allegations that Strang had breached security procedures by improperly storing, transporting, and disclosing classified documents. On the basis of Indahl’s findings and the report of a special security panel, Strang was suspended in December 1986 for six months without pay and deprived of her clearance to view Sensitive Compart-mented Information, or “codeword” documents. Strang has since been restored to her position with Top Secret, but not “codeword,” security clearance.
In this civil action, Strang seeks, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982 & Supp. IV 1986), and the Privacy Act, id. § 552a, the following relief: release of nine memoran-da generated during Indahl’s investigation and withheld in their entirety by ACDA; amendment of twelve other allegedly inaccurate memoranda in ACDA’s records; and damages for her suspension and loss of codeword clearance, which she claims are the result of ACDA’s intentional or willful maintenance of inaccurate records. The district court, on February 25, 1988, granted summary judgment to ACDA on all counts and Strang now appeals. For the reasons stated herein, we affirm the district court’s grant of summary judgment except as to Strang’s request for the amendment of records concerning her alleged transmission, without proper clearance, of classified information to Japanese officials; we remand that issue for further proceedings in the district court.
I.
Strang first contends that summary judgment was inappropriate because she was not afforded an adequate opportunity to conduct discovery. Strang, however, did not state with sufficient particularity to the district court—or, for that matter, to this court—why discovery was necessary. We therefore reject this opening argument.
Federal Rule of Civil Procedure 56(f) provides that a court may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion. See, e.g., Londrigan v. FBI, 670 F.2d 1164, 1175 (D.C.Cir. 1981); see generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2740, at 530-31 (1983). Strang never offered the requisite explanation. She did state generally that discovery “would be invaluable in this case” and would give her “an opportunity to test and elaborate the affidavit testimony already entered.” Joint Appendix (J.A.) at 76. But she never stated concretely why she could not, absent discovery, present by affidavit facts essential to justify her opposition to ACDA’s summary judgment motion. Without some reason to question the veracity of affiants such as Indahl, whom Strang sought to depose in May 1986, Strang’s desire to “test and elaborate” affiants’ testimony falls short; her plea is too vague to require the district court to defer or deny dispositive action. In sum, Strang offered no specific reasons demonstrating the necessity and utility of discovery to enable her to fend off summary judgment; the district court, therefore, acted within the bounds of its discretion in not granting a continuance for Strang to conduct discovery.
Strang also objects on appeal to ACDA’s inclusion of two additional affidavits in the agency’s district court reply brief in support of summary judgment; those affidavits, she now maintains, should be regarded as a separate or supplemental motion. Because the affidavits were served on the day of the hearing, she contends, their introduction violates Rule 56(c), which provides that a motion shall be served ten days prior to the hearing. This claim is insubstantial. First, the affidavits merely supported the existing motion and did not constitute a new motion for summary judgment on additional issues or grounds. Cf. Laningham v. United States Navy, 813 F.2d 1236, 1240-41 (D.C.Cir.1987). Second, by her silence in the district court, Strang waived any valid objection she may have had to the late introduction of additional affidavits. She neither objected to the district court’s consideration of the additional affidavits, nor asked for time to respond to them. See Woods v. Allied Concord Financial Corp., 373 F.2d 733, 734 (5th Cir.1967); cf CIA. Petrolera Car-ibe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 409-10 (1st Cir.1985).
II.
Strang next argues that the district court should not have granted summary judgment to ACDA on her claim for the release of nine memoranda because there are genuine issues of material fact regarding whether the sources of information in those memoranda were promised confidentiality. We reject Strang’s contention, and affirm the district court’s decision, because Indahl’s affidavit provides adequate assurance that the sources were expressly promised confidentiality.
FOIA and the Privacy Act both provide for the fullest possible disclosure of agency records to the public, subject to certain exceptions. ACDA asserts that the memo-randa sought by Strang are exempt from the disclosure requirements by FOIA section (b)(7)(D) and Privacy Act sections (k)(2) and (k)(5). FOIA section (b)(7)(D) exempts
records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information ... could reasonably be expected to disclose the identity of a confidential source, ... and, in the case of a record or information compiled by ... an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). Section (k)(2) of the Privacy Act provides that an agency may promulgate rules exempting from the disclosure requirements
investigatory material compiled for law enforcement purposes, ... Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.
Id. § 552a(k)(2). Privacy Act section (k)(5) allows the agency to establish rules exempting
investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment ... or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.
Id. § 552a(k)(5). ACDA’s implementing regulations mirror the terms of the statutory exemptions. See 22 C.F.R. §§ 602.-31(g)(4), 603.8(a)(2H3) (1988).
As a preliminary matter, we reject Strang’s assertion that the memoranda were not “compiled for law enforcement purposes” within the meaning of section (k)(2). First, Strang did not dispute the applicability of section (k)(2) before the district court. It is firmly established that “issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.” District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984); see also id. at 1078. Second, even if this issue were properly preserved for appellate consideration, we do not interpret “law enforcement” as limited to criminal law enforcement, as Strang would have us do; rather, we read the term as encompassing the enforcement of national security laws as well. Although Strang has not been subject to criminal prosecution, her suspension and loss of codeword security clearance resulted from her undisputed breach of national security regulations. See J.A. at 49-53 (letters to Strang from ACDA Director Kenneth Adelman and Administrative Director William Montgomery); id. at 106-09 (memorandum of ACDA special security panel).
Because all three exemptions are applicable, the real bone of contention is whether the sources of the information in the nine withheld memoranda were expressly promised confidentiality. ACDA relies on Indahl’s affidavit, which describes the procedures Indahl followed when interviewing individuals about Strang:
In each case, at the outset, either I asked whether the source desired confidentiality or I received requests that I understood to be requests for confidentiality. In some instances, the requests were made specifically in terms of “confidentiality.” In others, the requests were cast in such terms as: “this is just between you and me” or “this is not for attribution.” In all cases, I responded with words of agreement such as “this will be treated as confidential” or “O.K.” or “your name will not be used.” The foregoing applies to all sources whose identities have been protected by withholding in whole or in part the particular documents .... I can positively assert that with respect to each source identified in these documents, express promises of confidentiality were given by me under the circumstances just described. In all cases, the requests for and promises of confidentiality were made prior to the origin of the communications that have been withheld in whole or in part.... I have re-examined each of the documents withheld in whole or in part with a view to releasing more information. I have concluded, however, that release of more information would run the risk of disclosing the identities of those to whom express promises of confidentiality were given.... [TJhis is largely because ACDA is such a small organization and several of the sources are or were co-workers.
Id. at 44-46.
Strang offers no evidence that effectively contradicts this affidavit; the district court did not err, we conclude, in counting it sufficient to support summary judgment. Although the affidavit does not recite a precise verbal formula used in each case, or refer to tangible evidence such as Indahl’s notes, see Brief for Appellant at 24; Reply of Appellant at 5-7, the affidavit is definite enough to assure the court that Indahl expressly promised confidentiality to each individual.
This court’s decision in Londrigan v. FBI (Londrigan II), 722 F.2d 840 (D.C.Cir.1983), supports our conclusion. In that case, this court directed the district court to grant summary judgment to the FBI on a section (k)(5) claim. Two kinds of submissions presented in the district court prompted this court’s direction: first, affidavits from six agents, each of whom “affirmed that he conducted all interviews with the understanding that the information furnished and the identity of the interviewee would remain confidential,” even though none of the agents specifically recalled the twenty-year-old investigation at issue; second, “several contemporaneous official communications stating the [FBI]’s confidentiality policy.” Id. at 843. Because Londrigan II involved an investigation that antedated the Privacy Act, the FBI needed to prove only that sources were given an implied promise of confidentiality, a “less strict” standard. Id. In-dahl’s affidavit, however, in contrast to the ones in Londrigan II, recounts the Strang investigation itself and specifically states that Indahl expressly promised confidentiality to all of the sources of information in the withheld documents. It thus satisfies the stricter standard, which calls for proof of an express promise. We therefore affirm the district court’s grant of summary judgment to ACDA on Strang’s claim for release of the nine withheld memoran-da.
III.
Strang also seeks amendment of three sets of memoranda that she alleges violate section (e)(5) of the Privacy Act; that provision requires an agency to “maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). We conclude that the district court properly granted summary judgment with regard to two sets of memoranda, but that summary judgment was premature with respect to the third set.
Two memoranda in the investigative file state that Strang “compromised” classified material by leaving her office safe open overnight. J.A. at 12, 17. Strang questions the use of the word “compromise.” She contends that the references to “compromise” present a genuine issue of material fact whether the memoranda are sufficiently accurate to assure fairness. She bases this claim on her assertion that the meaning of the term is not uniform in the record. In some parts of the record, she argues, “compromise” seems to refer to the actual viewing of classified information by unauthorized personnel, see, e.g., id. at 108 (special security panel memorandum stating that “ ‘compromise’ ... can occur where persons not authorized access ... view sensitive information for which they are not cleared”), whereas in other parts the term refers to the exposure of classified information to possible unauthorized access, see id. at 12, 17. Strang then states, without explanation, that the former definition is the “best.” Brief for Appellant at 27. Use of “compromise” therefore violates section (e)(5), she concludes, because ACDA has offered no evidence that any unauthorized person actually viewed the classified information in Strang’s safe.
We agree with the district court that in the context of the two memoranda Strang seeks to amend, “compromise” clearly refers to the potential for unauthorized access; i.e., any document that is exposed to possible viewing by unauthorized persons is, for security reasons, presumptively considered compromised:
Four co-workers ... and her former supervisor ... stated [that Strang] repeatedly left her safe open overnight in a nonsecure area. This placed codeword material within easy access for compromise _ Consequently she compromised extremely sensitive classified information.
Id. at 12.
Security violations resulting from open safes where the material was not secured for a short period of time after the close of business until discovery by a guard can result in a finding of remote compromise. However sources disclosed that Ms. Strang had numerous open safe violations over a long period.
Id. at 17. Because “compromise” in the context of the relevant memoranda clearly refers to potential unauthorized access to classified information, and because Strang does not dispute the memoranda’s account of her leaving classified documents in an open safe overnight, the memoranda are sufficiently accurate to assure fairness to Strang.
Strang’s second amendment request concerns eight undated memoranda in the investigative file compiled by Indahl. Id. at 12-13, 16-22. As the district court pointed out, Indahl has supplied approximate dates for the memoranda and ACDA has made those dates part of the investigative file. See id. at 115. Although Indahl did not recall the precise day he composed each memorandum, his list does provide a close approximation for each, e.g., “early August 1985.” Id. These dates are sufficiently accurate and timely to satisfy section (e)(5).
Strang’s third amendment request is more substantial. It involves two memo-randa charging that she transmitted to foreign officials a document containing information not properly cleared for dissemination. Id. at 21, 22. The memoranda refer to Korean officials, but ACDA later found, upon notification from Strang, id. at 89 (Strang affidavit), that the incident in question actually involved Japanese officials. Id. at 73 (note amending memoranda); id. at 135-36 (affidavit of Mary Elizabeth Hoinkes, ACDA Deputy General Counsel). Strang disputes that the document at issue contained uncleared information and argues that there was insufficient evidence of the lack of clearance to support summary judgment for ACDA. In her affidavit, moreover, Strang avers specifically that the information had been cleared for release by five named government officials. Id. at 90.
The only proof ACDA presented to the district court that the information was uncleared was the affidavit of Mary Elizabeth Hoinkes, ACDA’s Deputy General Counsel, id. at 131-37, and a letter from ACDA Director Adelman to Strang responding to Strang’s amendment requests, id. at 140-41. Both the Hoinkes affidavit and the Adelman letter merely state the investigation’s conclusion that the information was uncleared; neither submission presents any evidence to support that conclusion. Id. at 136, 140-41. Moreover, neither Hoinkes nor Adelman reveals exactly what information in the document was uncleared: Hoinkes states generally that the document Strang passed to the Japanese officials “contained material which had not been cleared for use in diplomatic channels,” id. at 136, while Adelman claims that “three items in the document” had not been cleared, without specifying what those three items were, id. at 140.
The Privacy Act requires that a court consider de novo an agency’s refusal to amend its records. 5 U.S.C. § 552a(g)(2)(A). The lack of evidence before the district court supporting ACDA’s conclusion that some information was uncleared and the court’s Memorandum Opinion make it evident that the court failed to consider this matter de novo:
[Defendant concluded after a lengthy investigation that although plaintiff had good and sufficient reason to assume that she was authorized to transmit a properly cleared document, the document that she did transmit had not been properly cleared. Defendant decided to retain this material in the file because it concluded that plaintiff was careless in failing to ensure the necessary clearances.
J.A. at 144.
ACDA argues that the Act does not require the agency or the court, in its de novo review, to determine whose view is correct, as long as the records generally assure fairness to the individual. Brief for Appellees [sic] at 12. ACDA cites as support for this proposition Doe v. United States, 821 F.2d 694 (D.C.Cir.1987) (en banc). In Doe, the district court had held that the State Department had assured fairness to the plaintiff by including in its records conflicting reports of what she had said in an interview, without stating whose account — Doe’s or the interviewing agent’s —the Department believed. On appeal, this court affirmed, but emphasized that the case was “atypical.” Id. at 699. The presence of only Doe and the agent at the interview made what occurred “unknowable” to third persons. Id. at 700. Under those special circumstances, we held, the agency and the district court, on de novo review, were not required to “find and record ‘truth’ ”; instead, it sufficed to “adjust [the] file equitably to reveal actual uncertainty.” Id. at 701.
Doe was thus a narrow decision. See id. at 701-02 n. 20. It surely does not support the broad proposition advanced by ACDA that the district court need not determine definitively the accuracy of the agency’s records, as long as the agency somehow can be said to have acted fairly. The Doe court stated that “ ‘de novo’ ... has no different, diminished meaning in the context” of section (e)(5), but requires “here, as it ordinarily does, a fresh, independent determination of ‘the matter’ at stake; the court’s inquiry is not limited to or constricted by the administrative record, nor is any deference due the agency’s conclusion.” Id. at 697-98. “In the typical Privacy Act case,” the court continued, “it is feasible, necessary, and proper for the agency and, in turn, the district court to determine whether each filed item of information is accurate.” Id. at 699 (emphasis added).
This case fits the “typical” mold; it differs from Doe in two key respects. First, the records of the Strang investigation are not ambivalent about what happened; they conclude that Strang passed uncleared information to foreign officials. The agency thus made a final judgment about the occurrence. The court, in turn, must review the evidence de novo to ensure that the agency’s judgment is sufficiently accurate to ensure fairness.
Second, the facts at issue here are susceptible of proof. The court can determine what information in the document is actually in question by reviewing the document itself and asking ACDA to point out the items it claims were not cleared. The court can then receive evidence from both sides to determine whether those items were properly cleared. The court might, for example, entertain affidavits from the five individuals Strang claims cleared the document, and receive evidence from ACDA showing what individuals’ clearances were required for the information at issue. If, after reviewing the parties’ submissions, the court determines that a genuine issue of material fact exists as to whether the information received the requisite clearance, the court should deny ACDA’s motion for summary judgment on that issue.
In light of the record’s erroneous original assertions that Strang passed information to Korean officials, see supra p. 865, the need for independent, undeferential judicial review is apparent. If, as the Hoinkes affidavit claims, the supporting evidence contains extremely sensitive information, J.A. at 136, the district court can take up Ms. Hoinkes’ offer to present a detailed, classified declaration for in camera review. Id.
IV.
Finally, Strang asserts a claim for monetary damages under sections (g)(1)(C) and (g)(4) of the Privacy Act; these sections provide that an agency shall be liable for actual damages or no less than $1,000 plus costs and attorneys fees where the agency intentionally or willfully
fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.
5 U.S.C. § 552a(g)(1)(C), (g)(4). Thus, Strang must show, to qualify for damages, that ACDA’s determination to suspend her and revoke her codeword clearance was caused by its intentional or willful failure to maintain accurate records. The district court granted summary judgment on this claim because “there is no suggestion that [ACDA] acted ‘without grounds for believing [its actions] lawful’ or that it flagrantly disregarded the rights guaranteed under the Privacy Act,” J.A. at 145 (quoting Laningham v. United States Navy, 813 F.2d at 1242 (citations omitted)), and because Strang admitted to numerous security violations. Id.
We affirm the district court’s grant of summary judgment to ACDA on Strang’s damage claim. The only records whose accuracy is still in question are the memo-randa that deal with the transmission of information to Japanese officials. Even if these memoranda are inaccurate, and even if we indulge the assumption that the agency acted intentionally or willfully, there is ample evidence in the record that the mem-oranda played no part in Adelman’s suspension of Strang and revocation of her codeword clearance. In his December 29, 1986 letter to Strang, Adelman stated that the “suspension is based upon your uncontested violations of security regulations .... This suspension is not based on any information which you have challenged as being inaccurate or incomplete or on any information which has not been fully disclosed to you.” J.A. at 52. Adelman was more specific in his May 6, 1987 letter responding to Strang’s appeal:
The matter of transmittal of a document to officials of a foreign government on the occasion of the trip to Seoul and Tokyo in 1984 did not come to our attention until after the August “cutoff” date we had agreed upon with respect to the investigation then being undertaken. In light of this fact, it formed no part of my decision regarding your clearance or suspension from ACDA for six months.
Id. at 60.
Finally, a note attached to the two memo-randa stating that the alleged incident occurred in Tokyo, not Seoul, and involved Japanese, not Korean, officials repeated another portion of the May 6, 1987 letter:
I find no excuse for the carelessness with which the matter was handled. However, after reviewing this matter and after consultation with other interested agencies and taking into consideration the sanctions which have been imposed as a result of the prior investigation, I have decided to take no further action with respect to the document transmitted in Tokyo.
Id. at 73; see also id. at 72 (Dec. 10, 1987 letter repeating Adelman’s decision to retain the two memoranda in the record “but to take no further action”).
In light of Adelman’s numerous statements that his decision to suspend Strang and revoke her codeword clearance was unrelated to the only two memoranda still at issue, there is no basis on which a reasonable trier could find that the sanctions were causally connected to the memoranda. We therefore affirm the district court’s grant of summary judgment to ACDA on Strang’s damage claim.
CONCLUSION
For the reasons stated in this opinion, we reverse the district court’s grant of summary judgment to ACDA on Strang’s request to amend the records concerning her transmission of allegedly uncleared information to foreign officials; we remand that issue for de novo review of the parties’ evidence, in camera if and to the extent necessary. In all other respects, we affirm the district court’s grant of summary judgment to ACDA.
IT IS SO ORDERED.
. On December 16, 1986, the district court had denied ACDA’s summary judgment motion on Strang’s claim for release of documents because there then appeared to be a genuine issue of material fact as to whether the sources of the information in the documents were given express promises of confidentiality; the district court simultaneously had denied ACDA's motion to dismiss Strang’s record amendment claims for failure to exhaust administrative remedies. Following that decision, ACDA granted some of Strang’s amendment requests and supplemented the record with Indahl’s affidavit attesting that he expressly promised confidentiality to the sources. See Joint Appendix (J.A.) at 142 (Feb. 25, 1988 Memorandum Opinion).
. Vymetalik v. FBI, 785 F.2d 1090 (D.C.Cir.1986), does not contradict our interpretation of section (k)(2). In that case, this court held that section (k)(2) did not apply to records compiled during an investigation of an FBI job applicant. The court stated that such records fell clearly within the scope of section (k)(5) because they were gathered for the purpose of determining the applicant’s ‘"suitability, eligibility, or qualifications for Federal'" employment. Id. at 1095 (quoting 5 U.S.C. § 552a(k)(5)). “To hold that all employment investigation records fall within the law enforcement records exemption,” the court reasoned, "would read subsection (k)(5) ... out of the statute.” Id. at 1096. Unlike Vymetalik, this case involves not a job applicant undergoing a routine check of his background and his ability to perform the job, but an existing agency employee investigated for violating national security regulations. Thus, sections (k)(2) and (k)(5) are both by their terms fully applicable.
. Although FOIA section (b)(7)(D) refers to “confidential source” rather than express promises of confidentiality per se, we see no reason— and neither party offers any—to treat that section’s reference to confidentiality differently from Privacy Act sections (k)(2) and (k)(5) in this case.
. We are not persuaded by Strang’s attempts to show that Indahl had a “clear bias” against her. See Brief for Appellant at 25. Moreover, we fail to see how her allegations show that Indahl did not promise confidentiality. Strang features statements made by ACDA Director Adelman in a letter to Administrative Director Montgomery that ”[t]he investigation ... was conducted with insufficient attention given to the employee’s side of the case” and "[tjhere was an effort by some co-workers to cast Ms. Strang in the worst possible light.” J.A. at 85. These observations, however, do not materially support Strang’s claim that Indahl did not promise confidentiality to his sources. See Brief for Appellant at 24. The fact that Indahl contacted the sources after the investigation to ask whether they still desired confidentiality, see J.A. at 45, does not prove that Indahl did not promise confidentiality to the sources before they provided information. See Brief for Appellant at 24. Finally, Indahl’s initial failure to date other disclosed memoranda containing negative statements from unidentified sources in no way proves that Indahl did not promise confidentiality to the sources of the withheld memoranda. See id. at 25.
. In Londrigan v. FBI (Londrigan I), 670 F.2d 1164 (D.C.Cir.1981), an earlier consideration of the same case, this court held that something more was necessary than the affidavit of an FBI FOIA-Privacy Act administrator who was not involved in the investigation at issue and had not even sought information from ,the investigating agents, and who averred merely that "all information compiled by the agency [during the period of the investigation] was acquired pursuant to implied pledges of [confidentiality].” Id. at 1173; see also Nemetz v. Department of Treasury, 446 F.Supp. 102, 105 (N.D.Ill.1978) (holding that general allegations of agency’s policy of promising confidentiality were insufficient to trigger (k)(5) exemption). Upon remand, the FBI offered the affidavits of agents involved in the Londrigan investigation and the agency’s routine instructions, operative during the investigation, concerning confidentiality. See Londrigan II, 722 F.2d at 843.
. In her brief, Strang presses the additional argument that the district court should have examined the withheld documents in camera to determine de novo whether ACDA could release any portions without disclosing the identity of confidential sources. Brief for Appellant at 37-38. As Strang's counsel made evident at oral argument, however, and as our review of the transcript of the district court hearing shows, see J.A. at 147-78, Strang did not raise this issue below and therefore did not properly preserve it for appeal. See District of Columbia v. Air Florida, 750 F.2d 1077, 1078, 1084 (D.C.Cir.1984).
. In her brief, Strang also requests that the names of the sources of unattributed statements be added to the file. Brief for Appellant at 19, 31. Yet again, however, Strang did not properly preserve this issue for appeal because she never raised it before the district court.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: |
songer_appel2_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
FIGGE AUTO CO., a Co-Partnership, and Greg Figge, Individually, and Lloyd H. Strand, Administrator of the Estate of Cyril R. Figge, Deceased, Appellants, v. David James TAYLOR, by Mrs. Arlene Taylor, His Mother and Next Friend, Appellee.
No. 17393.
United States Court of Appeals Eighth Circuit.
Jan. 7, 1964.
Arthur H. Jacobson, Waukon, Iowa, James D. Bristol, Waukon, Iowa, Jacobson & Bristol, Waukon, Iowa, of counsel, for appellants.
Ira J. Melaas, Jr., Decorah, Iowa, Frank R. Miller and Floyd S. Pearson, Decorah, Iowa, Miller, Pearson & Melaas, Decorah, Iowa, for appellee.
Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.
VOGEL, Circuit Judge.
David James Taylor, by his mother and next friend, brought this action against Figge Auto Company, a co-partnership, and Cyril R. Figge and Greg Figge, co-partners, individually, defendants, and Lloyd H. Strand, Administrator of the estate of Cyril R. Figge, deceased, substituted defendant. All parties will be designated here as they were in the court below. Plaintiff sought money damages because of personal injuries sustained by him as the result of an automobile accident. Diversity of citizenship and amount meet federal court jurisdictional requirements.
The case was tried to a jury and resulted in a verdict in plaintiff’s favor in the amount of $22,509. Defendants appealed from the judgment based upon the jury verdict. Error is predicated upon:
1. The District Court’s overruling defendants’ motions for directed verdict and for judgment notwithstanding the verdict.
2. The District Court’s overruling defendants’ motion to clarify a pre-trial order with reference to $1,509 medical expense and the inclusion of such amount in the jury’s verdict. It is defendants’ contention that because plaintiff was a minor, the right to recover for medical expenses would be owned by his parents and testimony regarding such expense was therefore irrelevant in this action.
The first claim of error is based mainly upon defendants’ contention that the plaintiff was guilty of contributory negligence as a matter of law, that he therefore failed to sustain the burden of proving freedom from contributory negligence (a requirement under the law of Iowa) and, further, that the driver of the defendants’ car was not guilty of negligence. As in practically all tort cases, there are here conflicts in the evidence and disputes between witnesses and parties, from which tangled web it was the duty of the jurors, as the finders of the facts, to ascertain and to declare the truth. This they have done as they saw it. That was their responsibility. This as an appellate court, in ruling upon the correctness of the trial court’s overruling a motion for a directed verdict and a motion for judgment notwithstanding the verdict, must view the evidence in the light most favorable to sustaining the jury’s findings. We must also give to the prevailing party the benefit of every reasonable inference that may be drawn from the evidence. MacDonald Engineering Co. v. Hover, 8 Cir., 1961, 290 F.2d 301; Clinton Foods, Inc. v. Youngs, 8 Cir., 1959, 266 F.2d 116, 117-118; Nesei v. Willey, Iowa, 1956, 247 Iowa 621, 75 N.W.2d 257, 259; Gowing v. Henry Field Co., 1938, 225 Iowa 729, 281 N.W. 281, 283; and Goman v. Benedik, 1962, 253 Iowa 719, 113 N.W.2d 738, wherein the Supreme Court of Iowa stated, at page 739 of 113 N.W.2d:
“ * * * It is not disputed by appellant, that we must view the evidence in the light most favorable to plaintiff; that it is only the exceptional case in which the issue of freedom from contributory negligence should not be submitted to the jury — only where such negligence is so palpable, flagrant and manifest that reasonable minds may fairly reach no other conclusion; that if there is any evidence tending to establish plaintiff’s freedom from contributory negligence, the question is one of fact for the jury and doubts should be resolved in favor of such submission.”
As Judge John Sanborn said in Glawe v. Rulon, 8 Cir., 1960, 284 F.2d 495, 497:
“It must be kept in mind that this Court will not concern itself with doubtful issues of fact which were for the jury nor with doubtful issues of local law as to which the trial court has reached a permissible conclusion. Webb v. John Deere Plow Co., Inc., 8 Cir., 260 F.2d 850, 852. In that case we said (at page 852): ‘Personal injury eases such as this are essentially fact cases, and it is rarely that a party aggrieved by the verdict of the jury can, on appeal, successfully visit his grievance against the jury upon the trial court.’ See, also, Greene v. Werven, 8 Cir., 275 F.2d 134, 137-138. It seems safe to say that as a general rule the verdict of the jury marks the end of such a case.”
See Minnesota Mutual Life Ins. Co. v. Wright, 8 Cir., 1963, 312 F.2d 655; Gulf, Mobile & Ohio R. Co. v. Thornton, 8 Cir., 1961, 294 F.2d 104; Hanson v. Ford Motor Co., 8 Cir., 1960, 278 F.2d 586; and Greene v. Werven, 8 Cir., 1960, 275 F.2d 134.
Having these rules in mind and notwithstanding that there is evidence to the contrary, the record indicates and the jury could have found and undoubtedly did find the following: The accident occurred on August 14, 1960, at about 12:30 in the morning on a highway between the towns of Calmar and Ossian, Winneshiek County, Iowa. The main traveled portion of the highway was concrete pavement eighteen feet in width and running in an east-west direction. There was an asphalt strip on the south shoulder of the concrete some twelve to eighteen inches wide. The grass shoulder on the south side of the highway measured from eight to eight and one-half feet. The shoulder on the north side of the highway measured approximately seven and a half feet in width. There was a slight drizzle of rain at the time. The plaintiff, then 17 years of age, (20 years old at the time of trial), accompanied by his father, the owner of the car, his mother and four younger sisters and a brother, was driving in an easterly direction on the highway when the left tire on a trailer the family ear was pulling went flat. Plaintiff drove the car and trailer off onto the south shoulder of the highway two to three feet from the main traveled portion of the road. Plaintiff and his father unhooked the trailer from the automobile and the plaintiff prepared to change the tire on the trailer. In the meantime, his father took the car, drove on farther east to a point where he could turn around, which he did, returned to the scene of the accident, and parked his car on the south shoulder of the highway facing west with the headlights shining upon the trailer. The lights were on low beam. Plaintiff began working on the wheel and tire of the trailer. While he was doing so, at least three cars approached from the west going east and passed them safely without any incident whatsoever. At this time Cyril R. Figge, accompanied by his wife, minor son and two minor daughters, was enroute home to Ossian, Iowa, having left Pine Bluff, Wyoming, the morning of August 13, 1960. He was traveling in an easterly direction. There is credible evidence supporting the view that he was traveling at a high rate of speed estimated at 60 to 70 miles per hour; that as he came over a slight rise in the highway approximately 700 feet west of the Taylor vehicles, he saw the headlights of the Taylor car and said to his wife, “I just can’t understand what is ahead of us.” As he approached the Taylor vehicles, he swung to his right onto the south shoulder, striking the plaintiff, the parked and disabled trailer and knocking the Taylor car backward across the highway and into the ditch on the north side. There is substantial evidence in the record supporting the jury’s finding that Cyril R. Figge was guilty of negligence which was a proximate cause of the accident. It requires no detailed discussion.
Under the law of Iowa the plaintiff in such a case as this must plead and prove freedom from contributory negligence before he may recover. Scott v. Chicago, Rock Island & Pacific R. Co., 8 Cir., 1952, 197 F.2d 259, 260; Fort Dodge Hotel Co. of Fort Dodge, Iowa, v. Bartelt, 8 Cir., 1941, 119 F.2d 253, 258; Paulsen v. Haker, 1959, 250 Iowa 532, 95 N.W.2d 47, 55. It is also the law of Iowa, and so conceded by counsel for the defendants, that the negligence of the father is not attributable to his minor child, so that here, if the plaintiff’s father was guilty of negligence, that fact in itself does not establish that the plaintiff was guilty of negligence by imputation. See Wheatley v. Heideman, 1960, 251 Iowa 695, 102 N.W.2d 343, at page 353 of 102 N.W.2d; Primus v. Bellevue Apartments, 1950, 241 Iowa 1055, 44 N.W.2d 347, 25 A.L.R.2d 565; Ives v. Welden, 1901, 114 Iowa 476, 87 N.W. 408. The main, if not the only question regarding liability is whether the jury’s finding that plaintiff was not guilty of contributory negligence is supported by the evidence or if such finding is so contrary to the conclusion which would be reached in the minds of reasonable men that it must be set aside as a matter of law.
Plaintiff himself has no recollection of the collision. He does recall three cars approaching from the west and passing him without interference as he worked on the tire. His last recollection is of turning around and attempting to wash some grease from one of his hands. He was on the shoulder of the highway.
While aside from general rules of law which have been referred to, these cases generally speaking must be determined on a case-to-case basis. Nevertheless, the Supreme Court of Iowa, by whose decisions we are herein bound, has had occasion to pass upon fact situations not too dissimilar from that with which we are here concerned and in doing so has laid down guide lines to assist in determining this one. Such a case is Hanson v. Manning, 1931, 213 Iowa 625, 239 N.W. 793. The accident there occurred on an east-west highway at about 5:30 p. m. November 20, 1929. It was dark. Plaintiff was a guest in a car which had been headed east and was stopped on its right or south side of the highway about one and one-half feet from the south edge of the main traveled portion thereof and so stopped in order to repair a left rear tire. A service car, facing west, was backed within ten to fifteen feet of the disabled car. The road was dry and straight. A light from the rear of the service car furnished light between the two cars where the repairmen were working. Defendant’s car came from the west, passed the service car on the south side, striking the open front door of the disabled car and hitting the plaintiff as he was facing north and about to get into the car from the right side. Defendant’s was the only car that evening that tried to pass to the south of the vehicles. All other traffic had passed on the north side without incident. Because of erroneous instructions, the Supreme Court reversed a jury’s verdict and judgment for the defendant and directed a new trial. In doing so, the court stated at pages 796 and 797 of 239 N.W.:
“Negligence is a relative term. Both plaintiff and defendant were bound to exercise ordinary or reasonable care. Whether either or both have done so depends on the circumstances of the case. When from the facts and circumstances reasonable minds might come to different conclusions as to whether ordinary care was exercised or not, the question is for the jury. Wine v. Jones, 183 Iowa, 1166, 162 N.W. 196, 168 N.W. 318; Vass v. Martin, 209 Iowa, 870, 226 N.W. 920; Spiker v. Ottumwa, 193 Iowa, 844, 849, 186 N.W. 465.
“Plaintiff, or rather the owner of the car, had the right to stop, using reasonable care, and the owner and his employees had the right to make repairs and to use the highway in reasonable manner, exercising reasonable care, for that purpose. They were not trespassers, though they might have been negligent. Schacht v. Quick, 178 Wis. 330, 190 N.W. 87, 25 A.L.R. 130. Presence on one side of the street or the other is not per se negligence. Dickeson v. Lzicar, 208 Iowa, 275, 225 N.W. 406; Simrell v. Eschenbach, 303 Pa. 156, 154 A. 369; Billingsley v. McCormick Transfer Co., 58 N.D. 913, 228 N.W. 424, 426; Schacht v. Quick, 178 Wis. 330, 190 N.W. 87, 25 A.L.R. 130.
******
“The defendant in argument assumes that the lights of the repair truck blinded or deceived defendant, and that defendant did not know that the repair truck was standing still and was deceived into thinking that the repair truck was a moving car. Defendant assumes that defendant did not see the truck or tower light or observe that a car was stationed in the rear of the truck, and assumes that defendant did not know, and in the exercise of reasonable care would not have known, that persons were or might be standing about the truck and car and in peril from his automobile. These matters were for the jury, not fpr the court.
“Plaintiff was not required as matter of law to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury. Wine v. Jones, 183 Iowa, 1166, 1170, 162 N.W. 196, 168 N.W. 318; Spiker v. Ottumwa, 193 Iowa, 844, 849, 186 N.W. 465; Smith v. Spirek, 196 Iowa, 1328, 1333, 195 N.W. 736; 42 C.J. 1135. (Emphasis supplied.)
******
“ * * * Plaintiff was not required to anticipate negligence on the part of the drivers of approaching vehicles. Id.; Shields v. Holtorf, 199 Iowa, 37, 201 N.W. 63; Pixler v. Clemens, 195 Iowa, 529, 532, 191 N.W. 375; 45 C.J. 954.”
Another such case is Janes v. Roach, 1940, 228 Iowa 129, 290 N.W. 87. There a stalled Chevrolet was parked facing west on the north shoulder of a generally east-west highway, with the left rear tire on the pavement. Plaintiff was driving a truck in the opposite direction. He passed the Chevrolet and then parked his truck on his right or gouth shoulder of the pavement, leaving the headlights lighted. Plaintiff left his truck, crossed the highway and was standing in front of the stalled Chevrolet. Defendant, traveling in the same direction as that in which the Chevrolet had been traveling and opposite to that in which plaintiff’s truck had been traveling, ran into the rear of the Chevrolet, which struck the plaintiff, causing injuries which were the basis of his cause of action. In sustaining a judgment based on a verdict of the jury in plaintiff’s behalf, the Supreme Court of Iowa said, at page 90 of 290 N.W.:
“The contention that appellee was guilty of contributory negligence as a matter of law is without merit. He was not standing upon the travel-led portion of the highway and was not required, as a matter of law, to keep a constant lookout for vehicles approaching upon the pavement or to anticipate that another automobile would be driven against the rear of the Chevrolet. He was only required to exercise ordinary care. Whether or not he did so was a question for the fury. Hanson v. Manning, 213 Iowa 625, 239 N.W. 793; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17. The court also instructed the jury that the parking of appellee’s truck on the opposite side of the highway unattended, with motor running and without proper flares, would constitute negligence and submitted to the jury the question of whether or not such negligence contributed to the accident. No reversible error appears in either of said instructions.” (Emphasis supplied.)
See, also, Marts v. John, 1949, 240 Iowa 180, 35 N.W.2d 844, 846, and Engle v. Nelson, 1935, 220 Iowa 771, 263 N.W. 505, citing with approval the Hanson case, supra, and stating at page 508 of 263 N.W.:
“ * * * In that case we held that the ‘plaintiff was not required * * * to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury.’ ”
The principle that it is for the jury to determine whether or not the plaintiff exercised the standard of care required of him was recently reiterated by the Supreme Court of Iowa in Mundy v. Olds, 1961, 252 Iowa 888, 109 N.W.2d 241, 242:
“ * * * Whether or not appellee, in view of the conflict in the testimony, exercised due care under the circumstances for his personal safety, presents a question upon which reasonable minds might well differ. There is substantial proof in the record supporting each party in his contention. It was clearly a fact question for the jury and this Court on appeal will not reweigh the evidence and substitute its opinion for that of the jury. Schoonover v. Fleming, 239 Iowa 539, 32 N.W.2d 99; L. & W. Const. Co. v. Kinser, 251 Iowa 56, 99 N.W.2d 276.”
Defendants rely heavily on Denny v. Augustine, 1937, 223 Iowa 1202, 275 N.W. 117, and Fortman v. McBride, 1935, 220 Iowa 1003, 263 N.W. 345. Each is clearly distinguishable on the facts and is of no help to defendants herein. Other cases cited have been considered and found not to be applicable. We conclude that on defendants’ first point, a jury question as to contributory negligence was presented and that the trial court properly overruled the motion for a directed verdict and the motion for judgment n. o. v.
Defendants’ second point questions the propriety of allowing the jury to include in the verdict the amount of the plaintiff’s medical expense. In plaintiff’s complaint, he sought recovery for medical and hospital expense attributable to his injuries in the amount of $1,693.37. No particular point of the fact that the plaintiff was a minor was made in the defendants’ answer. After a pre-trial conference held on September 18, 1961, before the Honorable John W. Delehant, United States District Judge sitting by assignment, the following order was made:
“The admissions of fact or of documents which will avoid unnecessary proof:
“b) After discussion between counsel, counsel for the defendants agreed to waive the foundation for the introduction in evidence upon the trial of statements or bills for items of expense for which claim is made by the plaintiff but with the understanding that the defendants reserve the right to object to the admission of any such statement or bills in evidence on the ground of relevancy or materiality.”
On November 21, 1962, the attorneys for the parties reported to the court on what apparently was a “preliminary pre-trial conference”, in which they stated:
“11. The following medical and hospital bills have been identified in pencil as preliminary pre-trial exhibits :
“Preliminary Pre-Trial Exhibit Numbers
1. French’s Funeral Home, ambulance service .... $ 15.00
2. Smith Memorial Hospital, hospital expense 1,191.87
3. Garfield Miller, M. D., medical ............. 390.00
4. D. W. Wright, M. D. .. 10.00
5. E. R. S. Wyatt, medical 50.00
6. Kitchener-Waterloo Hospital ............ 44.00
“Defendants agree to waive the foundation for the introduction in evidence upon the trial of the above exhibits but with the understanding that the defendants reserve the right to object to the admission of any such exhibit on the ground of relevancy or materiality. Defendants agree that the amounts stated in the various exhibits above set forth are fair and reasonable values for the services for which the charges are made. The foregoing exhibits are retained in the file of the plaintiff’s attorney and will be produced upon pre-trial conference.
“29. The parties call the Court’s attention to the pre-trial conference report made by the Hon. John W. Delehant on September 18, 1961.”
On January 31, 1963, the Honorable Edward J. McManus, to whom the preliminary pre-trial conference report had been presented, made the following “Final Pre-Trial Order”:
“1. * * * It is further stipulated that as a result of injuries received in the collision, plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00 and that a person the age of plaintiff at the time of trial has a life expectancy of 50.37 years. It is further stipulated that plaintiff sustained hospital and doctor expenses in the sum of $191.87 as a result of mononucleosis, but the defendant objects to its causal connection with the collision.” (Emphasis supplied.)
On April 22, 1963, the day the case opened for trial before a jury, defendants’ counsel filed a motion to clarify the final pre-trial order entered January 31, 1963, supra. The motion was resisted by plaintiff’s counsel. Judge McManus overruled defendants’ motion, stating, inter alia:
“In view of the stipulation and the final pre-trial order of January 31, 1963, the Court is going to, and does, overrule the motion to clarify the final pre-trial order with the feeling that the interest of justice dictates the decision under the circumstances of the case.”
During trial and just before the plaintiff rested, plaintiff’s counsel, without objection by the defendants, read the following stipulation into the record before the jury:
“Mr. Melaas: The parties stipulate and agree that on August 14, 1960, at 12:30 Á.M., a collision occurred between an automobile being driven and operated by Cyril R. Figge and certain motor vehicle equipment with which the plaintiff was working, and that as a direct result of such collision plaintiff was injured. It is further agreed that at such time and place the Corvair automobile operated by Cyril R. Figge was owned by the Figge Auto Company, a partnership consisting of Cyril R. Figge and Gregg Figge as co-partners, and that at the time of the collision the defendant, Cyril R. Figge, who is now deceased, was driving the automobile with the consent of its owner.
“It is further stipulated — I should read about the medical.
“The Court: Now this paragraph of the stipulation covers the matters in your medical and hospital bills, Exhibits Q to U, inclusive, and this will be for the particular benefit of the jury as far as the totals involved are concerned.
“Mr. Melaas: It is further stipulated that as a result of the injuries received in the collision, plaintiff sustained damages for medical and hospital expense in the total sum of $1509.00, and that a person the age of the plaintiff at the time of trial has a life expectancy of 50.37 years.
“It is further stipulated that plaintiff sustained hospital and doctor expenses in the sum of $191.87 as a result of mononucleosis, but the defendants object to its causal connection with the collision. The Court has sustained defendants’ objection to the hospital and doctor expenses in the sum of $191.87 that are attributable to the mononucleosis. The Court has admitted into evidence the bills totalling $1509.00 for the medical and hospital expense as stipulated to by the parties.” (Emphasis supplied.)
In charging the jury, the trial court stated:
“Plaintiff alleges that by reason of his claimed injuries, proximately resulting from the accident involved in this case, he has sustained general damages in the sum of $75,000.00 and has lost an additional sum of $1,693.37 on account of medical and hospital expenses.”
No exception was taken to such charge. During their deliberations the jurors sent a note to the trial judge as follows:
“Does the amount to be placed on the face of the verdict include the medical expenses.
“Example: of his recovery at $40,000.00 or $41,509.00.
“This is just an example attach no significance to figures.
“Mr. A. P. DeLong, Foreman.”
The court gave the following supplemental instruction, to which no exception was taken:
“In answer to your request for supplemental instruction, you are instructed that the amount to be placed on the form of the verdict should include the medical expense, if the jury finds the plaintiff is entitled to recover.”
The verdict was for $22,509, obviously giving the plaintiff $1,509 medical expense incurred by reason of the accident and excluding the $191.87 medical ex-' pense attributed to mononucleosis, to which defendants had particularized objections while stipulating that “ * * * plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00.”
We think the following matters are supportive of our opinion that no error has been committed: (1) The failure of defendants’ counsel to object to the reading of the stipulation before the jury during the trial of the case; (2) the failure of defendants’ counsel to object to the court’s charge with reference to the medical expense; and (3) the failure of the defendants’ counsel to object to the supplemental instruction with reference to medical expense. Under Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., no party may assign as error -the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.
With reference to possible exceptions to the applicability of Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A., Vol. 2B, Barron and Holtzoff, Federal Practice and Procedure, 1961 edition, states at page 475:
“ * * * if there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.”
We do not consider this such a case but, rather, that if there was error at all, it was harmless error within the provisions of Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A.
Additionally, it should be pointed out that at the time of trial plaintiff was earning $67 a week as a technician for the Naugatauk Chemicals; that he was also operating the family farm; and that he was raising rabbits commercially. It may well be that he had himself paid the medical expenses or had promised to pay for them. Furthermore, under Section 599.2 of the Iowa Code Annotated there could well be a secondary liability on the plaintiff even though he was a minor at the time of trial. In any event, the stipulation entered into by the parties through their counsel to the effect that “ * * * plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00” (emphasis supplied) and their particularization in the stipulation with reference, to their objections to the $191.87 expense for mononucleosis because it was not connected with the accident, may-very well have led counsel into believing,, as we think it did, that no proof of payment or obligation to pay or further establishment of personal liability on the part of the plaintiff himself was necessary. For all of the reasons given, we believe that the inclusion in the general verdict of the stipulated $1,509 medical expense as damages sustained by the plaintiff “as a result of injuries received in the collision” was not error but was substantial justice.
Affirmed.
. Both plaintiff’s father and Cyril R. Figge, driver of the Figge car, became deceased subsequent to the accident and before trial in the Distinct Court. Neither death is connected with this accident.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
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 STATES of America, Plaintiff-Appellee, v. Laszlo SZABO, Defendant-Appellant.
No. 85-1686.
United States Court of Appeals, Tenth Circuit.
May 12, 1986.
Robert N. Miller, U.S. Atty., and Raymond P. Moore, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.
Richard W. Bryans, Denver, Colo., and Michael F. Morrissey, Denver, Colo., for defendant-appellant.
Before McKAY, ANDERSON and TA-CHA, Circuit Judges.
ANDERSON, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 10(e). The cause is therefore submitted without oral argument.
The defendant, Laszlo Szabo, appeals his conviction by a jury on one count of interstate transportation of falsely made checks, in violation of 18 U.S.C. § 2314 (1982), and one count of conspiracy to commit such offenses, in violation of 18 U.S.C. § 371 (1982). He contends his confrontation rights under the Sixth Amendment were violated when the trial judge allowed a coconspirator to give damaging testimony against the defendant at trial without first holding a hearing to determine if the anticipated testimony bore adequate “indicia of reliability.” We conclude that no error was committed, and affirm.
The disputed testimony in this case was given at trial by Burton Vishno, who admitted to involving the defendant in a scheme to negotiate bogus certified checks. Vish-no testified that he was introduced to the defendant in late 1982 while the latter was in New Haven, Connecticut. Among other things, the two of them discussed financing for a racetrack defendant wanted to establish in Colorado. Vishno told the defendant that he had a source who could provide falsely certified checks for fifty percent of the face value. Defendant requested such a check in the amount of $20,000 and asked that it be made payable to his company, Great American Financial, Inc. Thereafter, Vishno obtained the check from his source, “Tommy” Gamble, and delivered it to defendant at his office in Denver, Colorado, on January 10, 1983. Two days later defendant paid Vishno $6,000. By other testimony, it was established that defendant had deposited the $20,000 to his business account and made use of the funds.
Over the next two weeks, additional parties were introduced into the scheme by defendant. Daniel Powers, Glen Dial and Michael Allred, later charged as co-defendants, and Timothy Watts, (collectively referred to by defendant as his “wrecking crew,” R. Vol.IV, at 26), met with Vishno upon defendant’s initiative. The initial meetings of Dial and Watts with Vishno were in defendant’s presence. Vishno’s first contact with Powers was from a telephone in defendant’s office, in defendant’s presence, and at his instance. Vishno then testified to a number of subsequent meetings with the various individuals at which the unlawful scheme was discussed and substantially pursued. The defendant was present at some, but not all, of the meetings.
To facilitate the expected additional transactions, Vishno’s source, Gamble, and Gamble’s associate, Vincent Edo, came to Denver and established themselves at the hotel where Vishno was staying. At various times during this several day period, and upon the request of each recipient, falsely certified checks were obtained from Gamble by Vishno and delivered as follows: a check for $500,000 to Powers; a check for $300,000 to Allred and Dial; and three checks in the respective amounts of $100,-000, $100,000, and $50,000 to Watts.
Watts, Vishno, Gamble, and Edo then left town. They met again in Philadelphia approximately one week later to divide the proceeds of checks Watts had cashed in Baltimore, Maryland, and were arrested by the F.B.I.
After Vishno had testified to the foregoing, a bench conference was requested by the government. Here, the government advised that it intended to elicit some co-conspirator statements from Vishno for the first time. The court responded that it would receive such testimony conditionally and reserve ruling on admissibility under Fed.R.Evid. 801(d)(2)(E) until the close of the government’s case. Defendant was granted a continuing objection to the hearsay nature of the proposed coconspirator statements. Thereafter, the government elicited three brief instances of coconspirator statements which added some detail to the previous testimony of Vishno. The only reference made to the defendant in those statements was to identify him as being present during one of the conversations in question. It was established that the defendant was not present at another conversation which was described.
The coconspirator statements were fully received at the close of the government’s case after the court had heard testimony from P.B.I. agents and other witnesses, both corroborating Vishno’s testimony and independently establishing defendant’s unlawful activities. The court’s finding of admissibility under Fed.R.Evid. 801(d)(2)(E) (inclusive of the necessary quantum of proof, and the following required elements: independent evidence, membership, during the course, and in furtherance of the conspiracy) is clearly supported by the record. It is not an issue on this appeal. See United States v. Pilling, 721 F.2d 286 (10th Cir.1983); United States v. Du-Friend, 691 F.2d 948 (10th Cir.1982), cert. denied, 459 U.S. 1173, 103 S.Ct. 820, 74 L.Ed.2d 1017 (1983); United States v. Petersen, 611 F.2d 1313 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2986, 64 L.Ed.2d 854 (1980). In fact, much of what defendant argues on appeal is based on his premise that the Rule does apply.
Anticipating the damaging nature of Vishno’s testimony, defendant’s counsel filed a motion in limine prior to trial asking that the court:
[Determine that the witness Vishno’s, (sic) statements are crucial and devastating, and whether or not there are any particularized guarantees of trustworthiness. In the event the government fails to demonstrate both of the above and foregoing, the statements be held inad-missable at the trial of the defendant Szabo.
R. Vol. I, at 12. The grounds stated in support of the requested relief were:
“1. That the witness Vishno’s, testimony against the defendant Szabo, spoken as a co-conspirator, was both crucial and devastating to the defendant, Szabo.
“2. Albeit the government may have established a conspiracy which the defendant does not confess, there was insufficient showing, in fact no showing, of any guarantees of trustworthiness as required by law and F.R.E. Rule 801(b)(2)(e) (sic).
“3. That the witness Vishnó, is a convicted felon who has, through arrangements made with the government, avoided trial of at least two additional felonies and is currently awaiting sentence.
“4. That the statements of the witness Vishno, have no indicia of reliability and do not provide the functional equivalent of cross-examination.
“5. That the government must be required to demonstrate why the witness Vishno’s, statement has any particularized guarantee of trustworthiness.”
R. Vol. I, at 11.
In arguing his motion to the trial judge, counsel for the defendant summed up his position as follows:
So, that is the purpose of this. Primarily, we feel that Vishno’s testimony, merely because it comes in under the Rule, is not trustworthy, and the trustworthiness is one of the prongs that is set forth in citations (sic) of authorities that must be met.
R. Vol. IV, at 3.
The motion in limine was denied. Even assuming a Sixth Amendment issue was raised in that motion, defense counsel made no further objection at any time during trial on stated constitutional grounds. “Ordinarily, a confrontation clause objection cannot be raised on appeal unless it was also raised sometime during the trial court proceedings.” United States v. Roberts, 583 F.2d 1173, 1175 (10th Cir.1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 49 (1979) (citing Nolan v. United States, 423 F.2d 1031, 1041 (10th Cir.1969), cert. denied, 400 U.S. 848, 91 S.Ct. 47, 27 L.Ed.2d 85 (1970)). The government has argued defendant’s lack of proper and timely objection below (Brief of Appellee at 11). However, in view of the fact that a violation of an important constitutional right is alleged, and that the constitutional issue was at least arguably raised at one time during the proceedings below, by way of the motion in limine, we elect to exercise our discretion in favor of review.
Because defendant’s arguments reflect a lack of clarity on the point, we note at the outset that the bulk of Vishno’s testimony was admissible without regard to the hearsay rules and satisfied beyond question defendant’s Sixth Amendment right of confrontation. That testimony consisted of Vishno’s own statements made while testifying at trial subject to cross-examination by the defendant. As we pointed out in United States v. Smith, 692 F.2d 693, 697-98 (10th Cir.1982):
Rule 801(d)(2)(E) and the cases construing it are irrelevant to the direct testimony of a coconspirator. By definition, hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Fed.R.Evid. 801(c) (emphasis added.) There is absolutely no need to fit [the witness’] in-court statements into the coconspirator provision of Rule 801(d)(2)(E). See Laughlin v. United States, 385 F.2d 287, 292 (D.C.Cir.1967) (rule requiring independent evidence of a conspiracy before admitting coconspirator out-of-court statements ‘does not exclude proof of a conspiracy by the direct testimony under oath of a party to it’), cert. denied, 390 U.S. 1003, 88 Sup.Ct. 1245, 20 L.Ed.2d 103 (1968).
(Emphasis in the original.) There is no constitutional requirement that such testimony be examined for trustworthiness before being placed before the jury. Rather, the Confrontation Clause, in its optimum application, envisions:
[A] personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895), cited in Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38, 65 L.Ed.2d 597 (1980).
Most of the other parts of Vishno’s disputed testimony were also admissible without regard to the hearsay exemption of Fed.R.Evid. 801(d)(2)(E), and without implicating the Confrontation Clause. For example, coconspirator statements of Watts to the effect that he had excellent banking relationships in the Cayman Islands and in Hong Kong, and similar declarations, would be admissible not to prove the truth of the matters asserted, but as “background for the conspiracy or to explain the significance of certain events.” Inadi, — U.S. -, 106 S.Ct. 1121, 1128 n. 11, 89 L.Ed.2d 390 (1986); see also United States v. Green, 600 F.2d 154 (8th Cir.1979). “Admission of non-hearsay ‘raises no confrontation clause concerns.’ Tennessee v. Street, — U.S. -, 105 S.Ct. 2078 [85 L.Ed.2d 425] (1985). Cross-examination regarding such statements would contribute nothing to Confrontation Clause interests.” Inadi, — U.S.-, 106 S.Ct. 1121, 1128, n. 11, 89 L.Ed.2d 390 (1986). Commenting on the admissibility of testimony similar to that given by Vishno in this case, the United States Supreme Court in Dutton v. Evans, 400 U.S. 74, 88, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970), stated:
Neither a hearsay nor a confrontation question would arise had [the witness’] testimony been used to prove merely that the statement had been made. The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements.
Additionally, defendant’s own declarations recounted by Vishno obviously raised no Confrontation Clause issue since defendant was able to “confront” his own alleged statements when he took the witness stand, by admitting, explaining or denying them.
We consider the few brief coconspirator statements admitted under Fed.R.Evid. 801(d)(2)(E), and defendant’s claims of Confrontation Clause infringement, within the context of settled law in this circuit. In United States v. Roberts, 583 F.2d at 1176, we referred to the established general principle that the Confrontation Clause and the hearsay rules do not perfectly overlap. We adopted the view that declarations admitted under the coconspirator exemption do not automatically satisfy the Sixth Amendment. We stated:
“In the case of a coconspirator’s extrajudicial declarations, Sixth Amendment compliance is tested on a case by case basis by examining all the circumstances to determine whether ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936; see Dutton v. Evans, 400 U.S. at 89, 91 S.Ct. 210 [at 219]; United States v. King, 552 F.2d 833, 845 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977); United States v. Rogers, 549 F.2d 490, 500 (8th Cir.) cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1976).
“Numerous factors may be relevant in applying this test. These include: (1) what opportunity the jury had to evaluate the credibility of the declarant, (2) whether the statements were crucial to the government’s case or devastating to the defense, (3) the declarant’s knowledge of the identities and roles of the other coconspirators, (4) whether the extrajudicial statements might be founded on faulty recollection, (5) whether the circumstances under which the statements were made provide reason to believe the declarant misrepresented defendant’s involvement in the crime, (6) whether the statements were ambiguous, (7) what limiting jury instructions, if any, were given, (8) whether prosecutorial misconduct was present, etc. See Dutton v. Evans, 400 U.S. at 88-89, 91 S.Ct. 210 [at 219]; United States v. Rogers, 549 F.2d at 501; United States v. Kelley, 526 F.2d 615, 621 (8th Cir.1975), cert. denied, 424 U.S. 971, 96 S.Ct. 1471, 47 L.Ed.2d 739 (1976); United States v. Snow, 521 F.2d 730, 734 (9th Cir.1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883, 47 L.Ed.2d 101 (1976); United States v. Baxter, 492 F.2d at 177....”
Id. at 1176; see also United States v. Alfonso, 738 F.2d 369, 372 (10th Cir.1984).
We reaffirm those views, including the implicit holding that while constitutional reliability exists as a substantive consideration, constitutional procedures for determining reliability do not. The latter point brings us to defendant’s central argument. Defendant contends that constitutional error was committed when the district court refused “to conduct a hearing on the trustworthiness of the testimony and oral statements of the unindicted coconspirator Burton L. Vishno.” (Appellant’s Opening Brief at 2). Defendant shows us no authority. We know of none, which imposes a constitutional requirement upon the trial court to hold a separate hearing, or even to make separate findings, on the subject of reliability. In that regard, defendant has simply confused procedure with substance.
Further analysis of defendant’s appeal discloses yet another fundamental error. Constitutional reliability inquiries in cocon-spirator cases focus on the out-of-court de-clarant and that declarant’s statements. Defendant’s focus in this case has from the beginning been on Vishno, the in-court de-clarant. He argues that Vishno’s testimony was not trustworthy because he was a convicted felon testifying pursuant to a plea bargain agreement. Defendant has at no time contended that the coconspirator statements themselves, as attributed to the out-of-court declarants Dial, Watts, and Powers, were unreliable on any of the grounds listed by this court in Roberts, or by the Supreme Court in Dutton, or that those declarants were unreliable. The stated ground for a Confrontation Clause violation is that Vishno was unreliable. In Dut-ton, a witness, Shaw, testified in court about what a fellow prisoner had told him concerning the defendant, Evans. The Court found no Confrontation Clause violation because the statements themselves bore indicia of reliability. As to the testifying witness and his role in relating the out-of-court declaration, the Court observed that “the witness was vigorously and effectively cross-examined by defense counsel” Dutton, 400 U.S. at 87, 91 S.Ct. at 219, and:
“From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only to what he has seen but also as to what he has heard.
$ $ * # $ *
“Evans exercised, and exercised effectively, his right to confrontation on the factual question whether Shaw had actually heard Williams make the statement Shaw related. And the possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal.”
Id. at 88-89, 91 S.Ct. at 219.
Finally, though not urged by the defendant to do so, we examine the virtually invisible coconspirator statements, which form the minute residue of this inquiry, for indicia of reliability, including whether or not they were crucial or devastating. See Dutton, 400 U.S. at 74, 91 S.Ct. at 210; United States v. Roberts, 583 F.2d at 1176. Vishno related a few statements by Powers regarding a technique he proposed for moving his checks, R. Vol. IV, at 49-50; and, perhaps, a few other comments by Dial and Watts which could fit within this category. None of the testimony directly involved the defendant, made accusations against him, or attributed purported admissions or incriminating statements to him.
No extended discussion of the coconspir-ator testimony is necessary. It obviously was not crucial to the government’s case against the defendant or devastating to the defense. Other testimony, including defendant’s own admissions to F.B.I. Agent John Larsen, who testified at trial, and copies of the bad checks, abundantly established the defendant’s involvement in the scheme and his knowledge of the identities of the coconspirators, as well as their active participation. The statements involved no possibility of faulty recollection by the out-of-court declarant, recitation of past events, ambiguity, or misrepresentation as to the defendant’s involvement in the crime. The trial judge specifically cautioned the jury, both during the trial and in his instructions, about the trustworthiness of Vishno’s testimony. Moreover, no pros-ecutorial misconduct is alleged. Clearly, “the trier of fact had á satisfactory basis for evaluating the truth of the prior statement.” California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970). Having gone through the foregoing exercise, we now observe that this is one of those cases where the correct determination of admissibility under Fed.R.Evid. 801(d)(2)(E) carried within it a full overlap of Sixth Amendment Protection.
Affirmed.
. Defendant's statement of the question presented for review is as follows:
The question presented is, whether statements that satisfy Federal Rules of Evidence 801(d)(2)(E), which provides for the admissibility of statements of co-conspirators necessarily satisfies the requirement of the confrontation clause of the Constitution of the United States.
Brief of Appellant at 1. Defense counsel objected to coconspirator statements at trial on the ground that the evidence did not show a conspiracy had been established, R. Vol. IV, at 45; R. Vol. V, at 109-111; but, as just indicated, he has abandoned that position.
. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 heavily relied upon by the defendant, was further explained, and confined to its facts by the Supreme Court in its recent decision in United States v. Inadi, — U.S.-, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).
. Likewise, the statement attributed to Dial that he "could put some people together to move checks," R. Vol. IV, at 48; and Watts’ alleged statements about his ability to move checks, and his need for money to put the plan “in shape,” id. at 48; and alleged statements by Powers that "the F.B.I. was all over his lawyer’s office [and that] [t]hey wanted him for questioning," R. Vol. V, at 31, were all admissible for purposes other than to prove the truth of the matters stated.
. The circuits are divided on this point, a circumstance commented upon by Justice Marshall in his dissent in Inadi, 106 S.Ct. 1121 (1986). See Weinstein & Berger, Weinstein’s Evidence, Vol. 4, ¶ 801(d)(2)(E) [01], at 801-255. However, even in some circuits which reject the view that admissibility under Fed.R.Evid. 801(d)(2)(E) automatically satisfies the Confrontation Clause, it is stated that there is no violation "absent unusual circumstances.” United States v. DeLuna, 763 F.2d 897, 910 (8th Cir.), cert. denied sub nom, — U.S.-, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985). Likewise, the "case by case” review of Sixth Amendment compliance in this circuit is not meant to imply that constitutional admissibility of extrajudicial statements, and admissibility under the federal coconspirator rule of evidence involve entirely separate inquiries. To the contrary, the exacting procedure and findings necessary for evidentiary compliance contain within them much, and frequently all, the safeguards required by the Confrontation Clause.
. Refusal to "conduct an in camera hearing concerning the second prong of the test mentioned in Ohio v. Roberts....constitutes error on the part of the trial court.” (Appellant’s Opening Brief at 5).
. The only case cited by the defendant in support of the procedural argument that a determination on reliability must be made initially by the court "as a matter of law” (Appellant’s Brief at 8) dealt solely with procedures for determining admissibility under the hearsay rule. Carbo v. United States, 314 F.2d 718 (9th Cir.1963), cert. denied, sub nom, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964).
. See, e.g., United States v. Green, 600 F.2d at 158: “We reject appellants’ claim that an on-the-record finding of compliance with the Confrontation Clause must be made at the time of trial.” Even the most enthusiastic advocates of strict guarantees of reliability have acknowledged that "the kinds and the quantity of guarantees that will suffice are questions left to the laboratory of the lower courts.” Hinde, Federal Rule of Evidence 801(d)(2)(E) and the Confrontation Clause: Closing the Window of Admissibility for Coconspirator Hearsay, 53 Fordham L.Rev. 1291, 1308 (1985).
. See defendant’s Motion in Limine, and associated arguments to the trial court (page 1486, supra).
. The search for "indicia of reliability” does not consist of a checklist of fixed tests applicable as a matter of necessity to each case. As we stated in United States v. Roberts, 583 F.2d at 1176, "[njumerous factors may be relevant." The search for whether "the trier of fact had a satisfactory basis for evaluating the truth of the prior statement," California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936, will involve different considerations depending upon the case. Examples of significantly different fact situations include: prior cross-examined testimony given under oath, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597; tape recorded conversations, Inadi, — U.S. -, 106 S.Ct. 1121, 89 L.Ed.2d 390; and in-court testimony attributing oral statements to an out-of-court declarant, Dutton, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213. Moreover, the availability to the defendant of compulsory process by which out-of-court declarants may be brought to court for cross-examination, provides further protection against unreliable statements. Although reserving questions of reliability, the Supreme Court’s general comments in Inadi with respect to compulsory process emphasize its importance to defendants for guarantees of reliability since "availability," which is the question addressed in that case, is important only because of considerations of reliability.
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AUTOMOTIVE LODGE LOCAL 777 and District No. 9, International Association of Machinists, AFL-CIO.
No. 16459.
United States Court of Appeals Eighth Circuit.
April 22, 1960.
Thomas J. McDermott, Assoc. Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., for petitioner.
PER CURIAM.
Order of National Labor Relations Board enforced, on petition for enforcement and stipulation filed with Board.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_habeas | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Nathaniel J. JACOBS, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
No. 9564.
United States Court of Appeals Fourth Circuit.
Argued April 6, 1965.
Decided Oct. 7, 1966.
John H. Ditto, Jr., Baltimore, Md. (Court-assigned counsel), for appellant.
R. Randolph Victor, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.
HAYNSWORTH, Chief Judge.
Convicted on a plea of guilty to a charge of armed robbery in a state court, this Maryland prisoner seeks habeas corpus relief upon the ground that his plea was involuntary. The contention depends in large part upon a finding of involuntariness in the confession of a co-defendant which supplied the cause for the arrest, without a warrant, of this appellant, which in turn, it is said, led to his almost spontaneous confession. We affirm the denial of relief.
Jacobs, an employee of a department store, had been filching clothing. Allegedly, he expanded his operation by masterminding an armed robbery. The store was robbed by three men. When one of them, Kelly, was arrested, he signed a confession which, implicated Jacobs as the ringleader. Armed with this information, police officers went to the store and arrested Jacobs. In the presence of the store manager, he did not deny the charge, and, within twenty-five minutes of his arrival at the police station, he admitted his guilt. A few minutes later, he signed a written confession. Later, all participants initialed a joint confession.
Kelly had been arrested without a warrant on the basis of information received from two informants. • The police had not recorded the information they had received and, at the time of the hearing, could not identify the informants beyond general references to their sex. The officers could not vouch for the reliability of those informants.
On that account, the District Court held that there was no probable cause for Kelly’s arrest and that his subsequent confession was the involuntary product of the illegal arrest, though otherwise uncoerced.
Jacobs contends that, since Kelly’s confession has been held involuntary as the technical product of his illegal arrest, it could not furnish probable cause for a belief that Jacobs was a participant in the crime which the officer knew had been committed. He concludes that his arrest must also have been unlawful and his confession the product of the unlawful arrest.
The contention draws the thread too fine. The connection between Kelly’s illegal arrest and his confession is sufficiently close that the latter may be said to be dependent upon the former. The connection between Kelly’s illegal arrest and Jacobs’ confession is far more attenuated. The fruit-of-the-poisonous-tree doctrine need not be extended to its seedlings.
The District Court found, with abundant justification that Kelly’s confession was truthful and trustworthy. Its invalidation as a basis for Kelly’s conviction, because of the technical defect in Kelly’s arrest, was not found to have infected its apparent reliability. At the time the policemen moved to effect the arrest of Jacobs, they had every reason to believe that Kelly’s confession in its implication of Jacobs was reliable information. Its subsequent suppression as support for Kelly’s conviction because of uncertainty of the sources of information which led to Kelly’s arrest cannot gainsay its reliability, apparent at the time to the officers, which all subsequent events have confirmed. An arrest of one of multiple offenders upon improbable cause, or upon cause which years after the event cannot be documented, may invoke rules of exclusion for the protection of the victim of the illegal arrest, but it does not deprive the victim’s statement of the inherent and apparent reliability it convincingly and undeniably bore then and now.
There is no greater merit in the alternative contention that the confession was the tainted product of Kelly’s.
The victim of an unlawful seizure may be able to object successfully to the use of his confession, when the confession is the direct result of confrontation with the fruits of the seizure. Similarly, the victim of an unlawful search cannot be compelled to produce evidence upon process dependent upon information obtained in the course of the search. In some instances, such a rule may be the only effective sanction against an unlawful search and seizure, and a refusal to apply it may deprive the prohibition of its substance.
That rule, however, has been applied only to the protection of the victim of the search from its immediate, if collateral, consequences. Its purpose is to restore the victim to the position he would have been in had his right to be secure from an unlawful search been observed. It has never been extended to cloak strangers to the unlawful search with absolute or conditional immunities.
The District Court, here, applied a similar rule to redress the wrong done Kelly when he was arrested without probable cause. Refusal to permit use of Kelly’s confession against him, however, is an entirely sufficient recompense. The protection of Kelly’s right does not require that others, who have suffered no deprivation of their rights, be made the beneficiaries of the exclusionary rule.
Again, Kelly’s confession had all of the hallmarks of trustworthiness. If now it must be held unusable against Kelly because the police, who kept no records to prod their memories after the lapse of time, are now unable to identify their informants and justify Kelly’s arrest, there was no unfairness of constitutional proportion in confronting Jacobs with the information Kelly had furnished the police.
Jacobs does not show that his own confession was involuntary by establishing its responsiveness to word of Kelly’s.
In the District Court, on the habeashearing, Jacobs claimed other coercive practices. The District Court did not believe his testimony. It found that he was not refused permission to telephone a lawyer. He was not denied access to a telephone. He did call his wife. No pressure was brought upon him. A rather equivocal admission of guilt was made upon his arrest in the store; a full confession had been made and completed within half an hour after his arrival at the police station.
The District Court’s finding that the confession was voluntary is abundantly supported by the record. This 1961 case is not subject to Escobedo’s or Miranda’s standards.
Affirmed.
. The District Court treated Kelly’s and Jacobs’ cases in one opinion. Kelly v. Warden, D.C., Md., 230 F.Supp. 551.
. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
. Cf. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.
. Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.
. Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L. Ed. 319.
. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694.
. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer: |
songer_applfrom | L | 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).
KROPP FORGE COMPANY, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents.
No. 80-2160.
United States Court of Appeals, Seventh Circuit.
Argued April 13, 1981.
Decided Aug. 14, 1981.
Robert D. Moran, Washington, D. C., for petitioner.
John A. Bryson, Acting Sol. of Labor, U. S. Dept, of Labor, Washington, D. C., for respondents.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and JAMESON, Senior District Judge.
The Honorable William J. Jameson, Senior District Judge of the District of Montana, is sitting by designation.
CUMMINGS, Chief Judge.
Kropp Forge Company has filed a petition to review an order of the Occupational Safety and Health Review Commission holding that Kropp violated 29 U.S.C. § 654(a)(2) because of noncompliance with an occupational safety and health standard, codified at 29 C.F.R. § 1910.95(b)(3), that provides in full:
“In all cases where the sound levels exceed the values shown herein, a continuing effective hearing conservation program shall be administered.”
The citation against Kropp charged, and after a hearing the Administrative Law Judge (AU) found that noise levels generated by forging hammers at Kropp’s Chicago steel forging plant continuously exceeded 90 decibels and that Kropp’s hearing conservation program lacked six elements necessary to constitute an effective program as required by the above-quoted standard. The AU further found that the violation was “willful-serious” as charged and assessed a penalty of $5000. The Commission declined Kropp’s petition for discretionary review so that the ALJ’s July 2, 1980, opinion became the final order of the Commission on August 7, 1980, pursuant to 29 U.S.C. § 661(i). We conclude that the standard under which Kropp was cited is unenforceably vague and therefore reverse.
As a preliminary matter, we reject Kropp’s contention that all evidence gathered during two December 1978 Occupational Safety and Health Administration (OSHA) inspections should have been suppressed on the ground that it was obtained pursuant to a warrantless search in violation of the Fourth Amendment. Kropp concedes that it granted OSHA permission to enter its premises on these occasions to verify an employee complaint, unrelated to the present charges, concerning excessive exposure to carbon monoxide fumes from fork-lift trucks. At the time of her first visit to the plant, on December 5, 1978, the OSHA compliance officer stated that her inspection would not go beyond the area of the complaint, i. e., the plant’s “KFA Building” where the fork-lift trucks were located. However, after making an initial walk around the building, the compliance officer determined that sampling of noise levels generated by forging hammers located in the KFA Building was also required. Accordingly, the inspection was continued on December 13 and 19, at which times sampling for both carbon monoxide and noise levels was conducted. Kropp argues that its consent was limited specifically to the carbon monoxide investigation so that the noise level samples were taken unlawfully.
The record shows, however, that at all times on December 13, the compliance officer was accompanied by Kropp’s Safety Director and that on December 19, she and a second compliance officer were accompanied by the Safety Director and Kropp’s General Manager. Both men had been informed that noise sampling would be conducted, and they raised no objections to the approximately five hours of sampling conducted on each day. Moreover, the Safety Director requested and received the results from the noise sampling taken on both days. While it is true that Kropp refused entry to a compliance officer seeking to continue the noise inspection in January 1979, the only surveys attacked by Kropp are those that took place on December 13 and 19. Since Kropp’s representatives were present at all times during those inspections and did not raise any objections when informed of the intended sampling, any Fourth Amendment objection to those surveys was waived. Marshall v. Western Waterproofing Co., Inc., 560 F.2d 947, 950-951 (8th Cir. 1977); Dorey Electric Co. v. OSHRC, 553 F.2d 357, 358 (4th Cir. 1977).
Kropp next argues that the standard which it is said to have violated does not provide “fair warning” of what is required or prohibited and is therefore unenforceably vague under United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, and its progeny. We agree. The rationale of Cohen Grocery has been applied in a number of decisions under the Occupational Safety and Health Act. In Dravo Corporation v. OSAHRC, 613 F.2d 1227, 1234 (3d Cir. 1980), for example, an employer was held not to be subject to sanctions for non-compliance with safety standards “without adequate notice in the regulations of the exact contours of his responsibility.” The court applied the traditional rule that the applicability of penal sanctions in regulations is to be narrowly construed by the judiciary and stated that OSHA regulations must “be written in clear and concise language so that employers will be better able to understand and apply them,” quoting from Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 650 (5th Cir. 1976). See also Bethlehem Steel Corporation v. OSAHRC, 573 F.2d 157, 161-162 (3d Cir. 1978); 4 Davis, Administrative Law Treatise § 301.2. The regulation in issue here, providing only that “a continuing effective hearing conservation program shall be administered,” misses the mark considerably.
Kropp, as noted, was cited for non-compliance because its program lacked the following six elements:
1. Annual audiometric tests.
2. Referral of employees to a physician.
3. Re-tests of employees with significant threshold shifts.
4. Selection and use of hearing protection.
5. Training in use of hearing protectors.
6. Enforcement of proper wearing of hearing protectors.
However, the standard does not give any warning to employers that their conservation programs must contain these six elements. Indeed, in proposing a change in the standard in 1974, the Secretary of Labor stated:
“The current standard * * * does not explicitly require monitoring of the sound level of the employee’s surroundings nor measurement of the individual employee’s resulting exposure” (39 Fed.Reg. 37,-774 (1974)).
Also a 1972 document that the Labor Department published as “A Guide to OSHA Standards,” notes that “[s]ince audiometric tests are not specifically mentioned in the regulations, they are not specifically required” (App. 136). That publication defined “hearing conservation program” in the regulatory standard as referring to “audiometry — periodic checks on the hearing ability of individual employees — and to noise surveys — periodic checks of the noise level in the area in which employees are working” (Idem.). This official definition, which was satisfied by Kropp, does not contain the six elements Kropp was cited as failing to provide. Similarly, an OSHA Field Information Memorandum in 1974 provided that OSHA’s official policy was “not requiring] audiometrie testing” (App. 161; emphasis in original), again contradicting the present citation.
Even the compliance officer who conducted the December 1978 inspections of Kropp’s plant testified that the six elements listed in the citation were not required by the then controlling regulation (App. 165-166) nor thought by her to be included in the standard (Tr. 490), and had not been included in a Field Operations Manual until April 20, 1979 (App. 40, 64), whereas the alleged violations here occurred in December 1978. Furthermore, on January 16, 1981, too late for this case, OSHA removed the one-sentence standard at issue in this case and replaced it with a new regulation which, like the 1974 proposal, contains all six elements listed on the citation at issue in this case (46 Fed.Reg. 4162-4164), thus acknowledging that these elements were not previously included in the standard before us.
Finally, it is noteworthy that in Secretary of Labor v. B. W. Harrison Lumber Company, 4 BNA OSHC 1091 (1976), an Administrative Law Judge held that 29 C.F.R. § 1910.95(b)(3), the regulation involved here, was unenforceably vague. His vacation of the OSHA noise citation was affirmed by the Commission by a 2 — 1 vote. One of the two majority members affirmed the ALJ on the vagueness ground, whereas the other majority member affirmed the disposition because the citation did not conform to the statutory criteria. Although the Fifth Circuit affirmed the Commission because of the invalidity of the citation, the 1978 opinion of the court held that the citation reference to 29 C.F.R. § 1910.-95(b)(3) was deficient because it merely parroted the words in the regulation that the employer failed to provide “a continuing effective hearing conservation program” and did not inform the employer of what was charged. 569 F.2d 1303, 1309. After this 1978 opinion of Judge Godbold, the Secretary had ample opportunity to amend the regulation, so that it would give proper notice to an employer and finally did so in January 1981. More recently, in Secretary of Labor v. Kraft Food, Inc., 9 BNA OSHC 2040 (March 17, 1981), an ALJ again found 29 C.F.R. § 1910.95(b)(3) unenforceably vague. This decision, in direct conflict with the result in this case, became a final order of the Commission on May 18, 1981.
The ALJ rejected Kropp’s vagueness argument because
“The standard does not involve criminal or First Amendment activity and if the regulation affords reasonable warning of the proscribed conduct in light of common understanding, it is not constitutionally vague” (App. 5).
His decision is erroneous because the pertinent parts of the OSH Act and regulations do impose “penal sanctions,” and the regulation in issue does not give reasonable notice of the conduct said to be prohibited “in light of the common understanding.” Indeed, the ALJ himself acknowledged that the six elements of the hearing conservation program upon which this citation is based were not shown to be the custom and practice in the forging industry, and there was in fact no evidence of the “common understanding.”
As in In the Matter of: Establishment Inspection of: Metro-East Manufacturing Company, 655 F.2d 805, 810-812 (7th Cir. 1981), involving a similar OSHA regulation, we find the regulation under which Kropp was charged to be unconstitutionally vague. Therefore, it is unnecessary to consider Kropp’s other arguments as to why the Commission’s order was defective. The order appealed from is reversed.
. 29 U.S.C. § 654(a)(2) provides as follows:
“(a) Each employer— * * * * * *
“(2) shall comply with safety and health standards promulgated under this Act.” Kropp had also been charged with violations of 29 U.S.C. §§ 666(a) and (b) through violations of 29 C.F.R. § 1910.95(b)(1) and 29 C.F.R. § 1910.1001(f)(1). The first of these citations was withdrawn by the Secretary, and the second was vacated by the Administrative Law Judge (App. 16). The petition for review challenged only the Commission’s decision that Kropp had violated 29 U.S.C. § 654(a)(2) by not complying with 29 C.F.R. § 1910.95(b)(3).
. The reference is to Table G-16 of 29 C.F.R. § 1910.95 which permits a level of 90 decibels of noise when averaged over an 8-hour work day with higher levels permitted for lesser periods of time.
. The six elements listed in the citation were:
(a) Regular, annual audiometric tests of employees exposed to sound levels in excess of Table G-16;
(b) Employees with a 20 db or greater hearing loss, at any frequency, must be referred to an otolaryngologist or qualified physician;
(c) Re-tests must be conducted of employees whose audiograms are considered unreliable or who show significant threshold shifts of 20 db or more at any frequency;
(d) Appropriate and adequate hearing protection, as required by 29 C.F.R. § 1910.95(a), must be selected or used based on the noise spectrum present in a working environment in which the sound levels exceed Table G-16;
(e) Employees exposed to sound levels exceeding Table G-16 must be trained in the proper use and care of hearing protection;
(f) The employer must enforce the use of proper wearing of hearing protection for those employees who are exposed to sound levels exceeding Table G-16.
. The noise level samples were obtained by placing audio dosimeters on the hammermen, helpers and other KFA Building employees, who wore the devices while they performed their duties. Sound level meter readings were also taken at the employees’ ear levels to confirm the accuracy of the dosimeter readings. The samples showed that noise levels were at all times above 90 decibels.
. Although Kropp moved to suppress all evidence gathered during the December 5, 1978, through May 21, 1979, OSHA investigation of its premises, the Fourth Amendment objection now pressed concerns only evidence gathered during the December 13 and 19 inspections. Kropp did not move to suppress the results of the January 8-9, 1979, inspections showing that noise levels remained in excess of 90 decibels.
. See also American Textile Manufacturers Institute, Inc. v. Donovan, — U.S. —, —, 101 S.Ct. 2478, 2505-06, 69 L.Ed.2d 185, where the Supreme Court struck down the wage guarantee provision in OSHA’s cotton dust standard partly because, as here, post-hoc rationalizations of the agency “cannot serve as a sufficient predicate for agency action.”
. The Secretary, of course, knew how to promulgate a proper regulation before then, as shown by his detailed 1976 standard for employee exposure to coke oven emissions. American Iron & Steel Institute v. OSHA, 577 F.2d 825, 827 (3d Cir. 1978). If such a technique had been employed in promulgating this sound level regulation, no fatal vagueness problem would have occurred.
. The ALJ also relied on the fact that the regulation in dispute had been upheld by an ALJ in a prior OSHA case. See Secretary of Labor v. Boise Cascade Corp., 5 OSHC 1242, 1977-78 OSHD para. 21,714 (1977), appeal filed, No. 77-2201 (9th Cir. May 31, 1977), appeal vacated (9th Cir. September 27, 1979). But see Secretary of Labor v. B. W. Harrison Lumber Company, supra, and Secretary of Labor v. Kraft Food, Inc., supra, with which we agree.
. Dravo Corporation, supra, 613 F.2d at 1232; see also Hoffman Construction Co. v. OSAHRC, 546 F.2d 281, 283 (9th Cir. 1976); Diamond Roofing Co. v. OSAHRC, supra, 528 F.2d at 649; Marshall v. Anaconda Company, 596 F.2d 370 (9th Cir. 1979); Continental Can Co., U.S.A. v. Marshall, 455 F.Supp. 1015, 1020 n.4 (S.D.Ill.1978), affirmed, 603 F.2d 590 (7th Cir. 1979).
. Since the record below contains no evidence as to the common understanding and practice of those working in the forging industry and even the ALJ concedes that the six-part hearing conservation program for which Kropp was cited was not the common practice in the forging industry, the Secretary’s reliance on our decision in Allis-Chalmers v. OSHRC, 542 F.2d 27 (7th Cir. 1976), is misguided. See Cotter & Company v. OSAHRC, 598 F.2d 911 (5th Cir. 1979). As noted both in Dravo Corporation, supra, and Diamond Roofing, supra, when a regulation fails in its purpose because of vagueness the Secretary should remedy the situation by promulgating a clearer regulation, as he finally did this year, rather than forcing the judiciary to press to the limits by judicial construction.
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.
W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. George TURNER, Defendant-Appellee.
No. 14311.
United States Court of Appeals Seventh Circuit.
April 7, 1964.
Charles Donahue, Sol., U. S. Dept. of Labor, Washington, D. C., Herman Grant, Regional Atty., U. S. Dept. of Labor, Chicago, Ill., Bessie Margolin, Associate Sol., Robert E. Nagle, Jack H. Weiner, Attys., U. S. Dept. of Labor, Washington, D. C., for appellant.
Burl F. Nader, Libertyville, Ill., for appellee.
Before DUFFY, CASTLE and SWYGERT, Circuit Judges.
DUFFY, Circuit Judge.
This suit was brought by the Secretary of Labor under Section 16(c) of the Fair Labor Standards Act, pursuant to the written request of Martin Halma, a former employee of defendant. The suit sought to recover $488.20 in unpaid overtime compensation.
At the close of plaintiff’s case, the District Court granted the motion of the defendant for a directed verdict. In explanation of such action, the Court said: “In the light of that record, with the beneficial plaintiff saying on one oecasion that everything was square and then two months later making a claim, and then at the trial saying he doesn’t know how much is owing, I feel that you would be unable to go into the jury room and arrive at any amount. * * * ”
f Previously the Court had asked Mr. Halma several questions:
“The Court: How much money do you say now that Mr. Turner owes you?
“The Witness: What the letter said, your Honor.
“The Court: I say — read the question to the witness.
“(Question read by the reporter.)
“The Witness: I do not know.
“The Court: You don’t know how much money you have coming. That is all. You may step down.”
Defendant is a contract mail carrier for the United States Postoffice Department. During the period covered by this action, April 1, 1960 to July 15, 1961, he employed complainant Halma principally on a regularly scheduled route between McHenry, Illinois and Chicago. At first, Halma was paid a straight weekly salary. Statutory overtime wages were not paid to him for hours worked in excess of forty hours a week until after the period covered by this action.
The evidence presented by the Secretary to establish the number of hours work done by claimant showed that during the period April 1, 1960 to October 28, 1960, the schedule for the ChicagoMcHenry route called for departure from the McHenry postofiice at 6:40 p. m. and arrival at Chicago Suburban Truck Terminal at 9:30 p. m., with intermediate stops being made on the way. This was followed by a return trip leaving Chicago at 2 a. m. and arriving at McHenry at 5 a. m. This schedule was followed daily except Sundays and some holidays.
In following this schedule, claimant testified he would begin his work day with arrival at 5:30 p. m. at a DX Service Station where defendant’s tractor and trailer were kept. After gassing and oiling the tractor, he would drive approximately one and a half miles to McHenry postofiice where he loaded the mail that was to be loaded on the truck. Claimant’s scheduled departure time was 6:40 p. m. After arriving in Chicago, he would await his turn in line and unload the tractor and would then spot the vehicle in back of the postofiice loading dock. He would complete this about 10:05 p. m. He then started to work again at the scheduled time of 2 a. m. the following morning. After arrival at McHenry and unloading the mail, he returned the vehicle to the DX station, usually arriving there about 6 a. m.
There was additional testimony about extra hours worked due to breakdowns of the truck and other delays such as that caused by a dead battery. There was further testimony of hours worked in the period October 29, 1960 to February 9, 1961 where there were extra mail runs and some twenty-one extra trips were confirmed by postoffice memoranda as occurring during the 1960 Christmas holiday season. Other testimony covered the period from February 10, 1961 to July 15, 1961.
In an attempt to demonstrate the method for computing the wages due on the basis of overtime hours worked, the Secretary called as a witness one Max Packer who, for twenty-four years, had been a wage-hour investigator under the Fair Labor Standards Act and who had conducted some two thousand investigations including the investigation of defendant’s compensation practices. However, upon objection by defendant, the Court would not permit Mr. Packer to testify as to the computations he had made of wages due the claimant, nor was he allowed to explain to the jury how such computations may be made.
In the situation before us, we consider the evidence most favorable to the plaintiff. Sufficient evidence was received so that this case should have been submitted to the jury for its verdict. The claimant’s testimony, supported by other evidence, indicated that he had regularly worked 52 to 53^2 hours per week; 50 to 52 hours per week; and 48 to 50 hours per week during the three periods covered by this suit.
Undoubtedly there was some uncertainty as to the exact amount of damages, but it is well established that a plaintiff under the Fair Labor Standards Act may recover even if the exact amount due is not capable of mathematical ascertainment.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 was a case where the Supreme Court considered the proper determination of working time for the purposes of the Fair Labor Standards Act. The Court there said 328 U.S. at page 688, 66 S.Ct. at page 1192, 90 L.Ed. 1515: “The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act.” The Court further stated: “Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. * * The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. * * * It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages. (Citing cases.)”
The District Court emphasized that claimant had acquiesced in the wages paid to him. However, this is in no manner controlling. It is well settled that statutory wages cannot be waived by agreement. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296; Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622.
The District Court, time and time again, sustained objections where Packer, the expert witness, was asked as to certain computations. One instance was: “Q. Can you explain to us how a computation for overtime is made when a person is paid $1.50 per hour? Mr. Nader: I am going to object. The Court: Sustain the objection. We are not conducting a class in labor law here or in labor investigation. We are trying to determine how much money, if any, the beneficial plaintiff has coming here.”
We see no objection to the question as asked. A jury cannot keep in mind all of the figures that might enter into a determination as to whether overtime payments were due. Computations and summaries based upon evidence before the Court, in many instances, would be very helpful to a jury.
An expert may testify to computations based on facts which are in evidence as an aid to the jury’s determination. In United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546, an expert accountant was permitted to testify to calculations of income and expenditures.
As examples of types of cases where expert testimony as to computations have been received are: United States v. Daisart Sportswear, 2 Cir., 169 F.2d 856, 863 (misusing priorities under § 301 of the Second War Powers Act and conspiring to violate the Emergency Price Control Act of 1942); Beaty v. United States, 4 Cir., 203 F.2d 652, 655 (income taxes owing as disclosed by testimony); Gendelman v. United States, 9 Cir., 191 F.2d 993, 996-997 (increase in net worth in an income tax fraud case). In a ease before this Court, the computations of an accountant were held admissible before a Special Master (in an action for an accounting of special assessments), First Nat. Bank and Trust Co. of Racine v. Village of Skokie, 7 Cir., 190 F.2d 791, 796.
The District Court was in error in directing judgment for the defendant. The jury should have been permitted to determine whether and to what extent claimant worked in excess of forty hours a week during the relevant periods. Then, as the Supreme Court said in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, at page 688, 66 S.Ct. 1187, at page 1193, 90 L.Ed. 1515: “It is enough under these circumstances if there is a basis for reasonable inference as to the extent of the damages.”
Reversed and remanded for a new trial.
. Fair Labor Standards Act, 29 U.S.C. §§ 201, 207, 216(c).
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_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.
BROOME et al. v. HARDIE-TYNES MFG. CO.
No. 8451.
Circuit Court of Appeals, Fifth Circuit.
Nov. 15, 1937.
Edwin P. Corbett and John J. Mahoney, both of Columbus, Ohio, and James R. For-man, of Birmingham, Ala., for appellants.
Forney Johnston and Henry L. Jennings, both of Birmingham, Ala., for ap-pellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
HUTCHESON, Circuit Judge.
This suit was for injunction, for accounting, and for damages for infringement of letters patent Nos. 1,306,370 and 1,-603,406 for sluice gates. The claim was that defendant, without leave or license from plaintiffs, and in defiance of the patents, had made and sold, and was making and selling, devices embodying the inventions described in them.
Defendant denied infringement, and put the validity of the patent at issue. The defense on which the case went off was that the only thing being done by the defendant, having any relation whatever to the patents in suit, was the manufacture of emergency gates and accessories for the government of the United States, to be installed at the Mohawk and Bolivar Dams in the state of Ohio, under a contract had with the defendant, and upon specifications and drawings furnished by the United States; and that by section 68, title 35 U.S.C.A. plaintiffs’ exclusive remedy is a suit against the government in the Court of Claims.
The District Judge, of the opinion that the issue this defense presented should be tried first, heard evidence upon and determined it in defendant’s favor. He accordingly dismissed the bill.
Appellants make two points against the decree. The first goes to the procedure employed in disposing of the defense. It affirms that, instead of taking testimony in advance of a trial of the patent claims, on defendant’s plea that plaintiffs’ exclusive remedy was in the Court of Claims, the court should have treated it as a plea to the jurisdiction, and denied it on the authority of Sperry Gyroscope Co. v. Arma Engineering Co., 271 U.S. 232, 46 S.Ct. 505, 70 L.Ed. 922, holding that the invoked section does not deprive the District Court, as a federal court, of jurisdiction, but only operates as a defense. The argument here is that the defendant set up, and the District Judge gave effect to, the statute as a jurisdictional bar, and that, instead of hearing the cause on the merits, including the issue of exclusive remedy thus raised, the case was dismissed for want of jurisdiction in contravention of the practice approved in the Sperry Case.
As applied to what was done here, the argument of appellants finally comes down to this, that the District Court should not have heard testimony on one fundamental defense without at the same time hearing it on all the others.
We think there, can be no merit in this contention. If sustained, it would require the laborious and tedious processes of trying a patent suit, only to dismiss it at the end because plaintiffs’ remedy, lies in some other court. Without regard to what defendant may have called its plea, the District Judge did not determine it as one going to its jurisdiction to hear the cause, but as one going to the right of plaintiffs to the relief they sought. He disposed of it on that basis. As shown in his full findings of fact and conclusions of law, followed by an opinion and final decree, the court took full jurisdiction of the cause, and, having done so, proceeded to try independently of other matters of defense, the fundamental defense that plaintiffs’ sole remedy was in the Court of Claims. Having determined that, because of the statute providing an exclusive remedy in the Court of Claims, plaintiffs were without remedy in the District Court, he dismissed the bill.
The second point searches the substance of the ruling on the plea. It affirms that the alleged infringing devices were in fact made by the defendant, not for the United States, but for the Muskingum Watershed Conservancy District, a corporation of Ohio, and that therefore the invoked statute does not apply in letter or in spirit. The argument for this point is based on the proposition that, though the sluice gates were being made and installed under a contract on its face between defendant and the United States government, the contract was really made by the government on behalf and for the benefit of, and the sluice gates were really furnished to and installed for, the Muskingum District. We do not think this complaint against the decree any better founded.
The District Judge found; that no sluice gates or other apparatus or devices relating to the patents in suit had been made or sold by the defendant within six years next preceding the filing of the bill of complaint, except under two contracts with the United States. These contracts, one dated May 8, the other June 8, 1935, were for the furnishing and delivery to the United States for the Mohawk and the Bolivar Dams, respectively, of six service gates and one emergency gate and accessories, in accordance with specifications and drawings prepared and issued by United States engineers. He found, too, that part of the equipment had already been delivered, and other parts were still under construction at the defendant’s plant; that there was no completed delivery prior to the expiration of the date of the patents or the filing of the suit; and that under both contracts and by both sets of specifications, the defendant was required to prepare and design all work in accordance with the specifications and drawings. Every detail of the design of the gates and accessories as the United States wanted them constructed was known and understood between defendant and the representative of the government when the contracts were made. Contrary to plaintiffs’ insistence that though the contracts were in name between the government of the United States and defendant, they were in fact between defendant and the Muskin-gum District, the court found that they were and are solely between the United States as sole principal, and the defendant, and that the Muskingum District is in no relation of privity with the defendant as principal, disclosed or undisclosed. He concluded that within the clear meaning of the invoked statute the work to be done by defendant was to be done solely and exclusively for the United States.
Appellants insist that the arrangement was merely one by which the United States loans and contributes funds to a district project; that the project is the district’s, the property the district’s and the construction the defendant has undertaken is the district’s. They insist further that, since the contracts declare that the estimated cost of the project and plans is to be $34,-000,000, of which the district is recognized as contributing $12,000,000 in lands, easements, rights of way, etc., and the United States is to pay $22,000,000 for construction, it is plain that if, as appellee contends, these dams are government projects the district is a part owner in them, and that to the extent at least of its ownership, the defendant, in constructing the gates in question, is, constructing them for it, and therefore, at least to that extent, defendant would be suable for infringement of plaintiffs’ patents.
Appellee stands firmly on the form and contents of the contracts. Pointing to their terms requiring it to furnish and deliver the apparatus called for in them to the government, and to their terms holding the defendant bound and liable to the United States for the complete performance of them, it insists that the District Judge was right in his findings both of fact and of law. Especially does it point out that the whole project was under the control and direction of the Army engineers who are authorized to handle and expend the $22,000,000 which the United States will lay out on the project, and that it cannot be gainsaid that, if defendant is suable by injunction to prevent the construction of the sluice gates in question, this will result in preventing the United States from going ahead with its public works and thus permit the very mischief the invoked statute was enacted to prevent.
Appellee points out too, that there is no provision in the contract that defendant’s structures, which are made for the government and paid for by it, or the dams of which they are a part, are or should become the property of the district. It argues with vigor that the fact that the contract contains clauses to hold the district harmless does not create any right of action in plaintiffs against the defendant. It argues that the only effect of these clauses is to protect the district from any liability which the acts of the defendant might conceivably lay it under. They do not at all change the fact that the contract is not with the district, but with the United States, nor the fact that the work is being done in exact accordance with and under plans and specifications prepared by the United States engineers.
A careful examination of the record convinces us that it fully sustains the fact findings of the District Judge. Indeed, the evidence is without contradiction with respect to the matters on which he finds. We are clear that the contract was with, and was to be performed on behalf of, the United States, and that if the defendant may be subjected to an injunction against going on with the contract, the purpose and effect of the invoked statute would be defeated. The decisions have made it clear what that purpose and effect is, and we think it may not be doubted that the mischief which gave rise to the passage of the statute, and which it was designed to avoid, would be present here if the statute were without application. The project on which the work is being done is a government project. The statute was designed to furnish the patentees an adequate and effective remedy while saving the government from having its public works tied up and thwarted while private parties are carrying on a long drawn out litigation. The case presented here of an effort to stop the progress of the work through an injunction against the contractor presents the exact case the statute was designed to meet.
The decree of dismissal was rightly entered. It is affirmed.
“Suit for unlicensed use of invention by the United States; compensation for; Government employees.
“Whenever an invention described in and covered by a patent of the United States shall be used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, such owner’s remedy shall be by suit against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture.”
Smyth v. Asphalt Belt Ry. Co., 267 U.S. 326, 45 S.Ct. 242, 69 L.Ed. 629; Becker Steel Co. v. Cummings, 296 U.S. 74, 56 S.Ct. 15, 80 L.Ed. 54; Timken Roller Bearing Co. v. Pennsylvania R. R. Co., 274 U.S. 181, 47 S.Ct. 550, 71 L.Ed. 989.
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_applfrom | L | 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).
CITY CHEVROLET COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 7023.
United States Court of Appeals Fourth Circuit.
Argued Jan. 6, 1956.
Decided Jan. 11, 1956.
Frederic D. Dassori, Washington, D. C. (Dee R. Bramwell, Washington, D. C., on brief), for petitioner.
C. Guy Tadlock, Atty., Dept, of Justice, Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Robert N. Anderson and A. F. Prescott, Attys., Dept, of Justice, Washington, D. C., on brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
This is a petition to review a decision of the Tax Court relating to deductions for the year 1946 on account of personal services rendered taxpayer corporation by officers who with their "wives were its sole stockholders. The facts are fully stated in the opinion of the Tax Court and need not be repeated here. Taxpayer contends that the bonus of $30,881.69 paid to each of the officers for the year 1946 in addition to salaries of $12,000 each was reasonable because provided for by a contract under which the officers were to have 50% of the net profits of the corporation in excess of 15% and that this was in effect a continuation of a contract made sometime prior thereto when the stock of the corporation was owned by others. The question is one of fact and we are not prepared to hold that the holding of the Tax Court with regard thereto was clearly wrong. A bonus contract which was reasonable as holding out an incentive to those managing the corporation when its stock was owned by others could well be held unreasonable when the managers themselves became owners of the stock and the question was, not what incentive was needed to call forth their best efforts, but what part of the earnings of the corporation could fairly be paid to them for their services as officers. See University Chevrolet Co. v. Commissioner, 16 T.C. 1452, affirmed 5 Cir., 199 F.2d 629.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_constit | B | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Henry W. COGWELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward BEY et al., Defendants-Appellants.
Nos. 72-1671, 72-1672.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 14, 1973.
Decided Oct. 30, 1973.
James D. Montgomery, David Lowell Slader, John Powers Crowley, Chicago, Ill., for defendants-appellants.
James R. Thompson, U. S. Atty., William T. Huyck, Gordon B. Nash, Jr., Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
CASTLE, Senior Circuit Judge.
Defendants Bey, Cogwell, Fort, Jackson and Pugh appeal their jury convictions for conspiring to make false statements to the Office of Educational Opportunity, to obtain fraudulently monies which were the subject of a poverty program grant, and to defraud the United States through falsification and concealment of material facts. Defendant Jackson also appeals his convictions for knowingly making false statements in contravention of 18 U.S.C. § 1001 by signing the time and attendance sheets of program trainees with the knowledge that they were neither at the training centers nor at job interviews (9 counts), and for misapplying grant funds by endorsing the names of trainees to stipend checks knowing that they received neither the checks nor the proceeds and causing the fraudulent endorsement of the checks in violation of 42 U.S.C. § 2703 (2 counts). Defendant Bey additionally appeals his conviction for knowingly making false statements, contrary to 18 U.S.C. § 1001, by signing check receipts with the knowledge that the trainees did not receive the checks or the proceeds (6 counts). Defendant Cog-well further appeals his convictions for knowingly making false statements, unlawful under 18 U.S.C. § 1001, by signing the time and attendance sheets of trainees with the knowledge that they were neither at the training centers nor at job interviews (2 counts) and by signing check receipts knowing the trainees neither received the checks nor the proceeds (4 counts). Cogwell also appeals his conviction for misapplying grant funds by endorsing the names of trainees to stipend checks and causing the fraudulent endorsement of them in violation of 42 U.S.C. § 2703 (4 counts).
Defendants were participants in a program funded by an Office of Educational Opportunity (hereinafter O.E.O.) grant given in June 1967 to the Woodlawn Organization (hereinafter T. W.O.), a Chicago community organization. The program was designed to utilize existing gang structure and leadership to provide basic educational and vocational skills to gang members. The grant provided that T.W.O. would establish four manpower' training centers, with two of the centers established for the benefit of members of the Black P. Stone Nation gang. The grant specified that center chiefs, instructors, assistant instructors, and staff members would be drawn from the hierarchy of the gangs and would be salaried. To induce participation, the grant provided daily stipends and carfare allowances for trainees. The O.E.O. grant required T. W.O. to maintain detailed records and accounts of the payment of stipends to the individual trainees, and it specified that payment was to be conditioned on verification of the trainees’ attendance at the centers. T.W.O. operationalized this rule by requiring the trainees to sign time and attendance sheets at the centers on arrival and departure at both sessions on each day. The center chief was responsible for collecting these sheets at the end of each week and for returning them to T.W.O. Stipend checks payable -to the trainees and based on the time and attendance sheet data were forwarded to the centers for distribution by the chief and his staff to the trainees each Friday afternoon. Attached to each check was a receipt to be signed by the trainee-payee, collected by the staff, and returned to T.W.O.
When the grant was approved, Jeff Fort was the leader of the Black P. Stone Nation, a conglomerate of several Blackstone Ranger gangs, whose leaders formed the Main 21 (the ruling body) of the Black P. Stone Nation and, essentially, the supervisory and teaching personnel of the two centers. Jeff Fort was the Center 1 chief from the inception of the program until his incarceration on an unrelated matter on October 25, 1967, when he ws succeeded by Fletcher Pugh, a Center 1 staff member. Henry Cogwell was Chief of Center 2. Charles Edward Bey was an assistant vocational educational supervisor at Center 2, where Robert Jackson was a community worker.
On this appeal, the defendants argue that the evidence is insufficient to support the jury verdict, that defendant Fort’s right of confrontation was violated by the admission of inculpatory statements purportedly made by him to a codefendant who did not testify, and that the Chicago policemen’s testimony based on observation of the program was the product of an unconstitutional search and was improperly admitted into evidence. For reasons set forth below, we affirm the convictions.
I.
Defendants contend that the evidence was insufficient to sustain the jury’s findings. With respect to the substantive counts, it was stipulated that Bey and Cogwell had written names other than their own to check receipts, that Jackson and Cogwell had written names other than their own to time and attendance sheets, and that Jackson and Cog-well had written endorsements to checks payable to trainees. The trial court instructed the jury, with the approval of counsel, that the determinative facts of legal liability in this case were, under 18 U.S.C. § 1001, whether the trainees in question received either their checks or the proceeds and, under 42 U.S.C. § 2703, whether the trainees involved were not present at the center or at job interviews. Defendants Bey, Cogwell and Jackson claim the government failed to prove its case because it did not present direct evidence from the trainees whose names were signed by Bey, Cog-well and Jackson that they received neither their checks nor the proceeds, or that they were not in class or at interviews. Defendants argue that the direct testimony of Duffy and Hall, named payees on a check and receipt in question, respectively, failed to add any material evidence beyond the stipulation and was therefore of no probative value. Defendants further claim that even if direct testimony is unnecessary to finding a course of unlawful conduct at Center 1, it would still be improper to infer the occurrence of unlawful activity at Center 2, where Bey, Cogwell and Jackson were staff members. With respect to the conspiracy count, the defendants contend that the failure to show a course of conduct to support the substantive charges is equivalent to a failure to prove concerted action necessary to find a conspiracy. Upon our examination of the evidence, we find that the jury, after weighing the evidence, determining the credibility of the witnesses, and drawing reasonable inferences, had substantial support for its findings.
It is axiomatic in determining sufficiency of the evidence that an appellate court view the evidence and the reasonable inferences which can be drawn in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This determination must be made considering all the evidence, including that of the defendants. United States v. Tubbs, 461 F.2d 43, 45 (7th Cir. 1972). However, this determination is not limited to a consideration of direct evidence, excluding circumstantial evidence of unlawful conduct at both centers. Circumstantial evidence is as pertinent as direct evidence to the establishment of guilt or innocence. Holland v. United States, 348 U.S. 121, 149, 75 S.Ct. 127, 99 L.Ed. 150 (1954). It is only required that circumstantial evidence be sufficiently relevant to have probative value. See, United States v. Delay, 440 F.2d 566, 568 (7th Cir. 1971); United States v. Lynch, 366 F.2d 829, 831 (7th Cir. 1966). This court has specifically stated: “Participation in a criminal conspiracy need not be proved by direct evidence.... [T]he conspiracy may be shown by circumstantial evidence or permissible inferences or deductions from the facts. Such a showing is nonetheless substantial.” United States v. Zuideveld, 316 F.2d 873, 877-878 (7th Cir. 1963); Blumenthal v. United States, 332 U.S. 539, 549-550, 68 S.Ct. 248, 92 L.Ed. 154 (1947). Thus, it is unnecessary for the government to present testimony from the trainees named in the check endorsements and receipts and in the time and attendance sheets to sustain either the conspiracy or substantive counts, so long as the government presents sufficient, relevant circumstantial evidence to prove concert of action in the commission of unlawful acts, from which a common design can be inferred. United States v. Zuideveld, supra.
In demonstrating the operation of a sophisticated kickback scheme, the government concentrated on activities at Center 1, presenting testimony from instructors, assistant instructors, and trainees as well as police observers. Evidence of unlawful conduct in the signing of time and attendance sheets was overwhelming. Charles Hall, a trainee, identified four hundred forged signatures of his name in his time and attendance sheets for the period from March to May 1968. James Duffy, a trainee, identified almost five hundred unauthorized signatures in his sheets during the course of the program, while John Griffin identified ninety instances of forgery in his sheets. This practice occurred on a regular basis without authorization. Adam Bat-tiste, a Center 1 instructor, identified over 1200 instances when he signed trainees’ names to time and attendance sheets on the orders of Fort and others. On occasion, he would take entire sheets home and fill in the remaining blanks indiscriminately, whether or not the trainee had been present. Battiste also testified that Fort and others instructed him to maintain a separate “dock list” in which he recorded accurate attendance figures for the purpose of determining the weekly kickback amount per trainee. Griffin and Duffy testified that they signed other trainees’ names to the sheets on orders from Pugh and Battiste. White, a Center 1 assistant instructor, witnessed instructors and trainees filling out time and attendance shees on at least twenty occasions.
The time and attendance sheets’ indication of substantial growth in the number of trainees participating in the program was contrary to the direct evidence. White testified that although an average of fifty trainees were present during the beginning of the program, only fifteen or twenty remained by May 1968. Police Officer Houtsma testified that the names listed on the time and attendance sheets exceeded observed attendance on three occasions; he never saw more than twenty trainees at Center 1 in about 150 visits during the course of the program. Officer Doyle observed a range of three or four to ten trainees in over 100 visits to Center 1 and a maximum of fifteen or eighteen trainees at Center 2. Officer Duffy saw a maximum of twenty trainees at each center. Trainee Duffy testified that Center 1 attendance ranged from three to twenty-five, while Turner, another trainee, observed ten to thirty trainees. Duffy, Hall, Griffin, Turner, and White all testified that instruction was both limited and sporadic at Center 1; this corresponded with the police observations.
The government also presented extensive evidence that trainees’ names were signed to check receipts and endorsements in connection with the kickback operation. Near the commencement of the program, according to Duffy, Jeff Fort explained to Center 1 trainees that they were expected to return a portion of their stipends to Pugh and Battiste. Hall also testified to returning part of his payment to Pugh pursuant to instructions from Fort. As the program progressed, the gang refined its scheme by having staff members distribute the trainees’ checks for endorsement, collect and cash checks, deduct the appropriate kickback, and return the net proceeds to the trainees. The gang then eliminated the formality of distributing the checks to trainees for endorsements prior to cashing the checks. Duffy testified that he signed other trainees’ names on the backs of stipend checks at the request of Pugh and Battiste, and he observed Pugh, Jackson and others, in Fort’s presence, writing trainees’ names as endorsements to checks during March and April 1968. Duffy observed these cheeks being carried to a local store during this period and he saw Fort, Pugh, Jackson and other staff members return with substantial sums. White testified that Pugh kept the proceeds retained by the gang until Fort asked for the funds. The kickback scheme attained further refinement in Fort’s announcement to all Black P. Stone Nation trainees at a mass meeting held at Center 2 on May 24, 1968, that while stipend checks for the final two weeks would be distributed for endorsement, anyone who claimed his check without demonstrable need would be subject to physical reprisals.
From our own review of the evidence, we concur with the trial judge’s conclusion that “the permissible inference is that what happened at Ranger Center 1 happened at Ranger Center 2. because there is sufficient evidence in the record... that they were coordinated operations. The most striking example of the pervasive domination of the gang leadership at both centers occurred at the May 24 meeting. The meeting was held at Center 2, whose chief, Cogwell, was present. Yet it was chaired by Jeff Fort. Fort, the former Center 1 chief, was no longer a participant in the program following his release from jail. However, he was still' the. leader of the gang, and, as this meeting demonstrated, he controlled the terms under which gang members participated in the program. Pugh and Bey, Center 1 and 2 staff members, respectively, were also present. This pattern of interchangeable staff leadership between the two centers in pursuit of a common plan is abundantly evidenced by the record. Defendant Jackson, a Center 2 staff member, was particularly mobile. Battiste testified that Jackson and William Troope (an instructor from Center 2) would disrupt some of the few classes at Center 1 and would “slap around” trainees objecting to participation in the kickback scheme. Willie Harris testified that he saw Robert Jackson, in addition to eight other Center 2 staff members, on a day-to-day basis. White testified that Fort instructed Jackson and two other Center 2 leaders to keep students signed on the sheets whether or not they were still participating in the program. Duffy testified that Jackson and Lee Jackson (a Center 2 instructor) made cash payments to him as part of the kickback scheme and that he observed Jackson, Lee Jackson, and Sylvester Hutchins (a Center 2 instructor) signing trainee checks at Center 1. Hall testified that Lee Jackson was present during Center 1 training sessions and that Hutchins slapped him for objecting to the kickback requirement. Griffin observed Troope among a group of leaders who instructed him to sign other trainees’ time and attendance sheets. Battiste testified that he saw Troope leave Center 1 with checks and return with cash.
There is substantial evidence that the activities occurring at Center 2 corresponded with those occurring at Center 1. T.W.O. officials, program participants, and Chicago policemen noted low attendance and sporadic instruction as common problems. The time and attendance sheets at Center 2 demonstrated the same disregard for reality evident in the Center 1 sheets. T.W.O.’s acting project director for the grant recalled observing less trainees than listed on the sheet on one day. He further testified that he closed down the center for a week, although the sheets indicated full attendance during this period. Trainee McDonald (Center 2) testified that he would sometimes be absent for a full week and still receive payments, as his name was signed to the sheets. During the final two-week period, he signed none of the twenty signatures on the sheets which purported to be his. Trainee Mc-Gill (Center 2) admitted that someone else had signed his name for the entire month of April 26-May 24, 1968. Willie Shaw, another Center 2 trainee, was paid for a week he spent in the county jail, when his name was signed to the sheets without his authorization. Tal-midge McGraw, Center 2 trainee, could not identify any of the twenty signatures on his time and attendance sheet for the week ending May 24, 1968 as his own; he admitted that the signatures appeared to be written by the same hand. Further, he was uncertain whether any of the signatures on his time and attendance sheets for the period April 19-May 17, 1968 were his. Dennis Griffin (from Center 2) admitted that others signed his name to the sheets when he was not at the center. It was apparently a common practice as well to sign trainees’ names to check endorsements and receipts. Mc-Gill stated he signed only one check during the month when others signed his name over one hundred times to the time and attendance sheets. It was stipulated that probably one individual endorsed groups of checks payable to trainees at both centers.
The circumstantial evidence suggesting that Jackson signed trainees’ names to time and attendance sheets knowing they were neither present nor at job interviews is exceedingly substantial. Defendant stipulated to signing exclusively the nine trainees’ time and attendance sheets in question; thus the remaining issue is whether he possessed the requisite knowledge. Although Jackson was on the Center 2 staff, the trainees involved were assigned variously to both centers. It would strain credulity for this court to believe that four times a day for an entire week, Jackson verified the whereabouts of nine persons, some of whom were not even assigned to his center. Moreover, the time and attendance sheets signed exclusively by Jackson cover the. period reflected in the checks which were the subject of Jeff Fort’s May 24th announcement. The jury could reasonably infer from the unlawful decision to retain the entire proceeds of trainees’ checks that gang leaders in a position to determine the size of the cheeks, like Jackson, would falsify the time and attendance sheets by adding signatures in order to increase the amount the gang would receive. Such conduct by Jackson would conform to his pattern of participation in various aspects of the kickback scheme, as described above in testimony from Center 1 people.
The evidence is also more than sufficient for the jury to reasonably conclude that Jackson was guilty of the two check endorsement counts. Charles Hall, a Center 1 trainee, testified, regarding the March 22, 1968 check payable to him, that he did not cash the check, sign the receipt or receive any of the proceeds. Jackson stipulated that he, in fact, had endorsed the Hall check. The jury could have reasonably inferred that Jackson knew Hall neither received the check nor the proceeds from Battiste’s testimony that he had observed Jackson stealing stipend checks. Further, since Jackson stipulated that he endorsed the other check in question and since that check bore the same date as the Hall cheek, the jury could have justifiably inferred a pattern of unlawful conduct.
There is also sufficient evidence to support the conviction of Bey for signing check receipts knowing that the trainees did not receive the cheeks or the proceeds. Duffy, the named payee on one receipt, testified that he did not sign the receipt. Bey stipulated that he signed Duffy’s receipt. Since Duffy further testified that he did not sign the endorsement for the check of the receipt in question and since Bey was a Center 2 supervisor, neither responsible for nor in the proximity of Duffy (a Center 1 trainee), the jury could reasonably have concluded that Bey knew Duffy would receive nothing. The jury could have properly inferred a pattern of illegal activity, as the probability would be remote that a Center 2 supervisor who stipulated to signing all six receipts would have insured the distribution of proceeds of six checks bearing identical dates to six trainees scattered at two centers. That improbability is substantiated by the evidence that at least one of the checks was endorsed by someone other than the named payee.
The evidence against Cogwell is also sufficiently substantial to support the determinations of the jury. First, there is much circumstantial evidence indicating that Cogwell was a participant in the kickback scheme. Rev. Arthur Brazier, President of T.W.O., testified that the trainees’ checks were given by the T.W.O. staff to the center chiefs for distribution. The center chiefs were responsible for the return of the time and attendance sheets to T.W.O. Cogwell held the key position of Chief of Center 2. It is unreasonable to assume that a kickback scheme involving Center 2 trainees in which Bey, Jackson and other Center 2 staff used inflated time and attendance sheets and forged check endorsements and receipts, could have operated successfully without the knowledge and participation of the center chief, Cogwell. In addition, the inference of coordinated, unlawful activity involving Cogwell is strengthened by two occurrences. On September 6, 1967, Officer Peck observed Fort, Cogwell, Bey and other members of the Main 21 standing on a neighborhood street corner at a time when instruction would normally be scheduled at the two centers. Of far greater significance, two witnesses, White and Harris, identified Cogwell as being among the center leaders present at the May 24, 1968 mass meeting at Center 2 when Fort announced that the proceeds of the last two paychecks would be retained.
With respect to the time and attendance sheet counts, Cogwell stipulated to signing the sheets of trainee Pitts and Reeves for an entire week, a total of forty signatures. During this period, Center 2 was reporting upwards of fifty trainees in attendance on the time and attendance sheets. However, Sam Sains, a program development adviser (who instructed one day per month at Center 2) and defense witness, testified that he never saw more than thirty-five trainees at Center 2. Police officers testified that they never observed more than twenty trainees at Center 2. Given this context, the jury could justifiably infer from Cogwell’s prolonged pattern of exclusively signing the two trainees’ names to their time and attendance sheets that he was acting in furtherance of the kickback scheme with knowledge that the trainees were not at the center.
Regarding the check receipt conviction, it is significant that all four check receipts bore May dates, a time when increasingly reckless and flagrant violations of the accounting system occurred. One check receipt was dated May 17, 1968, indicating that the check to which it was attached was distributed for endorsement only at the May 24 mass meeting. In view of Fort’s injunction to the assembled trainees in Cogwell’s presence, the jury could reasonably conclude that Cogwell knew that the payee of that check received neither the check nor the proceeds. Cogwell stipulated to signing that check receipt as well as the other three receipts in question, and the jury could properly infer a pattern of signing trainees’ names to check receipts with the knowledge that they would neither receive the check nor the proceeds.
The check endorsement counts involve two groups of checks issued near the termination of the program on April 19 and May 10, 1968. Cogwell stipulated to signing the check endorsement of five different trainees for those two days. Considering the totality of the evidence suggesting Cogwell’s participation in an elaborate kickback scheme involving forged check endorsements, the jury could reasonably infer that Cogwell endorsed the checks with the knowledge that the trainees would neither receive the checks nor the proceeds. It is true that McDonald, McGill and McGraw testified that Cogwell picked up their checks at their request and remitted the proceeds to them. However, since these three trainees also denied the existence of the May 24 meeting, corroborated in detail by other witnesses, the jury could have quite properly discounted their testimony in concluding that Cogwell forged endorsements with the knowledge that the payees would not receive the proceeds.
Finally, common purpose and plan may be inferred from a “development and collocation of circumstances,” Glasser v. United States, supra, which demonstrates concert of action in the commission of unlawful acts. United States v. Zuideveld, supra, 316 F.2d at 878. In addition to the acts for which Bey, Cogwell and Jackson were convicted, the record evidences other methodical violations of law occurring on a continuous basis at both centers pursuant to the kickback scheme. The testimony contains numerous references to Fort’s pivotal position in both the gang and the scheme. It was he who announced the essential policy related to the operation of the scheme to trainees near the inception of the program and again on May 24, 1968. He ordered the maintenance of two separate books of attendance records, and he received the kickbacks collected by Pugh. Pugh was largely responsible for effectuating the scheme at Center 1. Witnesses testified that this included physically punishing recalcitrant trainees, endorsing and cashing trainees’ checks, and collecting dock money. Therefore, based on our review of the record and applying the standards we have set forth, we hold that there is substantial evidence to support the jury’s finding that defendants are guilty of the conspiracy charged.
II.
During the trial, witnesses Turner and White testified, over objections, to hearsay admissions of defendant Pugh in which Pugh related his conversations with defendant Fort. On both occasions, the trial court instructed the jury that although the testimony was admissible against defendant Pugh, the jury should not consider it as evidence against defendant Fort. Notwithstanding these limiting instructions, Fort contends that since the testimony of inculpatory statements made by him to a co-defendant who did not testify was heard by the jury, his right of confrontation was violated because of the substantial risk that the jury nonetheless considered the incriminating extrajudicial statements in determining his guilt.
Turner stated that although he was formally a trainee in the program, he was performing the duties of an instructor and had requested a commensurate salary from Pugh. On the following day, Turner testified that Pugh told him in the presence of about twelve members of the Main 21 that “Jeff [Fort] had told him the night before that he [Fort] didn’t want me [Turner] to quit, and [he would] split the dock money with me.... ” White, an assistant instructor at Center 1, testified that after Fort’s incarceration in the Cook County Jail, about thirteen members of the Main 21 including himself, went to visit Fort. Apparently, Pugh was the only one per-" mitted to speak with Fort. White testified that following the conversation with Fort, Pugh told the Main 21 members at the county jail that “Fort told him [Pugh] to handle the money. [which] he was supposed to collect from both centers on Fridays [and] keep it... until Jeff Fort got out.”
The defendant relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), a case involving a joint trial for armed postal robbery. A postal inspector testified that a codefendant, Evans, had confessed to him that Bruton and Evans had committed the robbery; Evans did not testify. The trial court instructed the jury to disregard Evan’s confession in considering Bruton’s culpability. The Supreme Court found this insufficient, holding that “in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination.” Id. at 137, 88 S.Ct. at 1628. The rationale of the decision was clearly expressed: “The risk of prejudice in petitioner’s case was even more serious than in Douglas [Douglas v. Alabama, 380 U.S. 15, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1957)] because... the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” Id. at 127, 135-136, 88 S.Ct. at 1623, 1628. The evil which the sixth amendment was designed to prevent is illustrated in Douglas, where the prosecutor read a document purporting to be an accomplice’s confession which incriminated the defendant. The Supreme Court noted that the accomplice’s assertion of his right against compulsory self-incrimination “created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” 380 U.S. at 419, 85 S.Ct. at 1077. Since the prosecutor was not a witness, the inference that the accomplice made the statement could not be tested by cross-examination. Similarly, the accomplice could not be cross-examined on a statement imputed to him. Id.
The right of cross-examination, however, is not absolute. There is no violation of sixth amendment rights where the testimony is sufficiently clothed with “indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.” Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213. In Dutton, which also involved the coconspiracy exception to the hearsay rule, the Supreme Court upheld the trial court’s admission of testimony by a fellow inmate of a codefendant who did not testify at the defendant’s trial. The inmate related a statement of the codefendant from which the jury could infer the defendant’s guilt. The Supreme Court found that the defendant was not deprived of any right of confrontation as to whether the co-defendant actually made the statement to the witness, since the witness was cross-examined, and that the circumstances under which the statement was made indicated the content of the statement was true.
Applying this two-fold test to the facts in this ease, we find that the circumstances indicate that the challenged statements possess sufficient reliability to satisfy the demands of the sixth amendment. The statements in question did not involve the use of a confession made under the coercive circumstances of an official interrogation, as did Bruton. Although the statements were damaging, like the one in Dutton, they were in no sense crucial or devastating. See, Bruton v. United States, supra. There was no indication of prosecutorial misconduct or wholesale denial of cross-examination. See, Douglas v. Alabama, supra-, Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). At trial, the prosecution presented more than a dozen witnesses, all of whom were subject to cross-examination. Perhaps the most damaging evidence was the testimony of three eyewitnesses to the May 24,1968 mass meeting. In view of the extent of the testimony inculpating Fort, these two statements, again like the one in Dutton, were “of peripheral significance at most.” Dut-ton v. Evans, supra, 400 U.S. at 87, 91 S.Ct. 219.
Fort was not deprived of his right of confrontation on the issue of whether Pugh, a coconspirator, actually made the statements to Turner and White. The confrontation issues arise because the jury was asked to infer from the statements that Fort was a coeonspirator and that Fort actually made the statements to Pugh. We conclude that there was no denial of the right of confrontation with respect to the latter issue. The possibility that Pugh’s statements were based on faulty recollection is highly remote; on one occasion Pugh had spoken with Fort only moments earlier, and on the other he had talked with Fort during the previous evening. The circumstances under which Pugh made his statements also indicate that Pugh did not misrepresent Fort. The statements were made not only before the testifying witness but also in the presence of about twelve members of the Main 21 on both occasions. The leaders could have verified Pugh’s statements with Fort. As some of the leaders had used physical force to insure the success of the kickback scheme, the penalty for perjury pales by comparison with the consequences Pugh would have doubtlessly suffered for lying. Pugh’s statements were against his penal interests, and he had no obvious reason to lie to Turner or White.
There are also sufficient indicators of reliability to conclude that the statements which were made were true. Unlike Bruton, Dutton, and Douglas, the statements in question were made by Fort to a trusted coconspirator in the course of and in furtherance of the kickback scheme. Fort’s statement authorizing Turner to share with him and others in the kickback proceeds which Fort received was against Fort’s penal and pecuniary interests. Fort’s statement to Pugh at the jail to collect the funds and hold them for Fort until his release conformed with his modus operandi established by White’s testimony. Fort’s statement was in furtherance of his pecuniary interest in retaining control over the funds despite his incarceration and was against his penal interest. He had no apparent reason to lie to Pugh on either occasion.
III.
At trial, seven Chicago policemen testified that in the course of several hundred visits to the centers from September 1967 to June 1968, they observed only limited trainee attendance and practically no instruction. Their testimony was at variance with the time and attendance sheets and circumstantially suggested the falsification of the sheets and the misapplication of grant funds. Defendants contend that these visits were searches in violation of their fourth amendment rights and that testimony of observations at the centers should have been excluded. McGinnis v. United States, 227 F.2d 598 (1st Cir. 1955); cf., Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1968). Defendants assert that the fourth amendment standard of an unreasonable search is tested by the individual’s reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Specifically, they argue that in assessing whether the defendants’ expectations are constitutionally justifiable, this court should focus on whether specially recruited youths could reasonably assert an expectation of privacy in their activities and should disregard the occurrence of those activities within the context of a federally-funded educational program. However, “the specific content and incidents of [fourth amendment rights are] shaped by the context in which they are asserted,” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed. 889 (1968), and we must therefore consider all the relevant circumstances in determining the reasonableness of a search. From our examination of the facts, we find that the defendants had no reasonable expectation' of privacy.
Katz establishes that “what a person knowingly exposes to the public, even in his home or office, is not the subject of Fourth Amendment protection.” Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511. Defendants were voluntary participants in an educational program subject to continual monitoring by United States government officials as well as T.W.O. officers. They cannot, therefore, reasonably claim the same expectancy of privacy which might shroud their purely personal activity. Further, the locations do not suggest an expectation of privacy. The training centers were generally accessible to anyone having an interest in the program, including some nonparticipants. The centers were not subject to the legal control of any of the defendants, and training centers are not intrinsically so closely associated with the individual as to give rise to a reasonable expectation of privacy. Cf., Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971); Wheeler v. Goodman, 330 F.Supp. 1356 (D.D.C. 1971). The nature of the activity belies an expectation of privacy. Educational classes are inherently group activities open to the full view of fellow participants, instructors, and administrative and supervisory personnel. The manner of the police presence also negates an expectation of privacy among knowledgeable gang members. The participants were fully aware of their observation by uniformed policemen. Cf., Katz v. United States, supra. If the defendants had no reasonable expectation of privacy regarding activity at the training centers, the police observations of the activity are admissible. See, United States v. Horton, 328 F.2d 132 (3rd Cir. 1964), cert, den., 377 U.S. 970, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964).
There is a second reason why the police visits do not descend to the level of unreasonableness proscribed by the fourth amendment. Investigation necessary to ensure proper effectuation of a tax-supported program is regarded as so essential to the fulfillment of a public trust that it is deemed reasonable. Wyman v. James, 400 U.S. 309, 91 S.Ct 381, 27 L.Ed.2d 408 (1971). The O.E.O. grant to T.W.O. envisioned civic involvment in the supervision of the program, in accordance with the statutory mandate of O.E.O. Both T.W.O. and O.E.O. invited the Chicago Police Department to attend weekly monitoring meetings of the program in order “to give the police depai’tment access to the program so they could understand the contents, and if they had any questions, they could raise them at that time.” It is doubtful that the police would have sufficient information to formulate questions or to participate effectively in the weekly evaluation sessions unless it was contemplated by O.E.O. and T.W
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer: |
songer_appel1_3_3 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
NICHOLAS, Collector of Internal Revenue, v. FIFTEENTH STREET INV. CO.
No. 1796.
Circuit Court of Appeals, Tenth Circuit.
June 19, 1939.
F. A. Michels, Sp. Asst, to Atty. Gen (James W. Morris, Asst. Atty. Gen., Sewal; Key and J. L. Monarch, Sp. Assts. to Atty Gen., and Thomas J. Morrissey, U. S. Atty., and Ivor O. Wingren, Asst. U. S. Atty., both of Denver, Colo., on the brief), for appellant.
Horace Phelps, of Denver, Colo. (James D. Benedict and Horace F. Phelps, both of Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
BRATTON, Circuit Judge.
This is a suit instituted by the Fifteenth Street Investment Company, a corporation, hereinafter called the taxpayer, against Ralph Nicholas, Collector of Internal Revenue for the District of Colorado, under section 24 (20) of the Judicial Code, 28 U.S.C.A. § 41 (20), to recover income taxes paid for the years 1932 and 1933. The taxpayer owned a parcel of real estate situated in the City of Denver. In March, 1929, the property was leased to Mountain States Theater Corporation for the succeeding twenty-five years. In August, 1930, the taxpayer completed the construction of a building on such real estate at a cost of $262,500. In addition to the amount thus expended by the taxpayer, the lessee, with the permission of the taxpayer but without obligation to do so, expended $134,164.40 for unseverable and permanent improvements to the building. The title to such improvements was at all times vested in the taxpayer, and no part of the expenditures which the lessee made for them was in lieu of rent. The depreciable life of the building following the agreed determinative period of the lease was sixteen and one-half years. In May, 1933, the lease was prematurely terminated by the default of the lessee, and the exclusive possession of the property was unconditionally surrendered to the taxpayer.
The taxpayer included in its income tax return for the year 1932 the amount of $2,-355 as the aliquot part for one year of the value of the improvements paid for by the lessee and paid the tax thereon. No part of the value of the improvements made by the lessee was included in the return of the taxpayer for the year 1933. On examination of the facts, the Commissioner increased the income of the taxpayer in the sum of $49,106.66 as representing the depreciated value of the improvements made by the lessee remaining after the termination of the lease. A deficiency in taxes was imposed and paid. Claims for refund were submitted and denied. This suit followed. The court determined that the taxpayer did not realize any taxable gain in the years in question resulting from the improvements made by the lessee. 23 F.Supp. 863. Judgment was rendered for the taxpayer, and the collector appealed.
Section 22(a) of the Revenue Act of 1932, 47 Stat. 169, 178, 26 U.S.C.A. § 22 (a), is relied upon to sustain liability for the taxes in controversy. The section provides that gross income shall include gains, profits, and income derived from dealings in property, whether real or personal, growing out of the ownership or use of such property or of any interest therein; also gains, profits, and income derived from any source whatever. But the power of the Congress to lay and collect taxes on income is confined to that which is actually and essentially income; and income, as thus used, means the gain derived from capital, from labor, or from both combined. The taxing power in respect to income cannot by legislative definition be extended beyond that scope. That which is not actually and essentially income cannot by definition be subjected to such a tax. Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570.
The improvements for which the lessee paid enhanced the value of the property, but the enhancement did not constitute realized income to the taxpayer during the years in question. It constituted an addition to capital instead of realized income within the meaning of the statute. Such an enhancement in value can result in realized income to the taxpayer only through increased rentals from the property after cancellation of the lease, or through the sale of the property. M. E. Blatt Co. v. United States, 305 U.S. 267, 59 S.Ct. 186, 83 L.Ed. 167; Hewitt Realty Co. v. Commissioner, 2 Cir., 76 F.2d 880, 98 A.L.R. 1201.
Reliance is also placed upon Article 63, Treasury Regulations 77, promulgated under the Act. It provides, in substance, that where a lessee erects or makes improvements in a building in pursuance of an agreement with the lessor, and such building or improvements are not subject to removal by the lessee, the lessor may at his option report as income at the time when such building or improvements are completed the fair market value thereof, or he may spread over the life of the lease the estimated depreciated value, of such building or improvements at the termination of the lease and report as income for each year of the lease the aliquot part thereof; and that if for any reason other than a bona fide purchase from the lessee by the lessor, the lease is terminated so that the lessor comes into possession or control of the property sooner than the time originally fixed for the termination of the lease, the lessor shall be deemed to have derived additional income for the year in which the lease is thus terminated to the extent that the value of the building or improvements at that time exceeds the amount previously reported as income on account of the erection of such building or improvements. The function of Treasury Regulations is to further the administration of Revenue Acts. As previously stated, the enhancement in the value of the property resulting from the improvements for which the lessee paid did not constitute realized income to the taxpayer during the years in question within the meaning of the statute. The regulation did not make it so. M. E. Blatt Co. v. United States, supra.
The judgment is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer: |
songer_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.
LONG v. COMMISSIONER OF INTERNAL REVENUE.
No. 8571.
Circuit Court of Appeals, Ninth Circuit.
April 23, 1938.
Petition for Rehearing Denied May 18, 1938.
Chandler P. - Ward, of Los Angeles, Cal., for petitioner. '
James W. Morris, Asst. Atty. Gen., and Sewall- Key, Norman D. Keller, Alexander Tucker, and John J. Pringle, Sp. Assts. to Atty. Gen., for respondent.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
STEPHENS, Circuit Judge.
The Commissioner of Internal Revenue disallowed a deduction claimed in petitioner’s income tax return and determined a deficiency in the tax liability of $3,286.17 for the year 1931. She petitioned the Board of Tax Appeals for a redetermination of the deficiency and prayed that, “The Board may find that the taxpayer suffered a deductible loss during the year 1931 in the sum of $112,450.” The Board decided no deduction should be allowed. Petitioner seeks review of this decision.
The undisputed facts are as follows: On January 10, 1929, petitioner and her husband, Marcus Marshall, entered into a written agreement settling their property rights and claims between themselves, including the maintenance of their two minor daughters. Their property was held in community. The agreement provided that the husband would convey to petitioner certain realty and personal property and would within five ye'ars discharge encumbrances on the realty amounting to the sum of $9,324.01, and would create a fund of $100,000 payable to petitioner for the maintenance of herself and the children, and, until such fund had been created and paid to petitioner, pay her $500 monthly.
An action for divorce was pending in the California Superior Court when this agreement was entered into and on February 15, 1929, an interlocutory decree of divorce was entered and the agreement, as above detailed, was approved by the court. The court also directed that Marshall deposit with a ■ trust company 500 shares of stock of .the Marshall Corporation as a guaranty for the establishment of the $100,000 fund. A final decree of divorce, which by reference incorporated the terms of the agreement, was entered F’ebruary 17,1930.-
Marshall conveyed the realty, deposited the 500 shares as ordered, and paid the $500 per month until October, 1930, when he paid but $200 and in November but $150,' in December $150'and nothing thereafter. Upon his death in April, 1931, he was delinquent in the sum of $2,500. He had not then discharged any part of the encumbrances on the realty, nor had he paid to petitioner any part of the proposed $100,000 fund.
At his death in 1931 his estate consisted of insurance and personalty of an aggregate value of $3,571. Creditor’s claims, in addition to petitioner’s claim of $112,450, were many times the value of the assets. The stock deposited as a guarantee for the establishment, of the $100,000 fund was worthless.
In the year of Marshall’s death petitioner ascertained that the amounts agreed to be paid were uncollectible, charged them off as valueless, and took a deduction in her income tax return for that year of $112,450 as a bad debt.
Section 23(j) of the Revenue Act of 1928, 26 U.S.C.A. § 23 note, under which petitioner claimed and the Board disallowed deductibility of the amount in question, provided as follows:
“In computing net income there shall be allowed as deductions: * * *
“(j) Bad Debts. Debts ascertained to be worthless and charged off within the taxable year.”
The parties have argued • the question of whether or not the obligation charged off by petitioner was a “debt” within the meaning of the quoted provision. However, we do not here decide this point since in our view if it be assumed that the sum unpaid under the property settlement agreement is a debt nonetheless the claimed deduction was properly disallowed.
. Section. 113 of the Revenue Act of 1928,. 26 U.S.C.A. § 113 note (effective when this deduction was claimed), provided, so far as is applicable here, that: “The basis for 'determining the gain or loss from the sale or other disposition of property acquired after February 28; 1913, shall be the cost of such property.” It has been held, and we think properly, in construing the comparable provision of section 202 of the Revenue Act of 1918, 40 Stat. 1060, that the act of charging off- a worthless debt is a “disposition” of proner-ty. Ayer v. Blair, 1928, 58 App.D.C. 175, 26 F.2d 547; Skinner v. Eaton, D.C.Conn., 1929, 34 F.2d 576, affirmed without opinion, 2 Cir., 1930, 44 F.2d 1020. The same conclusion was reached by this court in Crocker v. Lucas, 9 Cir., 1930, 37 F.2d 275, where section 202(b), of the Revenue Act of 1921, 42 Stat. 229 (substantially identical with the provision here under consideration), was involved.
Where a bad debt deduction is claimed it will not be granted in the absence of proof of the basis governing its allowance. Harmount v. Commissioner, 6 Cir., 1932, 58 F.2d 118, 121; and see Kinkead v. Commissioner, 3 Cir., 1934, 71 F.2d 522. And the amount stated on the face of an obligation cannot be considered prima facie the cost thereof. Ayer v. Blair, supra; Skinner v. Eaton, supra.
In the present case the Board of Tax Appeals has made no finding as to the “cost” of the “debt” now sought to be deducted as worthless. Nor could such a finding have been made since the record is barren of evidence as to the fact. If the obligation involved be thought to have been acquired by way of gift and thus to have become part of petitioner’s capital without cost to her, then the basis for determining the loss would be the fair market value of the obligation at the time of acquisition by the donor. Section 113(a) (2) of the Revenue Act of 1928, 26 U.S. C.A. § 113 note; see Kinkead v. Commissioner, supra. No evidence .as to fair market value appears in the record, and indeed it is doubtful' whether the agreement may be properly said to have had a “fair market value.” As stated in Helvering v. Walbridge, 2 Cir., 1934, 70 F.2d 683, 685, “All the cases have required some more palpable measure than any available here, which can be no more than an opinion as to the value of a unique right of action for which there were no known buyers, nor any but an imaginary demand. [Citing cases.]”.
Regardless, then, of whether “cost” or “value” be considered as the proper measure for the calculation of the claimed deduction, no basis -has been established. The burden of proof to establish a deductible loss and the amount of it, clearly was upon petitioner. Reinecke v. Spalding, 280 U.S. 227, 233, 50 S.Ct. 96, 98, 74 L.Ed. 385; Harmount v. Commissioner, supra; Kinkead v. Commissioner, supra. If it be thought that the difficulties of establishing a basis in a case such as' the present are insurmountable, the language of the Supreme Court in Burnet v. Houston, 283 U.S. 223, 228, 51 S.Ct. 413, 415, 75 L.Ed. 991, is pertinent. 'The court there said: “We cannot agree that the impossibility of establishing a specific fact, made essential by the statute as a prerequisite to the allowance of a loss, justifies a decision for the taxpayer based upon a consideration only of the remaining factors which the statute contemplates. * * * The impossibility of proving a materia! fact upon which the right to. relief de-t pends simply leaves the claimant upon whom the burden rests with an unenforceable claim, a misfortune to be borne by him, as it must be borne in other cases, as the result of a failure of proof.”
Affirmed.
“See. 202: ■ (a) That for • the purpose of ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, the basis shall be — ”
“See. 202. * * * (b) The basis for ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, acquired before March 1, 1913, shall be the same as that provided by subdivision (a); but — ”
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).
BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT 20, MUSKOGEE, OKLAHOMA; Natalie Sams and F. Clarence Sams, minors who sue by their parents, Mr. and Mrs. Nathan Sams, and Mr. and Mrs. Nathan Sams, individually; Thomas Buckley, Robert Buckley and John Buckley, minors who sue by their parents, Mr. and Mrs. William A. Buckley, and Mr. and Mrs. William Buckley, individually; Jennifer Parker, a minor who sues by her parents, Mr. and Mrs. Kenneth Parker, and Mr. and Mrs. Kenneth Parker, individually; and the Class of all those School Districts, School Children, Parents and Property Owners in the State of Oklahoma who are Similarly Situated with the above Named Plaintiffs, Plaintiffs-Appellants, v. STATE OF OKLAHOMA; State of Oklahoma ex rel. the Commissioners of the Land Office; Jack Blackwell, the County Treasurer of Oklahoma County; Jim Parkinson, the County Treasurer of Tulsa County; and Oscar Thomas, the County Treasurer of Muskogee County, in their official capacities and representing the class of all County Treasurers of Oklahoma, Defendants-Appellees, and Board of Education of Independent School District 1, Sulphur, Oklahoma, et al., Intervenors-Appellees.
No. 89-68.
United States Court of Appeals Tenth Circuit.
April 14, 1969.
Rehearing Denied May 5, 1969.
Tom R. Mason, Muskogee, Okl., and Maurice H. Merrill, Norman, Okl. (Norman & Wheeler and Bonds, Matthews & Mason, Muskogee, Okl., were with them on the brief), for plaintiffs-appellants.
Bert Barefoot, Jr., Oklahoma City, Okl. (C. J. Engling, Asst. Atty. Gen. for State of Oklahoma, was with him on the brief), for defendants-appellees.
John A. Claro, Oklahoma City, Okl. (Bert Barefoot, Jr., Edward H. Moler and Barefoot, Moler, Bohanon & Barth, Oklahoma City, Okl., were with him on the brief), for intervenors-appellees other than Independent School Dist. 1 of Tulsa County, Okl.
C. H. Rosenstein, Tulsa, Okl. (Rosenstein, Livingston, Fist & Ringold, Tulsa, Okl., were with him on the brief), for intervenor-appellee Independent School Dist. 1 of Tulsa County, Okl.
Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
The claim of the plaintiffs-appellants is that Oklahoma treats them unequally in the distribution of taxes collected for school purposes from utilities operating in more than one county. Jurisdiction is asserted under 28 U.S.C. § 1343(3) in that plaintiffs are deprived of the equal protection guaranteed by the Fourteenth Amendment. A three-judge district court was requested and denied. The trial court dismissed the action for lack of subject-matter jurisdiction and this appeal followed.
The action was brought by the Board of Education of a Muskogee, Oklahoma, school district and by parents and taxpayers suing in their own behalf and in behalf of their school children. The defendants are the State of Oklahoma and various state and local officials whose duties relate to the collection and distribution of taxes. Several school districts were permitted to intervene on the side of the defendants.
The allegations of the complaint are these. The Oklahoma Constitution, Art. X, § 12a, provides that taxes on utilities operating in more than one county “shall be paid into the Common School Fund * * * of this State.” In Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, the Oklahoma Supreme Court held that this constitutional provision was not self-executing and that in the absence of legislation the county treasurers could not pay into the Common School Fund the mentioned taxes. The Oklahoma legislature has not enacted the necessary implementing legislation. This failure deprives the plaintiffs of equal protection because the children are denied an equal opportunity for education, because the individual taxpayers are required to pay more taxes, and because the school district is denied its “equalized share of the school ad valorem taxes,” assured by Art. X, § 12a. The plaintiffs seek a decree enjoining the county treasurers from paying taxes collected on utilities operating in more than one county to the local school districts, directing the state legislature to enact implementing legislation, and, in the event of such legislation, ordering the Commissioners of the Land Office to apportion. and distribute the taxes throughout the state as other “Common School Funds.”
A single judge may dismiss for lack of subject-matter jurisdiction and his determination is made on the basis of the allegations of the complaint. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. His refusal to convene a three-judge court may be reviewed by the court of appeals. Idlewild Bon-Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. If the trial court was correct in holding that subject-matter jurisdiction is not alleged,, there is no need of pursuing further the question of the need for a three-judge court.
The complaint before us does not attack the constitutionality of any state statute or of any administrative order. The claims are (1) the decision in Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, that § 12a of the Oklahoma Constitution is not self-executing is wrong, and (2) accepting Linthicum, the state legislature has denied the plaintiffs equal protection by not implementing § 12a. If the complaint is read liberally, it can be taken as an over-all attack on the Oklahoma system of distribution of school funds. If such is the intent, we do not know what law or what official act is relied on as a denial of equal protection.
The plaintiffs say that the apportionment decisions, e. g. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and Moss v. Burkhart, W.D.Okl., 220 F.Supp. 149, support their right to a three-judge district court. In those cases the constitutionality of specific state apportionment statutes was attacked. Other decisions cited by plaintiffs are similarly distinguishable. In Sailors v. Board of Education of County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650, the charge was that a state statute was unconstitutional. Flast v. Cohen, Secretary of Health, Education, and Welfare, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, was concerned with the constitutionality of a federal statute. King, Commissioner, Department of Pensions and Security v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, related to the constitutionality of a state regulation.
The decision in Linthicum that § 12a is not self-executing is an interpretation by the highest court of Oklahoma of the constitution of that state. It is conclusive on the point and is binding on us. Senn v. Tile Layers Protective Union, Local No. 5, 301 U.S. 468, 477, 57 S.Ct. 857, 81 L.Ed. 1229. The claim that Linthicum was decided wrongly goes to the construction of the state constitution and does not deny a federal constitutional right. We cannot overturn Linthicum.
The failure of the legislature to implement § 12a is not the denial of a right, privilege, or immunity secured by the Constitution of the United States. No allegation of the complaint charges that any plaintiff, any group of plaintiffs, or any class which they claim to represent have been discriminated against in the collection and distribution of tax moneys because of race, color, religion, or any other personal attribute. Absent such allegations, the claim is simply that they want a different allocation of the public revenues. In Allied Stores of Ohio, Inc. v. Bowers, Tax Commissioner of Ohio, 358 U.S. 522, 526, 79 S.Ct. 437, 440, 3 L.Ed.2d 480, the Supreme Court said that when the states are dealing with their proper domestic concerns and do not entrench on federal prerogatives or violate the guaranties of the federal constitution, they “have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests.” See also Thompson v. Allen County, 115 U.S. 550, 555 and 556, 6 S.Ct. 140, 29 L.Ed. 472.
The question of whether taxes collected from utilities operating in more than one .county should be used in the county where the property is located or distributed generally on some basis to all the counties of the state presents a policy matter for determination by the state — not by the federal judiciary. See McInnis v. Shapiro, N.D.Ill., 293 F.Supp. 327, affirmed sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308. The use of taxes in the county where the taxed property is located does not, of itself, constitute an invidious discrimination or unreasonable classification. We agree with the trial court that subject-matter jurisdiction is not present.
The trial court dismissed the State of Oklahoma as a defendant on the ground of sovereign immunity and no express consent to suit. The action was correct. Hamilton Manufacturing Company v. Trustees of the State Colleges in Colorado, 10 Cir., 356 F.2d 599, 601, and cases there cited.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_casetyp1_2-3-3 | C | 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 - other civil rights".
Maria DOE and Cruz Doe, individually and on behalf of their minor son Manual Doe, Plaintiffs, and Anna Doe, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES, et al., Defendants, and Catholic Home Bureau, Defendant-Appellee.
No. 590, Docket 82-7505.
United States Court of Appeals, Second Circuit.
Argued Jan. 27, 1983.
Decided June 2, 1983.
Certiorari Denied Oct. 3, 1983.
See 104 S.Ct. 195.
Carolyn Kubitschek, Edward N. Simon, New York City, David J. Lansner, Lansner & Wendt, New York City, Louise Gruner Gans, New York City, for plaintiff-appellant.
Frederick J. Magovern, New York City, for defendant-appellee.
Before OAKES, KEARSE and SLOVI-TER, Circuit Judges.
Of the United States Court of Appeals for the Third Circuit, sitting by designation.
SLOVITER, Circuit Judge:
Appellant Anna Doe’s claim under 42 U.S.C. § 1983 (Supp. IV 1980) against the Catholic Home Bureau (“the Bureau”) comes before this court for the second time. On the first appeal, we reversed the judgment entered on the jury verdict for the defendant Bureau and remanded the case for a new trial because the jury instructions were misleading and because certain evi-dentiary rulings were erroneous. Doe v. New York City Department of Social Services, 649 F.2d 134 (2d Cir.1981) (Doe I). After the jury found for plaintiff at the new trial and assessed damages at $225,000, Judge Brieant, the trial judge, United States District Court for the Southern District of New York, entered judgment notwithstanding the verdict in favor of the defendant Bureau. The judge rejected plaintiff’s argument that she was entitled to the jury verdict under this court’s earlier decision. Instead, the trial court held the evidence was so overwhelming that no reasonable jury could find the Bureau acted with deliberate indifference, the standard used to establish liability under the section 1983 claim at issue. Plaintiff appeals the entry of judgment in favor of the Bureau; we reverse and remand for reinstatement of the jury verdict.
I.
BACKGROUND
A.
Facts
Because this ease reaches us on appeal from a judgment notwithstanding the jury’s verdict for the plaintiff, we must view the evidence in the light most favorable to the plaintiff who “must be given the benefit of all reasonable inferences which may be drawn in [her] favor from [the] evidence.” Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970).
Anna Doe, born in 1961, was two years old when she was placed in foster care along with her sister. The New York City Commissioner of Welfare, their legal custodian, arranged for defendant Catholic Home Bureau to supervise their care beginning January 5, 1964. The Bureau placed the girls with Mr. and Mrs. Senerchia, having previously investigated and certified them as suitable for foster placements. The Bureau placed two additional foster children with them in 1965.
The record contains evidence that Anna was regularly and frequently physically and sexually abused by Mr. Senerchia, her foster father, starting in 1971 when she was about ten or eleven years old. The physical abuse consisted, inter alia, of beating her over her entire body with his hands and with a belt, throwing her down the stairs and even once cutting her with a hunting knife. Beginning at the same time when Anna was ten or eleven, and continuing for more than six years, Mr. Senerchia forced Anna to have intercourse and oral sexual relations with him. He had threatened Anna she would be institutionalized if she told anyone of his actions.
The Bureau took decisive action only after Mrs. Senerchia reported to the Bureau in August 1977 that she had recently discovered Mr. Senerchia and Anna in bed together. On receipt of this information, the Bureau barred Mr. Senerchia from returning home and the Bureau reported the abuse to the appropriate city authority, the Confidential Investigation Unit. Shortly thereafter, one of Anna’s foster sisters reported that she had also been physically and sexually abused by Mr. Senerchia. The Confidential Investigation Unit corroborated the occurrence of abuse of Anna. It is undisputed that prior to August 1977, the Bureau did not report any suspected abuse either to the New York City Department of Social Services or to the Confidential Unit.
In this law suit, filed in April 1979, Anna claims that the Catholic Home Bureau violated her constitutional right to be kept free from harm. She alleges that the Bureau’s failure to supervise her placement adequately and to report her situation to the New York City Department of Social Services as a case of suspected child abuse led to continuation of her mistreatment. Plaintiff contends that the Bureau had violated specific duties imposed by New York law; that it had enough information beginning at least in early 1975 to give it actual or constructive notice of the abuse to which Anna was being subjected; and that the Bureau was grossly negligent and deliberately indifferent to Anna’s physical well-being in failing to act, resulting in Anna’s continued abuse.
To support the jury’s verdict, which depended on a finding of deliberate indifference to plaintiff’s needs, plaintiff relies primarily on events beginning in early 1975. The case records evince some earlier concerns. There are notations about Mr. Sen-erchia’s unusual dominance within the family, the difficulty of dealing with him, the suspicion that Mr. Senerchia had severe emotional problems, the difficulties which Mr. and Mrs. Senerchia placed in the path of workers seeking to see Anna alone, and the Senerehias’ practice of often answering questions directed to Anna. Nonetheless the early case records were generally positive about the family environment.
However, in January 1975, when Anna was in the eighth grade, specific information of a problem was communicated to Sister Una McCormack, the Bureau’s executive head. A priest told her that Mr. Sen-erchia had taken Anna out of her school allegedly because “Anna was sexually acting out in school” with other children, and was attempting to get her into parochial school. Sister Una directed that Anna be seen by Dr. Lewis, a Bureau psychologist. Ms. Crowe, the supervisor of the Staten Island office which was handling Anna’s case, contacted Mr. Senerchia regarding this appointment. Mr. Senerchia repeated the allegation of frequent sexual activity to Ms. Crowe, and stated that Anna, upon his prodding, had confessed to sexual involvement with other school children including actual intercourse occurring since the first grade. These activities allegedly occurred during school hours in empty classrooms, hallways, the gym and the cafeteria. The case records of conversations of Bureau personnel with Mr. Senerchia note that he seemed eager to give details of this sexual activity and that he seemed to derive some satisfaction from recounting the matter. Mr. Senerchia insisted that his wife not be told and that the Bureau not approach the school.
Ms. Moroney, Ms. Crowe’s supervisor, visited the Bureau’s branch office, read the case record and discussed the situation. Ms. Moroney took the case record containing background information on the Senerchia family to Dr. Lewis. Dr. Lewis was informed that Anna had been “engaging in sexual activity with classmates.” Dr. Lewis, however, did not read the case record before interviewing Anna and Mr. Senerc-hia. During this interview on January 9, 1975, Anna admitted to “sexual play” with other children and evinced anxiety about the repercussions the episode might have on the possibility of her adoption by the Sen-erchias. Dr. Lewis’ impression was that Anna had probably been engaging in some “sex play” and concluded, after spending 15 minutes with Mr. Senerchia, that he seemed to be a concerned and warm parent. She recommended that Anna be transferred to a more appropriate educational setting, but that the foster home placement be maintained. Dr. Lewis and the Bureau’s personnel agreed, after conferring, that Anna should not return to the school she had been attending. Significantly, on learning of Mr. Senerchia’s allegation, no one from the Bureau contacted the school where Anna had allegedly engaged in these active and frequent sexual activities either to corroborate Mr. Senerchia’s story or to see what light the school authorities could shed.
Shortly thereafter, Dr. Lewis made an up-to-date psychological evaluation of Anna to measure her intelligence for purposes of educational placement, since the Bureau was seeking to have Anna placed in a special class for the mentally handicapped. A representative of the City’s Bureau of Child Guidance told Anna’s caseworker that Anna’s test results were above the ceiling for placement in a mentally handicapped class. The caseworker informed that representative at the City’s Bureau that Anna’s foster father had removed her from school, but did not give the reason. The Catholic Bureau then considered trying to place Anna in a special class for the emotionally handicapped. Since such a placement required a psychiatric evaluation in addition to the psychological evaluation performed by Dr. Lewis, Anna was scheduled to see Dr. de Alvarado, an agency psychiatrist, on March 5, 1975, and Mr. and Mrs. Senerchia were requested to attend. A staff conference on Anna’s case was held in late February at Dr. de Alvarado’s request. The March 5, 1975 appointment was cancelled because Mr. Senerchia had been hospitalized, but Dr. de Alvarado saw Anna alone on March 19th.
Dr. de Alvarado testified that she had carefully read the case history and felt something did not add up. Upon questioning Anna, she did not believe the details of Anna’s sexual involvement with other school children. She asked Anna directly if she was sexually involved with Mr. Senerc-hia. Although Anna did not answer, Dr. de Alvarado knew that a great majority of abused children deny occurrence of such abuse. Dr. de Alvarado reached the judgment that sexual abuse was occurring, which she based upon her reading of the case history and her observation of Anna during the interview, including Anna’s tearful reaction to the question about sexual involvement with her foster father. After the interview, the psychiatrist called a conference that same day with Ms. Crowe and others and, as Dr. de Alvarado testified, “very explicitly said to them that I thought there was sexual abuse in that home and that she [Anna] should be removed so that they could explore” the situation. Dr. de Alvarado testified that she “thought it was a crisis situation.” Her report recommended removal from the foster home and placement in a residential structured situation.
Although Dr. de Alvarado had alerted the Bureau personnel to her views on March 19, 1975, no immediate action was taken by them. Dr. de Alvarado was requested by the Bureau to delete references to any suspected sexual relationship from her written report, apparently so that the report could be used by those outside the Bureau for school placement purposes, and she did so. An administrative review in the Bureau was not held until April 10, 1975, when Ms. Maroney, Mr. Galano, Special Services Coordinator, Ms. Crowe, and Ms. Klages, Anna’s caseworker, met and agreed, as set forth in the case records, that “a continuing effort should be made to get Anna into a school” and that “Mr. Senerchia’s involvement with Anna should be further investigated.” Nonetheless, the Bureau undertook no such investigation on its own, nor did it request an investigation by others. No one from the Bureau reported suspected abuse to the Confidential Investigation Unit, although only the month before there had been a memorandum to child care agencies from the City emphasizing that “[i]t is imperative that diligent reporting” of abuse be made. Doe I, 649 F.2d at 148 n. 13. Furthermore, no home visits were made between November 12, 1974 and May 12, 1975, and Anna, who had previously been classified as having borderline intelligence, remained out of school for the semester.
The truant officer from Anna’s school became concerned about Anna’s absence. After learning Mr. Senerchia’s asserted reason for removing Anna from school, the truant officer telephoned the Bureau in April 1975 and told the caseworker that “this [Mr. Senerchia’s allegations] could not be occurring” because the school “is not... haphazardly run”, Anna could not have been cutting classes, and there were no empty storerooms or classrooms where the alleged activity could have taken place. The school’s principal called the Bureau shortly thereafter to report he had investigated and confirmed that Anna had not been cutting class. When the caseworker finally saw Mr. Senerchia on May 12, 1975 and questioned him about his allegations, Mr. Senerchia gave a version which the caseworker noted “differ[ed] greatly from the version Mr. S. originally gave.”
In May 1975, Anna was examined concerning her school placement by Dr. Davis, a consultant psychiatrist for the City’s Board of Child Guidance. The Bureau did not inform Dr. Davis of Dr. de Alvarado’s assessment of Mr. Senerchia’s involvement with Anna. Dr. Davis advised against a residential placement but felt Anna needed a special slow class. When Anna finally resumed school in the fall, she attended a parochial school rather than the special classes for which the Bureau had been waiting the prior semester.
On June 6,1975, the Bureau submitted its annual report to the City. It did not mention Mr. Senerchia’s withdrawal of Anna from school, Dr. de Alvarado’s suspicions and recommendation, or the allegations of Anna’s sexual activity in school, although these events had occurred in the year covered by the report. Nor did the Bureau probe further based on the information at hand. Instead, the Bureau transferred the case to a different office supervisor (Ms. Gambino) and caseworker (Ms. Dellaverson) in the summer of 1975 because of “the complications surrounding [the] case” and “in an effort to move away from the historical relationship (or lack of) that exists between [the Senerchia family] and unit staff.” Ms. Dellaverson was never instructed to investigate the possible sexual involvement of Anna with her foster father. She testified that she visited the Senerchia home every three weeks or so. The case records do not reflect any visitations between September 14, 1976 and April 1, 1977, another critical period.
In September 1976, Mr. Senerchia informed the Bureau that Anna’s foster sister had been “sexually acting out” in a fashion similar to his reports about Anna. He removed the foster sister from school. Ms. Dellaverson told her supervisor, Ms. Gambi-no, that she felt this was a “repetition syndrome” and Ms. Gambino “felt there was something abnormal here.” Nonetheless, this new and troubling development did not evoke any suspected child abuse report by the Bureau.
Because the Senerchias were planning to adopt Anna and her sister, Ms. Dellaverson and Ms. Gambino decided that a psychiatrist should interview the Senerchias, Anna, and her sister before proceeding with the adoption. The Senerchias initially resisted a psychiatric visit, but were finally seen in March 1977 by a Catholic Bureau psychiatrist, Dr. Piaña. Ms. Dellaverson testified that she did not think she told Dr. Piaña about Dr. de Alvarado’s suspicions or that the children had been taken out of school. Although Dr. Piaña testified at the trial that he had reviewed the highlights of the case record, this recollection was in conflict with his previous deposition testimony that he had read only a two page case summary before his interview rather than the entire case record. This summary mentioned that Anna and her foster sister had been involved in “sexual acting out” at school, but did not state that Anna had been removed from school and did not refer to Dr. de Alvarado’s suspicions. Dr. Piaña found no psychiatric contra-indications to the Senerc-hias adopting Anna and her sister. There was no testimony that he had asked the girls about sexual abuse at home, even though he was aware of the reports of Anna’s sexual acting out in school. His testimony indicated a disinclination to questioning about sexual involvement at home. It is not clear from the record whether the Bureau provided Dr. Piaña with a copy of Dr. de Alvarado’s earlier report.
In the summer of 1977, Mr. Senerchia informed the Bureau he was going to divorce Mrs. Senerchia and planned to marry a young woman whose child he had fathered. After Mrs. Senerchia learned of her husband’s plan to divorce her, she went to the Bureau in August 1977 with Anna and reported she had found Anna and Mr. Senerchia in bed together. The record indicates that the Bureau then acted promptly in reporting the abuse to authorities and in moving to protect the girls.
B.
Liability
The Bureau does not contest that 42 U.S.C. § 1983 applies to it. As a placement agency, it had various statutory and contractual obligations. It was charged by state law with the task of annually recerti-fying the Senerchia home. See Doe I, 649 F.2d at 137. The Bureau also had a contractual agreement with the Department of Social Services of the City of New York by which it undertook, inter alia, to supervise the foster home, to provide appropriate comprehensive services, and to submit periodic reports concerning the placement so that the City could monitor the situation. Plaintiffs evidence showed, however, that there were some- lengthy periods when no Bureau personnel visited the Senerehia home, and that these gaps came at critical times under the events of this case. Furthermore, the Bureau failed to submit comprehensive and timely reports. Finally, and most importantly, as noted in Doe I, N.Y. Soc.Serv.Law § 413 (McKinney Supp.1982) “imposed a strict duty on the agency to report all suspected cases of child abuse to the Department of Social Services.” 649 F.2d at 145 & n. 8 (emphasis added). The duty of agencies supervising a foster home to report suspected child abuse was reiterated on March 5,1975 in a memorandum by Assistant Commissioner Parry which emphasized that “[i]t is better, by far, in the best interests of the children we are mandated to protect, to err on the side of reporting cases which may be unfounded, than not to report and thereby endanger our children.” Doe I, 649 F.2d at 148 n. 13. Although the Bureau’s staff psychiatrist, Dr. de Alvarado, explicitly stated she suspected sexual activity between Anna and her foster father, the Bureau transmitted no report of suspected abuse.
In Doe I, we reversed the trial court’s entry of judgment for the defendant. We held that the jury had not been properly instructed with regard to the meaning of “deliberate indifference”, the standard of liability. The trial court had erroneously conveyed “an impression of deliberate indifference requiring a higher degree of knowledge, ill-will and culpability than is actually the case.” 649 F.2d at 142. Moreover, “[i]t failed to explain to the jury that repeated acts of negligence could be evidence of indifference.” Id. We furthermore noted that gross negligence and deliberate indifference are “closely associated” and that the former “creates a strong presumption” of the latter. Id. at 143 (footnote omitted). We found that the trial court erred by instructing the jury that plaintiff had to show that the Bureau had actual and specific knowledge of Anna’s mistreatment. Id. at 144 — 45. We stated liability under section 1983 could be established if supervisory personnel “exhibited deliberate indifference to a known injury, a known risk, or a specific duty.” Id. at 145. We also held that the trial court erroneously excluded certain evidence, such as parts of the Parry memorandum and evidence of abuse of Anna’s foster sister, and that the trial court erred in admitting certain other evidence of dubious relevance without cautionary instruction.
After the second trial, the jury returned a verdict for the plaintiff and assessed damages at $225,000. The trial court set aside the verdict and rejected plaintiff’s argument that the holding in our prior opinion negated its power to rule on a motion for judgment notwithstanding the verdict. The trial judge also held that the evidence was so overwhelming that no reasonable jury could have concluded the Bureau acted with deliberate indifference, although he believed there was evidence of negligence. He stated, however, that if his determination was reversed on appeal, the damage award was proper. No cross-appeal was taken from this latter determination. Plaintiff appeals the grant of defendant’s motion for judgment notwithstanding the verdict.
II.
DISCUSSION
There are two primary issues on appeal : (1) the application of the law of the case doctrine and (2) whether the evidence was so overwhelming that no reasonable jury could find the Bureau acted with deliberate indifference, thereby justifying entry of judgment n.o.v.
A.
Law of the Case
1. Mandate of Prior Decision
Under one prong of the law of the case doctrine, “When an appellate court has once decided an issue, the trial court, at a later stage of the litigation, is under a duty to follow the appellate court’s ruling on that issue.” United States v. Cirami, 563 F.2d 26, 32 (2d Cir.1977); see 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 792-93 (1981). This doctrine applies to issues that have been decided “either expressly or by necessary implication.” Munro v. Post, 102 F.2d 686, 688 (2d Cir.1939); see Fogel v. Chestnutt, 668 F.2d 100, 108 (2d Cir.1981), cert. denied, - U.S. -, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). Thus if, in Doe I, we decided that there was sufficient evidence to present a jury question on liability under section 1983, that holding would be binding on the lower court.
In arguing that we did in fact hold a jury question on liability existed which precluded the district court from overturning the jury verdict, appellant relies particularly on the following language:
Defendant argues that any errors committed by the trial court would have been harmless because plaintiff’s case was so weak that it should never have gone to the jury. We disagree. This is a complicated and difficult case. Whether the Catholic Home Bureau’s omissions were the product of deliberate indifference and proximately caused any portion of Anna’s abuse were questions of fact to be resolved by the jury.
649 F.2d at 149.
The Bureau characterizes this passage as mere dicta. We do-not so regard it. Although the decision to remand for a new trial was based on a finding that certain jury instructions and evidentiary rulings were erroneous, the plain language quoted above indicates that the sufficiency of the evidence question was presented to and decided by the earlier panel. Furthermore, 28 U.S.C. § 2111 (1976) directs appellate courts to disregard harmless error. It would have been unnecessary to remand for a new trial because of erroneous jury instructions and evidentiary rulings if plaintiff’s evidence on liability (including that proffered and improperly excluded) was insufficient under section 1983 as a matter of law. It is therefore clear that Doe I held plaintiff presented sufficient evidence to go to the jury. Accordingly, resolution of the sufficiency issue became part of the law of the case.
There is some authority in other circuits which would permit the district court to enter a directed verdict or j.n.o.v. if there was substantially different evidence at the second trial. See, e.g., Otten v. Stonewall Insurance Co., 538 F.2d 210, 212 (8th Cir.1976); Johnson v. Bernard Insurance Agency, 532 F.2d 1382, 1383-84 (D.C.Cir.1976); Pyramid Life Insurance Co. v. Curry, 291 F.2d 411, 414 (8th Cir.1961).
We need not decide whether to adopt that precedent here, see United States v. Fernandez, 506 F.2d 1200, 1202-03 (2d Cir.1974) (trial court has no power to alter mandate of the appellate court based on “new evidence”), because we reject the Bureau’s contention that there was substantially different evidence presented at the second trial of this case. We have examined the records of both trials and conclude the evidence at the second trial was not substantially or materially different. The core of plaintiff’s case pertinent to the issue of deliberate indifference was very similar at both trials and, if anything, was probably stronger at the second trial. Although the defendant Bureau called several new witnesses at the second trial, there was little, if any, material new evidence that would justify departure from the law of the case. Merely cumulative evidence does not constitute such a justification. See First National Bank v. Material Service Corp., 597 F.2d 1110, 1116 (7th Cir.1979).
2. Reconsideration oí Prior Appellate Decision
Appellee Bureau urges that if we find the prior decision controlling on the district court, we should nevertheless reconsider it. A second prong of the law of the case doctrine, however, encompasses “adherence by an appellate court to its own decision at an earlier stage of the litigation.” United States v. Cirami, 563 F.2d 26, 33 n. 6 (2d Cir.1977). As we have noted on numerous occasions, we view this aspect of the law of the case doctrine as one of sound, albeit not inexorable, practice. See, e.g., Rolf v. Blyth, Eastman Dillon & Co., 637 F.2d 77, 87 (2d Cir.1980); Crane Co. v. American Standard, Inc., 603 F.2d 244, 248 (2d Cir.1979) (Crane III); United States v. Fernandez, 506 F.2d 1200, 1203 (2d Cir.1974). Accord Insurance Group Committee v. Denver & Rio Grande Western Railroad Co., 329 U.S. 607, 612, 67 S.Ct. 583, 585, 91 L.Ed. 547 (1947). We have repeatedly stated we will not depart from this sound policy absent “cogent” or “compelling” reasons. See, e.g., United States v. Fernandez, 506 F.2d at 1203-04; Dale v. Hahn, 486 F.2d 76, 81 (2d Cir.1973), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974). The major grounds justifying reconsideration are “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 790 (1981) (footnote omitted); see Melong v. Micronesian Claims Commission, 643 F.2d 10, 17 (D.C.Cir.1980); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967).
In the previous section we discussed and rejected the Bureau’s new evidence claim. We similarly reject the Bureau’s characterization of the prior appellate decision as clear error leading to manifest injustice.
We turn then to the Bureau’s claim that the intervening decision in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), has altered the applicable standard of liability under section 1983. Romeo involved a section 1983 damage suit. The Court held that mentally retarded person's involuntarily confined in a state institution for the retarded have substantive rights under the due process clause of the Fourteenth Amendment. The Court stated that professional caretakers violate these rights “only when the decision by the professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. 102 S.Ct. at 2462 (footnote omitted). In so stating, the Court adopted what is essentially a gross negligence standard.
Even if the Romeo standard of liability is applicable outside of an institutional'setting, it is not more favorable to the Bureau than the deliberate indifference test which was applied in Doe I. The deliberate indifference test stemmed from the decision in Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), where the Court held that deliberate indifference to a prisoner’s serious medical needs constituted cruel and unusual punishment under the Eighth Amendment and stated a cause of action under section 1983. The Romeo Court, however, stated that it was error to apply the deliberate indifference standard when considering the due process rights of retarded persons involuntarily committed. 102 S.Ct. at 2456 n. 11. Such persons are “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” 102 S.Ct. at 2461 (citing Estelle v. Gamble, 429 U.S. at 104, 97 S.Ct. at 291). Thus the standard of liability which Anna was required to meet in this case may have been stricter than that suggested by the Romeo opinion. Consequently, we reject the Bureau’s assertion that the Romeo decision has effected a change in the controlling law so as to make our prior decision clear error, and hold that the plaintiff was entitled to her jury verdict under the law of the case.
B.
Propriety of Judgment n.o.v.
Alternatively, we hold that entry of judgment n.o.v. for the defendant Bureau was unwarranted because the record contains sufficient evidence from which a jury could reasonably find deliberate indifference. The standard for grant of judgment n.o.v. has been recently articulated as follows:
[T]he trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.
Howes v. Great Lakes Press Corp., 679 F.2d 1023, 1030 (2d Cir.) (quoting Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163, 167-68 (2d Cir.1980)), cert. denied, - U.S. -, 103 S.Ct. 452, 74 L.Ed.2d 605 (1982). The trial court in this case premised its decision on the second ground referred to in Howes. It relied particularly on the facts that Bureau personnel had often visited the plaintiff and the foster home and had provided or arranged for many general services for Anna’s care, such as tutoring and medical services, and furthermore that Anna expressed no discontent with her placement and, to the contrary, indicated her desire for adoption. The judge characterized as at most “mere negligence”, “poor judgment” or “somewhat careless” the Bureau’s failure to comply with periodic reporting requirements, its failure to visit the foster home during at least two lengthy periods and its failure to report Dr. de Alvarado’s suspicions of sexual abuse which the judge considered to be “almost equal to a guess.” In so ruling, the court usurped the function of the jury.
In Doe I we stated that an agency could be held liable under section 1983 if “its top supervisory personnel... exhibited deliberate indifference to a known injury, a known risk, or a specific duty, and their failure to perform the duty or act to ameliorate the risk or injury was a proximate cause of plaintiff’s deprivation of rights under the Constitution.” 649 F.2d at 145. In Doe I we referred to two separate theories of liability which could be applied here. One theory is predicated on the Bureau’s failure to comply with specific statutory duties, such as to report all suspected child abuse to the Department of Social Services. Id. at 145 & n. 8. This duty was characterized as “specific” and “unequivocal”, and the Bureau’s failure to act furnished a plausible basis for the jury to infer deliberate indifference. We also held that liability could be based on inferring deliberate unconcern “from a pattern of omissions revealing deliberate inattention to specific duties imposed for the purpose of safeguarding plaintiffs from abuse.” Id. (citation omitted). Moreover, the failure to report could be taken as “incremental documentation of a pervasive pattern of indifference.” Id. at 146 (footnote omitted).
The fact that the agency may have been attentive to Anna’s general care and provided Anna with general services did not preclude a jury finding of deliberate indifference respecting one very significant aspect of her welfare, the protection from abuse. See Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5th Cir.1980) (one episode of gross misconduct with respect to prisoner’s medical care not necessarily excused by general pattern of attentiveness). Furthermore, although Anna’s silence about her abuse is uncontested, the record contains expert testimony that abused children typically do not come forward and usually wish to remain in the home. Even defendant’s expert agreed that plaintiff’s desire for adoption was not inconsistent with her having been physically or sexually abused. The jury could infer that childcare professionals should know this fact, especially when their own expert psychiatrist informs them she believes abuse is occurring and the child is viewed as passive and of limited intelligence by agency personnel. None of the facts relied on by the trial court justified its overriding of the jury’s verdict.
A reasonable jury could have inferred deliberate indifference by the Bureau from the following evidence: the failure to report suspected child abuse to relevant authorities after being informed in March 1975 of Dr. de Alvarado’s opinion, especially when viewed against a background of unusual circumstances surrounding Mr. Sen-erchia’s removal of Anna from school; the failure after the April 10,1975 staff conference to carry out any further investigation of possible sexual abuse; the failure to verify Mr. Senerchia’s allegations of Anna’s sexual acting out in school with school authorities; the failure to take action after school officials informed the Bureau that the events described by Mr. Senerchia could not have transpired and after Mr. Senerchia changed his story significantly; acquiescence in Anna’s remaining out of school for an entire semester; the failure to conduct any home visits between December 1974 and May 1975; the failure to report Anna’s school absence, alleged sexual acting out or Dr. de Alvarado’s abuse suspicion in the June 1975 annual report to the Department of Social Services; the failure to take decisive action in 1976 when Mr. Senerchia reported markedly similar sexual acting out by Anna’s foster sister; and the failure either of Bureau personnel to provide Dr. Piaña with adequate information or the failure of Dr. Piaña, in light of the information given, to question Anna concerning sexual abuse in his March 1977 interview. As an appellate court, we do not sit to evaluate the validity or plausibility of the Bureau’s explanations for its actions. There was sufficient evidence for the liability issue to be presented to the jury, and the jury made its decision.
III.
We conclude that the law of the case established by the earlier appellate decision in Doe I precluded entry of a judgment n.o.v. for the defendant at the second trial and that no compelling reason has been established to justify our reconsideration of that decision.- In any event, entry of judgment n.o.v. was erroneous because there was sufficient evidence for a jury finding of liability under section 1983.
Consequently, we reverse and remand for reinstatement of the jury verdict.
. We reject the Bureau’s additional contention that this court lacks jurisdiction under Fed.R. App.P. 4(a). The district court entered judgment n.o.v. for the Bureau on June 4, 1982 and subsequently granted plaintiffs motion for reargument but adhered to its original decision on June 24, 1982. The notice of appeal, filed June 30, 1982, was timely, and it was not error for plaintiff to have designated the appeal as from the June 4, 1982 entry of judgment.
. This contrasts with Borger v
Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer: |
songer_treat | G | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Appellee, v. Gregory Christopher BAILEY, Appellant. UNITED STATES of America, Appellee, v. James Henry BROWN, Appellant. UNITED STATES of America, Appellee, v. Irving Marion MAXWELL, Appellant. UNITED STATES of America, Appellee, v. Robert Lee MORROW, Appellant. UNITED STATES of America, Appellee, v. Larry Eugene WALLACE, Appellant.
Nos. 73-2374 to 73-2378.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 30, 1974.
Decided Jan. 31, 1975.
David R. Badger, Charlotte, N. C. (Court-appointed), for appellant in No. 73-2377.
Keith M. Stroud, .Charlotte, N. C. (Court-appointed), for appellant in No. 73-2374.
Donald M. Tepper, New York City (Court-appointed), for appellant in No. 73-2378.
James M. Shannonhouse, Jr., Charlotte, N. C. (Court-appointed), for appellant in No. 73 — 2375.
Peter Goldberger, Third-year law student (Lila Bellar, Charlotte, N. C. (Court-appointed), on brief), for appellant in No. 73-2376.
Michael S. Scofield, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee in Nos. 73-2374, 73-2375, 73-2376, 73-2377 and 73-2378.
Before BRYAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit J udges.
ALBERT V. BRYAN, Senior Circuit Judge:
In three counts, George Christopher Bailey, James Henry Brown, Robert Lee Morrow and Larry Eugene Wallace were charged with the robbery of the Northeast Branch, North Carolina National Bank at Charlotte, North Carolina on July 9, 1973 in violation of 18 U.S.C. § 2113, and Irving Marion Maxwell was indicted with them as an aider and abettor, 18 U.S.C. § 2(a). Tried together, all five were found guilty. Bailey, Brown, Morrow and Wallace were each sentenced to 18 years imprisonment, and Maxwell to 14. They appeal.
With an exception now to be mentioned, no substantive defect in trial is to. be found in any of these cases. The exception is in the sentencing of defendants Bailey, Morrow and Wallace but the findings of their guilt are affirmed. Each of these three, however, was under 22 years of age at the time of conviction and so were eligible for consideration under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005, 5006(e) et seq.
In argument at the bar of this court the United States Attorney called our attention to the circumstance that as to these three defendants before pronouncing sentence the District Court had not made the requisite finding upon whether any of them would benefit from treatment under the Act, 18 U.S.C. § 5010(d). For this omission the prosecution confessed error. It moved that these cases be remanded to the District Court to pass such new judgments on the verdicts as it may deem just after resolution of the question of benefit. Dorszynski v. U. S., 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). It will be so ordered.
Another defendant, Brown, was 22 years of age at the time sentence was passed upon him and hence not within the mandates of the Youth Corrections Act. But since he had not reached 26, the treatment outlined in that Act was permissibly available for his sentence as an adult offender, 18 U.S.C. § 4209. Nevertheless, we do not hold this optional use of the latter section an indispensable consideration prerequisite to recourse to the regular adult punishments for offenses like Brown’s. However, since he is a contemporary of his companions in crime, it would not seem amiss, if the District Court saw fit, to allow him the advantages of the Youth Corrections Act as far as extendable under § 4209. Consequently, his case will be remanded to the District Court for that consideration. See United States v. Wilson, 450 F.2d 495, 498 (4 Cir. 1971).
Defendant Maxwell, since he was twenty-two years old when convicted, was not eligible for treatment under the Youth Corrections Act, but he asks to be adjudged an “eligible offender” with the propitious provisions of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251, 4252, as amended.
At the time of his sentencing the District Judge said: “Now, Mr. Maxwell, at your age, you will be considered for parole after you serve one-third of that time. If your habit is as bad as you say it is you will need that length of time and maybe more to get rid of that habit. It is recommended that the defendant be examined to determine whether or not he is a narcotic addict and in the event he is that he be given the necessary treatment”. The record discloses no report made to the Court, after the commitment to the Attorney General, on whether he was an addict. However, there is no necessity to delve into it further because he does not qualify for the treatment provided by the Narcotic Act for an eligible offender as set forth in 18 U.S.C. § 4253.
This is because he had been “convicted of a crime of violence”. 18 U.S.C. § 4251(f)(1). As defined in this Act a crime of( violence “includes robbery . . . extortion accompanied by threats of violence, assault with a dangerous weapon or assault with' intent to commit any offense punishable by imprisonment for more than one year”. 18 U.S.C. § 4251(b). Maxwell’s principals were convicted of violating the bank robbery statute, 18 U.S.C. § 2113. It embraced the taking by force, violence and intimidation of $15,533.75 belonging to or in the possession of a bank and, in the commission of that act, assaulting a person. The crime comprised the putting in jeopardy of the life of the person by the use of a dangerous weapon. These offenses were punishable by imprisonment for more than one year.
Maxwell was convicted of aiding and abetting his co-defendants in the perpetration of these crimes. Therefore, since 18 U.S.C. § 2(a) declares that “whoever commits an offense against the United States or aids [and] abets ... its commission, is punishable as a principal”, then he has been “convicted of a crime of violence”, which disqualifies him for treatment as an eligible offender under the Narcotic Act.
His participation was not simply passive or consultive. His four fellows entered the bank with sawed-off shotguns and a hand gun, presenting the weapons at the faces of the employees and warning that they would be killed if they did not cooperate with the four robbers. All the while Maxwell was waiting for them outside in an escape car. He drove them away immediately as they emerged from the bank. There was a running gun battle between the automobile’s occupants and the police then in pursuit. The car was wrecked and four of the occupants including Maxwell then fled, leaving one of the robbers in the car. A trail of currency and weapons was left by the car and Maxwell with two of the robbers was found hiding in a culvert with large sums of paper money floating about.
Nevertheless, like Brown Maxwell was twenty-two years old when convicted. His case likewise should be remanded to the District Court to consider whether the provisions of the Youth Corrections Act, as allowed by § 4209, should avail him.
No ground appears for interfering with the guilty verdicts as to any of the appellants or with the judgments entered against appellants Brown and Maxwell.
Vacated in part; affirmed in part, and remanded.
. The Act, 18 U.S.C. § 5006(e), states that a “ ‘Youth offender’ means a person under the age of twenty-two years at the time of conviction”. It states, too, that “ ‘Conviction’ means the judgment on the verdict or finding of guilty . . In passing sentence the District Judge noted to Brown that his age was twenty-two. Thus he was not under the Act a “youth offender”,
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 | C | 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.
CEFALU v. UNITED STATES.
Circuit Court of Appeals, Tenth Circuit.
January 24, 1930.
No. 119.
Robert D. Charlton, of Denver, Colo. (Lewis DeR. Mowry, of Denver, Colo., on. the brief), for appellant.
Ralph L. Carr, U. S. Atty., of Denver, Colo. (Charles E. Works, Asst. U. S. Atty., of Denver, Colo., on the brief), for the United States.
Before LEWIS, COTTERAL, and Mc-DERMOTT, Circuit Judges.
COTTERAL, Circuit Judge.
An information was filed against appellant, his wife, and Frank Mazza, charging them with five violations of the National Prohibition Act (27 USCA),' at Denver, Colo., in 1928. Mazza was acquitted. Mrs. Cefalu was convicted on all counts- Appellant was acquitted on counts 2 and 3 charging sales, and convicted on count 1 for possession of whisky on August 15, count 4 for a sale of whisky on August 8, and count 5 for maintaining a nuisance on September 11. He assigns error in the denial of a motion to direct a verdiet for insufficiency of the evidence and in giving and refusing instructions to the jury.
The wife of appellant testified that she and Mazza were engaged in the sale of whisky, that they hid their supplies in the country, and did not make the sales at the Cefalu home in Denver. Federal Prohibition Agents testified that they bought whisky from her there on several occasions, but that appellant was present only on August 8; that on that day when she had gone to another room, appellant came from the same room wearing a bath robe, in his bare feet, sat on a piano bench, talked with the officers, and was present when she returned with the whisky and made the sale of it to them. Sales were testified to'by them at the home on July 25 and August 4, and by their account when they were there on August 15, they saw Mrs. Cefalu go from the front part of the house to the kitchen carrying two bottles, break one of them on the sink, and the other contained a small quantity of whisky. The testimony of the appellant is he had nothing to do with the transactions, he did not know of them, or know there was whisky in the house, his wife rented the house, he supported her, paying her bills, and he was absent most of the time engaged in selling macaroni and olive oil to Italians, chiefly in Nebraska. Mrs. Cefalu corroborated his testimony.
This summary, incomplete as it is in many details, suffices for the purpose of determining whether' appellant was entitled to a directed verdict in his favor on the fourth count, charging a sale on August 8th. It seems to us, as it did to the trial judge, it was a question of fact whether appellant was a party to that sale, and it is inconceivable he could have been present as he was at his home and conducted himself as he did there under the circumstances when the sale was made, without having clear knowledge the illicit business was being carried on there and without having a responsible part in it. Otherwise, the transaction called for some expression of surprise or protest from him, but he was acquiescent. There was such apparent understanding and approval of it as to connect him with it, in the way of aiding and counseling his wife, and this was the theory on which the case was submitted to the jury. Section 550, Title 18 U. S. Code (18 USCA § 550). The jury so found, and we think it cannot he said the finding was without support. The cases cited to show the mere presence at-the scene of an offense under different circumstances is not sufficient for conviction, present a different question. The ruling on the motion to direct a verdict on count 4 was therefore correct.
As to count 1, charging possession, on August 15th, and count 5, charging a nuisance, on September 11th, there was no1 sufficient evidence to connect appellant with the transactions and warrant submission of them to the jury as to him, and the motion to direct a verdict on those two counts should have been sustained.
The complaint leveled at the charge to the jury is without force, as there was no exception to it. Examining it, however, we find it fairly submitted the issues to the jury and it discloses no prejudicial error. A request tendered and refused was to the effect that the proof, in order to convict, must show appellant actively and knowingly participated in the liquor transactions. This we hold was a requirement that was too broad.in terms. Another portion of the same request was that the mere presence of the appellant when the liquor transactions occurred was not sufficient to establish his guilt, but the court so charged the jury.
No other questions are entitled to consideration. The judgment of conviction on count 4 is affirmed. The judgments of conviction on counts 1 and 5 are reversed, and the cause is remanded to the District Court with direction to grant the appellant a new trial on those two counts.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_district | B | 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".
SYSTEMATIC TOOL & MACHINE COMPANY et al., Appellees, v. WALTER KIDDE & COMPANY, INC., Appellant.
No. 76-1660.
United States Court of Appeals, Third Circuit.
Argued Jan. 11, 1977.
Decided March 25, 1977.
Gordon D. Coplein, Darby & Darby, New York City, Richard M. Rosenbleeth, William H. Roberts, Blank, Rome, Klaus & Comisky, Philadelphia, Pa., Jacob C. Kellem, Connolly, Bove & Lodge, Wilmington, Del., for appellant.
Alan H. Bernstein, Caesar, Rivise, Bernstein & Cohen, Philadelphia, Pa., for appel-lees.
Before ROSENN and HUNTER, Circuit Judges, and SNYDER, District Judge.
Daniel J. Snyder, Jr., United States District Judge for the Western District of Pennsylvania, sitting by designation.
SNYDER, District Judge:
Systematic Tool and Machine Co., Systematic Products, Inc., and Dominic D’Am-bro, licensees, with Clayton E. Giangiulio, owner of the patent, filed this action for patent infringement. The decision of the district court found valid and infringed Patent No. 3,369,582 (hereinafter “the ’582 patent”) issued February 20, 1968, for a hand-operated tomato-slicing device. Appeal was taken to this court under 28 U.S.C. § 1292(a)(4) giving us jurisdiction over “Judgments in civil actions for patent infringement which are final except for accounting.” Since we find the subject matter of the patent and the prior art relating to this device is obvious, we reverse under 35 U.S.C. § 103.
I. THE PATENT IN SUIT
The patent in suit relates to a commercially successful and efficient tomato slicer. As set forth in Claim 1, the device is characterized by the following features:
1. A pusher to hold the tomato and move it with reference to an array of blades.
2. The blade array lying at an angle less than 40° with respect to the pusher path of movement.
3. The angle of separation between the pusher leading arm and trailing arm being greater than 90°.
4. The angle between the leading arm ■ and the cutting edge of the blades being less than 90°.
5. The trailing arm of the pusher making a small acute angle with reference to the cutting edge of the blades.
The plaintiffs assert that the tough skin and mushy interior of a tomato present a unique problem in slicing since a direct perpendicular contact of the tomato and blade edge tends to bruise or mangle the tomato. Plaintiffs’ claimed invention solved this problem by the various angles between the leading and trailing arms which hold the tomato between the pusher and the angle of the cutting edges of the blades to the pusher. The ’582 patent device pushes the tomato in a straight line through the rack of thin blades at an angle less than 40° with respect to the pusher path of movement. See Figure I.
The original claims filed did not relate the angle of the leading and trailing arms to the physical structure or recite any particular angles for them. The Examiner originally rejected the claims for two reasons: (1) for indefiniteness in not stating relationships between the angles and physical structures, and (2) for obviousness over a combination of prior art slicers with similar structures but having somewhat different angles relating to the blades and pusher. The claims were amended to distinguish the prior art (as underlined by the patentee to make it apparent how the claim differed from the prior art) as follows:
“. . .an [relatively small acute] angle less than forty (40) degrees with respect to said pusher path of movement, the angle of separation between said pusher leading arm and trailing arm being greater than 90°. the ande between said leading arm and the cutting edge of said blades being less than 90° with the trailing arm of said pusher making a small acute angle with respect to said cutting edge. . . . whereby said pusher assembly [achieving] achieves a smooth shearing action [by said blades through] with a tomato urged against and through said blades to secure a plurality of thin tomato slices, essentially undamaged, with said tomato holding pocket slots allowing said blades to pass through the tomato.” [Additions to the claim are underlined; deletions are in brackets.]
II. THE ACCUSED DEVICES
There are two accused devices know as the TK-I and the TK-II machines. The TK-I, not sold since 1968, is a virtual copy of the plaintiffs’ machine and was stipulated to be an infringement of the patent in suit, if the court finds the patent in suit valid. The TK-II, not sold since 1972, is a somewhat different looking method of doing that which the plaintiffs’ device (called the “Tomato Tamer”) achieves. See Figure II.
III. THE TRIAL COURT’S TREATMENT
The district court filed a preliminary opinion and order holding the ’582 patent valid and infringed but allowed 30 days to file exceptions. Exceptions were filed and by its second opinion, the district court denied the exceptions, affirming and readopting its earlier findings of fact and conclusions of law. A third order later denied injunctive relief in view of the defendant’s cessation of infringing activities in 1972.
Plaintiffs’ principal witness, Clayton Giangiulio, inventor and former delicatessen operator, pointed out that prior to his invention, tomatoes had been sliced with a hand-held knife, a slow process at best, or with an expensive commercial meat slicer which scattered individual slices, released juice, and required time consuming clean-up procedures. He demonstrated that a tomato could be sliced by pushing it with his hand but not as safely and efficiently as with the patented device. He admitted that while the basic elements of a slicer consisting of blades, pushers, bases and relative movement were well known, innovation was claimed in the unique arrangement of otherwise general elements which existed in different relationships in the prior art — “the slicing of tomatoes at a rate ten times greater than the prior art as well as providing straighter slices held together in the form of a tomato.” (Appellees’ Brief, p. 14.)
The defendant elicited through Ronald Karr, an extensively qualified mechanical engineer, a designer, and professor of mechanical design, that the ’582 patent was a routine development of old elements in view of prior art patents for straight line slicing devices. He stated on cross examination:
“Q. Now, you have testified with respect to six patents on direct examination?
A. Yes, sir.
Q. Is it your testimony that given these patents and put in a room you could come up with the invention in suit?
A. I would need in that room several tools and materials to produce the invention. And I would have to qualify that a little bit, but yes; I could. And there are about half a dozen others that could do that. Since I don’t know every engineer in the country, there might be a thousand people that could do that.” (p. 342a).
The plaintiff chose not to contradict this testimony but to argue that the six prior art patents relied upon by the defendant did not show a pusher containing slots for the reception of blades, where the blade array lies at an angle of less than 40° with respect to the pusher path movement to achieve thin tomato slices in a single pass of the pusher through the blades.
The district court analyzed the six patents from a functional viewpoint saying for example, that the French patent to Biram-beau for a tomato slicer relied on a sawing action which did not foreshadow a mechanical, single pass slicer such as the subject matter of the patent in suit. The court held that the Bever patent for a bun slicer could not pass completely through the tomato and “[n]o reasonable adaptation of the machine will perform such a function. Hence, we conclude that the Bever patent neither suggests nor discloses the subject matter of the patent in suit.” The court continued this type of analysis through the other prior patents and concluded:
“We have determined from the patent material submitted by the defendant and discussed above, that the ordinary level of skill in the art of food slicing is that possessed by an individual performing that task. .
We have heard the evidence of defendant’s expert engineering witness. We understand his testimony to mean that slicers are interesting developments of known technology and that, while a particular slicer may be an extremely efficient, and well-designed piece of machinery, there is no invention in putting a slicer together. However, in light of the prior art, and of our determination of the ordinary level of skill in the art, we disagree with his opinion as to the obviousness of the '582 patent. . . .We find that the subject matter of the ’582 patent is not obvious to an individual possessing the average level of skill in the art, in light of the prior art existing at the time the invention was developed and the application was filed; the inventor of the ’582 patent, Clayton Giangiulio, did not know of the existence of any device which suggested to him the machine he devised. Rather, the ’582 patent was the product of his own independent and original development, and hence we disagree with the defendant’s contention of obviousness from the prior art.”
In coming to this conclusion the court rejected Karr’s expert opinion that it is routine handbook procedure first to determine the physical nature of the object to be sliced, and that merely to recognize the physical properties of the common tomato does not reach the level of invention. Further, the court held that the basic elements of fruit and vegetable slicers — blades, pushers, bases and means for relative movement — were well known in the prior art but that innovation existed here in the synergistic result achieved by the unique arrangement of these basic elements which existed separately or in different relationships in the prior art. The lower court concluded it was the plaintiffs’ solution to the peculiar problem of slicing tomatoes (pressure build-up during slicing) that embodied innovative and unique developmental work which resulted in the invention.
On infringement, the court relied on the doctrine of equivalents, i. e., the essence of the invention used is identical even though the superficial form is different. Cf., Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950) (“if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.”) Since the TK-I admittedly infringed upon some of the claims of the ’582 patent and the TK-II used the same element of the ’582 patent (a shallow-entry-angle pusher in relation to the blades) for the same purpose and in the same manner, it, too, infringed.
“Tomatoes have always been favorites here,” wrote John Lewis, a transplanted Englishman. “They generally require a person to be educated to them. . . . They . . . are eaten in every possible way, mostly however cut up alone.” From We Americans, A Volume in the Story of Man Library, published by The National Geographic Society, p. 228 (1975).
“Our conclusion is based on the following factors: (1) the central factor in the development of a food sheer is the identification of the unique problems associated with the preparation of a particular category of fruits or vegetables; (2) while diverse elements of food slicers are well-known in the art, it is the synergistic result of arranging these elements in a specific manner that is significant in the issuance of a patent for the invention; (3) it would be unusual for an engineer to have either the need for such a device, or the method of accomplishing the desired result; and (4) the activity of an engineer in those circumstances would be cumulative toward a successful embodiment of the concept, and not independent of the actual creative work involved in isolating the problems before arriving at a solution.”
IV. OBVIOUSNESS
Very recently in Sakraida v. AG Pro, Inc., 425 U.S. 273, 279-80, 96 S.Ct. 1532, 1536, 47 L.Ed.2d 784 (1976) the court stated:
“It has long been clear that the Constitution requires that there be some ‘invention’ to be entitled to patent protection. Dann v. Johnston, 425 U.S. 219, 96 S.Ct. 1393, 47 L.Ed.2d 692 (1976). As we explained in Hotchkiss v. Greenwood, 11 How. 248, 267, 13 L.Ed. 683, 691 (1851): ‘[U]nless more ingenuity and skill . were required . . . than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skillful mechanic, not that of the inventor.’ This standard was enacted in 1952 by Congress in 35 U.S.C. § 103 ‘as a codification of judicial precedents . . . with congressional directions that inquiries into the obviousness of the subject matter
sought to be patented are a prerequisite to patentability.' Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 566 (1966). Section 103 provides:
‘A patent may not be obtained though the invention is not identically disclosed or described, as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.’
The ultimate test of patent validity is one of law, A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 155, 71 S.Ct. 127, 131, 95 L.Ed. 162,168 (1950), but resolution of the obviousness issue necessarily entails several basic factual inquiries. Graham v. John Deere Co., supra, 383 U.S. at 17, 86 S.Ct. at 693.
‘Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.’ Ibid."
These three inquiries — scope and content of the prior art, differences between prior art and the claims at issue, and the level of ordinary skill in the art — are findings of fact to be made by the district court; having resolved these crucial factual questions, the court then draws its legal conclusion as to obviousness. E. g., Philips Elec. & P. Ind. Corp. v. Thermal & Elec. Inc., 450 F.2d 1164, 1173-74 (3d Cir. 1971). In the case before us, appellants claim that one of these factual questions — level of ordinary skill in the art — was erroneously determined and that this resulted in an improper conclusion of law as to obviousness.
The search in this branch of inquiry under 35 U.S.C. § 103 is for a hypothetical person having ordinary skill in the art to which said subject matter pertains, i. e., the problem solver and not the user of the solution. Gass v. Montgomery Ward & Co., 387 F.2d 129, 132 (7th Cir. 1967), quoted in Erie Technological Products, Inc. v. Die Craft Metal Products, Inc., 461 F.2d 5, 8 n.5 (7th Cir. 1972) (“The level of ordinary skill in the field appears to be that of mechanically inclined men with long experience in design of auto accessories”); Howe v. General Motors Corporation, 401 F.2d 73, 78 (7th Cir. 1968), cert, denied 394 U.S. 919, 89 S.Ct. 1192, 22 L.Ed.2d 452 (“The level of ordinary skill in the field of designing automobile bodies, including hinges, was that of engineers of substantial training, and specialized skill.”).
In the case at bar, the district court engaged in a detailed analysis of the prior art as illustrated in prior patents, admitting that the activity of an engineer, if he were aware of the problems associated with slicing tomatoes, would culminate in the patented concept. But it then stated:
“(3) it would be unusual for an engineer to have either the need for such a device, or the method of accomplishing the desired result; and (4) the activity of an engineer in those circumstances would be cumulative toward a successful embodiment of the concept, and not independent of the actual creative work involved in isolating the problems before arriving at a solution.”
The court therefore looked to the knowledge of persons who perform the task of tomato slicing to determine skill in the pertinent art. By focusing on the user rather than the problem solver, the district court erred.
An interesting and pertinent application of principle can be gleaned from the court’s treatment of the skill in the pertinent art for beehive fasteners in In re Application of Grout, 377 F.2d 1019, 1021-22, 54 CCPA 1559 (1967):
“It is appellant’s position that since the combination of elements claimed is to be used by beekeepers that it is to this group we must turn to ascertain what would have been obvious to them. After discussing the disclosures of the prior art, appellant states the position in his brief that:
The preceding discussion calls attention to a variety of facts, circumstances and reasons which repel the inference that it would have been obvious in 1961 for a man of ordinary skill in the beekeeping art to turn to the window shade roller art or Andersen’s polymer film stretching device for ways and means of improving beehive components. Such facts, circumstances and reasons, show the difference in problems and objectives in the several arts differ from one another and how the defor-mative measures inhering in the arts of the secondary references would be completely unsuitable for application to bees’ wax foundation webs which are commonly used in the invention. .
“Considering all the papers of record, we are not convinced that the ‘person having ordinary skill in the art to which said subject matter pertains,’ section 103, is exemplified by a beekeeper. Appellant’s invention relates to novel fastening means used in beehives. It is alleged that a problem existed in the support of honeycomb foundations which appellant solved. While this problem would be encountered by a beekeeper, we think the problem naturally calls for the talents of one skilled in the art of fasteners. Under section 103 we must look to the person of ordinary skill in the art to which the invention pertains, not those who may use the invention.” [Emphasis supplied.]
Similarly, in Universal Athletic Sales Co. v. American Gym, Rec. & Ath. Eq. Corp., 546 F.2d 530, at 537 (3d Cir. 1976), this Court looked to the problem solver in the business when it held that the art pertinent to a weightlifting apparatus is the design of body-training devices. In other words, the hypothetical person skilled in the pertinent art is the mechanically skilled individual familiar with the design of devices in the industry. Erie Technological Products, Inc. v. Die Graft Metal Products, Inc., supra; Howe v. General Motors Corp., supra. Here, then, the pertinent art is the design of food slicing devices. We hold, therefore, that the district court’s finding as to the level of ordinary skill in the art was clearly erroneous.
Having resolved this critical factual issue, this court is in a position to draw the ultimate conclusion of law with respect to obviousness. As stated in Deller’s Walker on Patents, § 109 at 153-54 (2d ed. 1964):
“The issue of law as to whether an invention was obvious to one having ordinary skill in the art is one which a court of appeals is in as good a position to determine as the district court; the latter’s conclusion on this issue, not being on a question of fact, is not clothed with a presumption of correctness, and instead requires that the court of appeals make its own independent determination thereon. Rule 52(a) does not require the court of appeals either to accept findings unsupported by the evidence or to require the court of appeals to respect conclusions which do not rest properly on the facts of the case. . . . [But] such finding[s] . of fact . . . unless clearly erroneous will not be set aside by the court of appeals.” (Footnotes omitted)
Had the district court applied the proper standard of skill — that possessed by the mechanic familiar with the design of food slicing devices — it would have had only the uncontradicted expert testimony of Mr. Karr to determine the question of “obviousness” with respect to such persons. Mr. Karr testified that it would be routine procedure for a mechanic first to determine the physical properties of the object to be sliced, see supra at 346, and that mechanics familiar with other patents in the food slicing industry would apply known mechanical principles to come up with the tomato slicer in question, see supra at 347. He supported his conclusion with testimony about six prior patents which would suggest to the mechanic the principles applied in the Tomato Tamer. Specifically, the Bever patent (a bun slicer) had its blade fixed at the same shallow angle to the path of the pusher, but it would not pass the blade clearly through the tomato. The Curtis patent (a fruit slicer) also showed an angle of less than 90° (“an angle of at least 70 °”) and contained the equivalent of the pusher leading arm of the Tomato Tamer (p. 329a).
Mr. Karr was asked by the Court: “You are saying in effect . . . that given a mechanic and designer of ordinary skill and given the problem of cutting a tomato, that the prior art which certainly has encompassed pushers with pockets to hold the fruit or the object, blades to push them through and means of.so angling the pusher so that it goes through the blades, that this would be an obvious thing for anybody presented with the problem who had the skills of an ordinary mechanic or designer?”
His response was, “Yes, your Honor.” (p. 337a)
In light of this uncontradicted testimony about the skill of mechanics familiar with the design of food slicers, we need not remand to the district court for further findings of fact. Although the synergistic combination of known elements is one factor to consider in determining obviousness, we cannot agree that the district court’s findings reveal any more of a synergistic effect than was found in the device to release water on a barn floor from a storage tank in Sakraida, supra. See also Anderson’s-Black Rock v. Pavement Salvage Co., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258 (1960). As a matter of law, plaintiffs’ slicer was “obvious.”
Despite the commercial success of the product, there was no “invention” to warrant patentability, and the judgment of the district court will be reversed.
. 35 U.S.C. § 103 reads as follows: “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.”
. See Appellees’ Brief, p. 7. Capable of slicing a tomato per second, plaintiffs’ invention, it was agreed, was an improvement over slicing with a hand-held knife or slicing with a meat-slicer which scattered individual slices, released juice, and required cleanup procedures. Commercial success without invention, however, will not make patentability. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., Inc., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969); A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950); U. S. Expansion Bolt Company v. Jordan Industries, Inc., 488 F.2d 566 (3rd Cir. 1973).
. Redco, Inc. (a non-party) was the sole manufacturer of the accused devices and sold them to defendant Kidde which, in turn, resold through distributors as well as users like Burger King Corporation, an operator of hamburger restaurants. This action was commenced in the Northern District of Illinois against Kidde and several of its customers, including Burger King. It was transferred to the Eastern District of Pennsylvania, with Kidde as the only active defendant. Suit was stayed as to all other defendants pending disposition of the litigation before this court.
. While apparently counsel originally conceived that accounting would proceed before appeal to this Court (Trial Transcript, p. 12) the three orders dispose of all proceedings in the district court except for an accounting and collectively constitute the requisite judgment for our jurisdiction under 28 U.S.C. § 1292(a)(4). Cf., Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3rd Cir. 1975); W. L. Gore & Associates, Inc. v. Carlisle Corp., 529 F.2d 614 (3rd Cir. 1976); Kramer v. Scientiñc Control Corp., 534 F.2d 1085 (3rd Cir. 1976).
. Page numbers followed by “a” refer to pages in the Appendix to the Briefs.
. The following appears in Chapter “1876 Centennial
. The lower court stated:
. In Tokyo Shibaura Electric Co., Ltd, et al. v. Zenith Radio Corp., 548 F.2d 88 (3rd Cir. 1977) at p. 94, fn. 18, we said:
“[This theoretical person of] ordinary skill in the art is ‘charged with knowledge of all that the prior art disclosed at the time of his alleged invention, irrespective of whether persons of ordinary skill in the field, or he himself, or anyone else, actually possessed such all-encompassing familiarity with prior disclosures.’ Cool-Fin Electronics Corp. v. International Electronic Research Corp., 491 F.2d 660, 662 n.7 (9th Cir. 1974), quoting Walker v. General Motors Corp., 362 F.2d 56, 60 n.3 (9th Cir. 1966). Accord Layne-New York Co. v. Allied Asphalt Co., 501 F.2d 405, 406 (3rd Cir. 1974), cert, denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975).”
. The dissenting opinion expresses concern that Mr. Karr did not represent a person having ordinary skill in the pertinent art — the design of food slicing machines. That concern would be relevant to the issue before us only if Mr. Karr had testified that the device in question would not have been obvious to anyone “who had the skills of an ordinary mechanic or designer.” Then we would have been forced to remand the case so that the lower court could consider whether a person with the additional skiils of one who designs food slicers might have viewed the device as obvious.
As it is, however, Mr. Karr testified that the device would have been obvious to anyone with ordinary mechanical or design skills — skills we must presume food slicing designers to possess. A fortiori, the device must have been obvious to the latter group, too. There is no need, then, to remand the case so that the impact of food slicing designers’ peculiar skills can be considered.
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_respond1_3_2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Eugene DOBSON, Defendant-Appellant.
No. 74-1816.
United States Court of Appeals, Sixth Circuit.
Feb. 20, 1975.
John M. McKnight (Court Appointed— CJA), Knoxville, Tenn., for defendant-appellant.
John L. Bowers, Jr., U. S. Atty., Charles N. Stedman, Knoxville, Tenn., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
PER CURIAM.
Eugene Dobson was tried before a jury in two consolidated cases and convicted of the unlawful possession, forgery and uttering of United States Treasury Social Security checks which had been stolen from the mail, in violation of 18 U.S.C. §§ 495 and 1708.
On appeal two contentions are made as grounds for reversal: (1) That it was error to allow a Government witness to identify the defendant in the court room when the witness had failed to identify the picture of the defendant from an array of photographs; and (2) that the evidence was insufficient to support the verdict of the jury.
The appeal came on to be considered pursuant to Sixth Circuit Rule 3(e).
Dobson was identified in the court room by Floyd Ernest Roach, owner of the Floyd Furniture Store at Knoxville, Tennessee, who cashed the stolen check. Mr. Roach testified that Dobson, had been in the store the previous evening looking at a television set. He returned the following day and stayed approximately ten minutes. He purchased a $104.95 television set, paying for it by signing and cashing a cheek which proved to be stolen and receiving $270.15 in change. Mr. Roach stated that he watched Dobson for several minutes while he was waiting outside following the transaction and that Dobson later returned to the store to use the telephone. This witness had a good opportunity to see Dobson and to become familiar with his features. Earlier in his testimony, however, Mr. Roach had selected a photograph of a different person as the one who cashed the check.
In United States v. Black, 412 F.2d 687 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970), this court held that where an eyewitness was unable to pick out a defendant’s picture from an array of photographs, this did not prevent the same witness from making a positive in-court identification. This court said, speaking through Judge Weick:
The fact that eye witnesses to an occurrence cannot make a positive identification of an individual from an examination of photographs of a number of persons, does not necessarily detract from the validity of their in-court identification where they see the individual in person. The weight to be given to their in-eourt identification is for the jury to determine. 412 F.2d at 689.
To like effect see United States v. O’Neal, 496 F.2d 368, 372 (6th Cir. 1974); United States v. Toney, 440 F.2d 590 (6th Cir. 1971).
We conclude that O’Neal, Black and Toney are controlling in the present case. Appellant’s first contention is without merit.
An examination of the transcript demonstrates that there was abundant evidence to support the verdict of the jury. It was stipulated that the checks were stolen and that the payees did not know Dobson. There was more than sufficient evidence from which the jury could have concluded that Dobson possessed, forged and cashed the stolen checks.
In denying bail pending appeal, District Judge Robert L. Taylor included the following language in his order: “In the opinion of the court there is no legal basis for appeal of this case and it is taken for the purpose of delay.”
We conclude that it is manifest that the questions on which the decision of this cause depends are so unsubstantial as not to need further argument. Sixth Circuit Rule 8.
Affirmed.
. (e) Docket Control. In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 7(e), 8 or 9 or any other rule of this court.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
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_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.
MOORE v. SCOTT STAMP & COIN CO., Inc.
No. 41, Docket 21417.
United States Court of Appeals Second Circuit.
Argued Oct. 6, 1949.
Decided Dec. 1, 1949.
Miller, Bretzfelder & Boardman, New York City, for defendant, appellant and appellee; Bertram Boardman, New York City, of counsel.
Thayer & Gilbert, New York City, for plaintiff, appellee and appellant; Phil E. Gilbert, Jr., and Harold A. Segall, New York City, of counsel.
Before L. HAND, SWAN and CLARK, Circuit Judges.
SWAN, Circuit Judge.
These appeals bring up for review a judgment entered upon the verdict of a jury in an action to recover the agreed price of Chinese postage stamps purchased by the plaintiff in China at the defendant’s request and sent by registered mail addressed to the defendant. Federal jurisdiction rests on diversity of citizenship.
The complaint, as originally filed, contained a single cause of action. It alleged that Scott Stamp & Coin Co., Inc., whom we shall call the buyer, requested the plaintiff, whom we shall call the seller, to obtain in China certain Chinese stamps and agreed to pay him the cost of the stamps, plus 10% for his services, plus postage; that the seller mailed the specified stamps to the buyer in February 1944; that after their arrival in New York in March 1944, the buyer refused to accept them, and is indebted therefor to the seller in the sum of $3,151.89. The defendant’s answer was a general denial. From correspondence introduced at the trial it appears that after the stamps arrived in New York they were held up by the customs officials who notified the buyer on March 28, 1944 that “These stamps will be held for the duration of the war, and may be claimed by you at that time.” Thereafter the buyer wrote to the seller’s agent on May 12, 1944: “As soon as the merchandise is released to us and in our possession, we shall make arrangement for its payment.” This letter was made the basis of a second count added to the complaint by amendment during the trial. This count further alleged that the stamps were released and made available to the buyer in September 1946, but the said sum of $3,151.89 has remained unpaid, although demanded by the seller. Both counts were submitted to the jury with instructions that if they found for the seller on either cause of action they must find for the buyer on the other. The jury brought in a verdict for the plaintiff on the second cause of action, and their silence as to the first was taken by the court as a verdict for the defendant on that count. Judgment was entered accordingly, and both parties have appealed. Upon the defendant’s appeal the errors assigned are denial of its motions to dismiss the complaint or direct a verdict and the refusal to give certain requested instructions. The plaintiff has taken a cross-appeal merely to protect his rights in case the judgment in his favor should be reversed. He contends that his motion for a directed verdict should have been granted.
The seller’s shipment of the stamps in February 1944 was an acceptance of the buyer’s offer and created a unilateral contract which obligated the buyer to pay in accordance with the terms of the contract. Since all communications between the parties were by letters, we think that the meaning of the contract should have been determined by the court rather than the jury.If the correspondence prior to shipment of the stamps meant that the obligation of the buyer to pay became fixed when the stamps were shipped, a verdict should have been directed for the seller. On the other hand, if, as we believe, the contract should be interpreted to mean that the buyer’s obligation to pay was conditioned on receipt of the stamps by the buyer within a reasonable time after shipment, a verdict should have been directed for the buyer on the cause of action originally alleged.
But such condition was modified by the letter of May 12th upon which the amendment of the complaint was based. The buyer then knew that the stamps would be held by the customs officials until the end of the war, unless someone could obtain an earlier release of them, and it expressly agreed to accept and pay for them at that time. The seller made unsuccessful efforts to obtain their earlier release. The buyer, as consignee of merchandise, made entry of it on March 2, 1944 but did nothing further to obtain possession of the stamps until it wrote to the Bureau of Customs in December 1948 in preparation for the trial of this action. The proof showed that the stamps were available for release to the buyer on September 3, 1946. By a letter of that date the Bureau of Customs so informed the seller, but there is no evidence that he passed on the information to the buyer. On September 11, 1946 the seller wrote demanding payment. The buyer’s reply on the 13th stated that it was no longer interested in getting the stamps as it had obtained large quantities from other sources. But this repudiation of the contract cannot aid the buyer, since there was uncontradicted testimony by Mr. Pollock of the Bureau of Customs that only the buyer, as consignee and importer of the stamps, could obtain their release from the Bureau. Hence the condition of the buyer’s promise to pay “as soon as the merchandise is released to us and in our possession” was a condition which could only be performed by it, and it cannot escape from its obligation by its own failure to perform the condition.
The buyer erroneously argues that there was no consideration to support the promise of payment contained in its letter of May 12th. It has overlooked N. Y. Personal Property Law, McK.Consol.Laws, c. 41, § 33(2) which makes consideration unnecessary when a contract is modified by an agreement in writing.
None of the refused instructions requires discussion. In our opinion the court should have directed a verdict on the second count. Since submission to the jury produced such a verdict, the judgment is affirmed.
. See Williston, Contracts, 3rd Ed., § 616; Dwight v. Germania Rife Ins. Co., 103 N.Y. 341, 333, 8 N.E. 654, 57 Am. Rep. 729; Brady v. Cassidy, 104 N.Y. 147, 155, 10 N.E. 131.
In the case at bar the jury was instructed that “it is your interpretation of those letters upon which you are to decide this ease.”
. Williston, Contracts, 3rd Ed. §§ 677, 1293A; A.L.I. Restatement, Contracts, § 295.
. “An agreement * * * to change or modify * * * any contract * * * shall not be invalid because of the absence of consideration, provided that the agreement * * * shall be in writing and signed by the party against whom it is sought to enforce the change, modification or discharge”. See Jaeger v. Canter, 13 N.Y.S.2d 414; Spector v. National Cellulose Corp., 181 Misc. 465, 48 N.Y.S.2d 234, affirmed 267 App.Div. 870, 47 N.Y.S.2d 311.
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 | I | 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.
S. W. NOGGLE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 72-1678.
United States Court of Appeals, Eighth Circuit.
Submitted April 11, 1973.
Decided May 1, 1973.
Harry L. Brovvne, Kansas City, Mo., for petitioner.
M. Namrow, Atty., N. L. R. B., Washington, D. C., for respondent.
Before GIBSON, BRIGHT and ROSS, Circuit Judges.
GIBSON, Circuit Judge.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. The Board’s Decision and Order are reported at 199 NLRB No. 107.
The S.W. Noggle Company was found by the NLRB to have committed an unfair labor practice in violation of §§ 8(a) . (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by threatening to discipline and later by the discharge of Mike Masonbrink. It is the contention of the General Counsel that the employer discharged Mason-brink because he advocated that the employees go out on strike for a new contract.
The Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local No. 955, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), had represented a unit consisting of the employer’s ware-housemen and drivers for 30 years. On September 30, 1971, the three-year contract between the employer and the Union expired. Negotiations were in progress at the time of the events with which this action is concerned.
Masonbrink was a part-time employee of the Noggle Company from October 1969 to May 1970 when he enlisted in the Coast Guard. He returned from this military service in June 1971. At the end of June, through the efforts of his sister, Vickie Harrison, an order clerk for Noggle, he was rehired on a full time basis. He worked as a truck driver until mid-October when he requested and received a transfer to the warehouse. He worked in the warehouse about six weeks, until his discharge on December 1, 1971.
During the period when he was employed in the warehouse the Trial Examiner found that Masonbrink “was far from being a model employee.” On several occasions he refused to perform his duties as he was instructed to do although he stated that he later would go ahead and do them. He was reported by Bramer, the leadman, to Thomas Turner, the general manager for Noggle, who in turn complained of his conduct to the Union.
Several witnesses testified that they had heard Mansonbrink state that he would like to draw “rocking chair money” which was explained as meaning state unemployment compensation. Ma-sonbrink did not deny this but only stated that he could not remember saying it.
On November 15, at a meeting between the unit employees and several union representatives Masonbrink strongly advocated that the Union strike the company because of its failure to negotiate a new collective bargaining agreement. Leadman Bramer reported Masonbrink’s position to General Manager Turner. Turner spoke to Vickie Harrison on about November 29, and told her, “Vickie, we’re going to have to do something about Mike. He has the men upset about going out on strike.” When she replied that it was because the company had not negotiated a new contract yet he responded, “I can’t help that. He still has to get his orders out.” The Trial Examiner found that this was a threat to discipline Masonbrink.
Two days later, after Vickie had spoken to her brother concerning this conversation, Masonbrink called to Turner while he was in the warehouse, and told him that if he had anything to say to him he should do so directly and not to tell his sister. Turner made no response to this. At this point the stories of the parties diverge. Masonbrink states that they then began to discuss the performance of his work. Turner stated that he asked Masonbrink to fill a rush order and that Masonbrink refused because he was already working on another order. One of the other warehousemen heard this conversation and his version, while not identical to that of Turner’s tends to support Turner’s version. Both Mason-brink and Turner testified that Mason-brink said that if Turner thought he could do a better job he could do it himself, and that Turner stated to Mason-brink that if he did not like working there he could quit. Masonbrink admits that he told Turner that if he did not like the way he was doing his job Turner could fire him. This challenge was repeated several times and finally Turner did fire Masonbrink.
The sole issue on this appeal is a factual one, whether the finding of the Trial Examiner and the Board that Mason-brink was discharged for his advocacy of a strike was supported by substantial evidence in the whole record. 29 U.S.C. § 160(e). ■ The Supreme Court has defined “substantial evidence” as:
“ ‘. . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 '[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-621, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (footnotes omitted).
Considering first the finding by the Board that Turner had not requested Masonbrink to fill a rush order and been refused, we hold that this finding is not supported by substantial evidence on the whole record. The issue was decided by the Trial Examiner as a matter of credibility, balancing the testimony of Turner that he had told Masonbrink to fill the order and been refused against Masonbrink’s denial of the incident and testimony that the conversation concerned only his work performance generally. The Trial Examiner appeared to ignore the testimony of Ralph Roberts, one of the other warehousemen, to the effect that he had heard the conversation between Turner and Masonbrink, and that he had heard Turner tell Masonbrink to fill an order. Although Roberts did not testify that Masonbrink had openly refused to comply with the instruction, Robert’s version of the confrontation is more consistent with Turner’s version than was Masonbrink’s in that Mason-brink denied that he was even told to fill an order.
Turning next to the statement made by Turner to Vickie Harrison with regard to Masonbrink’s advocacy of striking, the Examiner failed to fully examine this incident. Beyond reciting the facts of the statement and the bare finding that “I also find that Turner’s statement to Vickie constituted a violation of Section 8(a)(1) of the Act” there was no analysis of the statement. Turner denied that it was a threat to discharge Masonbrink. He stated that he wanted Vickie to see if she could get Mike to settle down. In view of the fact that Vickie Harrison had been instrumental in getting Masonbrink the job, and the cordial relationship which obviously existed between the small group of employees and the management, this is not an unlikely explanation for the conversation. From the record of this conversation it would be erroneous to draw the conclusion that Turner was threatening to fire Masonbrink for advocating a strike.
In view of the fact that Masonbrink had been employed in the warehouse only a short time, and that after the one occasion when a complaint had been made of Masonbrink’s sub-par performance Turner had promptly notified the Union, this record cannot support the finding by the Examiner that Turner had “put up with quite a bit” or condoned the prior misconduct of Masonbrink. This finding appears incredible. By employing such reverse logic, the mere condoning of inferior work, would give the employee a shield against dismissal for cause.
Even without the refusal by Masonbrink to fill the order on the day of his discharge, the record does not support the finding that he was not discharged for cause but for his union activities. It is clear that he initiated the confrontation with Turner. It is further undisputed that he several times challenged Turner to discharge him if Turner did not like the way he did his work, indicating that he would not even attempt to meet the standards which his employer would expect. This sort of defiant attitude by employees is not protected by either a Union shield or the National Labor Relations Act.
Considering the record as a whole, it is clear that the finding of a discriminatory discharge of this hostile and contentious employee is not supported by substantial evidence. Accordingly, the Board’s Order which required his reinstatement with back pay will not be enforced.
Enforcement denied.
. Of course, an employee, absent a protective agreement, may be discharged with or without cause so long as it is not for a reason prohibited by the National Labor Relations Act.
“It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer’s policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatever, or for no reason, so long as the motivation is not violative of the Act.” NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965).
See also NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972) (cases cited at n. 4).
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_usc2sect | 153 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 45. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Frederick SMALLAKOFF, Plaintiff-Appellee, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, a non-profit association, TWA/ALPA, a non-profit association, Defendants-Appellants.
No. 86-3761
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Aug. 31, 1987.
Mark F. Kelly, Kelly & McKee, P.A., Tampa, Fla., Felice Busto, Air Line Pilots Ass’n, Intern., Washington, D.C., for plaintiff-appellant.
Stephen J. Wein, Battaglia, Ross, Hastings, Dicus & Andrews, St. Petersburg, Fla., for defendants-appellees.
Before RONEY, Chief Judge, HILL and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant Air Line Pilots Association, International brought this interlocutory appeal from the district court’s decision that the claims against it for breach of the duty of fair representation under the Railway Labor Act are not barred because a two-year, not a six-month, statute of limitations applies. Following the lead of seven other circuits which apply a six-month limitation to fair representation actions, we reverse the district court’s ruling and remand the case.
Frederick Smallakoff filed a complaint on August 20, 1985, charging the defendant unions with breach of their duty of fair representation under Section 2 of the Railway Labor Act, 45 U.S.C.A. § 151, et seq. The defendant pilots’ union filed a motion to dismiss alleging a statute of limitations bar.
Seven United States Circuit Courts of Appeal have held that a six-month limitations period applies to duty of fair representation cases under the Railway Labor Act. See Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.), cert. denied, 469 U.S. 1016, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984); Sisco v. Consolidated Rail Corp., 732 F.2d 1188 (3d Cir.1984); Triplett v. Brotherhood of Ry., Airline and Steamship Clerks, 801 F.2d 700 (4th Cir.1986); Brock v. Republic Airlines, Inc., 776 F.2d 523 (5th Cir.1985); Ranieri v. United Transportation Union, 743 F.2d 598 (7th Cir.1984); Hunt v. Missouri Pacific RR., 729 F.2d 578 (8th Cir.1984); Barnett v. United Air Lines, Inc., 738 F.2d 358 (10th Cir.) (opinion on rehearing), cert. denied, 469 U.S. 1087, 105 S.Ct. 594, 83 L.Ed.2d 703 (1984). These circuits reason that since there is no limitations period for breach of the duty of fair representation claims in the Railway Labor Act, the appropriate limitations period is the six-month period found in Section 10(b) of the National Labor Relations Act, 29 U.S. C.A. § 160(b). The United States Supreme Court has borrowed this limitations period when addressing a “hybrid” claim for breach of a collective bargaining agreement and breach of the duty of fair representation under Section 301- of the Labor Management Relations Act, 29 U.S.C.A. § 185. DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Although the issue under the Railway Labor Act has not been directly addressed by the United States Supreme Court, its recent decision in West v. Conrail, — U.S. -, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), suggests that if faced with the issue it too would conclude that the six-month period applies.
The district court considered but rejected the holdings of these other circuits and held that the two-year limitations period in 45 U.S.C.A. § 153(r) was more appropriate, following what it considered to be the better reasoning of Henry v. Air Line Pilots Assoc., 585 F.Supp. 376 (N.D.Ga.1984), aff'd on other grounds, 759 F.2d 870 (11th Cir.1985). Of the seven circuits that applied the six-month limitations period, four addressed the rationale of Henry, and specifically rejected the alternative of using the two-year limitations period provided for judicial review of National Railroad Adjustment Board awards found in 45 U.S.C.A. § 153(r). Sisco, 732 F.2d at 1193; Triplett, 801 F.2d at 702; Brock, 776 F.2d at 526; Ranieri, 743 F.2d at 600.
We hold that the district court should have followed the substantial authority that applies the six-month limitations period to duty of fair representation claims under the Railway Labor Act. There is no persuasive reason why the same limitations period should not be uniformly applied throughout the country. After seven United States Circuit Courts of Appeal have addressed arguments such as those presented here and have all held that a six-month statute of limitations period should apply, the other circuits should fall in line. With so many circuits having recently decided the issue in the same way, the bench and bar should be able to depend on the point as settled law without judge-by-judge reexamination of the issue. It is inefficient to create conflicts in such cases that an over-burdened Supreme Court would have to resolve. The matter is totally within legislative control. If the public is dissatisfied with the consistent reasoning of the several courts of appeal, it should look to Congress for correction.
Although the district court denied the motion to dismiss on the limitations ground, and certified its order for interlocutory appeal under 28 U.S.C.A. § 1292(b), it ordered the action administratively closed on September 26. At the time the complaint was filed arbitration was proceeding on Smallakoff s claim against his employer TWA for breach of the collective bargaining agreement. Smallakoff had filed a motion to stay the proceedings in the district court pending the outcome of the arbitration proceedings.
Since the case was administratively closed pending arbitration proceedings, ap-pellees contend the appeal of this issue is premature. It is clear from the pleadings, however, that all of the issues raised will not be resolved by the arbitration proceedings and this case may be reopened at any time. If this action is left pending, the defendant will have to continue to incur expense in monitoring the case and presumably will have to maintain some contingency reserve until the litigation is terminated. The defendant has the right to have this pending action dismissed, if it is barred by the statute of limitations.
The district court simply held that the two-year limitations period applied and denied the defendant’s motion to dismiss. The district court did not decide when the limitations period would begin, or whether the six-month statute would bar the suit. These questions must be resolved on remand.
REVERSED and REMANDED.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 45? Answer with a number.
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.
Andrija ARTUKOVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 81-7415.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 4, 1982.
Decided Dec. 1, 1982.
Ronald H. Bonaparte, Los Angeles, Cal, for petitioner.
Allan A. Ryan, Jr., Director, argued, for respondent; Clarice R. Feldman, Los Angé-les, Cal., Rodney G. Smith, Washington, D.C., on brief.
Before GOODWIN and SCHROEDER, Circuit Judges, and SOLOMON District Judge.
The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation.
GOODWIN, Circuit Judge.
Andrija Artukovic filed a petition to review an order of the Board of Immigration Appeals revoking his stay of deportation under § 243(h) of the Immigration and Nationality Act of 1952. 8 U.S.C. § 1253(h) (as amended 1978) . We vacate the order of the board.
Artukovic entered the United States in 1948 on a visitor’s visa using a false name. He was given two extensions of his temporary stay, but did not depart when they expired.
In 1951, the Immigration and Naturalization Service brought deportation proceedings against Artukovic because, he had entered under a false passport and because he had overstayed his visitor’s visa. Artukovic applied for a suspension of deportation under Section 19(c) of the Immigration Act of 1917 (39 Stat. 874). The Immigration and Naturalization Service hearing officer denied the suspension after a hearing in 1952.
In 1953, the hearing officer’s decision was affirmed by the Board of Immigration Appeals. Because Artukovic had failed to qualify for suspension of deportation under section 19(c), the board ordered him deported. That order was not executed because of a pending request by the Yugoslavian government to extradite Artukovic for trial on 22 counts of . murder. See Artukovic v. Boyle, 140 F.Supp. 245 (S.D.Cal.1956), aff'd sub nom., Karadzole v. Artukovic, 247 F.2d 198 (9th Cir.1957), vacated and remanded, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958).
On January 15, 1959, the United States Commissioner -for the Southern District of California denied extradition because the Yugoslavian government had failed to offer sufficient evidence to support its indictment and there was no evidence to provide reasonable or probable cause to believe that Artukovic was guilty of participation in crimes committed by others in the government. United States v. Artukovic, 170 F.Supp. 383 (S.D.Cal.1959).
On May 22, 1959, the Regional Commissioner of the Immigration and Naturalization Service granted Artukovic a stay of deportation under § 243(h) of the Immigration Act of 1952 on the ground that Artuko-vic would be subject to persecution if he were deported to Yugoslavia.
In 1977, when the commissioner attempted to revoke the stay, Artukovic obtained a district court injunction preventing the government from revoking the stay except by motion before the board to reopen or reconsider under §§ 3.2, 3.8, or 242.22 of Title 8 of the Code of Federal Regulations. Artukovic v. Bell, No. CV-77-2333-IH (C.D.Cal. September 19, 1977) (amended February 27, 1980).
In 1978, Congress amended the Immigration Act to provide that members of Nazi governments of Europe who had persecuted people because of their race, religion, national origin, or political opinion were de-portable and were not eligible for stays under § 243(h). Pub.L. No. 95-549, Title I, §§ 103-04, 92 Stat. 2065-2066 (1978) (codified at 8 U.S.C. §§ 1251(a)(19), 1253(h)). The Immigration and Naturalization Service then moved the board to reconsider Artukovic’s stay. Artukovic argued that the stay could not be revoked without a reopening for a full factual hearing. The board revoked the, stay without a hearing. It held that the factual findings of the 1953 decision were sufficient to determine that Artukovic was no longer eligible for a § 243(h) stay and applied administrative res judicata. This appeal followed.
Artukovic argues that: (1) the 1978 amendment to § 243(h) does not apply to his case; (2) the 1978 amendment is unconstitutional; and (3) the board did-not follow proper procedures in revoking his stay. REACH OF THE 1978 AMENDMENT
Artukovic contends that § 405(a) of the Immigration Act of 1952, 66 Stat. 166 (codified at 8 U.S.C. § 1101, note (1976)), was intended to insure that only the 1917 Immigration Act would apply to all proceedings started before 1952. He argues that because his deportation proceedings began before 1952, the 1978 amendment to § 243(h) does not apply to his case.
Section 405(a), 8 U.S.C. § 1101, note, provides:
(a) “Nothing contained in this Act, [this chapter] unless otherwise specifically provided therein, shall be construed to affect .the validity of any ... proceeding ... or any status ... at the time this Act [this chapter] shall take effect; but as to all such ... proceedings ... the statutes .. . repealed by this Act [this chapter] are, unless otherwise specifically provided therein, hereby continued in force and effect....”
This is merely a “savings clause” to insure that the 1917 Act would continue to apply to cases pending in 1952 if not “otherwise specifically provided” for in the 1952 Act. See Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957). It does not bar Congress from passing legislation that affects the status of anyone whose immigration proceedings began before 1952. Moreover, the legislative history of the 1978 amendment indicates that Congress intended it to apply retroactively to Nazi war criminals who were not deportable under earlier immigration laws. H.Rep. No. 95-1452, 95th Cong., 2d Sess. 3, reprinted in 1978 U.S.Code Cong. & Ad.News 4700, 4702. The 1978 statute applies to this case.
CONSTITUTIONALITY OF THE 1978 AMENDMENT TO § 243(h)
Before 1978, § 243(h) of the Immigration Act of 1952 authorized the Attorney General to stay the deportation of any alien who would be subject to persecution if deported. The 1978 amendment withdrew the protection of § 243(h) from members of the Nazi governments of Europe who had “ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.” 8 U.S.C. §§ 1253(h)(2)(A) and 1251(a)(19).
Artukovic contends that the 1978 amendment is a bill of attainder and ex post facto law because it withdrew the basis for his stay of deportation. Deportation, however, is not a punishment; it is simply a refusal by the government to harbor persons whom it does not wish to harbor. Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913). The prohibition against ex post facto laws and bills of attainder does not apply to deportation statutes. Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 764, 99 L.Ed. 1107 (1955) (construing ex post facto clause); Rubio de Cachu v. Immigration & Naturalization Serv., 568 F.2d 625, 627-28 (9th Cir. 1977) (bill of attainder clause).
Congress may establish grounds for deportation that apply retroactively. Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957); Mulcahey v. Catalanotte, 353 U.S. 692, 77 S.Ct. 1025, 1 L.Ed.2d 1127 (1957). In this case, Congress has merely withdrawn the basis for Artukovic’s temporary, discretionary stay of deporta-, tion. If Congress may establish retroactive grounds for deportation, it has the privilege of restricting the discretionary relief available to aliens for whom there already exist grounds for deportation. Artukovic has no basis for asserting that the 1978 amendment does not apply to his case.
Artukovic also argues that the word “persecution” in the 1978 amendment is unconstitutionally vague. The term “persecution” appears in at least two other immigration statutes. See 8 U.S.C. §§ 1153(a)(7), 1253(h). This court has interpreted “persecution” in § 1253(h) as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Kovac v. Immigration and Naturalization Service, 407 F.2d 102, 107 (9th Cir.1969). Accord, Moghanian v. U.S. Dept. of Justice, etc., 577 F.2d 141, 142 (9th Cir.1978). The Board of Immigration Appeals defines the term more narrowly in relation to § 1253(h) as threatening a person’s “life or freedom ... on account of his race, religion, nationality, membership in a particular social group, or political opinion.” Moghanian, 577 F.2d at 142. Under these circumstances, Artukovic’s vagueness challenge is not persuasive.
THE BOARD’S PROCEDURES IN REVOKING THE STAY
Artukovic asserts that the board should not have revoked his stay under the 1978 law without first granting him an evidentiary hearing before an immigration judge, whose decision could then be appealed to the board. We agree.
The regulations give the board jurisdiction over motions to reopen or to reconsider its decisions, including stays of deportation. 8 C.F.R. § 3.2. Artukovic’s stay was granted by the. Regional Commissioner, not the board, but the regulations treat decisions made by the commissioner before 1962 as decisions of the board for purposes of reopening or reconsideration. Therefore, the board had jurisdiction over the government’s motion to reconsider the commissioner’s 1959 stay of Artukovic’s deportation.
Although a motion to reopen must offer to prove “new facts” at a “reopened hearing,” 8 C.F.R. § 3.8(a), there is no such requirement for a motion to reconsider. The board interprets this regulation to permit reconsideration rather than reopening where a motion requests the board to apply a change in the law, because there are no “new facts” to prove. Thus the board relied on administrative res judicata in revoking Artukovic’s stay. While the board’s interpretation is entitled to the deference ordinarily given to an agency’s interpretation of its own procedural regulations, see Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 544-55, 98 S.Ct. 1197, 1211-17, 55 L.Ed.2d 460 (1978), reconsideration was not an appropriate procedure in Artukovic’s case. The 1978 law’s creation of new factual categories requires a reopened hearing to determine whether Artu-kovic comes within- the new categories.
The issue raised by the government’s motion to reconsider was whether the 1978 amendment to § 243(h) made Ar-tukovic ineligible for a stay. The government sought to rely on a suspension of deportation hearing, initiated by Artukovic almost thirty years earlier, to prove that Artukovic fell within a statute passed in . 1978. Basic principles of res judicata and of collateral estoppel preclude this procedure. Even where an issue has been actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is generally not precluded where there has been an intervening change in the governing law or where the burden of persuasion has shifted from the time of the first action to the second. See Restatement (Second) of Judgments § 28 (1982). Moreover, in the' administrative law context, the principles of collateral estoppel and res judicata are applied flexibly. See, e.g., United States v. Lasky, 600 F.2d 765, 768 (9th Cir.1979), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979).
In the 1952-1953 deportation hearings, the primary issue was whether Artukovic had entered and remained in this country illegally, by entering under a false name and remaining after his visa had expired. The burden was on Artukovic to show that he was entitled to a discretionary suspension of deportation. Artukovic attempted to qualify for suspension on the grounds of economic detriment to his one and one-half year old United States citizen child. The hearing officer found that he had failed to prove serious economic detriment, and that he had not sustained his burden of proving good moral character.
Under the 1978 law, Congress intended that the government prove the alien’s membership in the described class by “clear, convincing and unequivocable [sic] evidence.” H.Rep. No. 95-1452, 95th Cong. 2d Sess. 3 (1978), 1978 U.S.Code Cong. & Ad. News 4712.
The 1978 statute places the burden on the government. The offensive use of collateral estoppel raises a question of fair procedure. There are, of course, cases in which the offensive use of collateral estoppel is both efficient and fair to the parties. See, e.g., Mendoza v. United States, 672 F.2d 1320 (9th Cir.1982). But this is not such a case.
The government may not rely on a hearing convened thirty years ago for a different purpose raising different issues under a different statute as a substitute for the evidence required by the 1978 law. Due process requires that the government must reopen the case for a new hearing at which it must prove by clear and convincing evidence that Artukovic possesses the personal culpability which would bring him within the 1978 law. The 1953 hearings were not, and could not have been, directed to this question.
Vacated.
. Section 243(h), 8 U.S.C. § 1253(h) provides:
“(1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(19) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion;
(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that—
(A)the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion, ...”
8 U.S.C. § 1253(h), as amended by Act of October 30, 1978, Pub.L. No. 95-549, Title I, § 104, 92 Stat. 2066, and Act of March 17, 1980, Pub.L. No. 96-212, Title II, § 203(e), 94 Stat. 107.
Section 1251(a)(19) provides:
. “Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who.. .
(19) during the period beginning .on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—
(A) the Nazi government of Germany,
(B) any government in any area occupied by the military forces of the Nazi government of Germany,
(C) any government established with the assistance or cooperation of the Nazi government of Germany or
(D) any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.”
8 U.S.C. § 1251(a)(19), as amended by Act of October 30, 1978, Pub.L. No. 95-549, Title I, § 103, 92 Stat. 2065.
. We also note that the decision made reference to the then-pending extradition proceeding by the Yugoslavian government. This proceeding, which was subsequently dismissed on the merits, may have been a significant factor in the decision to withhold discretionary relief at that time.
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_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).
McCOY et al. v. PROVIDENCE JOURNAL CO. et al.
No. 4533.
United States Court of Appeals, First Circuit.
July 17, 1951.
Aram A. Arabian, Providence, R. I. (J. F. Murphy, Pawtucket, R. I., on the brief), for appellants.
William H. Edwards, Providence, R. I. (Gerald W. Harrington, Edward F. Hindle, and Edwards & Angell, Providence, R. I., on the brief), for appellees.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and SWEENEY, District Judge.
WOODBURY, Circuit Judge.
This is an appeal from a final judgment permanently enjoining the City Treasurer, who is also the Tax Collector, of Paw-tucket, Rhode Island, “and all persons acting under or in concert with him,” from withholding certain municipal tax abatement resolutions and lists from the plaintiffs, and from preventing them from inspecting those resolutions and lists “at all •reasonable times during regular business hours.”
The plaintiff, Providence Journal Company, is a Rhode Island corporation engaged in the 'business of publishing newspapers in the city of Providence which have a wide circulation throughout the state and a substantial circulation in the adjoining city of Pawtucket. The plaintiff, Sevellon Brown, is the editor and publisher of the Providence Journal Company, and as such is the chief executive officer of that corporation. The plaintiff, Joseph A. Kelly, is a reporter for the Providence Journal Company and the manager of its Pawtucket bureau. Both 'Brown and Kelly are citizens of the United States and of the state of Rhode Island, Brown being a resident of Providence, and Kelly a resident of Pawtucket, where he, and the Providence Journal Company as well, are also tax payers.
The defendant, McCoy, is the Mayor of Pawtucket; the defendant, McAloon, occupies the combined offices of City Treasurer and Collector of Taxes, and the other defendants are the City Clerk, the Assessors of Taxes, and various other executive and legislative officials of that city.
Stated in general terms the complaint alleges that the defendants, acting individually and in concert, have deprived the plaintiffs of rights guaranteed to them by the Federal Constitution in that they have prevented the plaintiffs from gaining access to certain fiscal records of the city of Pawtucket for the purpose of publication, while permitting others in like circumstances to have access to those records for the same purpose.
There is no serious dispute as to the basic facts as found by the court below.
On December 31, 1947, the City Council of the city of Pawtucket, which is a bicameral body consisting of the -Board of Aldermen and the Common Council, met in special session and passed a joint resolution abating real and personal property taxes in the aggregate amount of $89,-377.12, as set forth in a list of tax abate-ments submitted by the Board of Assessors of Taxes which was affixed to and made a part of the resolution. Immediately upon adjournment of this meeting the plaintiff Kelly asked the defendant, Donovan, who was the City Clerk and as such the Clerk of the Board of Aldermen, for permission to see the resolution with its appendant list of abatements. Donovan told Kelly to see him “tomorrow.” Repeatedly during the following weeks reporters for the Providence Journal Company, and other officers and agents of that corporation, made requests, at first orally and later in writing, of various Pawtucket officials for permission to see the list of tax abate-ments, but in every instance the request ■met with postponement, evasion or rebuff.
Affairs remaining in this state of deadlock, Mayor McCoy on Januaray 21, 1948, at a regular meeting of the Board of Aldermen, announced the release of the 1947 tax abatement list to the Pawtucket Times, a daily newspaper published in the city of Pawtucket which is a competitor in that city of the Providence Journal. And then at the same meeting the Board of Aldermen passed an ordinance providing in pertinent part that “No city officer, official, agent or employee shall permit any person to examine any tax abatement record or any copy thereof, nor, shall any such officer, official, agent or employee disclose the contents of any such record to any person, unless such-person has permission of the City Council to examine such record.” This ordinance was passed by the Common Council two- days later and the Mayor immediately approved it.
None of the plaintiffs, and no one else on behalf of the Providence Journal Company, either then or subsequently, applied to the City Council for permission to see the tax abatement record pursuant to this ordinance. Instead on February 7, 1948, mandamus proceedings on the relation of the plaintiffs herein were instituted in the Superior Court of Rhode Island to compeL Mayor McCoy, Treasurer and Tax Collector McAloon, and some of the other defendants, to make the tax abatement record available to the plaintiffs for publication. Thereupon Mayor McCoy immediately called a special session of the City Council for February 9, at which he read the following communication dated February 7, from himself to the Board of Aldermen:
“Gentlemen:
“It has come to my attention that certain-attorneys and individuals engaged in the examination of titles find it necessary to examine tax abatement records of the City of Pawtucket. It is also obvious that any member of the public who has proper interest in such records should be permitted to see the same. Clearly, such persons should not be required to* seek special permission each time the necessity for the examination of such records arises-
“In addition, it has come to my attention that The Pawtucket Times, a newspaper-published in the City of Pawtucket, is desirous of examining these -records for the-purpose of publication in whole or in part as a public service.
“Accordingly, I have called your Honorable Body to meet in special session at this-time (Monday, February 9, 1948 at five o’clock P.M.) to act -upon resolutions pertaining to these matters.
Respectfully,
Ambrose P. McCoy
Mayor.”
Obviously in response to this letter, the 'City Council immediately passed two joint resolutions which were approved by the mayor on the same day. In one of these it was resolved first that permission be .granted “to any person himself or through his agent, engaged in the examination of titles or work of similar nature, to examine tax abatement records pertaining to such titles; Permission is also granted to any person having an interest in such records which is such as would enable him to ■maintain or defend an action for which such records can furnish evidence or necessary information, whether such interest is private, capable of sustaining a suit or a defense in his own personal behalf; or ■capable of sustaining a suit or a defense ■as the representative of the common or public right;” and second it was further resolved, “that no person shall be permitted to examine such records for publication without the express permission of the city council.” In the other it was resolved that permission be granted “to any duly authorized representative of The Pawtucket Times, a newspaper published in the City of Pawtucket, to examine and copy all tax abatement records for publication in whole or in part.”
On these conceded facts no broad, gen■eral issue of freedom of the press is presented, for the defendants, acting in their respective official capacities, have not barred the press at large from access to the tax abatement records of the city of Paw-tucket. They have given access to those records to the Pawtucket Times, but denied like access to its competitor the Providence Journal. To be sure, the denial is not •direct and categorical, but it is none the less effective. Postponement, evasion and rebuff by the city officials are as effective as outright refusal, and application by the Providence Journal, or its officers or agents, to the City Council pursuant to local legislation for permission to see the records -would clearly accomplish nothing, for the District Court found on such abundant evidence as to make challenge futile that the discrimination practiced by the defendants against the Providence Journal was “wilful,” “purposeful,” “arbitrary,” and “capricious,” and that the only reasonable, conclusion to be drawn from the record as a whole was that the enactments of the City Council were but “the crowning achievement” of the discrimination which it had found to exist.
Thus the substance of the plaintiffs’ case, omitting their contention with respect to freedom of the press which in our view it is not necessary to consider, is that they have the right under the law of Rhode Island to inspect and to' publicize the fiscal records of the city of Pawtucket, and that the officials of that city, at first without statutory authority but later under color of city ordinances, have denied them that right while conferring it upon others whose circumstances were similar to their own.
We are confronted, therefore, with an issue of equal protection of the laws, and in keeping with accepted judicial practice we shall confine ourselves to that issue, passing the broader issue of freedom of the press, for in our opinion the case can be disposed of on the narrower issue.
This brings us to the question of jurisdiction.
In the complaint in the instant case, which was -filed on August 19, 1948, federal jurisdiction of the controversy is alleged to rest upon § 24(1), (12), and (14), of the Judicial Code, as amended, 28 U.S.C. (1946 ed.) § 41(1), (12), and (14), now Title 28 U.S.C. §§ 1331, 1343. We think that federal jurisdiction of this controversy is conferred by § 1343, supra, and therefore see no occasion to inquire whether federal jurisdiction might also rest upon other statutory provisions.
By Title 28 U.S.C. § 1343(3), under the heading “Civil Rights”, the district courts are given original jurisdiction without regard to the amount in controversy “of any civil action authorized by law to be commenced by any person: * * *.
“To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” . The Constitution directly limits the power of the states in § 1 of the Fourteenth Amendment wherein it is provided that “No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Also an Act of Congress, 8 U.S. C.A. § 43 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Thus under the Constitution of the United States all persons within the jurisdiction of a State are entitled as of right to the equal protection of its laws, Truax v. Raich, 1915, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, and Congress has implemented that right, first by providing a cause of action for its enforcement, and second by giving the district courts original jurisdiction of that cause of action.
The question then is whether the plaintiffs are persons within the jurisdiction of the State who have been denied by the State the equal protection of its laws. Obviously the individual plaintiffs, and also the corporate plaintiff, are “persons” within the jurisdiction of the State of Rhode Island. Grosjean v. American Press Co., Inc., 1936, 297 U.S. 233, 244, 56 S.Ct. 444, 80 L.Ed. 660, and cases cited. And it is well settled that municipal ordinances and the actions in office of municipal officials constitute state action and are within the prohibition of the Fourteenth Amendment. Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Lovell v. Griffin, 1938, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949. The question remains whether under local law the plaintiffs have any right to- inspect the municipal records here involved, for if they have no such legal right, but may have access to the records only as a matter of grace or favor, they have no standing here. They cannot be heard to complain of the denial by the state of the equal protection of its laws merely on a showing that another has been fortunate enough to be the recipient of a favor at the hands of municipal officials, or under a local ordinance, which they have been denied.
The District Court held, largely on the basis of the opinions of the State courts in the mandamus proceeding to- which we referred earlier' in this opinion, that the records here involved are public records, and that as such the plaintiffs have the legal right to inspect them. We agree.
In that mandamus proceeding the plaintiffs prevailed in the Superior Court. That Court in an unreported opinion dated May 14, 1948, stated that there were no controlling state statutes, but that under the Common Law as in force in Rhode Island the joint' resolution of December 31, 1947, abating taxes constituted a “public record” of the city of Pawtucket, and that the plaintiffs had the right to inspect that record. It said that In re Caswell’s Request, 1893, 18 R.I. 835, 29 A. 259, 27 L.R.A. 82, stated the “early common-law doctrine”, and that the “modern American cases” reviewed in the “leading” case of Nowack v. Fuller, 1928, 243 Mich. 200, 219 N.W. 749, 60 A.L.R. 1351, which it quoted, established that there could be “no question ‘as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records relate. So * * * a citizen and tax payer has a common-law right to inspect the public records * * * to determine if the public money is being properly expended. It is a right that belongs to- his citizenship * * ” Wherefore the Superior Court concluded: “The authorities are clear that at Common Law the members of the public in general have the right to inspect public records.”
The Supreme Court of Rhode Island, however, in a decision not yet reported officially but to be found in Nolan v. McCoy, 73 A.2d 693, 697, reversed. But it did so' for procedural reasons on a motion to quash. It found that the writ was vague, argumentative, and prolix to an extreme degree, and thus lacking in that clarity and precision which is so essential in mandamus, that there was a gross mis-joinder of parties plaintiff in that the Attorney General could not be joined with private persons in a suit brought to vindicate a private right, and that the mandate was defective in that it was directed to the defendants severally whereas their duty in the premises was alleged to be joint.
Thus the Supreme Court of Rhode Island did not reach the merits. Yet it did not ignore the merits altogether. It took occasion to say: “However, it may not be amiss to- say here, in view of the protracted course of this litigation, that this court recognizes the common-law right of inspection of public records by a proper person or his agent provided he has an interest therein which is such as would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information. This court in Re Caswell’s Request, 18 R.I. 835, 29 A. 259, 27 L.R.A. 82, while recognizing the common-law right of inspection of public records nevertheless directed its clerk to deny, a newspaper a copy of a certain judicial record. Whether or not the right extends further than we have just stated we think is a question upon which we need not express an opinion here.”
Judicial records, such as the court was considering in In re Caswell’s Request referred to above, stand on a different basis from the 'fiscal records of a municipal corporation. Traditionally, courts have exercised the power to impound their records when circumstances warranted such action, but we are not aware of any comparable power of municipal officials with respect to the fiscal records of their municipality. Indeed the existence of such a power would be quite at variance with democratic principles as developed in this country. Thus we take the restrictive language used in In re Caswell’s Request as intended to have application to judicial records, but not by any means as necessarily intended also to apply to the fiscal records of a municipality. This appears to be the construction put upon that language by the State Superior Court in the mandamus proceeding, and we see nothing in the opinion of the Supreme Court of Rhode Island in that proceeding to refute that construction.
At any rate, the decision of the Superior Court standing unreversed as to its exposition of the present local law constitutes for us the law of Rhode Island in the premises under the principle of Fidelity Union Trust Co. v. Field, 1940, 311 U.S. 169, 177, 178, 61 S.Ct. 176, 178, 85 L.Ed. 109, wherein, with citation of authorities, it is said: “The highest state court is the final authority on state law, but it is still the duty of the federal courts, where the state law supplies the rule of decision, to ascertain and apply that law even though it has not been expounded by the highest court of the State. * * * An intermediate state court in declaring and applying the state law is acting as an organ of the 'State and its determination, in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question.” See also West v. American T. & T. Co., 1940, 311 U.S. 223, 236, 337, 61 S.Ct. 179, 183, 85 L.Ed. 139, in -which it is stated that “a federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principle or that another is preferable.” Thus we would have to take the Superior Court’s exposition of the local law even though (as is not the case), from the viewpoint of general law we might not agree.
Hence for present purposes it is established that the records with which we are concerned are “public records”, and as such the individual plaintiffs, if not as members of the general public at least as citizens of Rhode Island, and the corporate plaintiff as a local tax payer, are entitled under state law to inspect those records. And clearly the refusal of the defendants to accord the plaintiffs their right of inspection while granting such right to a competitor, the Pawtucket Times, constitutes a denial of equal protection of the laws which gives rise to a case or controversy within federal jurisdiction under the statutes quoted earlier in this opinion.
What has been said in the course of considering the question of jurisdiction, goes far to dispose of this appeal on the merits. The findings of the District Court to the effect that the plaintiffs were in fact grossly discriminated against by the defendants are amply supported by the evidence.
One further point, however, merits discussion.
The defendants seasonably moved pursuant to Rule IS Fed. Rule Civ.Proc. 28 U.S.C.A. that the complaint be stricken for the reason that it did not comply with the requirements of Rule 8(a) and (e) id. Determination of this motion, and also motions to dismiss for lack of jurisdiction and to “drop improper parties”, was deferred by the court below until the trial, when, by entering a judgment for the plaintiffs, it inferentially denied all motions.
The complaint certainly is argumentative, prolix, redundant and verbose, and attached to it, labeled exhibits, are lengthy letters and affidavits containing evidentiary matter, including purported statements made by some of the defendants, and in the letters even legal arguments supported by citation of cases. It is hard to imagine a pleading more completely at variance with both the letter and the spirit of Rule 8(e)(1) which requires that each averment of a pleading be “simple, concise and direct.” We think the defendants’ motion to strike should have been granted promptly, whereby the issues might have been clarified for the benefit of all concerned. However, we cannot say that the complaint is so badly drawn that the defendants, although no doubt handicapped, were prevented from making their defense, or that either we or the court below, although also seriously handicapped, have been wholly prevented from ferreting out the issues lurking in the verbiage. Therefore, at this late stage of the proceeding, we treat the error as harmless in conformity with the mandate of Rule 61, F.R.C.P. wherein it is provided: “The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Other points made by the appellants have been considered, but in so far as they are not covered in what has been said are passed as not of sufficient moment to merit discussion.
The judgment of the District Court is affirmed.
. It is not disputed that if the plaintiffs have the right of inspection they also have the right of publication.
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_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".
NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC., et al., Plaintiffs, Appellants, v. James E. TIERNEY, et al., Defendants, Appellees.
No. 81-1886.
United States Court of Appeals, First Circuit.
Submitted June 11, 1982.
Decided Sept. 28, 1982.
James M. Smith, Denver, on brief, for plaintiffs, appellants.
James E. Tierney, Atty. Gen., James W. Brannigan, Jr., Deputy Atty. Gen., and William R. Stokes, Asst. Atty. Gen., Augusta, Me., on brief, for defendants, appellees.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
BOWNES, Circuit Judge.
Challenged here is the facial validity of portions of the Maine Drug Paraphernalia Act, Me.Rev.Stat.Ann.tit. 17A, § 1111-A, an act patterned on the Drug Enforcement Administration’s Model Drug Paraphernalia Act. The district court struck subsection 3(F) of the act, but concluded the act was otherwise facially valid. Plaintiffs, a trade association, wholesalers, and retailers subject to the act, have appealed. The Maine Act is set forth in the appendix to this opinion.
Plaintiffs, pointing to the definitional section (subsection 1 of the Maine Act) which does not expressly state whose intent is relevant in determining whether an item is drug paraphernalia, first argue that the statute exposes a defendant to criminal responsibility for the intent or misdeeds of another. Interpreting a New Hampshire statute which contained a substantially identical definition of drug paraphernalia, see N.H.Rev.Stat.Ann.c. 318-B:1 X-a, we rejected a similar “transferred intent” argument concluding that a fair reading of the statute as a whole, including the portions defining the substantive offenses which focus on the mental state of the accused, indicated the intent referred to is that of the person alleged to have violated the statute. See New England Accessories Trade Association, Inc. v. City of Nashua, 679 F.2d 1, 5-6 (1st Cir. 1982) and cases cited therein. See also Tobacco Accessories and Novelty Craftsmen Merchants Association of Louisiana v. Treen, 681 F.2d 378, 383 (5th Cir. 1982) (“[t]he ‘intended for use’ language applies to the state of mind of the individual charged with the offense of selling, distributing, or displaying drug paraphernalia”); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1219 (11th Cir. 1982) (“[t]o ensure that defendants will not be convicted based on the transferred intent of others ... the . .. states of mind on which the definition of drug paraphernalia relies . . . require proof of general criminal intent of the accused”). It is true that unlike the situation in City of Nashua, we are not here aided by a state supreme court interpretation of the Maine statute, but that does not preclude us from ascertaining the meaning of the Maine statute. It is also true that, unlike the New Hampshire statute, the substantive trafficking offense of the Maine Act contains the “reasonably should know” language of the Model Act, compare N.H.Rev.Stat. Ann.c. 318-B:2 II with Me.Rev.Stat.Ann.tit. 17-A, § 1111-A 5, but this difference does not affect our determination that the definitional section itself, subsection 1 of the Maine Act, requires proof of the defendant’s intent. Accord, Levas and Levas v. Village of Antioch, 684 F.2d 446, 452-53 (7th Cir. July 7, 1982); Tobacco Accessories, 681 F.2d at 383; Florida Businessmen, 673 F.2d at 1219; Hejira Corp. v. MacFarland, 660 F.2d 1356, 1366-1367 (10th Cir. 1981); Casbah, Inc. v. Thone, 651 F.2d 551, 559, 561 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982) (No. 81-415); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928-929 (6th Cir. 1980), vacated, 451 U.S. 1013, 101 S.Ct. 2998, 68 L.Ed.2d 384 (1981); Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. 289, 292-293 (D.Del.1980).
Once the definitional section is so read, plaintiffs’ further argument that subsection 5' — which makes it “unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know” that it will be used for illegal drug purposes, Me.Rev.Stat.Ann.tit. 17-A, § 1111-A 5 (emphasis added) — permits conviction on a negligence standard looses its foundation. This is because in view of the definitional section — which, as interpreted, renders an item in a seller’s hands drug paraphernalia only if the seller intends it to be used with scheduled drugs — constructive knowledge of the buyer’s purpose alone is not enough for conviction:
“In the context of an alleged sale or delivery of drug paraphernalia, the Act requires the state to prove both (1) that the defendant intended that an item would be used for the production or consumption of controlled substances and also (2) that he either knew, or that he acted in a set of circumstances from which a reasonable person would know, that the buyer of the item would thereafter use it for those purposes. So-called constructive knowledge thus has significance only in a situation where the defendant is selling or delivering items that he intends to be used to produce or consume illicit drugs in the first place. The legitimate merchant who sells innocuous items need make no judgment about the purpose of the buyer based upon the surrounding circumstances. The dealer, on the other hand, who sells innocuous items with the intent that they be used with drugs is, in effect, put on notice by the illicit nature of his activity that he must be careful to conform his conduct to the law. Even the illicit dealer, however, is not held legally responsible ... for guessing what is in the mind of a buyer. The seller is safe as long as he does not actually know the buyer’s purpose and as long as the objective facts that are there for him to observe do not give fair notice that illegal use will ensue.”
Delaware Accessories, 497 F.Supp. at 294. See also Casbah, Inc. v. Thone, 651 F.2d at 561 (following Delaware Accessories).
The foregoing is the interpretation of the act the Maine Attorney General advanced and the lower court adopted. New England Accessories Trade Association v. Tierney, 528 F.Supp. 404 (D.Me.1981). Plaintiffs nevertheless contend the statute is unconstitutionally vague because the standard of intent is itself so vague that it provides no guidance to actors or prosecutors. Plaintiffs claim merchants are unable to discern what mental state on their part— i.e., whether knowledge that an innocuous object may be used with scheduled drugs is enough — will transgress the act. Both “intentionally” and “knowingly” are defined in the Maine criminal code, and we find these definitions sufficiently specific to avoid a due process vagueness problem. While plaintiffs argue that the facts listed in subsection 3 fail to provide black and white standards from which law enforcement officers can determine a merchant’s intent, law enforcement always requires the exercise of some judgment, Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), and the assessment called for under the Maine Act is no different in kind than that ordinarily encountered. Delaware Accessories, 497 F.Supp. at 295. In New England Accessories, 679 F.2d at 6, we rejected a similar attack leveled against a list containing 13 of the same 14 factors, and we adhere to that view.
Plaintiffs’ last argument — that subsection 1(K) creates a mandatory presumption that the objects listed therein are drug paraphernalia — fails. The list gives examples of items which, depending on the circumstances — actual use or the accused’s intent — may be drug paraphernalia.
Affirmed.
APPENDIX
§ 1111-A. Sale and use of drug paraphernalia
1. As used in this section the term “drug paraphernalia” means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a scheduled drug in violation of this chapter or Title 22, section 2383. It-includes, but is not limited to:
A. Kits used or intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a scheduled drug or from which a scheduled drug can be derived;
B. Kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing scheduled drugs;
C. Isomerization devices used or intended for use in increasing the potency of any species of plant which is a scheduled drug;
D. Testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness or purity of scheduled drugs;
E. Scales and balances used or intended for use in weighing or measuring scheduled drugs;
F. Dilutents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or intended for use in cutting scheduled drugs;
G. Separation gins and sifters, used or intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;
H. Blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding scheduled drugs;
I. Capsules, balloons, envelopes and other containers used, or intended for use in packaging small quantities of scheduled drugs;
J. Containers and other objects used or intended for use in storing or concealing scheduled drugs; and
K. Objects used or intended for [sic] in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:
(1) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;
(2) Water pipes;
(3) Carburetion tubes and devices;
(4) Smoking and carburetion masks;
(5) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand;
(6) Miniature cocaine spoons and cocaine vials;
(7) Chamber pipes;
(8) Carburetor pipes;
(9) Electric pipes;
(10) Air-driven pipes;
(11) Chillums;
(12) Bongs; or
(13) Ice pipes or chillers.
2. For purposes of this section, drug paraphernalia does not include hypodermic apparatus. Possession of, furnishing or trafficking in hypodermic apparatus constitute separate offenses under sections 1110 and 1111.
3. In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:
A. Statements by an owner or by anyone in control of the object concerning its use;
B. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any scheduled drug;
C. The proximity of the object, in time and space, to a direct violation of this chapter;
D. The proximity of the object to scheduled drugs;
E. The existence of any residue of scheduled drugs on the object;
F. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use as drug paraphernalia;
G. Instructions, oral or written, provided with the object concerning its use;
H. Descriptive materials accompanying the object which explain or depict its use;
I. National and local advertising concerning its use;
J. The manner in which the object is displayed for sale;
K. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
L. Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
M. The existence and scope of legitimate uses for the object in the community; and
N. Expert testimony concerning its use.
4. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of this chapter or Title 22, section 2383.
5. It is unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of this chapter or Title 22, section 2383.
6. It is unlawful for any person to place in any newspaper, magazine, handbill or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects intended for use as drug paraphernalia.
7. Violation of subsection 4 is a civil violation for which a forfeiture of not more than $200 may be adjudged.
8. Violation of subsection 5 or 6 is a Class E crime, except that, if the actor trafficks or furnishes drug paraphernalia to a child under 16 years of age, it is a Class D crime.
9. Any drug paraphernalia possessed in violation of this section is declared to be contraband and may be seized and confiscated by the State.
. Plaintiffs argue that those federal courts which have read state statutory drug paraphernalia definitions patterned after the Model Act as referring to the intent of the accused have engaged in an impermissible process of placing a limiting construction on an act, a function a federal court has no authority to perform when reviewing a state statute. We disagree. It is the meaning of the Maine statute as written which both the district court and we have sought to ascertain through the use of traditional and appropriate canons of statutory interpretation. See Casbah, Inc. v. Thone, 651 F.2d 551, 557-558 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982).
. Courts reaching this result have relied on the general principle of statutory interpretation that statutes should be read to avoid an unconstitutional result, see, e.g., Record Revolution, 638 F.2d at 928-929; Delaware Accessories v. Gebelein, 497 F.Supp. at 292; the structure of the Model Act — the initial ambiguity in § 1, viewed alone, being explained by the fact that it was drafted to be appropriate in the context of a number of different prohibited activities including possession (subsection 4 of the Maine Act), manufacturing or selling (subsection 5), and advertising (subsection 6), all of which substantive offenses focus on the mental state of the violator, see, e.g., Casbah, Inc. v. Thone, 651 F.2d at 559; Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. at 292 and n.1; and the Model Act comments indicating the relevant intent for purposes of the definitional section is that of the defendant, see, e.g., Delaware Accessories, 497 F.Supp. at 293.
. “1. ‘Intentionally.’
“A. A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result.
“B. A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes that they exist.
“2. ‘Knowingly.’
“A. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
“B. A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist.”
Me.Rev.Stat.Ann.tit. 17-A, § 35.
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_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.
The CARBORUNDUM COMPANY, Plaintiff-Appellant, v. NATIONAL TEA COMPANY, Defendant-Appellee.
No. 12286.
United States Court of Appeals Seventh Circuit.
Dec. 29, 1958.
William H. Webb, Pittsburgh, Pa., Edward C. Grelle, Chicago, Ill., Webb, Mackey & Burden, Pittsburgh, Pa., Brown, Jackson, Boettcher & Dienner, Chicago, Ill., of counsel, for appellant.
Harry C. Alberts, Chicago, Ill., Richard Blum, New York City, Mock & Blum, New York City, of counsel, for appellee.
Before DUFFY, Chief Judge, and SCHNACKENBERG and HASTINGS, Circuit Judges.
DUFFY, Chief Judge.
Plaintiif claims infringement of Eastman Patent No. 2,650,158, dated August 25, 1953, which relates to scouring or scrubbing implements. Defendant is a large vendor of the accused scrubbing implements which are manufactured by Scrubbee Products Corporation. Although not a formal party, Scrubbee has-conducted the defense to this suit and has been in complete control thereof. Except in one minor respect, the trial court adopted defendant’s proposed findings, and conclusions. The Court dismissed the complaint “because of invalidity of Eastman Patent No. 2,650,158 and non-infringement thereof.”
The patent in suit relates to scrubbing-pads which are suitable for general household scouring and cleaning purposes, such as the scouring and cleaning of pots and pans and other kitchen utensils. The pad is composed of materials which, are resistant to deterioration by hot water up to 180° F., soap, detergents, fats, and grease, such as are found in dishwater. It features a pad or supporting-layer of elastic, compressible, flexible and pliable material provided with a surface-layer of comminuted abrasive material embedded in an adhesive which secures-the abrasive layer to the backing. This-backing pad or layer is specified as “foam rubber” in both the specifications and the claims. Claims I and III are typical and. and appear in the margin.
The patented scrubbing implements are manufactured under a license to Rubber-Scrubber Corporation. Carborundum and Rubber-Scrubber developed a new business based on the patented pad. An officer of Scrubbee Products Corporation which manufactures the accused pad, testified that the thing that impelled him to get into the present business of his corporation was coming in contact with the patented product manufactured by Rubber-Scrubber Corporation. Others, like Scrubbee, started the manufacture of similar pads. Plaintiff claims that the only infringer of consequence other than Scrubbee has now taken a license.
The patent points out that the object of the invention is to provide an improved scouring implement avoiding the disadvantages of the prior art scouring implements. The patent states: “The abrasive article or scouring implement of this invention differs from articles heretofore used in that the entire article, including the base or supporting layer and the superposed adhesive layer containing abrasive material, is elastic, flexible, compressible and pliable and also resistant to deterioration by hot water, soap, detergents * *
Foam rubber is defined in the patent as encompassing not only foam rubber made from a natural rubber latex, but also from rubber materials composed of or containing the various synthetic rubber latices in a foamed condition, and other types of synthetic rubbers or elastomers either alone or blended in various proportions with one another or with a natural rubber latex.
The District Court concluded the patent in suit is void under 35 U.S.C.A. §§ 102, 103. In another conclusion of law, the Court held: “The Eastman patent is void over the prior art, if its scope covers the accused pad.” We hold that especially in view of the file wrapper history, the claims of the patent in suit must be narrowly construed and as thus construed, such claims are valid.
The big question in this suit is whether the accused pad infringes. To understand the restricted scope of the claims, a reference to the file wrapper history is important and enlightening. The application for the patent in suit had a somewhat rough road to travel before the patent was issued.
Eastman filed an application in 1947 in which he made no distinction between “foam rubber” and “sponge rubber” as suitable material for making the pad o.r backing layer. He also attempted to include various types of adhesive and the use of a plurality of layers of abrasive particles. The claims in the 1947 application were rejected. A second application was filed by Eastman in 1949 which also was rejected on the prior art.
A third application was filed in 1950. Eastman disclaimed sponge rubber and limited his disclosure to foam rubber. In the first office letter dated February 21, 1951, the examiner rejected the eight original claims upon prior patents to Wooddell and Sawyer, and also cited a patent to Carter to show the use of foam rubber in a scouring pad. Eastman then cancelled original claims 1, 2, 6 and 7 and inserted the word “single” in each of the four remaining claims so as to read “ * * * a single layer of abrasive grains secured to the face of the foam rubber * * * ”. The examiner again rejected the restricted claims and on March 20, 1952, Eastman further limited these four claims by inserting “substantially one grit size in thickness,” and also inserting the word “thermosetting” in original claims 3, 4 and 8. In the argument on this amendment, Eastman represented to the Patent Office “Firstly, the claims now specify that the adhesive is a resin-modified rubber base adhesive in which the resin is a thermosetting resin. Secondly, the claims now specify that the abrasive layer which is adhesively secured to the foam rubber backing is ‘substantially one grit size in thickness.’ ” Thereafter the application was allowed.
The District Court found non-infringement on three principal grounds: 1) polyurethane is not an equivalent for foam rubber; 2) the accused pads are constructed with several superposed layers of abrasive granules which is not the same or the equivalent of the single layer of the Eastman patent, and 3) the resin ingredient of the adhesive is not thermo-setting and is not an equivalent for the resin ingredient of Eastman’s claims.
Plaintiff argues that the backing in the accused pads is not just “polyurethane” but is a: “polyurethane foam” which plaintiff says is foam rubber or at least the equivalent thereof. However, the record contains sufficient evidence to sustain the Court’s finding that polyurethane is not an equivalent for foam rubber. The fact that polyurethane was an elastomer is without significance. Professor Bruins testified that sponge rubber which Eastman expressly excluded, is also an elastomer.
A very close question is presented as to whether the accused pads have a single layer of abrasive granules, substantially one grit size in thickness. The record contains considerable evidence to prove that the agreed specimens of the accused pads infringe in this respect. However, there is substantial evidence to the contrary, and the District Court found that in the accused pads there “ * * * were several superposed layers of abrasive granules which is not the equivalent for the single flat layer of abrasive of the Eastman patent.”
It is understandable why such conflicting evidence is present. On oral argument we were shown the abrasive used. The grains are so fine that a small quantity of this abrasive has the appearance and feel of dust. Furthermore, in making the pads, the abrasive is affixed to a material, the cellular surface of which is rough and uneven. Examinations of various specimens were made with powerful microscopes, and different conclusions were reached. The finding on this point could have been either way. Under the circumstances we must approve the trial court’s findings that the accused pad does not have a single layer of abrasive granules, substantially one grit size in thickness.
A third point on which the District Court based its findings and conclusions of non-infringement is that the resin ingredient of the adhesive in the accused pad is not thermosetting. The evidence shows that while a thermo plastic material will melt when exposed to heat, a thermoset material will not.
Each of the four adhesive formulas of the Eastman patent requires the use of heat in order to result in the thermoset condition. An expert witness testified that the entire disclosure of the Eastman patent required the use of heat, and that the purpose of using the thermoset-ting resin which is mentioned in the Eastman claims, is to convert it to the thermoset condition by the heating step. The trial court specifically found that by means of the heating step described in the Eastman patent, the original thermo-setting resin is chemically changed to the thermoset condition.
In making the accused pad, the adhesive solution is mixed with abrasive granules at ordinary room temperature of 70° to 75°. The solvent of the solution is evaporated at the same temperature which leaves a dry surface layer of adhesive and abrasive granules. Due to the absence of an application of heat, the adhesive in the finished pad remains non-thermoset. We think the District Court was correct in holding non-infringement in this respect.
Because infringement of the claims of the patent in suit was not established, the judgment below dismissing the complaint is
Affirmed.
. “1. A scouring implement comprising a foam rubber backing and a single layer of abrasive granules substantially one grit size in thickness adhesively secured thereto by means of a water insoluble adhesive having permanent flexibility and elongation, said adhesive comprising a blend of rubber and thermosetting resin, said foam rubber backing being of sufficient thickness to impart compressibility and handling strength to the article.
“3. A scouring implement comprising a foam rubber backing of sufficient thickness to impart compressibility and handling strength to the article and a single layer of abrasive granules substantially one grit size in thickness adhesively secured thereto by means of a water-insoluble adhesive comprising a blend of' rubber and a phenol aldehyde resinous, condensation product.”
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
Charles E. JOHNSON, Charles A. Hunter, Rodger W. Osborne, and Thomas L. Wells, individually and on behalf of all others similarly situated, Appellees, v. Mark A. LEVINE, Commissioner, Division of Correction, Maryland Department of Public Safety and Correctional Services; Ralph L. Williams, Warden, Maryland House of Correction; Robert J. Lally, Secretary, Department of Public Safety and Correctional Services; and Marvin Mandel, Governor of the State of Maryland, Appellants. Warren C. NELSON, Earl A. Curreri, Carl Jackson, Prisoners of the Maryland Penitentiary, on behalf of themselves and all others similarly situated, Appellants, v. George H. COLLINS, Warden, Maryland Penitentiary; Mary Lou Bartram, Superintendent, Maryland Reception Diagnostic and Classification Center; Mark A. Levine, Commissioner, Maryland Division of Correction; Robert J. Lally, Secretary, Maryland Department of Public Safety and Correctional Services; Henry P. Turner, Chairman, Maryland Parole Commission; Marvin Mandel, Governor of the State of Maryland; McLindsey Hawkins, Assistant Warden, Maryland Penitentiary; Sigmund Fine, Assistant Warden, Maryland Penitentiary; Maryland Division of Correction; Louis Goldstein, Member, Board of Public Works; William S. James, Member, Board of Public Works; D. J. Smith, Sergeant, Maryland Penitentiary, sued individually and in their official capacities, Appellees. Charles E. JOHNSON, Charles A. Hunter, Rodger W. Osborne, and Thomas L. Wells, individually and on behalf of all others similarly situated, Appellants, v. Mark A. LEVINE, Commissioner, Division of Correction; Maryland Department of Public Safety and Correctional Services; Ralph L. Williams, Warden, Maryland House of Correction; Robert J. Lally, Secretary, Department of Public Safety and Correctional Services; and Marvin Mandel, Governor of the State of Maryland, Appellees. Warren C. NELSON, Earl A. Curreri, Carl Jackson, Prisoners of Maryland Penitentiary, on behalf of themselves and all others similarly situated, Appellees, v. George H. COLLINS, Warden, Maryland Penitentiary; Mary Lou Bartram, Superintendent, Maryland Reception Diagnostic and Classification Center; Mark A. Levine, Commissioner, Maryland Division of Correction; Robert J. Lally, Secretary, Maryland Department of Public Safety and Correctional Services; Henry P. Turner, Chairman, Maryland Parole Commission; Marvin Mandel, Governor of the State of Maryland; McLindsey Hawkins, Assistant Warden, Maryland Penitentiary; Sigmund Fine, Assistant Warden, Maryland Penitentiary; Maryland Division of Correction; Louis Goldstein, Member, Board of Public Works; William S. James, Member, Board of Public Works; D. J. Smith, Sergeant, Maryland Penitentiary, sued individually and in their official capacities, Appellants.
Nos. 78-6416 to 78-6419.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 14, 1978.
Decided Dec. 13, 1978.
Stephen B. Caplis, Asst. Atty. Gen., George A. Nilson, Deputy Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Maryland and Clarence W. Sharp, Chief, Criminal Division, Asst. Atty. Gen., Baltimore, Md., on brief), for appellants.
Nevette Steele, Jr., Baltimore, Md. (Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., on brief), Richard L. North, Baltimore, Md. (Mary S. Elcano, Lawrence B. Coshnear, Sandra D. Boteler, Legal Aid Bureau, Inc., Richard G. Fish-man, Keystone Legal Services, Baltimore, Md., on brief), Paul D. Bekman, Baltimore, Md. (Kaplan, Heyman, Greenberg, Engleman & Belgrad, P.A., Baltimore, Md., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, and PHILLIPS, Circuit Judges, sitting En Banc.
PER CURIAM:
These are appeals and cross-appeals from decisions of the District Court of Maryland in which it was concluded that the conditions in two penal institutions in Maryland were in violation of the Eighth Amendment’s command against cruel and unusual punishment. Johnson v. Levine, 450 F.Supp. 648 (D.Md.1978); Nelson v. Collins, 455 F.Supp. 727 (D.Md.1978).
In Hite v. Leeke, 564 F.2d 670 (4th Cir. 1977), we held that “double-celling,” the housing of two prisoners in a cell initially designed for single occupancy, was not itself a violation of the Constitution. It, of course, may be a relevant factor when other consequences of overcrowding create deprivations or impose unusual restrictions and disadvantages upon the prison population.
In their opinions, the district judges placed great emphasis upon “double-celling,” which was extensive in both institutions, but other deprivations were also shown. The “double-celling” was clearly a consequence of overcrowding, and the overcrowding had other consequences. The physical and personnel resources of both institutions were taxed. The overcrowding limited opportunities for recreation, for instruction and rehabilitation, complicated the maintenance of sanitation, required meal service in three separate shifts and probably contributed to a high level of violence and psychological injury to some prisoners. The medical facilities and staffs were also overtaxed, and on cross-appeals there is a complaint that medical care itself was constitutionally deficient. With the elimination of substantial overcrowding, however, the deficiencies of the medical facilities, staffs and services will be diminished.
Under the totality of all of the circumstances, we conclude that the district judges properly found a constitutional violation warranting judicial direction that the overcrowding be eliminated. Overcrowding, with all of its consequences, can reach such proportions that the impact of the aggregate effect amounts to cruel and unusual punishment. We believe that the district judges reasonably found that the point had been reached here. Hence, we affirm the entry of injunctive relief directed to elimination of the overcrowded conditions, and the denial of injunctive relief directed to specific areas of alleged deficiencies such as medical care.
The district judges directed accelerating steps for the elimination of overcrowding by April 1, 1979. Maryland, however, has come forward with a detailed plan involving the construction of a new facility, incorporating the previous planned conversion of another, and the early release of prisoners thought appropriate for release which will accomplish the objective of elimination of overcrowded conditions by June 1, 1980.
The district judges imposed a short compliance timetable. It was appropriate, of course, to emphasize the fact that the situation was serious, and to require that remedial steps should be undertaken promptly. The release of prisoners properly subject to parole may proceed apace, but we are convinced that the overcrowded conditions cannot be completely eliminated without the construction and utilization of a new facility, which Maryland proposes to have available by June 1, 1980. Since the constitutional violation here is not as extreme or as shocking as in some of the reported cases, and since Maryland’s plan is practical and reasonable and will achieve the required objective of elimination of overcrowding in its penal institutions, we think its plan and its schedule deserve judicial approval.
In addition to the claims respecting the general prison populations, in Johnson the court found the conditions of imprisonment in the Special Confinement Area, a section housing mentally disturbed prisoners, were so severe they constituted cruel and unusual punishment. The judge ordered the SCA closed as soon as the inmates could be moved to state mental institutions. In Nelson the court found extended confinement in the punitive isolation unit violated the Eighth Amendment. The judge imposed limitations on the use of the cells. We affirm these findings of constitutional deprivation and the grant of appropriate relief.
The findings of constitutional overcrowding are affirmed. The decree in Johnson, insofar as it affects the Special Confinement Area, and the decree in Nelson, insofar as it deals with punitive isolation, are both affirmed. The denial of specific relief in other respects is affirmed. The cases are remanded to the district court with instructions to fashion new decrees which will incorporate Maryland’s plan and its schedule for the elimination of overcrowding in the two penal institutions.
Judge Russell and Judge Widener dissent from the conclusion that a deficiency of constitutional proportion was shown. They reserve the right later to file an opinion expressing their views.
AFFIRMED IN PART AND REMANDED.
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_r_natpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Marion BELL, as Administratrix of the Estate of Thomas L. Bell, and Marion Bell, Plaintiff-Appellee, Cross-Appellant, v. A-LEET LEASING CORPORATION, Citibank, N.A., Mercedes-Benz Manhattan, Inc., and Avery Agency, Inc., Defendants, A-Leet Leasing Corporation and Citibank, N.A., Defendants-Appellants, A-Leet Leasing Corporation, Defendant-Appellant, Cross-Appellee, Mercedes-Benz Manhattan, Inc., Defendant-Appellee.
Nos. 33, 265, Dockets 88-7284, 88-7296.
United States Court of Appeals, Second Circuit.
Argued Sept. 16, 1988.
Decided Dec. 15, 1988.
Bradley B. Davis, New York City, for plaintiff-appellee, cross-appellant.
Wendy E. Wells, New York City, for defendants-appellants.
Cushing 0. Condon, New York City (William P. Ford, John F. Boland, Ford Marrin Esposito Witmeyer, New York City, of counsel), for defendant-appellee.
Before KAUFMAN and MAHONEY, Circuit Judges, and McAYOY, District Judge.
The Honorable Thomas J. McAvoy of the United States District Court for the Northern District of New York, sitting by designation.
PER CURIAM:
Defendant-appellant and cross-appellee A-Leet Leasing Corporation (“A-Leet”), defendant-appellant Citibank, N.A. (“Citibank”), and plaintiff-appellee, cross-appellant Marion Bell (“Bell”) appeal from a judgment entered upon a jury verdict in the United States District Court for the Southern District of New York, Gerard L. Goet-tel, Judge, for Bell against A-Leet and Citibank in the amount of $17,229, as remitted, plus interest and costs. On appeal, A-Leet and Citibank seek reversal of the judgment, or in the alternative a new trial. Bell seeks additer to the judgment and remand for trial on additional liability against A-Leet and Mercedes-Benz Manhattan, Inc. (“Mercedes-Benz”). We affirm the judgment of the district court.
In the spring of 1981, the late Dr. Thomas L. Bell desired to purchase a Mercedes-Benz automobile from Mercedes-Benz, a dealership in New York City. Because of a poor credit rating and a number of outstanding judgments against him, Dr. Bell could only lease the car. The financial transaction was as follows: Mercedes-Benz sold the car to A-Leet for $42,900. A-Leet paid Mercedes-Benz with a $15,000 down payment received from Dr. Bell and a $27,900 loan borrowed from Citibank. Dr. Bell’s obligation, in addition to the $15,000 down payment, was to make an initial monthly payment of $3,027.15 to A-Leet and forty-five monthly payments of $1,009.05 to Citibank until Citibank’s loan to A-Leet was retired, after which A-Leet was to receive the monthly payments.
After a number of monthly payments were received late and some were paid with checks that were later returned, A-Leet repossessed the car on January 3, 1983. Dr. Bell promptly commenced this action for damages. As finally amended, the complaint named as defendants A-Leet, Citibank, Mercedes-Benz and Avery Agency, Inc. (“Avery”) (a defendant below, the re-possessor of the vehicle). In October, 1983, Dr. Bell died and his wife Marion Bell was substituted as plaintiff (both as admin-istratrix and individually, since she was a cosigner of the lease). Bell alleged inadequate credit disclosure in violation of 15 U.S.C. § 1601 et seq. (1982), wrongful repossession in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (1982), overcharge for the car, usurious interest in violation of state law, failure to account for cash payments, and violation of N.Y.Gen.Oblig.Law § 5-702 (McKinney 1978 & Supp.1988) by failure to use plain language in the lease documents.
At the close of plaintiff’s case, the district court dismissed all claims against Mercedes-Benz except a claim that Mercedes-Benz received, but did not account for, a $2,000 cash payment from Dr. Bell. This claim was decided in favor of Mercedes-Benz by the jury. Thereafter, the district court dismissed all claims against Avery and directed judgment in favor of Mercedes-Benz on all claims. The district court refused to dismiss plaintiff’s claims against A-Leet or Citibank at the conclusion of plaintiff’s direct case, and also denied these defendants’ motion for a directed verdict at the close of trial. The jury found A-Leet and Citibank liable for breach of contract, and rendered a verdict of $25,000 in damages.
Defendants A-Leet and Citibank moved for a new trial on the breach of contract claim, or alternatively, solely on the issue of damages. The district court denied the motion for a new trial, subject to plaintiffs’ acceptance of a remittitur reducing the verdict to $17,229. The district court reasoned that measuring plaintiffs damages as the fair market value of the car at the time of repossession, as the jury was instructed to do, damages could only amount to $16,229. This figure was computed by subtracting the present value of Bell’s future obligations for payments on the car (including the purchase option price), $26,671, from its retail value, $42,900, and adding to the resulting figure, $16,229, $1,000 representing the Bells’ loss of use of the car. The jury’s verdict of $25,000 in damages was almost fifty percent greater than the proper measure of damages, and was thus deemed excessive.
The only significant issue on appeal, out of the myriad raised by the parties, is whether the jury’s finding is supported by the evidence presented at trial. Early in the litigation, the attorney for A-Leet and Citibank submitted answers to interrogatories that erroneously stated the number of monthly lease payments paid by Dr. Bell. The interrogatory answers mistakenly reflected checks sent by Dr. Bell that were dishonored by the bank on which they were drawn. Although successor counsel for A-Leet and Citibank detected the errors prior to trial, no steps were taken to correct them. The district court disagreed with the jury verdict, but concluded that the verdict was not “so contrary to the weight of the evidence as to require a new trial.”
We conclude that the district court did not err in denying A-Leet and Citibank’s motions for a new trial. It is clear that answers to interrogatories may be utilized as admissions. Gadaleta v. Nederlandsch-Amerekaansche Stoomvart, 291 F.2d 212, 213 (2d Cir.1961). “ ‘When there is conflict between answers in response to interrogatories and answers obtained through other questioning, either in deposition or trial, the finder of fact must weigh all of the answers and resolve the conflict.’ ” Freed v. Erie Lackawanna Ry. Co., 445 F.2d 619, 621 (6th Cir.1971) (quoting Victory Carriers, Inc. v. Stockton Stevedoring Co., 388 F.2d 955, 959 (9th Cir.1968)). This, we may infer, the jury did.
Our main purpose in publishing this opinion is to remind the counsel in this case, as well as all counsel appearing before this court, of the importance we place upon resolving appeals whenever possible through this circuit’s Civil Appeals Management Plan (“CAMP”). CAMP was instituted by this circuit, pursuant to Fed. R.App.P. 33:
(1) to encourage the resolution of appeals without participation by judges, thus preserving their scarcest and most precious asset, time; (2) to expedite the consideration of appeals that will be briefed and argued; (3) to have Staff Counsel help the parties clarify the issues on appeal; and (4) to dispose of minor procedural motions without expenditure of judicial resources.
Kaufman, Must Every Appeal Run the Gamut? — The Civil Appeals Management Plan, 95 Yale L.J. 755, 756 (1986); see also Kaufman, The Pre-Argument Conference: An Appellate Procedural Reform, 74 Colum.L.Rev. 1094, 1094 (1974).
CAMP does not deprive the parties of their right to appeal — this court fully recognizes that every party has a right to appeal a district court ruling. Moreover, the purpose of CAMP is not to pressure parties to settle or withdraw an appeal. Further, we recognize that, in the words of the hallowed jurisprudential maxim, “it takes two (in this case more) to tango,” and one obdurate party or counsel can thus frustrate an otherwise available settlement without any blame legitimately attaching to the remaining dramatis personae.
Having said all this, we question whether a more meaningful effort at settlement, or at least at limiting the issues, might not have been made in this case, and remind the bar of its obligation to participate in the CAMP process, where applicable, seriously and in good faith.
The judgment of the district court is affirmed.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
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.
SOCONY-VACUUM OIL CO., Inc., v. ALLIED OIL CORPORATION.
No. 9896.
United States Court of Appeals. Seventh Circuit.
Dec. 2, 1949.
W. S. Bodman, Chicago, Ill. and W. P. Gilbert, Chicago, Ill. (Wilson & Mcllvaine, Chicago, Ill., of counsel), for appellant.
Thomas J. Downs, John D. O’Connor, David F. Dockman, Chicago, Ill. (Downs, Scheib & Osborne, Chicago, Ill., of counsel), for appellee.
Before KERNER, FINNEGAN, and SWAIM, Circuit Judges.
KERNER, Circuit Judge.
Plaintiff, a New York corporation, filed its amended complaint against defendant, an Illinois corporation, to recover actual cash damages which it claims it had to pay to the United States Government on account of defendant’s false representations. Defendant moved that the complaint be dismissed because it did not state a claim upon which relief could be granted. The court sustained the motion, dismissed the complaint and entered a judgment for costs against plaintiff. From that judgment, this appeal is prosecuted.
Four grounds of recovery — in separate counts — are asserted in the complaint: (1) fraud and deceit; (2) unjust enrichment; (3) breach of warranty; and (4) equitable restitution. The complaint alleged among other things that plaintiff and defendant were engaged in the production, refining and marketing of petroleum products; that from April, 1943 to June, 1944, plaintiff bought from defendant several separate shipments of Diesel fuel which defendant shipped by rail in tank car lots from its refinery in Illinois to plaintiff at a point on the eastern seaboard; that during this period war-time regulations were in effect, which had been adopted in order to make it possible for petroleum distributors on the eastern seaboard to sell petroleum products shipped by rail from the middle west at a price equivalent to the price at which petroleum products shipped by tanker from the Texas Gulf coast could be sold. Under this regulation, purchasers of petroleurn products from the middle western area became entitled to compensation for certain portions of the cost price of petroleum products at middle western points. The regulation, in substance, contained the further provision that the compensatory-payments would not be allowed or made to the extent that an overceiling price was involved in any particular transaction. In other words, in order to maintain ceiling prices the United States Government paid such distributor a subsidy.
The complaint also alleged that the maximum price applicable to the shipments of fuel which plaintiff purchased from defendant could not be determined by plaintiff from any source whatever except from defendant. Plaintiff, therefore, at the time of making each and every purchase, demanded and received from defendant an unequivocal representation and guarantee in writing to the effect that each and every shipment was sold and billed at a price within the OPA regulation; that on the basis of such representations plaintiff paid defendant the prices charged for the fuel, and collected from the Government the compensatory adjustments with respect to each shipment.
The complaint further alleged that in April, 1947, a final audit was made of plaintiff's accounts by certified public accountants employed by the Government, and plaintiff then for the first time learned that the statements of defendant with respect to the applicable ceiling prices for the fuel sold to plaintiff were false; that defendant, by such false representations, had caused plaintiff to pay defendant prices which were in excess of authorized ceiling prices; and that on account of defendant’s false representations plaintiff was compelled to and did pay to the Government $28,152, representing compensatory adjustment payments which plaintiff had received from the Government.
Defendant contends that the statute, Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., creating price control and the respective rights and liabilities of buyers and sellers thereunder, in the case of a purchaser who buys at an overceiling price, vests the right of recovery only in the Price Administrator. It asserts that under § 4(a) of the Act the plaintiff was in duty bound to know the lawful price of the commodity, hence, the averments that defendant falsely represented that the prices charged for the oil were not in excess of established ceiling prices cannot aid plaintiff in stating its cause of action, and declares that § 205(e) of the Act establishes an exclusive remedy for a violation of the Act in the Price Administrator. In support of its contention, defendant cites, among other cases, Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332; Armour & Co. v. Blindman, D.C., 73 F.Supp. 609; and Matheny v. Porter, 10 Cir., 158 F.2d 478.
On the other hand, one of plaintiff’s contentions is that the gist of its action is the false representation upon which it relied and as a result of which it was compelled to pay the Government $28,000. It insists that where the maximum price of the commodity cannot be determined from any source except from the seller, and the purchaser contracts to pay the ceiling price, and pays, under the circumstances here appearing, a price in excess of the ceiling price as finally determined, the purchaser can recover from the seller, and cites Edsil Trading Corp. v. John Minder & Sons, 297 N.Y. 313, 79 N.E.2d 262, and declares it has pleaded a right of action cognizable under established principles of common law and equity, which principles existed long prior to the Price Control Act and which were not affected by that statute.
It is true that in the Warner Holding case, supra, the court, 328 U.S. at page 401, 66 S.Ct. at page 1091, 90 L.Ed. 1332 said: “It [§ 205(e)] establishes the sole means whereby individuals may assert their private right to damages and whereby the Administrator on behalf of the United States may seek damages in the nature of penalties.” The case involved a question of excess rent, a right created by the statute. The plaintiff, the Price Administrator, sought an injunction and an order of restitution against a landlord, and the Court merely decided that the District Court had jurisdiction to order restitution. We do not think that what was said in that case is in any way controlling here.
Defendant places special reliance on the Blindman case, supra. In that case plaintiff sought to recover the overceiling amount of the prices paid to defendant. It is true that in that case, 73 F.Supp. at page 611, the court said: “* * * it seems clear that Congress intended to impose upon the purchasers in the course of trade or business the responsibility of policing their own industry, and therefore made it obligatory on both seller and purchaser * * * to know what the ceiling prices were in regard to the commodities with which they were dealing * * *. But whether innocent or not, the purchaser at an overceiling price in the course of trade or business was deemed a violator. And that Congress intended that such violator should not be accorded the right to bring any suit, but lodged that exclusive right in the Administrator seems free from doubt.” In our view the facts are not comparable and the case is clearly distinguishable. There was no claim that plaintiff had suffered any out-of-pocket damages. All that was claimed was that overceiling prices had been charged in spite of defendant’s representation that the prices charged were within the ceiling. Moreover, as appears at page 612 of the opinion in 73 F.Supp., the Administrator had already been awarded a judgment against the defendant in an action brought under the statute on account of the over-ceiling sales.
The Matheny case, supra, is cited because the court in that case, 158 F.2d at page 479, said: “But here, section 205(e) creates a new liability, one unknown to the common law and not finding its source elsewhere. It creates the right of action and fixes the time within which a suit for the enforcement of the right must be commenced. It is a statute of creation * * In considering the language just quoted, it must be remembered that the statement was made in connection with an action, instituted by the Administrator under the statute, to recover damages for the sale of used automobiles at prices in excess of the ceiling price. It was not a suit by an injured party for fraud and deceit for which a right of action existed under established principles of law prior to the passage of the Price Control Act. We do not discuss the other ’Cases cited by defendant for the reason that they hold no more than that where a purchaser sues the seller to recover an overceiling price, under circumstances requiring plaintiff to rely upon the statute, such plaintiff cannot escape the limitation of the statute by attempting to plead what is in fact a statutory cause of action.
In passing on a motion to dismiss because the complaint fails to state a cause of action, the facts set forth in the complaint are assumed to be true. That being so, in our case certain facts stand out so prominently they cannot escape observation. Those facts are that the maximum price applicable to the shipments of fuel which plaintiff purchased from defendant could not be determined by plaintiff from any source whatever except from defendant, hence, before plaintiff would buy and at the time of making each purchase, plaintiff demanded and received from defendant a guarantee in writing that the selling price of the oil was the ceiling price or less. This representation was false, and defendant knew it. Plaintiff relied upon this representation, bought the oil at the price stated, and upon application to the Government received the compensatory adjustment, the amount of which adjustment had to be returned after an audit by the Government when plaintiff learned for the first time that the statements of defendant with respect to the applicable ceiling price for the fuel sold to plaintiff were false.
Plaintiff’s suit was a common law action for fraud and deceit. It did not assert or rely upon the Price Control Act. It is admitted it was impossible for plaintiff to determine the ceiling price at the time of the purchase and delivery of the oil, and that therefore plaintiff, in good faith, demanded and received the guarantee in question. In such a situation, the contract is valid. It was designed to comply with, rather than to violate the Price Control Act. Cf. Edsil Trading Corp. v. John Minder & Sons, supra.
In an action for fraud and deceit for false representations, the complaint must show: (1) that the defendant made a representation in regard to a material fact; (2) that such representation was false; (3) that such representation was not actually believed by defendant, on reasonable grounds, to be true; (4) that it was made with intent that it should be acted upon; (5) that it was acted on by plaintiff to its damage; and (6) that in so acting on it the plaintiff was ignorant of its falsity and reasonably believed it to be true. Bouxsein v. First Nat. Bank of Granville, 292 Ill. 500, 501, 127 N.E. 133.
We conclude that the complaint should not have been dismissed for the reason that every element of a cause of action for fraud and deceit is alleged, and if proven upon a trial on the merits, will show an injury for which plaintiff should be made whole. In reaching this conclusion we have not overlooked defendant’s contention that the action cannot be maintained because plaintiff is in pari delicto, There is no merit to this contention.
The judgment of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
. “It shall be unlawful regardless of any contract, * * * or other obligation heretofore or hereafter entered into, for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order * * * or of any price schedule * * * or to * * * agree to do any of the foregoing.”
. “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price * * * the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation * * * bring an action against the seller on account of the overcharge. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price * * * and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period. * * *”
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_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.
MISSISSIPPI INDUSTRIES, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Missouri Public Service Commission, Mississippi Power & Light Company, Louisiana Power & Light Company, et al., City of New Orleans, Louisiana, Mississippi Public Service Commission, State of Arkansas, Union Carbide Corporation, Occidental Chemical Corporation, Arkansas & Missouri Congressional Delegations, Louisiana Public Service Commission, Arkansas Public Service Commission, Jefferson Parish, Louisiana, Arkansas Power & Light Company, Middle South Energy, Inc., Middle South Services, Inc., and Cities of Conway and West Memphis, Arkansas, Intervenors. MISSISSIPPI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. LOUISIANA PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. OCCIDENTAL CHEMICAL CORPORATION, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. REYNOLDS METALS COMPANY, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Edwin Lloyd PITTMAN, Attorney General of the State of Mississippi, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS AND MISSOURI CONGRESSIONAL DELEGATIONS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. STATE OF ARKANSAS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI LEGAL SERVICES COALITION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. CITY OF NEW ORLEANS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSOURI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Representative Webb FRANKLIN, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. JEFFERSON PARISH, LOUISIANA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
Nos. 85-1611, 85-1613, 85-1620, 85-1621, 85-1615 to 85-1619, 85-1623, 85-1624, 85-1626, 85-1637, 85-1640, 85-1647, 85-1712, 85-1719 and 85-1772.
United States Court of Appeals, District of Columbia Circuit.
Argued March 24, 1986.
Decided Jan. 6, 1987.
Rehearing Granted in Part April 3, 1987.
James P. Murphy, with whom Michael T. Mishkin, Washington, D.C., James V. Selna, Newport Beach, Fla., Donald T. Bliss, and David T. Beddow, Washington, D.C., were on the brief, for petitioner Arkansas Industries.
Carl D. Hobelman, Washington, D.C., with whom Jerry D. Jackson, Little Rock, Ark., M. Remy Ancarrow, Washington, D.C., and Robert J. Glasser, New York City, were on the brief, for petitioner Arkansas Power & Light Co.
J. Cathy Lichtenberg, with whom Wallace L. Duncan, James D. Pembroke, Janice L. Lower, Washington, D.C., Martin C. Rothfelder, Jefferson City, Mo., William Massey, Steve Clark, and Mary B. Stallcup, Little Rock, Ark., were on the brief, for petitioners Arkansas Public Service Com’n, et al.
Hiram C. Eastland, Jr., with whom Edwin L. Pittman, Frank Spencer, John L. Maxey, II, Jackson, Miss., and Alfred Chaplin were on the brief, for petitioners Mississippi Public Service Com’n, et al.
James K. Child, Jr., Jackson, Miss., with whom Paul H. Keck, Michael F. Healy, Douglas L. Beresford, Robert R. Nordhaus, Adam Wenner, Howard Eliot Shapiro, and Margaret A. Moore, Washington, D.C., were on the brief, for petitioners Mississippi Industries, et al.
Glen L. Ortman, with whom Clinton A. Vince and Paul E. Nordstrom, Washington, D.C., were on the brief, for petitioner City of New Orleans.
Michael R. Fontham, New Orleans, La., with whom David B. Robinson, Washington, D.C., and Paul L. Zimmering, New Orleans, La., were on the brief, for petitioner Louisiana Public Service Com’n.
Peter C. Kissel, Richard G. Morgan, Earle H. O’Donnell, and Robert R. Morrow, Washington, D.C., were on the brief for petitioners Occidential Chemical Corp., et al.
A. Karen Hill, Atty., F.E.R.C., with whom William H. Satterfield, Gen. Counsel, Jerome M. Feit, Sol., and John N. Estes, III, Atty., F.E.R.C., Washington, D.C., were on the brief, for respondent.
Richard M. Merriman, Robert S. Waters, and James K. Mitchell, Washington, D.C., were on the brief for intervenors Middle South Services, Inc., et al.
William A. Chesnutt, Harrisburg, Pa., entered an appearance for intervenor Union Carbide Corp.
Before EDWARDS and BORK, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion PER CURIAM.
Separate opinion by Circuit Judge BORK, concurring in part and dissenting in part.
Part of section 111(C)(2), pp. 1560-62, and the judgment insofar as it concerns those issues are vacated.
PER CURIAM:
We consider eighteen consolidated petitions for review of two orders of the Federal Energy Regulatory Commission (FERC or the Commission). In the orders under review the Commission held that the four operating companies of the Middle South Utilities (MSU) system must share the costs of MSU’s investment in nuclear energy in proportion to their relative demand for energy generated by the system as a whole. The Commission implemented this scheme by reallocating responsibility for investment costs associated with the catastrophically uneconomical Grand Gulf I nuclear plant. The parties attack both the Commission’s jurisdiction and the rationality of its decision. Although the Commission’s allocation of nuclear investment costs is subject to reasonable dispute, we do not think such criticisms warrant reversal of FERC’s orders. We therefore affirm.
I. Background
The controversy facing the court today stems from the pattern of power generation investment cost sharing practiced by Middle South Utilities and its operating companies. In order to address fully the proper allocation of the costs of nuclear power generation among those companies, we review MSU’s structure, the history of its involvement in nuclear power generation, and the record of the proceedings below.
A. The Middle South System,
1. Corporate structure. Middle South Utilities, Inc. is a registered holding company under the Public Utility Holding Company Act of 1935 (PUHCA). 15 U.S.C. § 79 et seq. (1982). It owns outright four utility operating companies: Louisiana Power & Light Co. (LP & L), New Orleans Public Service, Inc. (NOPSI), Arkansas Power & Light Co. (AP & L), and Mississippi Power & Light Co. (MP & L). See Middle South Energy, Inc., 26 FERC ¶ 63,044, 65,098 (1984). The operating companies sell electricity, both wholesale and retail, in the states of Louisiana, Arkansas, Missouri, and Mississippi.
Although each operating company has a separate board of directors, the sole stockholder, MSU, selects each director. In addition, the various companies do have common or overlapping officers and directors. The Chairman and Chief Executive Officer (CEO) of MSU is a member of the board of each operating company and the CEOs of the operating companies are members of the board of MSU. Other MSU board members are also board members of individual operating companies. Middle South Services, Inc., 30 FERC ¶ 63,030, 65,142 (Docket No. ER82-463-000) (ALJ Head).
Transactions among the various operating companies are governed by a System Agreement. Over its history, MSU has filed three successive System Agreements — in 1951, 1973, and 1982. The Commission scrutinizes the System Agreement and modifies it when necessary. See, e.g., Middle South Services, Inc., 16 FERC ¶ 61,101 (1981) (modifying the 1973 System Agreement), aff'd, Louisiana Public Service Commission v. FERC, 688 F.2d 357 (5th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 343 (1983). Section 3.01 of the Agreement states the system’s general goal of operating as a coherent unit:
The purpose of this Agreement is to provide the contractual basis for the continued planning, construction, and operation of the electric generation * * * facilities of the Companies in such a manner as to achieve economies consistent with the highest practicable reliability of service * * *. This agreement also provides a basis for equalizing among the Companies any imbalance of cost associated with the construction, ownership and operation of such facilities as are used for the mutual benefit of all the Companies.
483-R. 7117, VII Joint Appendix (JA) 1569. In light of this language, Administrative Law Judge (ALJ) Head found that the MSU system has sought to coordinate the addition of operating capacity by each individual operating company while achieving the greatest economies of scale. As he observed:
The System Agreements * * * clearly permit and encourage, for efficiency, reliability, and other economies of scale, that the individual companies from time to time build larger facilities than are necessary to meet their own native load, to benefit all the generating companies by having lower costs and greater reliabili- ^ ^ ^
30 FERC at 65,142.
All three System Agreements have assigned the task of coordinating the planning of new generating capacity to a systemwide Operating Committee. The CEO of each operating company designates one member of the committee, as does MSU. The members representing the operating companies control 80% of the votes on the committee, apportioned according to each individual company’s share of the system’s investment in generating capacity. The representative of MSU votes the remaining 20%. Under Section 5.04 of the System Agreement, the Operating Committee can now take action on the basis of a bare majority. 483-R. 7129, VII JA 1581.
2. Investment cost sharing. As ALJ Liebman noted, the MSU system planning approach to new generating capacity inevitably results in certain operating companies having less generating capacity than do others for varying periods of time. See 26 FERC at 65,098 (Docket No. ER82-616000. If a company does not have enough capacity to meet the needs of its consumers, the deficient operating company can always draw on the excess capacity of the other companies on the system. This system also benefits those companies that have built more capacity than necessary to meet current demand. Such companies generally find willing buyers of their surplus among the other companies on the system.
Under the system planning approach, it is inevitable that an operating company will, from time to time, provide a proportionate share of the system’s investment in generating capacity that is more or less than its proportionate demand for the system’s energy. If a company’s share of the system’s generating capacity is greater than its share of the energy actually generated and distributed by the system as a whole, the company is deemed to be “long.” If the company’s share of the system’s generating capacity is less than its percentage of the system’s energy, the company is deemed “short.” 26 FERC at 65,099.
Since 1951 the MSU system has sought to iron out the inequities that would otherwise result where some companies were long while other companies were short through a system of “equalization payments.” Prior to 1973 each “short” company made a payment to the “long” companies based on a fixed dollar amount per kilowatt of capacity that the company was short. In 1973 the System Agreement was amended to provide for capacity equalization payments calculated under the “participation unit” formula, a formula that based payments on the ownership costs of the latest unit constructed by the “long” company. See id.; see also 30 FERC at 65,122-23.
Importantly, this new system did not call for equalization payments based on the relative number of dollars each company had invested in generating capacity. Instead, the relative number of kilowatts of generating capacity owned by each company formed the basis for the payments. Because kilowatts can vary in cost, the system potentially perpetuated the operating companies’ relatively unequal investment in generating capacity.
For over twenty-five years, however, the system largely avoided this potential inequity. Notwithstanding its limitations, the equalization payment approach managed to produce the effect of roughly equalizing the cost of investing in new capacity from the 1950’s through the 1970’s. During the years in which the 1951 System Agreement was in force the cost of creating such capacity was relatively uniform and relatively constant. See 616-R. 1332-33, I JA 140-41; 30 FERC at 65,168. As a consequence, the System Agreement’s allocation of equalization payments based on a constant dollar per kilowatt of short capacity served to equalize investment costs. Although in the 1970’s the cost of new units began to exceed that of older facilities by a substantial margin, the 1973 System Agreement balanced this development by basing equalization payments on the costs of the newest (and more expensive) units of the “long” companies. 26 FERC at 65,-100.
3. The shift to nuclear energy and its consequences. In the 1950’s and 1960’s the MSU system tended to add new generating units in the southern part of the system to take advantage of cheap oil and gas reserves in Louisiana. See 26 FERC at 65,100; 30 FERC at 65,143. In the late 1960’s, however, the system began a program of adding coal and nuclear generating capacity, 30 FERC at 65,144, that eventually resulted in the collapse of the investment equalization program.
AP & L was the first operating company to make such an investment in nuclear power. AP & L had historically been both a short company and one with insufficient capacity to meet the requirements of its customers. 30 FERC at 65,143. Moreover, AP & L had been losing its long-term gas contracts while Louisiana and Mississippi continued to have an adequate supply of gas and oil. 26 FERC at 65,101. In December 1974 AP & L brought on line MSU’s first nuclear plant, Arkansas Nuclear One (ANO) Unit 1.
Although ANO l’s capacity was substantially more expensive than that of non-nuclear generating units built at the time, 26 FERC at 65,100-01, the lower fuel costs of a nuclear unit made the total generation costs of ANO 1 comparable to those of other plants brought on line in the 1970’s. Thus it is fair to say that the basic system of roughly equalizing the costs and benefits derived from the system’s investment in new capacity remained intact.
The picture changed radically with the development of two new nuclear units — the Waterford 3 unit (assigned to LP & L) and Grand Gulf 1 (initially assigned to MP & L). Grand Gulf was initially projected to cost $1.2 billion for two generating units. Regulatory delays, additional construction requirements, and severe inflation ran up Grand Gulf costs to in excess of $3 billion for one unit. Similar cost over-runs marred the construction of Waterford 3. See Middle South Energy, Inc. and Middle South Services, Inc., 31 FERC ¶ 61,305, 61,654 (1985). These units produce the most expensive energy on the MSU system. Measured in dollars per kilowatt of generating capacity, the new units were five times costlier than the ANO units installed by AP & L. Most important, although these two plants have been estimated to represent over 70% of the production costs of the MSU system, they apparently will produce only 13% of the electricity used on the system. 30 FERC at 65,121.
Under these conditions, continued application of a capacity equalization scheme that only sought to equalize kilowatts could no longer come close to equalizing investment dollars. Any operating company saddled with responsibility for Waterford 3 and/or Grand Gulf would likely find itself paying far more per kilowatt of capacity than would an operating company that was free of such a burden. 26 FERC at 65,100.
It is true that MSU filed a new System Agreement in 1982 altering its previous equalization scheme. Unlike the 1973 Agreement, which had pegged equalization payments to the cost of the long company’s most recent generating addition, the 1982 Agreement provided for equalization payments based on the long company’s “intermediate” (ie., oil and gas) units. 483-R. 7137-50, VII JA 1589-96. This change reduced the burden on any company that might be both short and have substantial responsibility for the new nuclear plants. But, as discussed below, this change did not eliminate the major inequities that nuclear power introduced to the MSU system.
4. The Grand Gulf plant. The Grand Gulf project was initiated by MSU to meet the then projected demand for electricity by the system as a whole. 26 FERC at 65,101-02. By the late 1970’s, however, it became clear that projected demand would fall well short of previous expectations. Nonetheless, MSU continued to build Grand Gulf 1 on the assumption that the overall cost per kilowatt hour would be less than that of alternative energy sources. 26 FERC at 65,102.
Initially the plant had been assigned to MP & L. It soon became apparent, however, that MP & L did not have the resources to finance the construction of the plant. As a consequence, MSU made a system decision to form Middle South Energy (MSE) in 1974 as a vehicle for financing Grand Gulf. MSE acquired full title to Grand Gulf. In June of 1974 all four Middle South operating companies entered into an “Availability Agreement” under which each operating company put its credit behind Grand Gulf.
Notwithstanding this initial agreement, at the time MSE was first formed no clear plan existed to allocate responsibility for Grand Gulf’s capacity to each of the companies. Over the years various allocation plans were put forward, ultimately resulting in the Unit Power Sales Agreement (UPSA) at issue in this case.
At first it was contemplated that MSE would become a party to the System Agreement. Under this plan all of Grand Gulf would be a “participation unit” and responsibility for the plant’s capacity would shift among the operating companies to the degree they were short. 616-R. 4122-23, II JA 505.
In 1979 MSU officials, having come to the conclusion that a fixed allocation of capacity was preferable to a scheme of shifting responsibilities, recommended a plan that would have allocated a share of Grand Gulf capacity to all of the operating companies. But by early 1980 the MSU officers were moving toward a scheme absolving AP & L of all responsibility for Grand Gulf. In July of 1980 the CEOs of the MSU operating companies signed a Memorandum of Understanding, freeing AP & 1/ of all responsibility for Grand Gulf. Although this Memorandum was never submitted to the Coordinating Committee, and therefore never became final, its basic terms were set forth in a “Reallocation Agreement” executed in July 1981. 616-R. 3275,1 JA 268. Under the Reallocation Agreement AP & L assigned its entitlement to purchase Grand Gulf power to the other companies. In addition, NOPSI, LP & L, and MP & L agreed to indemnify AP & L for any obligation it might incur to MSE’s creditors. The Reallocation Agreement thus relieved AP & L of any responsibility for Grand Gulf capacity costs and provided the basis for the Unit Power Sales Agreement. 26 FERC at 65,103.
The Unit Power Sales Agreement was executed on June 10,1982. Although all of the operating companies are signatories to the UPSA, it only provides for sale of Grand Gulf capacity and energy by MSE to three of the operating companies: LP & L, MP & L, and NOPSI, but not to AP & L. 26 FERC at 65,095.
B. The Proceedings Below
In April 1982 MSU filed with the Commission the 1982 System Agreement, which set the general rules governing transactions between the operating companies, including capacity equalization payments and the rates governing the exchange of energy between the operating companies. FERC set the proceeding for hearing before AU Head. In June 1982 MSU filed the Unit Power Sales Agreement with the Commission, governing the sales of Grand Gulf capacity and energy by MSE to the four operating companies. This proceeding was set for hearing before AU Liebman. AU Liebman issued his opinion on February 3, 1984, Middle South Energy, Inc., 26 FERC 1163,044 (1984), and AU Head issued his opinion a year later, on February 4, 1985. Middle South Services, Inc., 30 FERC ¶ 63,030 (1985). Both decisions touched on the allocation of Grand Gulf Power, and FERC reviewed both decisions in an opinion issued June 13,1985. Middle South Energy, Inc. and Middle South Services, Inc., 31 FERC ¶ 61,305 (1985). It revisited the issue following petitions for rehearing in an opinion issued September 28, 1985. Middle South Energy, Inc. and Middle South Services, Inc., 32 FERC ¶ 61,425 (1985).
1. ALJ Liebman’s decision in the UPSA case (ER82-616). The principal issue in ER82-616 was whether the UPSA’s proposed allocation of Grand Gulf investment costs was reasonable and, if not, how such costs should be allocated. As a threshold matter, however, AU Liebman rejected a series of arguments suggesting that FERC did not have jurisdiction or statutory authority to amend this aspect of the UPSA.
Having found jurisdiction, AU Liebman found that the UPSA was “unduly discriminatory” under Section 206(a) of the Federal Power Act, 16 U.S.C. § 824e(a) (1982), because it failed to allocate any portion of Grand Gulf’s capacity costs to AP & L. He based this decision on his view of the MSU system as a highly integrated operation that made critical decisions — such as the decision to move into nuclear power — as a unit. Under that view AU Liebman thought it only fair that AP & L pay its share of the company’s decision to build nuclear capacity. Having rejected the UPSA’s allocation of Grand Gulf costs, AU Liebman was faced with three alternatives:
(1) Making Grand Gulf a participation unit, with floating responsibility among the short(er) companies.
(2) Allocating responsibility for Grand Gulf capacity proportionate to each operating company’s relative share of system demand, as fixed in 1982.
(3) Allocating responsibility for Grand Gulf such that each operating company bore a share of the cost of all the nuclear units on the MSU system proportionate to that company’s relative share of system demand, as fixed in 1982.
26 FERC at 65,109.
AU Liebman chose the last proposal. As the Commission noted, this approach did not merely allocate the cost of Grand Gulf. By including the total system investment in nuclear power in his formula, AU Liebman effectively reallocated the costs of all nuclear capacity on the MSU system. 31 FERC at 61,633.
AU Liebman justified his exclusive focus on nuclear capacity costs — rather than on equalizing the costs of all capacity investment or, even more sweeping, equalizing all generating costs — by claiming that the differences among non-nuclear base load generation costs were minor eompared to the cost differences among the nuclear generating facilities. 26 FERC at 65,110. He suggested that even under his proposal AP & L would still have the low- total generation costs on the system, at 65,119. He justified his decision to reallocate costs of Grand Gulf primarily by reference to the fact that the UPSA perpetuated discrimination caused by the timing of nuclear units by forcing the Louisiana and Mississippi ratepayers to pay about four times more for nuclear capacity than the Arkansas ratepayers would pay for their nuclear kilowatts. Id. at 65,107.
2. ALJ Head’s decision in the System Agreement case (ER82-483). The principal issue in the System Agreement proceeding was whether FERC should approve that Agreement as filed or whether it should equalize all or part of the production costs on the system. 30 FERC at 65,120. AU Head also considered a series of arguments militating against FERC jurisdiction over the reallocation of Grand Gulf costs and rejected them.
Having found that FERC had the authority to reallocate production costs, AU Head faced the following alternatives:
(1) Adoption of the System Agreement as filed. This would entail allocating none of the Grand Gulf costs to AP & L and only equalizing the costs of capacity between “long” and “short” companies, with equalization payments pegged to the cost of the long companies’ oil and gas investment costs.
(2) Equalization of production costs. The basic concept, presented by the Louisiana Public Service Commission, was to allocate responsibility for a share of all production costs on the MSU system proportionate to each company’s share of the system’s total load.
(3) Making Grand Gulf a participation unit. This proposal would allocate responsibility for Grand Gulf capacity to each operating company to the degree that the company in question was “short.” Under this scheme responsibility for Grand Gulf capacity would shift over time.
AU Head rejected all of these proposals. He rejected the concept of making Grand Gulf 1 a participation unit primarily because it would allow long companies (e.g., MP & L) to avoid completely the high front-end costs associated with that plant. 30 FERC at 65,166-67. He rejected the equalization proposals on the ground that overall cost equalization would be inconsistent with the general “pattern of autonomy * * * particularly as to * * * specific plant site locations, fuel and financing” that he found characterized the operating companies in the MSU system. Id. at 65,168.
AU Head found support for his finding of a “pattern of autonomy” in two circumstances. First, he stressed that the historic practice in the MSU system was to equalize only excess capacity. Id. at 65,167. Second, he insisted that “generation additions in almost every instance (except for Grand Gulf) were made primarily to satisfy individual company needs.” Id. at 65,168.
AU Head, however, found that Grand Gulf constituted an “anomaly” in the MSU system:
Grand Gulf from its inception was planned, presented to the licensing authorities and constructed as a system plant not only to serve the needs of MP & L but to serve the needs of all the operating companies on the system.
30 FERC at 65,170.
He therefore deemed it appropriate to reject the System Agreement as filed and to allocate the costs of the Grand Gulf investment among all of the operating companies. Unlike AU Liebman, however, he held that this allocation should fluctuate from year to year to track each company’s relative demand for the system’s energy. 30 FERC at 65,172.
3. FERC’s initial decision. In Order No. 234 the Commission summarily affirmed both AUs on the threshold issue of its own jurisdiction to amend the Sales Agreement and the System Agreement. 31 FERC at 61,643-46. On the merits, the Commission affirmed both AUs’ findings that MSU constituted an “integrated electric system.” 31 FERC at 61,645. The Commission, however, specifically rejected AU Head’s finding that the MSU system displayed a “pattern of autonomy” with regard to the planning and construction of generating units. Id.
The Commission conceded that MSU’s system of overlapping officers and directors and the representation of the operating companies on the System Operating Committee gave the operating companies substantial influence in the development of the system’s plans. Id. at 61,646. FERC further observed that the individual companies used their influence to seek the addition of generating units that met their particular needs, and that Section 4.01 of the System Agreement made each operating company responsible for financing the ownership or purchase of the generating capacity necessary to service its customers. Id. at 61,649. The Commission nonetheless concluded that “major critical decisions, including decisions to build new generating units, are made by the Operating Committee for the benefit of the system as a whole.” Id. at 61,646. See also id. at 61,650.
The Commission buttressed its conclusion with the following evidentiary support: (1) Section 4.01 of the 1982 System Agreement provides that the Operating Committee shall “determine” the system generation addition plans; (2) at least five witnesses testified that new units were added to address the needs of the system as a whole, id. at 61,646-48; and (3) the Operating Committee minutes over a twenty-year period revealed that the Committee had the responsibility and the authority to make the “critical decisions” concerning the addition of generating capacity. Id. at 61,648-49.
The Commission’s review of the Operating Committee minutes revealed that the Operating Committee did not merely rubber-stamp the requests of the individual operating companies concerning the addition of generating capacity. Id. at 61,649. The Commission found that the Operating Committee consistently based its generation plans on the needs of the system as a whole. Id. at 61,649-50. It found that the Operating Committee had authority over the general timing, location, and size of plant additions, while the individual operating companies retained authority to fill in the details of such fundamental decisions. Id. Thus FERC stated that there was no evidence in the record that an operating company had ever built a new plant without a recommendation from the Operating Committee or that one had ever refused to carry out such a recommendation. Id. at 61,651.
In light of this finding, FERC rejected AU Head’s contention that Grand Gulf was an “anomaly.” Instead it agreed with AU Liebman that Grand Gulf, like every other generating station, was built to serve the needs of the system as a whole and to attain the system-wide goal of diversifying MSU’s fuel mix. Id. at 61,653. MSE was deemed a mere financing shell that the Commission hypothesized would have been made available to any other operating company that suffered the financial difficulties encountered by MP & L. Id. at 61,654.
The Commission viewed the decision to move into nuclear power as a system-wide decision calculated to meet system-wide needs. It found that MSU’s nuclear project had run afoul of unforeseen economic difficulties that had disrupted the system’s historic rough equalization of generation costs. FERC therefore adopted AU Liebman’s scheme of allocating Grand Gulf costs so that each operating company would contribute proportionately to the system’s investment in nuclear capacity. Id. at 61,655.
4. FERC’s opinion on rehearing. In Opinion No. 234-A FERC clarified its position on the various jurisdictional arguments it had addressed in its initial decision. 32 FERC at 61,943-52. The Commission also addressed — and rejected — the argument raised by various Arkansas parties that FERC lacked jurisdiction as there was no interstate sale of power. The Commission suggested that, whatever the merits of such an argument where a “monolithic” system is concerned, there was no question but that the transfer of power among the MSU operating companies constitutes a “sale for resale.” Id. at 61,957.
Indeed, a major portion of the Commission’s opinion on rehearing was dedicated to clarifying the Commission’s essential finding concerning the “integrated” character of the MSU system. The Commission rejected any attempt to mischaracterize its decision as based on a view that MSU is a “monolith.” Id. at 61,952. FERC simply insisted that, whatever the powers of the individual operating companies, the MSU Operating Committee makes the “major critical decisions on the System, primarily for the System as a whole.” Id. at 61,953 (emphasis in original). The Commission emphasized that its opinion hinged on “a variety of factors including the manner in which decisions are made by the commonly owned affiliates, and for whose primary benefit those decisions are made.” Id. at 61,956.
Turning to the merits, the Commission addressed three challenges to the rationality of its allocation of Grand Gulf costs. It disputed the contention of the Arkansas parties that the allocation violated the spirit and practice of the MSU system, the System Agreement, and the intent of the parties to that Agreement. FERC responded that the clear intent of the System Agreement was to correct major cost imbalances while moving toward a mixed fuel base including nuclear and coal-fired facilities. The Commission insisted that it need not measure the rationality of its allocation from the vantage point of the parties at the time the UPSA was first negotiated. Id. at 61,957-59.
The Commission also addressed the argument of MP & L that the Commission’s order had only exacerbated the discrimination it would have suffered under the original UPSA scheme. MP & L noted that under the UPSA it would have been responsible for 31.63% of Grand Gulf, but under the Commission’s scheme it would be responsible for a full 33%. 31 FERC at 61,-959. Under the new scheme Mississippi would receive only 9.5% of the system’s nuclear capacity while paying for 15% of the system’s nuclear investment. 32 FERC at 61,964 n. 26.
The Commission responded by asserting that the mere fact that FERC’s order increased MP & L’s burden did not make it more discriminatory., It is completely rational, argued the Commission, that a smaller burden can be discriminatory and, with a change in the relative standing of the parties, a larger burden can be fair. The original allocation was discriminatory, in the Commission’s view, because AP & L had failed to share the burden of Grand Gulf. Although the Commission’s order would increase MP & L’s allocation somewhat, it would spread the overall burden of Grand Gulf more equitably by making AP & L carry a portion of the burden.
The Commission suggested that its refusal to reallocate the capacity of all nuclear units (as well as their costs) was justified by the MSU system’s historic aversion to equalizing all costs per kilowatt. Id. at 61,959. It stressed the same point in responding to the arguments of various Louisiana parties that it should have adopted full cost equalization. Id. at 61,961. Thus the Commission depicted its opinion as an attempt to balance
the need to provide an equitable sharing of the investment costs of units that have (or could have) become unforeseeably high due to the unique problems associated with nuclear construction, and the need to recognize the efforts of individual companies on the System and allow them to retain the benefits of units they own to the fullest extent possible.
Id.
Dissatisfied with this rationale, petitioners sought review in this court.
II. Jurisdiction
The petitioners from Arkansas, Missouri and Mississippi raise certain threshold challenges to the Commission’s decision. They contend that FERC lacks jurisdiction to modify the allocation of the capacity costs of Grand Gulf embodied in the Unit Power Sales Agreement (“UPSA”). We disagree, and hold that the Federal Power Act (“FPA” or “the Act”) provides FERC with authority to issue the orders in question. Initially, we will set forth the affirmative basis of FERC’s jurisdiction; thereafter, we will address (and reject) each individual counterargument raised by petitioners.
A. The Jurisdiction of the Commission
Section 201 of the Act contains the Commission’s basic jurisdictional grant. It provides that “[t]he provisions of this subchapter shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce” and that “[t]he Commission shall have jurisdiction over all facilities for such transmission or sale____” This section also defines “public utility” as “any person who owns or operates facilities subject to the jurisdiction of the Commission under this subchapter.” The facts here reveal that MSE sells Grand Gulfs energy to the affiliated operating companies of the MSU system at wholesale in interstate commerce. Thus, under section 201 of the Act, MSE is a “public utility” and FERC retains jurisdiction over its sales and facilities.
Sections 205 and 206 of the Act set forth the Commission’s remedial authority. Section 205(a) establishes a threshold requirement that all “rates and charges” made by a public utility, and “all rules and regulations affecting or pertaining to such rates and charges,” must be “just and reasonable,” or they will be deemed “unlawful.” Most significantly for our purposes, section 206 provides that when the Commission, after a hearing, determines that
any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge,
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_appnatpr | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Dalleen RUCKER, Plaintiff-Appellant, Kathy Warner, Intervenor-Appellant, v. The SECRETARY OF the TREASURY OF the UNITED STATES, and The United States of America, Defendants-Appellees, Rosa Ortega, Intervenor.
No. 83-1804.
United States Court of Appeals, Tenth Circuit.
Dec. 28, 1984.
Glenn Meyers of Colorado Rural Legal Services, Inc., Denver, Colo. (Jacquelyn Higinbotham of Colorado Rural Legal Services, Inc., Fort Morgan, Colo., with him on the brief), for plaintiff-appellant and inter-venor-appellant.
Jo-Ann Horn, Atty., Tax Div., Dept, of Justice, Washington, D.C. (Robert N. Miller, U.S. Atty., Denver, Colo., of counsel; Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Richard Farber, Attys., Tax Div., Dept, of Justice, Washington, D.C., with her on the brief), for defendants-appellees.
Before SETH, BREITENSTEIN and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Dalleen Rucker brought this class action against the Secretary of the Treasury and the United States, challenging the application to her of section 464 of the Social Security Act, 42 U.S.C. § 664 (1982). Kathy Warner subsequently joined the action as an intervenor. Plaintiffs alleged that the Secretary exceeded his statutory authority by withholding federal income tax refunds and earned income credits due them. They sought declaratory and injunc-tive relief. The district court dismissed Rucker’s claims as moot and also dismissed Warner’s intervenor claim. We reverse.
I.
BACKGROUND
This case involves the federal-state intercept program authorized by section 2331 of the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 860 (1981) (Omnibus Act). Under this program, federal income tax refunds due a taxpayer may be transferred to a state to the extent of a taxpayer’s past-due child support obligations. Two provisions of the Omnibus Act are relevant here. The first is an amendment to the Social Security Act, 42 U.S.C. § 664 (1982), which provides for reimbursing states that have supported the taxpayer’s children through the Aid to Families with Dependent Children program (AFDC). Section 664(a) authorizes the Secretary of the Treasury to withhold “refunds of Federal taxes paid” which are due to a parent of children supported by AFDC, and to transfer these funds to an appropriate state agency to satisfy the parent’s child support obligation. The second provision is an amendment to section 6402 of the Internal Revenue Code, 26 U.S.C. § 6402(c) (1982), which implements the procedure authorized by section 664(a) and provides that “[t]he amount of any overpayment to be refunded to the person making the overpayment” shall be reduced by the amount of any past-due child support.
Plaintiff Dalleen Rucker is a married woman and a Colorado resident. Her husband is indebted to the State of Colorado for his failure to make required support payments to the children of his prior marriage. In April 1982, Rucker and her husband filed a joint 1981 Federal income tax return, expecting to receive $1,124 back from the Internal Revenue Service. This sum consisted of an income tax refund and an earned income credit. In June 1982, the IRS notified the Ruckers by letter that this sum was being withheld to satisfy Mr. Rucker’s child support obligations. In August 1982, Rucker filed an amended tax return seeking a refund of that portion of the overpayment of income taxes and the earned income credit allocable to her. She subsequently received a refund of $126, which represented the entire amount of her excess wage withholdings and a portion of the earned income credit.
Immediately after filing her amended tax return, and before receiving the $126 refund, Rucker brought this action claiming that defendants exceed their statutory authority by intercepting and withholding funds owed to a taxpayer who is the nonob-ligated spouse of a child support obligor. She also claimed that defendants’ taking money due to a married taxpayer to satisfy obligations of a spouse, without affording the taxpayer notice and an opportunity to contest the liability, is a taking of property without due process in violation of the Fifth Amendment.
The district court dismissed plaintiffs’ claims on the grounds of mootness. Rucker v. Secretary of the Treasury, 555 F.Supp. 1051, 1053 (D.Colo.1983). The court held that Rucker’s Fifth Amendment and tax refund claims were moot because she had received her allocable share of the income tax refund. The court also ruled that earned income credits are subject to the intercept program and that Rucker’s earned income credit claim was also moot because she had received an allocable share of this credit. On appeal, Rucker raises only the issue whether earned income credits are subject to the intercept program and whether they lawfully can be withheld under section 664(a).
II.
MOOTNESS
Defendants assert that there is no case or controversy to support federal court jurisdiction, as required by article III, section 2 of the United States Constitution, because Rucker has received her allocable share of the earned income credit. Defendants claim that it was unnecessary and purely advisory for the trial court to consider whether the earned income credit could be withheld under section 664, and that no justicable issue is presented to this court on appeal. See Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Norvell v. Sangre de Cristo Development Co., 519 F.2d 370, 375 (10th Cir.1975); Oklahoma City, Oklahoma v. Dulick, 318 F.2d 830, 831 (10th Cir.1963).
This argument misconceives the nature of Rucker’s claim. As we read Rucker’s complaint, she is clearly claiming that defendants have exceeded their statutory authority by withholding any of the earned income credit due to her and her husband as a family unit. The IRS refunded only what it determined to be the portion of the credit allocable to her alone. The remaining portion of the credit has not been refunded to the Ruckers and Mrs. Rucker’s claim to the remainder provides the necessary controversy needed to support federal court jurisdiction. In arguing to the contrary, defendants assume the very issue in this case: whether the earned income credit can be allocated among spouses and a portion of it withheld under section 664 to satisfy one spouse’s child support obligations. Consequently, Rucker’s claim is not moot.
III.
SOVEREIGN IMMUNITY Defendants argue that if Rucker’s claim is not moot, it is barred by her failure to comply with the jurisdictional requirements of the Internal Revenue Code, 26 U.S.C. § 7422(a) (1982), which provides that no suit may be maintained for the recovery of any tax until a claim for refund has been duly filed with the IRS. They argue that Rucker’s suit, instituted after her refund claim had been filed but prior to the expiration of the six-month period set forth in 26 U.S.C. § 6532(a)(1) (1982), is barred by the doctrine of sovereign immunity. See, e.g., Dieckmann v. United States, 550 F.2d 622, 623 (10th Cir.1977); United States v. Freedman, 444 F.2d 1387, 1388 (9th Cir. 1971), cert. denied, 404 U.S. 992, 92 S.Ct. 538, 30 L.Ed.2d 544 (1971); Oldland v. Kurtz, 528 F.Supp. 316, 322-23 (D.Colo. 1981).
A number of courts have addressed this very issue in the context of challenges to the intercept program. Almost all have concluded that claims to withheld tax refunds and earned income credits are not barred by sections 7422(a) and 6532 of the Internal Revenue Code. See Nelson v. Regan, 731 F.2d 105, 109 (2d Cir.1984); Jahn v. Regan, 584 F.Supp. 399, 408 n. 17 (E.D.Mich.1984); Sorenson v. Secretary of the Treasury, 557 F.Supp. 729, 732-33 (W.D.Wash.1982), appeal docketed, No. 83-3694 (9th Cir. Mar. 23, 1983); cf. Marcello v. Regan, 574 F.Supp. 586, 594 (D.R.I. 1983) (26 U.S.C. § 7421(a) likewise does not bar these challenges); Coughlin v. Regan, 584 F.Supp. 697, 705-06 (D.Maine 1984) (same). But see Vidra v. Egger, 575 F.Supp. 1305, 1307-08 (E.D.Pa.1982). As these decisions recognize, the statutory language of section 7422(a) and the policies prohibiting judicial intervention in tax collection and assessment are not applicable to challenges to the intercept program. The intercept program operates only after tax assessment and collection, when the federal government ceases to have an interest in the tax refunds. Judicial review at this point will not interfere with or thwart the government’s ability to collect taxes or its need for steady and predictable tax revenues. See, e.g., Marcello, 574 F.Supp. at 594. Cf. Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974). Accordingly, we conclude that plaintiffs’ claims for earned income credit benefits are not barred by sections 7422(a) and 6532 of the Internal Revenue Code.
IV.
EARNED INCOME CREDIT WITHHOLDING
As noted above, 42 U.S.C. § 664(a) authorizes the Secretary of the Treasury to withhold “refunds of federal taxes paid” which are due to an obligated spouse. In addition, 26 U.S.C. § 6402(c) provides that the amount of any “overpayment to be refunded to the person making the overpayment” shall be reduced by the amount of past-due child support. Rucker asserts that the earned income credit is neither a “refund of federal taxes” nor an “overpayment” within the meaning of these two statutory provisions, and thus is not subject to withholding in the intercept program.
The earned income credit is a benefit available to certain families with dependent children and with an earned family income of less than $10,000 per year. See 26 U.S.C. § 43 (1982). The maximum credit allowed is $500. It is reduced proportionately as the adjusted gross family income increases above $6000, dropping to zero at $10,000. It was designed to provide relief to low income families who pay little or no income tax, and it was intended to provide an incentive for low income people to work rather than to receive federal assistance. See S.Rep. No. 94-36, 94th Cong., 1st Sess. 11 (1975), reprinted in 1975 U.S.Code Cong. & Ad.News 54, 63-64. While the credit benefits are distributed through the tax refund process, a recipient need not have owed or paid any taxes to be eligible. See Nelson, 731 F.2d at 109; In re Searles, 445 F.Supp. 749, 752-53 (D.Conn.1978). A refund of federal taxes is a repayment of money paid by a taxpayer in excess of that taxpayer’s liability. Although the earned income credit is given effect through the income tax return, the credit is not a tax refund because eligibility for the credit is not contingent upon payment of any federal income tax. Id.; In re Hurles, 31 B.R. 179, 180 (Bankr.S.D.Ohio 1983). Section 664(a), which authorizes interception only of “refunds of federal taxes paid,” does not itself authorize interception of the earned income credit.
Defendants argue, however, that while section 664(a) may not authorize the withholding of earned income credits, such withholding is expressly authorized by section 6402(c) of the Internal Revenue Code because the earned income credit is an “overpayment” subject to interception. They point out that section 6401 of the Internal Revenue Code, 26 U.S.C. § 6401, defines “overpayment” to include the excess of an earned income credit over tax liability, and that this excess exists even when there is no tax liability. Rucker counters that because section 6402(c) only authorizes an offset against an “overpayment to be refunded to the person making the overpayment,” the earned income credit is not an “overpayment” that can be withheld under section 6402(c).
Courts that have faced this issue have reached conflicting results. Compare Nelson, 731 F.2d at 111-12 (the earned income credit is not subject to interception under 26 U.S.C. § 6402(c)) with Coughlin, 584 F.Supp. at 706-07 (26 U.S.C. § 6402(c) authorizes interception of the earned income credit), and Sorenson, 557 F.Supp. at 733-34 (W.D.Wash.1983) (same). For the reasons set forth below, we believe the Second Circuit’s decision in Nelson is the better view.
As the Nelson court notes, the term “overpayment,” broadly defined in section 6401 but limited in section 6402 by the phrase “to be refunded to the person making the overpayment,” is ambiguous with regard to the earned income credit. Section 6401 is a general provision in the chapter on Abatements, Credits, and Refunds of the Internal Revenue Code, governing the tax refund process. See Nelson, 731 F.2d at 111. Section 6402(c) and section 664(a), on the other hand, were both enacted as part of the Omnibus Act, which established the tax intercept program. Id. Interpreting the term “overpayment” in section 6402(c) so as not to include the earned income credit results in consistency with section 664(a) which authorizes only withholding of federal tax refunds. Moreover, we believe that this interpretation furthers the congressional purpose in enacting the earned income credit. Reducing the amount of the earned income credit due to a low income working family would reduce the family members’ incentive to work, and would frustrate the congressional goals of providing relief to low income families, encouraging work, reducing dependence on federal assistance, and stimulating the economy. See id. at 111-12; cf., In re Searles, 455 F.Supp. at 752-53 (discussing the adverse effects of including the credit in a bankrupt’s property).
Defendants claim and the district court agreed, that the tax intercept program’s goal of enforcing child support obligations should take priority over the policies underlying the earned income credit. See Rucker, 555 F.Supp. at 1053. We are not persuaded. The intercepted funds are not paid to support the obligated taxpayer’s child but to reimburse a state for its support of that child in the past. The earned income credit, on the other hand, directly benefits the dependent children of the low income taxpayer. In the absence of evidence that Congress intended such a substantial cutback on the earned income credit program, we interpret the intercept legislation before us so as to avoid both conflict between the provisions of the Omnibus Act and a result clearly at odds with the goals of the earned income credit program. We hold that 26 U.S.C. § 6402 and 42 U.S.C. § 664 do not authorize the withholding of any portion of the earned income credit due an otherwise eligible recipient.
The judgment is reversed and remanded to the district court for further proceedings.
. 42 U.S.C. § 602(a)(26) (1982) requires the parent to whom child support payments are due to assign the right to such payments to a state as a precondition to AFDC eligibility in that state.
. 42 U.S.C. § 664(a) provides:
“Upon receiving notice from a State agency administering a plan approved under this part that a named individual owes past-due support which has been assigned to such State pursuant to section 602(a)(26) of this title, the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, and pay such amount to the State agency (together with notice of the individual’s home address) for distribution in accordance with section 657(b)(3) of this title."
. 26 U.S.C. § 6402(c) provides:
"The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 464(c) of the Social Security Act) owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act. The Secretary shall remit the amount by which the overpayment is so reduced to the State to which such support has been assigned and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State. This subsection shall be applied to an overpayment prior to its being credited to a person’s future liability for an internal revenue tax."
. Mr. Rucker’s former wife assigned her right to support payments to the State of Colorado. See note 1, supra.
. The refund to Rucker consisted of $31 in excess wage withholdings and $95 of the earned income credit. The record does not reflect the dollar amount of the earned income credit withheld to satisfy Mr. Rucker’s support obligation. We assume that some portion of the credit was withheld, inasmuch as the defendants concede that Rucker received only a "proportionate” share. Appellees' Brief at 4; see Rucker v. Secretary of the Treasury, 555 F.Supp. 1051, 1052-53 (D.Colo.1983).
. The court also dismissed intervenor Warner's claims. Warner had not received from the IRS any portion of the earned income credit to which she claimed entitlement. The court apparently reasoned that having adopted the allegations of Rucker’s complaint, Warner lacked independent jurisdictional grounds once Ruck-er’s claim was dismissed as moot. In light of our decision concerning the dismissal of Ruck-er’s claim, we need not reach this issue.
. 26 U.S.C. § 6532(a)(1) provides:
"No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing-the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.”
. 26 U.S.C. § 6401 provides in pertinent part:
(b) If the amount allowable as credits under section ... 43 (relating to earned income credit) exceeds the tax imposed by subtitle A ... the amount of such excess shall be considered an overpayment.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_respond1_8_3 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
GRAY et al. v. BLIGHT.
No. 2116.
Circuit Court of Appeals, Tenth Circuit.
June 10, 1940.
R~hearing Denied July 12, 1940.
T. R. Boone of Wichita Falls, Tex., (Earl W. Wilson, of Denver, Colo., on the brief), for appellants.
Cecil M. Draper, of Denver, Colo. (W. A. Alexander, of Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
IT. S. Gray and Margaret Gray, individually, and H. S. Gray, as next friend for John Herbert Gray and Peggy Gray, brought this action against Myrta Blight, administratrix of the estate of H. E. Blight, deceased, to recover damages for personal injuries and for damages to the automobile of H. S. Gray.
In their complaint, plaintiffs alleged that the damages resulted from a collision between the automobile of H. S. Gray and an automobile owned, driven, and operated by Blight; that the collision occurred near the town of Winnemucca, Nevada; that it was caused by the negligence of Blight in the management, operation, and control of his automobile; that plaintiffs are residents and citizens of Texas; that at the time of the collision Blight was a resident and citizen of Colorado; that Blight died on or about October 6, 1938; and that Myrta Blight is the duly appointed, qualified, and acting administratrix of the estate of Blight and is a resident and citizen of Colorado.
The administratrix filed a motion to dismiss the action on the ground that the complaint fails to state a claim against her upon which relief can be granted. The trial court sustained the motion, plaintiffs elected not to plead further, and judgment was entered dismissing the action. Plaintiffs have appealed.
The substantive rights of the parties to an action are governed by the lex loci, that is, the law of the place where the right was acquired or the liability was incurred" which constitutes the claim or cause of action. Under the laws of Nevada a cause of action for personal injuries, whether suit has been brought thereon or not, is not abated by reason of the death of the wrongdoer, but survives against his legal representatives. Nevada Comp. Laws, 1929, 1938 Pocket Part, Vol. 1, §§ 240.01, 240.02. It follows that the cause of action survived the death of Blight. On the other hand, the law of the jurisdiction in which relief is sought controls as to all matters pertaining to remedial, as distinguished from substantive rights. The principles are stated in the Restatement, Conflict of Laws, § 390, which in part reads as follows:
“Whether a claim for damages for a tort survives the death of the tort-feasor or of the injured person is determined by the law of the place of wrong. * * *
“(b) If a claim for damages for injury survives the death of the injured person or the wrongdoer, as the case may be, by the law of the place of wrong, recovery may be had upon it by or against the representative of the decedent, provided the law of the state of forum permits the representative of the decedent to sue or be sued on such a claim. Without such power created by the law of the state of suit, no recovery can be had.”
The Restatement finds support in the adjudicated cases.
Sec. 1, ch. 159, 1935 Colo.Stat.Ann., in part reads as follows: “The common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First * * *, and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.”
Sec. 247, ch. 176, 1935 Colo.Stat.Ann., reads as follows: “All actions in law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real estate, shall survive to and against executors, administrators and conservators.”
Chapter 176 was first adopted in 1868. See. Stat.Colo. 1868, ch. XC, § 154. It was re-enacted in 1903. See § 167, ch. 181, p. 533, 1903, Colo.Sess.Laws. In the reenactment the phrase “actions at law” was changed to read “actions in law” and the words “and conservators” were added at the end of the section. In Letson v. Brown, 11 Colo.App. 11, 52 P. 287, 288, the court said: “The suit was begun against Brown, who is the administrator of the decedent. The naked question, therefore, is whether the wrongdoer being dead, this suit may be maintained against his personal representative. It could not at the common law, for it was a well-settled principle thereunder that all personal actions, whether by the representatives of a deceased person or against those of one who was dead, died with the injured party; or, as it has been sometimes expressed in other cases as to the wrongdoer, the wrong and the wrongdoer w.ere burie.d in the grave together. We take it to be as well settled in the one case as in the other, and that it is equally true that, where the wrongdoer dies, his personal representative may not be sued for the negligent act, any more than could the representatives of the injured person, he being dead, maintain an action against the living wrongdoer. This principle has been often declared, and it will add nothing to the force of this opinion, nor will it embellish the law, to restate the reasons upon which the rule rests.”
The court then held that an action for wrongful death could not be maintained against the administrator of the estate of the wrongdoer. In Mumford v. Wright, 12 Colo.App. 214, 55 P. 744, 746, the court construed the phrase “trespass for injuries done to the person,” saying: “Torts may be divided into two general classes, — the first, designated as ‘property torts,’ embracing all injuries and damages to property, real or personal; the second, known as ‘personal torts,’ including all .injuries to the person, whether to reputation, feelings, or to the body. A tort which is not an injury to property is a personal tort. * * * It will be readily seen that the chief difficulty lies in determining the exact meaning of the words ‘trespass for injuries done to the person.’ In a recent case this court, in construing this section, held that these words, as there used, could not be construed to mean only trespass vi et armis, but that the exception embraced, also, torts for which trespass on the case must have been brought. Letson v. Brown, 11 Colo.App. 11, 52 P. 287. We now go further, and hold that the words were intended to embrace, and do embrace, all actions for personal torts.”
In Munal v. Brown, C.C., 70 F. 967, United States District Judge Hallett held that an action for damages for personal injuries does not survive to and against executors and administrators by virtue of § 154, ch. XC, Rev. Stat.Colo. 1868.
It is significant that § 247, supra, as first enacted, was embraced in a chapter on wills, executors, and administrators, that when reenacted in 1903, it was embraced in a chapter on wills-estates, and that it was carried forward into the 1935 Colo.Stat.Ann. in the chapter on wills and estates. We are of the opinion that it declares the public policy of Colorado to permit the prosecution of certain causes of action against the executor or administrator of the wrongdoer after his death, but to exclude therefrom causes of action for injuries to the person.
Foreign law will not be enforced in the courts of a state under the doctrine of comity where it is contrary to the pub-lie policy of such state.
A state may deny a remedy in its courts upon a tort arising in another jurisdiction.
In Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609, it was expressly held that § 247, supra, does not offend the provision of Art. 2, § 6, of the state Constitution which provides that “Courts of justice shall be open to every persdn, and a speedy remedy afforded for every injury to person, property or character.”
We conclude that the plaintiffs could not maintain actions m Colorado against the administratrix for personal injuries and that the motion as to those claims was properly sustained.
The plaintiff, H. S. Gray, however, asserted two claims, one for personal injuries in the sum of $3,000, and one for damages to his automobile in the sum of $1,050. The claims were properly joined. Rule 18, Rules of Civil Procedure, 28 U.S.C.A. following section 723c. An action for damages to the automobile could be prosecuted against the adminis-tratrix. See Mumford v. Wright, supra.
The jurisdictional amount is the sum of all the claims which are properly joined. The test of jurisdiction is the amount claimed in good faith and not the actual amount determined to be in controversy. There can be no doubt that both claims were asserted by H. S. Gray in £ood faith and that combined they exceed, exclus,lve °f “terest and costs,_ the sum or vaIue.of $3.’000- 0ther Jurisdictional Prerequisites being; present, it follows that *e. court e"ed “ dismissing the comPlamt as t0,the claim of H. S. Gray for damages to Ins automobile,
The judgment is affirmed as to the plaintiffs Margaret Gray and H. S. Gray, as next fr¡end of John Herbert Q and p G The jud t is reversed as tQ R s_ G and the cause ¡s remand. ed w¡th instructions t0 overrule tfle mo. tion as to the claim of H. S. Gray for damages to his automobile. Three-fourths of the costs will be assessed against the plaintiffs and one-fourth against the ad-ministratrix.
Hereinafter referred to as the plaintiffs.
Hereinafter referred to as the administratrix.
Ormsby v. Chase, 290 U.S. 387, 388, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499; Curtis v. Campbell, 3 Cir., 76 F.2d 84, 85; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418, 420; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82, 83; Baise v. Warren, 158 Va. 505, 164 S.E. 655; Jackson v. Anthony, 282 Mass. 540, 185 N.E. 389, 391.
Bourestom v. Bourestom, 231 Wis. 666, 285 N.W. 426, 428; Stix, Baer & Fuller Co. v. Woesthaus Motor Co., 284 Ill.App. 301, 1 N.E.2d 796, 797; Red-fern v. Redfern, 212 Iowa 454, 236 N.W. 399, 400; Peoria Engraving Co. v. Streator Cold Storage Door Co., 221 Iowa 690, 266 N.W. 548; Coral Gables v. Christopher, 108 Vt. 414, 189 A. 147, 149, 109 A.L.R. 474; Guardian Life Ins. Co. of America v. Rita Realty Co., 5 A. 2d 45, 48, 17 N.J.Misc. 87; Federal Surety Co. v. Minneapolis Steel & Machinery Co., 8 Cir., 17 F.2d 242, 245; Strawn Mercantile Co. v. First Nat. Bank of Strawn, Tex.Civ.App., 279 S.W. 473, 474; Chicago, Rock Island & Pacific Ry. Co. v. Sturm, 174 U.S. 710, 717. 19 S.Ct. 797, 43 L.Ed. 1144; Meyer v. Weimaster, 278 Mich. 370, 270 N.W. 715, 717; Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883, 885, 886.
Herzog v. Stern, 264 N.Y. 379, 191 N.E. 23, 24, 25, certiorari denied 293 U.S. 597, 55 S.Ct. 112, 79 L.Ed. 690; Woollen v. Lorenz, 68 App.D.C. 389, 98 F.2d 261; In re Killough’s Estate, 148 Misc. 73, 265 N.Y.S. 301.
In Herzog v. Stern, supra, action was brought in New York to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant’s testator in an automobile accident which occurred in Virginia. Both plaintiff and the testator were residents of New York at the time of the accident and when the action was brought the testator’s estate was being administered in New York. In the opinion the court said [264 N.Y. 379, 191 N.E. 24]:
“The question, however, is not whether the cause of action created by the laws of the state of Virginia survives the death of the wrongdoer, but whether the law of this state permits the representative of the deceased wrongdoer to be sued on such a claim. * * *
“This state has undoubted power to determine the devolution of the property of a deceased resident and how such property shall be administered. It determines upon what claims a suit may be brought against the representatives of the decedent, and payment be enforced out of the assets of the estate. A transitory cause of action may constitute a property right. It. may' even be regarded as a vested right against the wrongdoer. There can, however, he no vested right to enforce a claim for damages out of the property of a deceased resident of this state unless there is a law which permits the property of such a decedent to be applied upon the claim. At common law a claim for personal injury did not survive and could not be enforced out of the property or against the personal representatives of the deceased wrongdoer. The common law has in this regard not been changed by the Legislature. * * *
“Where neither common law nor a statute permits the bringing of an action against executors or administrators of a deceased resident, the courts of this state are without jurisdiction to pass upon such a cause of action. There is here no room for speculation as to whether the cause of action against the representatives of the deceased wrongdoer created by the laws of the state of Virginia offends our public policy. The rights and obligations of executors and administrators appointed by our courts are defined by our law, and our courts are without jurisdiction to grant a judgment binding on the executors or administrators appointed here unless our law makes provision for such actions against executors and administrators. Each state may define the rights and obligations of those who come within its territorial bounds, and comity will ordinarily cause the sister states to permit the enforcement of such rights and obligations against their residents by resort to their courts, but no state has any power to provide that such rights and obligations may be enforced out of the property of a deceased wrongdoer in the possession of executors
or administrators appointed by the courts of another state. Here comity does not determine the jurisdiction of the courts of the decedent’s domicile. The courts are without jurisdiction, because neither common law nor statutory law provides for the maintenance of any action for personal injury against the executors or administrators of a deceased wrongdoer.” Compare Chubbuck v. Holloway, 182 Minn. 225, 234 N.W. 314, 868; Kert-son v. Johnson, 185 Minn. 591, 242 N. W. 329, 85 A.L.R. 1.
See Munal v. Brown, C.C.Colo., 70 F. 967; Kelley v. Union Pac. Ry. Co., 16 Colo. 455, 27 P. 1058, 1060.
See, also, Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609; Clapp v. Williams, 90 Colo. 13, 5 P.2d 872.
Mosko v. Matthews, 87 Colo. 55, 284 P. 1021, 1023; Turnbull v. Cole, 70 Colo. 364, 201 P. 887, 888, 25 A.L.R. 1149; Dougherty v. American McKenna Process Co., 255 Ill. 369, 99 N.E. 619, 621, L.R.A.1915F, 955, Ann.Cas.1913D, 568.
In the case last cited the court said: “Each state, subject to restrictions of the federal Constitution, determines the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and how far its courts having jurisdiction of the parties shall hear and decide transitory actions where the cause of action has arisen outside of the state.” See, also, St. Louis & Iron Mountain Ry. v. Taylor, 210 U.S. 281, 285, 28 S.Ct. 616, 52 L.Ed. 1061; 11 Am. Jur. p. 495, § 183.
Dougherty v. American McKenna Process Co., supra, 99 N.E. page 621; 11 Am.Jur. p. 495, § 183.
Kimel v. Missouri State Life Ins. Co., 10 Cir., 71 F.2d 921, 924; Baltimore & Ohio Southwestern R. R. v. United States, 220 U.S. 94, 106, 31 S.Ct. 368, 55 L.Ed. 384; Simecek v. United States Nat. Bank of Omaha, 8 Cir., 91 F.2d 214, 217.
Kimel v. Insurance Company, supra, 71 F.2d page 924; Simecek v. Bank, supra, 91 F.2d page 217; St. Paul Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288, 289, 58 S.Ct. 586, 82 L.Ed. 845; Owen M. Bruner Co. v. O. R. Manefee Lumber Co., 9 Cir., 292 F. 985; Brown v. United Gas Public Service Co., 5 Cir., 96 F.2d 264.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer: |
songer_appel1_3_3 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
BOWLES, Administrator, OPA, v. JONES.
No. 3144.
Circuit Court of Appeals, Tenth Circuit.
Sept. 19, 1945.
A. M. Dreyer, of Washington, D. C. (George Moncharsh, Fleming James, Jr., and David London, all of Washington, D. C., David Love, of Dallas, Tex., and O. B. Martin, of Oklahoma City, Okl., on the brief), for appellant.
Roy C. Lytle, of Oklahoma City, Okl. (D. I. Johnston, of Oklahoma City, Okl., on the brief), for appellee.
Before PHILLIPS and MURRAH, Circuit Judges, and SAVAGE, District Judge.
SAVAGE, District Judge.
This appeal challenges the judgment of the District Court denying to Chester Bowles, Administrator, Office of Price Administration, recovery of statutory damages because of the alleged sale by the defendant, Wayne Jones, of cottonseed meal at prices in excess of the maximum fixed by Revised Maximum Price Regulation 444, 8 F.R. pp. 203, 1121, issued pursuant to the provisions of the Emergency Price Control Act of 1942, as amended, 56 Stat. 23, 58 Stat. 640, 50 U.S.C.A.Appendix § 901 et seq.
The facts are not in dispute. Defendant owned and operated at the same location the only cotton gin and feed store at Newcastle, Oklahoma. The ginning season extended from September through’ January. He purchased the cottonseed from growers who patronized his gin and sold to cottonseed oil mills. He bought cottonseed meal from processors, which was sold the year around to feeders of livestock.
The Administrator on July 31, 1943, issued Maximum Price Regulation 444 which among other things established maximum prices at which cottonseed meal might be sold by processors, grinders, jobbers, wholesalers, retailers and other sellers. A “retailer” was defined as a person who buys the product and resells to a feeder. The defendant, as a retailer, was authorized by the regulation to sell cottonseed meal at a price of $5.50 per ton above the ceiling price paid to his supplier. He did not take advantage of the full markup permitted.
The regulation was superseded on January 10, 1944, by the revised regulation,which did not become effective as to defendant, because of the necessity of correcting a typographical error, until February 3, 1944. The revised regulation fixed-a separate maximum price for sale of cottonseed meal by a “recognized handler”, a term unknown to the cottonseed industry. A “recognized handler” was defined as “any person other than a processor regularly engaged in the business of growing, purchasing or selling cottonseed.” To the conventional definition of the term “retailer” was added a provision expressly excluding recognized handlers from such category. The maximum price for sales by a recognized handler was the same as the maximum price of the processor plus transportation charges. A retailer was allowed the same markup of $5.50 per ton as authorized by the regulation. Thus a retailer was permitted to sell at $5.50 per ton higher than a recognized handler.
On September 16, 1944, the revised regulation was superseded by Food Products Regulation, No. 3. Supplement I thereto dealt with cottonseed meal and abandoned the recognized handler classification. The definition of retailer omitted the provision excluding recognized handlers and once again encompassed the business in which the defendant was engaged. The $5.50 markup for retailers was continued. In his “Statement of Considerations” influencing the adoption of the new regulation, the Administrator made clear the necessity for eliminating the recognized handler classification. He pointed out that most of the persons who fell in this group were growers and ginners of cottonseed; that the prohibition of a markup had tended to divert distribution of cottonseed products from normal channels; that the markups permitted by Supplement I would more closely approximate those normal to the trade prior to price control, and that such markups would promote better distribution of cottonseed products through normal trade channels.
The only sales in controversy are those made from February 3, 1944, to September 16, 1944, the period during which the revised regulation was controlling. During such period the defendant sold 459 one hundred pound bags at the rate of $58 per ton, including state sales tax, the last sale being made on April 10, 1944. His ceiling price, if a recognized handler as contended by the Administrator, was $55.10 per ton, the amount paid to processors plus transportation charges. If he may be classified as a retailer as urged by defendant, his ceiling price was $60.60 per ton. The alleged violation turns on the question of whether defendant was a recognized handler as defined by the revised regulation.
The trial court held that defendant was a recognized handler and had violated the revised regulation, but thought the violation too technical to justify a judgment against the defendant and that the public interest would not be served by such a judgment, especially in view of the revocation of the revised regulation. The reluctance of the trial court to enter a judgment against the defendant under the state of facts here disclosed is understandable. Defendant, while classified as a retailer under the regulation, was allowed a $5.50 per ton margin of profit. The recognized handler under the revised regulation was permitted no markup whatever. If a person so classified bought and sold cottonseed meal he inevitably suffered a loss. After the effective date of the new regulation, the defendant again became a retailer with an authorized margin of profit. The Statement of Considerations issued by the Administrator contemporaneously with the new regulation indicated a realization that the inclusion of the recognized handler classification in the revised regulation was improvident. Since the Administrator obviously acknowledged that a mistake was made by denying to recognized handlers a profit during the brief period that the revised regulation was in force, the trial court apparently concluded that this action should not have been instituted. But the revocation of the revised regulation did not extinguish the liability which accrued while it was in effect. United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290. There is no suggestion of invalidity. Indeed, its validity could not be questioned here. Jurisdiction to pass upon the validity of regulations promulgated by the Administrator is committed exclusively to the Emergency Court of Appeals, the special court created by the Emergency Price Control Act. Bowles v. Nu Way Laundry Co., 10 Cir., 144 F.2d 741. The responsibility of determining whether a violation of a regulation is of sufficient consequence to warrant prosecuting an action in the public interest to recover statutory damages rests with the Administrator. The decision involves questions of administrative policy in the enforcement of the Act wholly outside the scope of judicial inquiry.
The defendant concedes that the judgment cannot be supported on the grounds stated by the trial court. He asserts that the court rightfully entered judgment for the defendant but for a wrong reason. He seeks to uphold the judgment on two grounds, (1) that the defendant was not a recognized handler as defined by the revised regulation, and, (2) that the Administrator could not maintain the action.
As to the first contention the conclusion that defendant was a recognized handler as defined by the revised regulation is inescapable. He was not a processor and was regularly engaged in the business of purchasing and selling cottonseed. It is suggested that defendant was engaged in two businesses; that in the business of ginning cotton and buying and selling cottonseed he was a recognized handler, but that in the business of selling feed, including cottonseed meal, he was a retailer. The fallacy of this argument is apparent. The definition of retailer found in the revised regulation is controlling and was so drafted as to expressly exclude recognized handlers. Fox v. Standard Oil Company, 294 U.S. 87, 55 S.Ct. 333, 79 L.Ed. 780; Marlene Linens v. Bowles, Em.App., 144 F.2d 874.
The second contention of defendant that the Administrator may not maintain this action deserves but scant attention. Section 205(e) of the Act provides: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption, other than in the course of trade or business may bring an action * * * ” and if — “the buyer is not entitled to bring suit or action under this subsection, ,the Administrator may bring such action under this subsection on behalf of the United States.” If the feeders bought the cottonseed meal from defendant for consumption in the course of trade or business, they were not entitled to bring the action and the cause of action vested in the Administrator. In the agreed statement of facts upon which the case was submitted to the court we find this statement: " “Sales * * of cottonseed meal referred to herein were made to feeders or other purchasers in the course of trade or business of such purchasers.” But laying aside the stipulation, we think it too clear for argument that feeders of livestock are engaged in business and that the meal purchased by such feeders was for consumption in the course of business. Bowles v. Rogers, 7 Cir., 149 F.2d 1010; Speten v. Bowles, 8 Cir., 146 F.2d 602. It follows that the action was properly instituted by the Administrator.
At a new trial the court may, if the issue be tendered in mitigation of damages, determine whether the violations were “neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation” as provided in Sec. 108(b) of the Stabilization Extension Act of 1944, 58 Stat. 640, amending Sec. 205(e) of the Emergency Price Control Act, 50 U.S.C.A.Appendix § 925(e). See Speten v. Bowles, supra; Bowles v. Sharp, 8 Cir., 149 F.2d 148.
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Hereinafter called revised regulation.
Hereinafter called regulation.
Hereinafter called new regulation.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer: |
songer_genapel2 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
GRAY et al. v. BLIGHT.
No. 2116.
Circuit Court of Appeals, Tenth Circuit.
June 10, 1940.
R~hearing Denied July 12, 1940.
T. R. Boone of Wichita Falls, Tex., (Earl W. Wilson, of Denver, Colo., on the brief), for appellants.
Cecil M. Draper, of Denver, Colo. (W. A. Alexander, of Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
IT. S. Gray and Margaret Gray, individually, and H. S. Gray, as next friend for John Herbert Gray and Peggy Gray, brought this action against Myrta Blight, administratrix of the estate of H. E. Blight, deceased, to recover damages for personal injuries and for damages to the automobile of H. S. Gray.
In their complaint, plaintiffs alleged that the damages resulted from a collision between the automobile of H. S. Gray and an automobile owned, driven, and operated by Blight; that the collision occurred near the town of Winnemucca, Nevada; that it was caused by the negligence of Blight in the management, operation, and control of his automobile; that plaintiffs are residents and citizens of Texas; that at the time of the collision Blight was a resident and citizen of Colorado; that Blight died on or about October 6, 1938; and that Myrta Blight is the duly appointed, qualified, and acting administratrix of the estate of Blight and is a resident and citizen of Colorado.
The administratrix filed a motion to dismiss the action on the ground that the complaint fails to state a claim against her upon which relief can be granted. The trial court sustained the motion, plaintiffs elected not to plead further, and judgment was entered dismissing the action. Plaintiffs have appealed.
The substantive rights of the parties to an action are governed by the lex loci, that is, the law of the place where the right was acquired or the liability was incurred" which constitutes the claim or cause of action. Under the laws of Nevada a cause of action for personal injuries, whether suit has been brought thereon or not, is not abated by reason of the death of the wrongdoer, but survives against his legal representatives. Nevada Comp. Laws, 1929, 1938 Pocket Part, Vol. 1, §§ 240.01, 240.02. It follows that the cause of action survived the death of Blight. On the other hand, the law of the jurisdiction in which relief is sought controls as to all matters pertaining to remedial, as distinguished from substantive rights. The principles are stated in the Restatement, Conflict of Laws, § 390, which in part reads as follows:
“Whether a claim for damages for a tort survives the death of the tort-feasor or of the injured person is determined by the law of the place of wrong. * * *
“(b) If a claim for damages for injury survives the death of the injured person or the wrongdoer, as the case may be, by the law of the place of wrong, recovery may be had upon it by or against the representative of the decedent, provided the law of the state of forum permits the representative of the decedent to sue or be sued on such a claim. Without such power created by the law of the state of suit, no recovery can be had.”
The Restatement finds support in the adjudicated cases.
Sec. 1, ch. 159, 1935 Colo.Stat.Ann., in part reads as follows: “The common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First * * *, and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.”
Sec. 247, ch. 176, 1935 Colo.Stat.Ann., reads as follows: “All actions in law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real estate, shall survive to and against executors, administrators and conservators.”
Chapter 176 was first adopted in 1868. See. Stat.Colo. 1868, ch. XC, § 154. It was re-enacted in 1903. See § 167, ch. 181, p. 533, 1903, Colo.Sess.Laws. In the reenactment the phrase “actions at law” was changed to read “actions in law” and the words “and conservators” were added at the end of the section. In Letson v. Brown, 11 Colo.App. 11, 52 P. 287, 288, the court said: “The suit was begun against Brown, who is the administrator of the decedent. The naked question, therefore, is whether the wrongdoer being dead, this suit may be maintained against his personal representative. It could not at the common law, for it was a well-settled principle thereunder that all personal actions, whether by the representatives of a deceased person or against those of one who was dead, died with the injured party; or, as it has been sometimes expressed in other cases as to the wrongdoer, the wrong and the wrongdoer w.ere burie.d in the grave together. We take it to be as well settled in the one case as in the other, and that it is equally true that, where the wrongdoer dies, his personal representative may not be sued for the negligent act, any more than could the representatives of the injured person, he being dead, maintain an action against the living wrongdoer. This principle has been often declared, and it will add nothing to the force of this opinion, nor will it embellish the law, to restate the reasons upon which the rule rests.”
The court then held that an action for wrongful death could not be maintained against the administrator of the estate of the wrongdoer. In Mumford v. Wright, 12 Colo.App. 214, 55 P. 744, 746, the court construed the phrase “trespass for injuries done to the person,” saying: “Torts may be divided into two general classes, — the first, designated as ‘property torts,’ embracing all injuries and damages to property, real or personal; the second, known as ‘personal torts,’ including all .injuries to the person, whether to reputation, feelings, or to the body. A tort which is not an injury to property is a personal tort. * * * It will be readily seen that the chief difficulty lies in determining the exact meaning of the words ‘trespass for injuries done to the person.’ In a recent case this court, in construing this section, held that these words, as there used, could not be construed to mean only trespass vi et armis, but that the exception embraced, also, torts for which trespass on the case must have been brought. Letson v. Brown, 11 Colo.App. 11, 52 P. 287. We now go further, and hold that the words were intended to embrace, and do embrace, all actions for personal torts.”
In Munal v. Brown, C.C., 70 F. 967, United States District Judge Hallett held that an action for damages for personal injuries does not survive to and against executors and administrators by virtue of § 154, ch. XC, Rev. Stat.Colo. 1868.
It is significant that § 247, supra, as first enacted, was embraced in a chapter on wills, executors, and administrators, that when reenacted in 1903, it was embraced in a chapter on wills-estates, and that it was carried forward into the 1935 Colo.Stat.Ann. in the chapter on wills and estates. We are of the opinion that it declares the public policy of Colorado to permit the prosecution of certain causes of action against the executor or administrator of the wrongdoer after his death, but to exclude therefrom causes of action for injuries to the person.
Foreign law will not be enforced in the courts of a state under the doctrine of comity where it is contrary to the pub-lie policy of such state.
A state may deny a remedy in its courts upon a tort arising in another jurisdiction.
In Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609, it was expressly held that § 247, supra, does not offend the provision of Art. 2, § 6, of the state Constitution which provides that “Courts of justice shall be open to every persdn, and a speedy remedy afforded for every injury to person, property or character.”
We conclude that the plaintiffs could not maintain actions m Colorado against the administratrix for personal injuries and that the motion as to those claims was properly sustained.
The plaintiff, H. S. Gray, however, asserted two claims, one for personal injuries in the sum of $3,000, and one for damages to his automobile in the sum of $1,050. The claims were properly joined. Rule 18, Rules of Civil Procedure, 28 U.S.C.A. following section 723c. An action for damages to the automobile could be prosecuted against the adminis-tratrix. See Mumford v. Wright, supra.
The jurisdictional amount is the sum of all the claims which are properly joined. The test of jurisdiction is the amount claimed in good faith and not the actual amount determined to be in controversy. There can be no doubt that both claims were asserted by H. S. Gray in £ood faith and that combined they exceed, exclus,lve °f “terest and costs,_ the sum or vaIue.of $3.’000- 0ther Jurisdictional Prerequisites being; present, it follows that *e. court e"ed “ dismissing the comPlamt as t0,the claim of H. S. Gray for damages to Ins automobile,
The judgment is affirmed as to the plaintiffs Margaret Gray and H. S. Gray, as next fr¡end of John Herbert Q and p G The jud t is reversed as tQ R s_ G and the cause ¡s remand. ed w¡th instructions t0 overrule tfle mo. tion as to the claim of H. S. Gray for damages to his automobile. Three-fourths of the costs will be assessed against the plaintiffs and one-fourth against the ad-ministratrix.
Hereinafter referred to as the plaintiffs.
Hereinafter referred to as the administratrix.
Ormsby v. Chase, 290 U.S. 387, 388, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499; Curtis v. Campbell, 3 Cir., 76 F.2d 84, 85; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418, 420; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82, 83; Baise v. Warren, 158 Va. 505, 164 S.E. 655; Jackson v. Anthony, 282 Mass. 540, 185 N.E. 389, 391.
Bourestom v. Bourestom, 231 Wis. 666, 285 N.W. 426, 428; Stix, Baer & Fuller Co. v. Woesthaus Motor Co., 284 Ill.App. 301, 1 N.E.2d 796, 797; Red-fern v. Redfern, 212 Iowa 454, 236 N.W. 399, 400; Peoria Engraving Co. v. Streator Cold Storage Door Co., 221 Iowa 690, 266 N.W. 548; Coral Gables v. Christopher, 108 Vt. 414, 189 A. 147, 149, 109 A.L.R. 474; Guardian Life Ins. Co. of America v. Rita Realty Co., 5 A. 2d 45, 48, 17 N.J.Misc. 87; Federal Surety Co. v. Minneapolis Steel & Machinery Co., 8 Cir., 17 F.2d 242, 245; Strawn Mercantile Co. v. First Nat. Bank of Strawn, Tex.Civ.App., 279 S.W. 473, 474; Chicago, Rock Island & Pacific Ry. Co. v. Sturm, 174 U.S. 710, 717. 19 S.Ct. 797, 43 L.Ed. 1144; Meyer v. Weimaster, 278 Mich. 370, 270 N.W. 715, 717; Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883, 885, 886.
Herzog v. Stern, 264 N.Y. 379, 191 N.E. 23, 24, 25, certiorari denied 293 U.S. 597, 55 S.Ct. 112, 79 L.Ed. 690; Woollen v. Lorenz, 68 App.D.C. 389, 98 F.2d 261; In re Killough’s Estate, 148 Misc. 73, 265 N.Y.S. 301.
In Herzog v. Stern, supra, action was brought in New York to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant’s testator in an automobile accident which occurred in Virginia. Both plaintiff and the testator were residents of New York at the time of the accident and when the action was brought the testator’s estate was being administered in New York. In the opinion the court said [264 N.Y. 379, 191 N.E. 24]:
“The question, however, is not whether the cause of action created by the laws of the state of Virginia survives the death of the wrongdoer, but whether the law of this state permits the representative of the deceased wrongdoer to be sued on such a claim. * * *
“This state has undoubted power to determine the devolution of the property of a deceased resident and how such property shall be administered. It determines upon what claims a suit may be brought against the representatives of the decedent, and payment be enforced out of the assets of the estate. A transitory cause of action may constitute a property right. It. may' even be regarded as a vested right against the wrongdoer. There can, however, he no vested right to enforce a claim for damages out of the property of a deceased resident of this state unless there is a law which permits the property of such a decedent to be applied upon the claim. At common law a claim for personal injury did not survive and could not be enforced out of the property or against the personal representatives of the deceased wrongdoer. The common law has in this regard not been changed by the Legislature. * * *
“Where neither common law nor a statute permits the bringing of an action against executors or administrators of a deceased resident, the courts of this state are without jurisdiction to pass upon such a cause of action. There is here no room for speculation as to whether the cause of action against the representatives of the deceased wrongdoer created by the laws of the state of Virginia offends our public policy. The rights and obligations of executors and administrators appointed by our courts are defined by our law, and our courts are without jurisdiction to grant a judgment binding on the executors or administrators appointed here unless our law makes provision for such actions against executors and administrators. Each state may define the rights and obligations of those who come within its territorial bounds, and comity will ordinarily cause the sister states to permit the enforcement of such rights and obligations against their residents by resort to their courts, but no state has any power to provide that such rights and obligations may be enforced out of the property of a deceased wrongdoer in the possession of executors
or administrators appointed by the courts of another state. Here comity does not determine the jurisdiction of the courts of the decedent’s domicile. The courts are without jurisdiction, because neither common law nor statutory law provides for the maintenance of any action for personal injury against the executors or administrators of a deceased wrongdoer.” Compare Chubbuck v. Holloway, 182 Minn. 225, 234 N.W. 314, 868; Kert-son v. Johnson, 185 Minn. 591, 242 N. W. 329, 85 A.L.R. 1.
See Munal v. Brown, C.C.Colo., 70 F. 967; Kelley v. Union Pac. Ry. Co., 16 Colo. 455, 27 P. 1058, 1060.
See, also, Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609; Clapp v. Williams, 90 Colo. 13, 5 P.2d 872.
Mosko v. Matthews, 87 Colo. 55, 284 P. 1021, 1023; Turnbull v. Cole, 70 Colo. 364, 201 P. 887, 888, 25 A.L.R. 1149; Dougherty v. American McKenna Process Co., 255 Ill. 369, 99 N.E. 619, 621, L.R.A.1915F, 955, Ann.Cas.1913D, 568.
In the case last cited the court said: “Each state, subject to restrictions of the federal Constitution, determines the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and how far its courts having jurisdiction of the parties shall hear and decide transitory actions where the cause of action has arisen outside of the state.” See, also, St. Louis & Iron Mountain Ry. v. Taylor, 210 U.S. 281, 285, 28 S.Ct. 616, 52 L.Ed. 1061; 11 Am. Jur. p. 495, § 183.
Dougherty v. American McKenna Process Co., supra, 99 N.E. page 621; 11 Am.Jur. p. 495, § 183.
Kimel v. Missouri State Life Ins. Co., 10 Cir., 71 F.2d 921, 924; Baltimore & Ohio Southwestern R. R. v. United States, 220 U.S. 94, 106, 31 S.Ct. 368, 55 L.Ed. 384; Simecek v. United States Nat. Bank of Omaha, 8 Cir., 91 F.2d 214, 217.
Kimel v. Insurance Company, supra, 71 F.2d page 924; Simecek v. Bank, supra, 91 F.2d page 217; St. Paul Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288, 289, 58 S.Ct. 586, 82 L.Ed. 845; Owen M. Bruner Co. v. O. R. Manefee Lumber Co., 9 Cir., 292 F. 985; Brown v. United Gas Public Service Co., 5 Cir., 96 F.2d 264.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_respond1_1_4 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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 LEAD COMPANY, a Corporation, Appellant, v. Bernard M. WOLFE and Frederick J. Dannenfelser, Individuals and Copartners, Doing Business Under the Names and Styles “Dutch Paint Co.,” and “Manning-Mitchell Paint Co.,” Appellees.
No. 13737.
United States Court of Appeals Ninth Circuit.
May 17, 1955.
Rehearing Denied July 14, 1955.
See, also, 15 F.R.D. 61.
Robert E. Burns, Crimmins, Kent, Draper & Bradley, San Francisco, Cal., James D. Ewing, New York City, Milton Handler, San Francisco, Cal., John B. Henrick, New York City, for appellant.
James M. Naylor, Frank A. Neal, Naylor & Lassagne, San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, POPE, Circuit Judge, and BYRNE, District Judge.
POPE, Circuit Judge.
The plaintiffs-appellees, citizens of the State of California, brought a suit for declaratory relief against the defendant-appellant, a New Jersey corporation, praying for an adjudication that the plaintiffs’ use of the words “Dutch”, “Dutch Paint Company” and “Dutch Paint” in connection with the paint and.paint products manufactured and processed by them does not infringe the rights of appellant in its trade mark “Dutch Boy”.
Appellant, by counterclaim, alleged its prior adoption and use of the trade mark “Dutch Boy”, the registration of this mark, for paint products, in the United States Patent Office in 1937; that it has built up a large and profitable business in its products identified with that trade mark and has spent large sums in advertising it; that since 1949 the appellees, with knowledge of appellant’s trade mark, have used the words “Dutch Paint Company”, “Dutch” and “Dutch Paint” in connection with their manufacture and advertising of paint products in a manner calculated and liable to confuse and deceive the public in believing that appellees’ products are manufactured by or originate with the appellant; that this was unfair competition as well as infringement of appellant’s trade mark and its registration.
Upon this counterclaim the appellant sought an injunction against further use by the appellees of the words objected to; an accounting of profits from the alleged infringement of the trade mark, and an award of damages.
The case was tried and all testimony taken before Honorable Herbert W. Erskine, District Judge, who died before he could make or file any findings in the case. By agreement of the parties the cause was submitted to the Honorable Edward P. Murphy upon the record of the testimony and other evidence previously presented to Judge Erskine. The court made findings of fact and entered a judgment in favor of the appellees as plaintiffs and dismissed the appellant’s counterclaim. Upon this appeal the specifications of error in the main assert the right of appellant- to have judgment upon this counterclaim.
The record shows that the appellant -is a large and well known manufacturer of paint and paint products which it has sold to the trade and the consuming public throughout the country for more than 40 years. In 1907 it adopted a picture of a Dutch boy as its trade mark for white lead. Subsequently it commenced using the words “Dutch Boy” in its advertising and these words were applied successively to linseed oil, red lead paint, white lead paint, flatting oil, wall primer and other paint products. The word trade mark “Dutch Boy” was registered in the Patent Office in 1937 for a number of paints and paint products including inside and outside paints, primers, undercoats, lacquers and varnishes. All these uses antedated by a considerable number of years the appellees’ entry into the paint business. In connection with its sales of Dutch Boy paints appellant made very large expenditures devoted to advertising its Dutch Boy trade mark. Its products were shown to be regularly sold through independent dealers as well as through its 39 retail stores. There were some 1200 of these dealers in the eleven' Pacific Coast states. Appellant's sales of paint products bearing this trade mark have aggregated over six hundred million dollars and it has expended in excess of nineteen million dollars in national advertising.
The appellees on the other hand entered the paint business in 1946 after their discharge from the Navy where they had had some training in connection with the naval paint program. After initiating the paint business and incorporating their enterprise under the name of Manning-Mitchell, Inc., they had some difficulty in procuring raw materials for their marine paints. Then in the same year they acquired for some $9,000 a partnership concern known as “Dutch Paint Co.” at San Francisco which operated a small paint factory and which had on hand some labels marked “Dutch Paint”. Thereafter the apellees formed a new corporation called “Dutch Paint Company” and continued to increase the manufacture and sale of household and other paints using labels and other marks with the names “Dutch” and “Dutch Paint”. It is of this use that appellant complains in its counterclaim.
The record shows beyond possible controversy that the appellants had a trade mark valid both at common law and under the applicable federal acts. Neither the word “Dutch”, nor the words “Dutch Boy” are used otherwise than in a fictitious, arbitrary and fanciful manner. Of course the word “Dutch” is capable of being used as a geographical term. If used to indicate a product made in Holland or by some Dutch process, it could be a descriptive term. However, the record shows without doubt that appellant’s trade mark does not contain words having either a geographical or descriptive sense. In this respect the case is governed by Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 36 S.Ct. 269, 271, 60 L.Ed. 629, where the court said: “We do not regard the words ‘The American Girl,’ adopted and employed by complainant in connection with shoes of its manufacture, as being a geographical or descriptive term. It does not signify that the shoes are manufactured in America, or intended to be sold or used in America, nor does it indicate the quality or characteristics of the shoes. Indeed, it does not, in its primary signification, indicate shoes at all. It is a fanciful designation, arbitrarily selected by complainant’s predecessors to designate shoes of their manufacture. We are convinced that it was subject to appropriation for that purpose, and it abundantly appears to have been appropriated and used by complainant and those under whom it claims. * * * ‘The American Girl’ would be as descriptive of almost any article of manufacture as of shoes; that is to say, not descriptive at all.”
Here there is no likelihood that the use of the name “Dutch” or “Dutch Boy” in connection with the appellant’s goods would be understood by purchasers as representing that the goods or their constitutent materials were produced or processed in Holland or that they are of the same distinctive kind or quality as those produced, processed or used in that place.
The record and briefs do not disclose any assertion on the part of the appellees that appellant’s trade mark was wholly without validity. Appellees however contend that the mark is not a “strong” but a “weak” mark, citing as their authority for this position this court’s decisions in Sunbeam Furniture Corporation v. Sunbeam Corporation, 9 Cir., 191 F.2d 141, and Sunbeam Lighting Co. v. Sunbeam Corporation, 9 Cir., 183 F.2d 969. We find no resemblance between this case and our Sunbeam cases for in those cases it was pointed out that the name Sunbeam was “a meaningful word, a joyful word, a word of comfort, and of health.” It was therefore held that its use was not sufficiently fanciful to warrant the granting of an injunction not merely against the use of the term “Sunbeam” on the defendants’ lamps but against the use of the firm name “Sunbeam Furniture Corporation.”
The fact that' “Dutch” as a dictionary term has a geographical significance and that it would be possible for a manufacturer to use that word in connection with his business in its primary geographical sense is beside the point here. Thus one who manufactures paint in Holland cannot be restrained from selling his product as “Dutch” paint any more than a watch manufacturer in Switzerland can be prevented from selling his “Swiss” watches. No use of the word “Dutch” in a geographical sense is involved here for neither appellant nor appellees are marketing products or goods “likely to be understood by purchasers as representing that the goods or their constituent materials were produced or processed in the place designated by the name or that they are of some distinctive kind or quality as the goods produced, processed or used in that place.”
The distinction is well made by the Supreme Court in Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., supra, where it contrasted with the valid use of “The American Girl” the supposititious use of a mark “American Shoes”. As the appellees are not making their paints in Holland or using any Dutch processes or giving them any distinctive Dutch quality, the fact that others might have done so is of no significance in this case. There is no question also that “Dutch” has certain descriptive meanings. Thus “Dutch Kalsomine Brushes”, the record shows, are paint brushes of a special construction; “Dutch White” and “Dutch Blue” are terms describing certain colors under which some paints are sold although not those of the appellees; “Dutch Process”, or “Old Dutch Process” is a means of making white lead used in Holland and some manufacturers of white lead use that process and make reference to it on their labels; “Dutch Enamel” is a term descriptive of a kind of enamel first developed in Holland. Neither appellant nor appellees are engaged in the utilization of any such processes and the words “Dutch”, “Dutch Paint”, or “Dutch Paint Company” used by appellees are not claimed to have any relation to any product now or ever made in Holland or any process, color, or other description related to Holland or the Dutch.
We conclude therefore that the appellant’s trade-mark was one entitled to full protection both under the rules of the common law and under the federal acts.
Under the rules and decisions generally applicable, the appellees’ use of the terms here complained of would constitute an actionable infringement of the appellant’s trade-mark. We note here, in connection with appellees’ competing business, the use of a designation which is “confusingly similar to the [appellant’s] trade name.” Under § 32 of the Lanham Act, 15 U.S.C.A. § 1114, to the protection of which appellant is entitled, the infringement is the use, without the registrant’s consent, of “any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services * *
That we have a case here of confusing similarity is very apparent and the facts of the case are not to be distinguished from those in a multitude of decisions finding infringement. Among those cases are Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195; Brooks Bros. v. Brooks Clothing of California, 9 Cir., 158 F.2d 798, adopting opinion D.C., 60 F.Supp. 442; Lane Bryant, Inc. v. Maternity Lane, 9 Cir., 173 F.2d 559. Here there is confusing similarity between the appellant’s trademark and the words used by the appellees in respect to appearance, sound and meaning. The great mass of cases cited by Callman in § 82.1 of his work on Unfair Competition and Trade-Marks, 2d Ed., in which confusing similarity in sound, appearance or meaning, or in some of these respects, was found to exist, make it clear that in using the words “Dutch”, “Dutch Paint”, or “Dutch Paint Company” in connection with their products, appellees are guilty of infringement of the appellant’s trade mark. The evidence here satisfies the standards of proof set forth in Mershon v. Pachmayr, 9 Cir., 220 F.2d 879: “There is ample evidence in the case to require the finding that there was material confusion just as the court said there would be, and that there was strong likelihood that there would be confusion, although actual confusion is not essential in the proof of infringing a trade-mark.”
However, the appellant produced a mass of evidence which was uncontradicted showing some 290 instances in which paint dealers, painters, industrial users of paints and retail customers were actually deceived or misled by the appellees’ use of “Dutch”, “Dutch Paint”, “Dutch Paint Company”, and by their advertisements, into believing that appellees’ paints were actually the appellant’s Dutch Boy paints. This evidence of actual confusion showed that it occurred in some 20 communities in California, and in communities in Washington, Oregon, Idaho, Utah, Wyoming, and Nevada, and even in Hawaii. Some of these witnesses were experienced painters or construction superintendents; others were individual consumers purchasing for their own use. Testimony was given by some of appellant’s dealers and employees who related many instances of confusion on the part of the consumers visiting the stores. In addition there was substantial testimony that dealers in paints who were accustomed to purchase paint at wholesale, were confused into believing that the appellees’ “Dutch Paint” was appellant’s “Dutch Boy Paint”.
Notwithstanding this extensive proof not only of likelihood of confusion but of actual confusion as well, and notwithstanding the evidence was uncontradicted, the trial court found that there were no purchasers who were confused as between defendant’s and plaintiffs’ products and concluded that there was a lack of similarity because the names differed in sound, significance and appearance. We are unable to perceive how the court could have made such a finding in the light of this record. The court’s findings upon this point are clearly erroneous.
The record also shows that not only did the appellees beginning in 1946 adopt these confusingly similar names but shortly thereafter the method of advertising their paint showed that their continued use of these names and the passing off of their products thereunder was intentionally false and misleading and done with a purpose on their part of deceiving prospective purchasers. Thus appellees advertised “New Lower Than Pre-War Prices on Dutch Paint”. The facts were, as appellees knew them, that their Dutch paints were not in business before the war and they had no pre-war prices. They also knew that the appellant’s Dutch Boy paint had been sold long prior to the war. They also advertised “How - Can $2.95 Buy $6 Paint?”, offering their Dutch paint “at approximately 50% of the normal price”. Appellees never sold $6 paints; $2.95 was their normal price, although it was approximately 50% of the normal Dutch Boy price. They advertised “Quality Famous Dutch Paint” which they represented as selling for half price at $2.95.
The proof of this deliberately false and misleading use of advertising in connection with the appellees’ own infringement, has an important bearing upon the inferences to be drawn with respect to the existence of confusion. The rule respecting the consequences of this intent to deceive was stated in My-T-Fine Corporation v. Samuels, 2 Cir., 69 F.2d 76, 77, as follows: “But when it [intent to deceive] appears, we think that it has an important procedural result; a late comer who deliberately copies the dress of his competitors already in the field, must at least prove that his effort has been futile. Prima facie the court will treat his opinion so disclosed as expert and will not assume that it was erroneous. * * * He may indeed succeed in showing that it was; that, however bad his purpose, it will fail in execution; if he does, he will win. * * * But such an intent raises a presumption that customers will be deceived.”
Appellees attempt to meet the appellant’s showing of infringement by setting up defenses of laches, acquiescence and estoppel. The record does not sustain any of them.
The record is that early in 1947, a then partner and associate of the appellees assured the appellant’s manager that they intended to discontinue their use of the name “Dutch” as soon as they had exhausted their supply of labels. In March, 1948, there was a discussion between appellant’s advertising manager and the appellees in which the former discussed with appellees the question of the appellees abandoning the use of the word “Dutch”. The advertising manager testified that appellees indicated their intention to drop this brand as soon as there was an ample supply of raw materials for other kinds of paints. The appellees’ version of the conversation is that the manager asked them if they had thought of abandoning the use of the word “Dutch” and they replied that they could not do so as they were obliged to manufacture Dutch paints because of pigment shortage.
Whichever be the correct version, plainly appellant was endeavoring to canvass the possibility of removing the infringement in 1948. The suit was begun in October, 1949. The attempted proof of laches is too trivial to require serious consideration. In the light of the intentional and fraudulent use of appellant’s trade mark, the defense here is a frivolous one. Menendez v. Holt, 128 U.S. 514, 523, 9 S.Ct. 143, 32 L.Ed. 526.
The claim of acquiescence is equally groundless. Thus, it is argued that on the occasion previously mentioned when the advertising manager of appellant met with the appellees, the manager confined his objections to certain radio advertising on a Sacramento radio station; but that the failure of the advertising manager to make additional objections particularly to the newspaper advertisements which appellees were running, and his failure to make a stronger showing of force against the use of the word “Dutch Paint” in connection with appellees’ product, amounted to an acquiescence.
The record also shows that some of the appellant’s employees and salesmen during the years 1946-1947-1948 occasionally visited the appellees’ offices and knew that the word “Dutch” was displayed on signs and paint cans. There was also produced at the trial a letter written by one Kaegebehn, the manager of appellant’s patent department, to the appellant’s advertising manager. This contained a statement that “Dutch” is a geographical name, and as such, it is not registrable as a trademark, but if used exclusively, it may acquire secondary trademark significance. However our mark is Dutch Boy and we can only enforce that mark against others under the trade mark laws.” The writer of the letter was not a lawyer; the letter was an intra-company communication, never addressed to anyone outside the appellant company, and there was no reliance upon it by appellees. Cf. Aunt Jemima Mills Co. v. Rigney & Co., 2 Cir., 247 F. 407.
Appellees began their use of the words here objected to in 1946. In 1947 they gave assurance they would shortly discontinue this use. In March,. 1948, appellant was negotiating with appellees in an effort to procure a promise to discontinue. Formal notice of infringement was given in July, 1949, and the suit begun in October of the same year. Laches, acquiescence, or estoppel are wholly wanting here.
The appellees attempted to show that a large number of other persons had used the name “Dutch” or some combination thereof in connection with sales of paint, and it is contended that the showing made in this respect justifies the trial court’s findings and judgment against the appellant’s claim of a valid trade mark and infringement thereof. The suggestion is that these third party uses of the term “Dutch” in the paint industry have been so numerous and so general that the mark must be held to be a weak mark within the meaning of the Sunbeam cases, supra, and further, that the term “Dutch” has become publici juris as in the cases of “aspirin” and “cellophane”.
Appellees have attached to their brief in this court a tabulation which was an exhibit in the court below showing uses which third parties, manufacturers or dealers in paint have made of names which include the word “Dutch”. Substantially the same information was portrayed in a photograph which was also an exhibit and which showed in color paint cans to which were attached labels with trade marks using the word “Dutch”. A study of the 39 listed uses of the word “Dutch” reveals that some of them are duplications, some relate to uses discontinued many years ago, some were used but to a limited extent and in single communities or limited localities far from the Pacific Coast to which appellees’ operations were confined, and for the most part in the eastern portion of the United States, and some with respect to which there was no proof of any isale whatever; some relate to non-paint products such as floor wax. The remaining proven third party uses of the word “Dutch” in connection with paint sale or manufacture are too inconsequential to establish a claim of pub-lid juris or the claim that appellant’s mark has become a weak mark or to justify on any other theory the acts of these appellees. It may be that some of these third persons may also have been guilty of wrongful infringement, but such would not be a defense or justification for the appellees. It is no excuse for them to say that others have been guilty of the same wrong. Del Monte Special Food Co. v. California Packing Corp., 9 Cir., 34 F.2d 774; Potter-Wrightington, Inc., v. Ward Baking Co., 1 Cir., 298 F. 398, affirming D.C., 288 F. 597. Uses of the offending word in local areas in the East are no justification for acts of appellees on the Pacific Coast.
The findings of the trial court fail to note that these third party uses fall into these various categories. The court failed to note that, as earlier here indicated, no one questions the possibility of using the word “Dutch” in a geographical or descriptive sense. Some of the third party uses listed in the findings, without noting this distinction, were instances where such proper and unobjectionable uses were made, as in the case of “Dutch Kalsomine”, “Dutch White”, “Old Dutch” process. Again there was no breakdown of those uses which were local and far distant from the area of appellees’ user. And since the trial court’s findings were based upon the same cold record which is before us, we are “in as good a position as the trial court was to appraise the evidence.” We find no evidence to warrant a holding that appellant’s trade-mark had become publici juris, or that the word “Dutch”, when used as appellees have done, was publici juris. The third party uses as are shown are not such as would permit an inference of acquiescence. We find here no evidence that an originally distinctive mark changed or developed into a generic term.
There is also a contention that there was an abandonment of the trademark by the appellant. No evidence thereof appears in this regard for there was no evidence of any intent whatever to abandon. Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 31, 21 S.Ct. 7, 45 L.Ed. 60.
What we have said heretofore has in terms referred to the trade-mark infringement. That, however, is but one aspect of the larger field of unfair competition. It requires no extended discussion in view of what we have said to demonstrate that the acts here complained of are not only an infringement of trade-mark but they constitute acts of unfair competition. The law is stated in Weinstock, Lubin & Co. v. Marks, 109 Cal. 529, 541, 42 P. 142, 146, 30 L.R.A. 182: “ * * * Upon what principle of law can a court of equity say, ‘If you cheat and defraud your competitor in business by taking his name, the court will give relief against you, but, if you cheat and defraud him by assuming a disguise of a different character, your acts are beyond the law?’ Equity will not concern itself about the means by which fraud is done. It is the results arising from the means — it is the fraud itself — with which it deals. The foregoing principles of law do not apply alone to the protection of parties having trademarks and trade-names. They reach away beyond that, and apply to all cases where fraud is practiced by one in securing the trade of a rival dealer; and these ways are as many and as various as the ingenuity of the dishonest schemer can invent.”
In order to make out a case of unfair competition, it is only required that the natural and necessary consequence of appellees’ conduct in this respect was such as'to cause deception. The case of Ross-Whitney Corp. v. Smith Kline & French Lab., 9 Cir., 207 F.2d 190, sufficiently demonstrates that wholly apart from trade-mark infringement, the appellant had here made out a case of unfair competition and that the court below had jurisdiction thereof.
In view of the demonstration in the court below that the appellees’ use of “Dutch Paint” and “Dutch Paint Company” was by false and misleading advertising, and the consequent demonstration that there was a deliberate and intentional design to cause confusion and mistake and to deceive purchasers, the conclusion must be that whether the cause be viewed as one of unfair competition or as one of infringement of a registered trade-mark, appellant is entitled not merely to relief by injunction but to an accounting of profits and damages as well. “But where an injunction is had against unfair competition, willfully conducted by the defendant with knowledge of the plaintiff’s rights, an accounting normally follows.” Matzger v. Vinikow, 9 Cir., 17 F.2d 581, 584.
As for appellant's rights under the trade-mark acts, since this is not a case where there has been “no showing of fraud or palming off”, cf. Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 131, 67 S.Ct. 1136, 1139, 91 L.Ed. 1386, but where the showing is quite to the contrary and the intentional misleading has been demonstrated, appellant is entitled not merely- to an injunction as prayed for but to an accounting of appellees’ profits and a - recovery of any-damages sustained under the provisions of Title 15 U.S.C.A. §1117, pursuant to the rule of Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381.
Accordingly, the judgment is reversed- and the cause is remanded with directions to dismiss the appellees’ complaint, to grant to the appellant an injunction as prayed for in its answér and- counter-, claim, and to proceed to take ah accounting of the' appellees’ profits, and to determine appellant’s, damages as.directed in this opinion.
. The findings reflect the difficulty of the trial judge in dealing with a record of evidence none of which he had heard from the lips of witnesses. Thus he appears to have overlooked the extensive testimony, uncontradieted, as to the many years of selling and advertising Dutch Boy paints, long prior to the appellees’ commencement of the business, and limited himself on this subject to a finding as follows: “The earliest national advertisement of the ‘Dutch Boy’ blue and white label products was in 1947, and the earliest reference to ‘Dutch Boy’ paints as distinguished from white lead, in defendant’s national advertising, occurred in 1950”. The impression given is that appellant did not begin to advertise its paints, and particularly its mixed ready to use paints, at least on the national scale, until 1947 or even 1950.
The record is quite otherwise. As appears from the deposition of appellant’s advertising manager, since 1913 appellant had been promoting the sale, on a national scale, of ready mixed paint bearing conspicuous labels with its trade mark. In the early 1930’s ready mixed paints called “Colors in Oil” were sold throughout the country under the conspicuous Dutch Boy label. Its 1937 trade mark registration was for numerous paints and paint products including “ready mixed paints for exterior use” and “ready mixed paints for interior use”. Beginning in 1918 what were known as “flatting paints” were sold under the Dutch Boy trade mark; and in the years between 1930 and 1940 similar Dutch Boy labels were applied to white lead paint, lead mixing oil, gloss enamels, varnish, quick drying enamel, enamel undercoat, semi-gloss, flat wall paint, wall primer, one coat flat-wall base and liquid dryer. The record includes numerous photographs of samples of appellant’s paint containers bearing the Dutch Boy label as distributed nation-wide in the years prior to 1940. Some of these were on products such as linseed oil and flatting oil, apparently for u-se of professional painters in mixing paint, but many of them are of mixed ready for use paints designed for sale to the consumers such as “Dutch Boy Outside White”, “Dutch Boy Satin Egg-Shell”, “Dutch Boy Interior White”.
Since 1938 appellant produced a full line of more than 30 types of ready mixed paints, each in a variety of colors, and all particularly designed for consumers’ use. All were displayed bearing this label among the stocks of independent dealers nation-wide as well as in the company’s own retail stores. These products were pushed with particular vigor in the area west of the Rocky Mountains. About 1930 appellant took over a concern manufacturing a full line of paints known as Bass-Heuter of San Francisco, and thereafter put out the full line of paint products of that concern using the Dutch Boy label thereon with a smaller insert marked “formerly Bass-Heuter”.
During the period following 1914 appellant advertised its trade mark products by distributing for use of painters millions of “wet-paint” signs bearing the Dutch Boy trade mark. From 1928 on it advertised its Dutch Boy products in approximately 200 newspapers throughout the country of which 40 or 50 were on the Pacific Coast. Displayed in the record are exhibits of circulars advertising Dutch Boy painters’ products which were distributed to dealers throughout the country in quantities aggregating hundreds of thousands. During this period the Dutch Boy trade mark was advertised in national magazines such as the Saturday Evening Post and Colliers, and in the farm journals.
The independent dealers in Dutch Boy paint were furnished fluorescent and Neon signs. At least 30,000 of such signs have been distributed since 1915, about 15% of which were installed at the stores selling the products on the Pacific Coast. Mammoth Neon signs bearing the trademark were located for outdoor advertising at places of maximum automobile traffic in New York, Los Angeles, Buffalo, Philadelphia, St. Louis, Chicago, Pittsburg, Cleveland and Cincinnati.
The case was tried in 1950 and the appellant’s advertising manager in testifying produced color advertisements currently appearing that year in national magazines bearing the phrase “Dutch Boy Paints”. The unfortunate reference in the quoted finding to the year 1950 is based upon the testimony of appellant’s advertising manager that “that particular phrase” first appeared in those 1950 advertisements. The result of this wholly unwarranted finding is that it gives an erroneous impression that appellant had only “come lately” with its trade mark into the mixed paint field.
. The district court’s findings erroneously recite that this Dutch Paint Co. had been producing “Dutch Paint” since 1941. There is no evidence upon the subject other than that “Dutch Paint Co.” was listed in the telephone hook from 1941 on. When it began producing, or when it made its “Dutch Paint” labels, does not appear.
. Although the record discloses no attack on the registration of appellant’s trade mark, the trial court failed to make any finding thereon, or even to note the fact of registration in the findings.
. See comment on Subdivision (a) of § 720 Restatement of Law of Torts, as follows:
“Arbitrary or fanciful use. The reasons for the rule that geographical names cannot be trade-marks do not weigh heavily when the geographical name has obviously only an arbitrary or fanciful significance in connection with the goods upon which it is used. Thus Gibraltar may be a trade-mark for automobiles since there is no likelihood that such use of the name would lead purchasers to suppose that there is any particular relation between the automobiles and the geographical locations known by that name, or any likelihood that it would seriously interfere with the freedom of merchants at Gibraltar to use that name. Again, Ethiopian may be a proper trademark for ladies’ stockings; for, while -suggestive of a certain color and sheen, it is only fancifully so and there is no likelihood that other merchants may have occasion properly to use the name Ethiopia on stockings since there is no factor of importance associating stockings with Ethiopia. Such is also the case of Pacific for bread or Arctic for refrigerators.”
. The words quoted are taken from Restatement of Torts, § 720(a).
. It was alleged in the counterclaim and admitted in the response that a valid registration of the mark “Dutch Boy”, obtained under the Act of February 20, 1905, is entitled to the benefits and remedies provided under the Lanham TradeMark Act of July 5, 1946, 60 Stat. 427, 15 U.S.C.A. § 1051 et seq., by virtue of § 46(b) of that Act, 15 U.S.C.A. § 1051 note. The section mentioned provides that “registrations now existing under * * * the Act of February 20, 1905 shall continue in full force and effect for the unexpired terms thereof * * *. Such registrations and the renewals thereof shall be subject to and shall be entitled to the benefits of the provisions of this Act [with certain exceptions not here applicable].”
. The quoted words arfe from Restatement of Torts, § 717 (1) (a).
. See the discussion in Callman, Unfair Competition in Trade-Marks, 2d Ed., §§ 82.3 and 80.6.
. Apparently appellees have abandoned any effort to sustain this finding of no confusion, for speaking of the testimony of appellant’s witnesses on this point, appellees’ brief says that “it is apparent that the presence of the common word “Dutch” was the sole cause of their several mistakes.”
. To the same effect see comment “f” to § 729(b) Restatement of Torts: “But if he adopts his designation with the intent of deriving benefit from the reputation of the trade-mark or trade name, his intent may be sufficient to justify the inference that there is confusing similarity.” See also Safeway Stores v. Dunnell, 9 Cir., 172 F.2d 649, 656: “Dunnell, witb his eyes open, thus chose to seek ■ the benefit of Store’s vast expenditures for advertising on the chance that it might prove enjoinable.” Cf. Stork Restaurant v. Sahati, 9 Cir., 166 F.2d 348.
. This was the occasion previously mentioned on which, according to the testimony of both appellees, appellant’s representative asked them “Have you ever given any thought to abandoning the use of the word ‘Dutch’?” It was appellant’s version of this conversation that appellees indicated an intention ultimately to drop the Dutch Paint brand and to go into a line of marine paints. Disregarding appellant’s version, it is plain that the parties then discussed the matter of appellees’ giving up the use of the Dutch Paint name.
. Appellees learned of this letter only after the action was begun, and through discovery processes. It was not even admissible in evidence. Overlooking this, and the rule of the Aunt Jemima Mills case, the trial court appears to have attached considerable significance to it for its finding 33 reads: “Mr. C. F. Kaegebehn, Manager of defendant’s Patent Department, admitted that National Lead Company did not have ‘proprietary legal exclusive right to the word “Dutch” in connection with paint and paint products,’ the while suggesting that a ‘show of force’ by defendant be used in lieu of such right.” Actually, in the same letter, Kaegebehn was urging the company representative to which it was addressed to advise all persons using the phrase Dutch Paint that the company was prepared to enforce its legal rights “to the utmost”. The letter
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: |
songer_indigent | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's rights as an indigent were violated?" 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".
Cornelius BELL, Plaintiff-Appellant, v. E. T. GROAK, Chairman, Board of Appeals and Review, U. S. Civil Service Commission, J. A. Connor, Regional Director, Chicago Regional Office, U. S. Civil Service Commission, John Macy, Chairman, Civil Service Commission, Ludwig Andolsek and Robert Hampton, Commissioners, Civil Service Commission, Defendants-Appellees.
No. 15625.
United States Court of Appeals Seventh Circuit.
Dec. 8, 1966.
William Robinson Fishman, Arthur DeBofsky, Fishman & Fishman, Chicago, 111., for appellant.
Alan S. Rosenthal, Asst. Atty. Gen., Martin Jacobs, Attorney, Department of Justice, Washington, D. C., Edward V. Hanrahan, U. S. Atty., Chicago, 111., J. William Doolittle, Acting Asst. Atty. Gen., for appellees.
Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge and SWYGERT, Circuit Judge.
DUFFY, Senior Circuit Judge.
Plaintiff seeks a declaratory judgment that the United States Civil Service Commission must accept his appeal and grant him a hearing on the merits of his “discharge” as a post office employee. The District Court entered an order dismissing the complaint on the ground that it lacked jurisdiction to grant the relief sought.
In September 1949, plaintiff was employed as a distribution clerk at the United States Post Office in Chicago. He worked there through August 2, 1962. On that date he signed papers resigning his position of employment.
On August 4 and December 9, 1962, and on January 17, 1963, plaintiff wrote to the United States Post Office Department seeking reinstatement to his position. These requests were denied in separate letters.
The first answer was from the acting postmaster stating — “Based upon your previous record, your request of August 4, 1962, for reinstatement will not be granted.” The second answer by the postmaster stated — “Based upon your previous record, your request for reinstatement, dated December 9, 1962, will not be granted.” The third answer was also by the postmaster and stated — “Your request for reinstatement, dated January 7, 1963, will not be granted, due to your previous unsatisfactory record.”
Plaintiff claims that on March 20, 1964, upon learning that the United States Civil Service Commission had authority over his resignation, he appealed to the Civil Service Commission, Chicago Regional office.
In his appeal, plaintiff stated he was questioned by two postal inspectors on August 2, 1962, and was advised that he had only two choices; either resign, or the inspectors would bring proceedings against him. Plaintiff charged he was not given any opportunity to consult with others as to the course he should take.
On March 23, 1964, the Regional Director of the Chicago Region of the Civil Service Commission answered, requesting additional information, including an inquiry as to why an earlier appeal had not been filed. Plaintiff replied setting forth events which he claimed occurred in connection with his resignation.
By letter dated April 10, 1964, defendant Connor, the Regional Director of the United States Civil Service Commission, informed the plaintiff that the normal time limit for acceptance of appeals by the Commission expires at the end of ten days from the effective date of the action appealed. The Commissioner stated this time limit could be extended by the Commission when it is established that circumstances beyond the control of the employee prevent him from filing an appeal within the ten-day period. The Regional Director then stated that plaintiff’s appeal, taken nineteen months after the date of the action being appealed, was not considered to have been filed within a reasonable time. He also stated — “Although you allege you were extremely busy working and training for a new career, this is not a sufficient reason for your delay in filing an appeal to the Commission.” The letter further stated that an appeal could be taken from the action of the Regional Director to the Board of Appeals and Review.
On April 13, 1964, the plaintiff appealed the adverse decision to the Board of Appeals and Review of the Civil Service Commission. By letter dated May 6, 1964, defendant Groak, Chairman of the Board of Appeals and Review, denied plaintiff’s appeal.
Although plaintiff seeks a declaratory judgment, the relief prayed for is in the nature of a writ of mandamus. Plaintiff asks this Court to decree that the United States Civil Service Commission must accept an appeal from plaintiff in this cause.
Before the District Court, plaintiff contended the Court had jurisdiction under the Tucker Act, 28 U.S.C. § 1346 (a) (2). Apparently, this claim has been abandoned, as no mention thereof is made in the amended complaint. In any event, that claim could not be sustained. Wells v. United States, 9 Cir., 280 F.2d 275, 277.
In the District Court, after the Government had objected that the individual members of the Civil Service Commission must be parties to the suit, the complaint was amended to name the Commissioners as party-defendants. However, no attempt was made to obtain service on any one of them.
The Supreme Court has considered this question in Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534. The Court said on page 515, 72 S.Ct. page 412: “Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual Commissioners as members of the United States Civil Service Commission. No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court.”
The Blackmar case also held that an action against, the Commissioners could be brought only in the District of Columbia. Congress has since extended the venue provisions so that suit may be brought in other districts. 28 U.S.C. § 1391(e). This section also provides for service “ * * * by certified mail beyond the territorial limits of the district in which the action is brought.” Thus, it is clear that the requirement of service upon the individual Commissioners is still essential, and that the amendment of the complaint to name them as defendants was not sufficient to confer jurisdiction. As was said by this Court in Rabiolo v. Weinstein, 7 Cir., 357 F.2d 167, 168, “ * * * the presence of venue does not dispense with the necessity for service in order to acquire personal jurisdiction.”
As a general proposition, in cases where there is an issue as to the voluntariness of the resignation of a government employee, we are of the view that the Civil Service Commission should hold a hearing unless such a hearing is barred by laches. See Dabney v. Freeman, 123 U.S.App.D.C. 166, 358 F.2d 533, 534-535. However, we do not reach that question in this case.
We are here confronted with the fact that the members of the United States Civil Service Commission were not served with process. Under the Blackmar case, we must hold that the District Court did not have any jurisdiction to order the United States Civil Service Commission to do anything. It follows that the District Court was correct in dismissing the amended complaint for want of jurisdiction.
Affirmed.
Question: Did the court rule that the defendant's rights as an indigent were violated?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_attyfee | 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 attorneys' fees 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".
Joe Vernon SEARS, an individual, in person, and for all other persons similarly situated, Plaintiff-Appellee, Albert L. Bennett, C.J. Skelton, Archie N. Jones, Forest D. Tollett, John W. Landrum, Lawson C. Spencer, Thomas H. White, Earlie Nash, Aubrey A. Robinson, Edward Rawlins, John W. Cole, Charles Majors, Jr., Jesse J. Smith, Paul H. Stewart, Jimmy E. Brown, Carl E. Chester, Ray E. Landrum, Raymond Wiley, Eglieelgie Crow and Ellis Johnson, Criscel Kemp, A.M. Bennett, A.L. Woolfolk, T.C. Luckey and W.W. Seymour, the Brotherhood of Sleeping Car Porters, Intervenors-Plaintiffs-Appellees, Mildred Collins, Executrix of the Estate of James Collins, Jr., Deceased, Plaintiff, Terry G. Paup, individually and on his own behalf, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Defendants-Appellees, United Transportation Union, successor to Brotherhood of Railway Trainmen, a labor organization, Defendant.
No. 85-1982.
United States Court of Appeals, Tenth Circuit.
Dec. 18, 1985.
Donald W. Bostwick of Adams, Jones, Robinson and Malone, Wichita, Kan., for appellant.
Harold V. Matney, Kansas City, Kan., and Lee H. Woodard of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, Kan., and Willis L. Toney and Sammie Edwards, Kansas City, Mo., for intervenors-plaintiffs-appellees.
Before BARRETT and LOGAN, Circuit Judges, and BALDOCK, District Judge.
The Honorable Bobby R. Baldock, United States District Judge for the District of New Mexico, sitting by designation.
BARRETT, Circuit Judge.
The sole issue presented by this appeal is whether the district court erred, based on the facts in this record, in applying the en banc opinion of this court in Cooper v. Singer, 719 F.2d 1496 (10th Cir.1983) retrospectively so as to abrogate contractual fee agreements entered into between appellant Terry G. Paup, the attorney (hereinafter referred to as Paup) and twenty-two (22) clients in 1972 prior to initiation of litigation which ultimately resulted in a class action recovery by some 73 class members. A recitation of the factual and litigative background should place the issue presented in focus.
Background
Paup entered into individual written attorney/client fee agreements with twenty-two (22) members of the later certified class. The agreements provided that Paup’s contingent fee would be one-third (33V3%) of all monetary recovery inclusive of back pay and attorney fee awards if the case should be resolved without appeal and forty percent (40%) of the total recovery obtained if appeal should be taken and the clients prevail.
Paup filed the initial suits in 1972 on behalf of Sears and Collins. These cases were consolidated and the district court certified them as a class action in August of 1975. Paup was lead counsel for the class. In 1982, following two appeals to this court and two denials of writs of cer-tiorari to the United States Supreme Court, a judgment in favor of the plaintiff class of some $8.2 million became final. Of this sum, about $4.1 million was awarded to the 22 clients with whom Paup had contingent fee agreements.
During the pendency of the second appeal in this case, this court handed down our en banc opinion in Cooper v. Singer, supra. In order to clarify the fee entitlement, Paup filed a motion on February 4, 1985, thereafter supplemented, requesting that the district court direct payment of the judgment in accord with the 22 contingent fee contracts and that Cooper v. Singer, supra, be ruled not to apply retrospectively. Following a hearing, the district court filed its Memorandum and Order on March 12, 1985, denying Paup’s motion and in pertinent part stated:
The amount of the fee awarded to Paup in 1982 [class action award] was less than the amount [by some $1.1 million] Paup would have received ... pursuant to the terms of his attorney/client fee agreement_ [T]here is a disagreement [between the parties] as to whether the rules announced in Cooper should be applied to this case. Simply stated, the Court in Cooper held “that if the ... fee award, calculated as set forth in Hensley v. Eckerhart [461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)], supra, and Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983) (on fee award) is less than the amount owed to the attorney under the contingent fee agreement, then the lawyer will be expected to reduce his fee to the amount awarded by the courts.... On the other hand, if the fee award is greater than the amount owed to the attorney under the contingent fee agreement, then the attorney shall be entitled to the full amount of the fee award.” Cooper, supra, at 1506-07.
Paup contends that the Cooper rule should only be applied prospectively, citing Chevron Oil Company v. Huson, 404 U.S. 97 [92 S.Ct. 349, 30 L.Ed.2d 296] (1971), for the proposition of “nonretro-active application of judicial decisions.” Plaintiffs refute this contention by arguing that Cooper should be applied in a retroactive manner because Paup has failed to demonstrate] the facts of this case fall into the three-part test established in Chevron Oil. On this basis, the plaintiffs argue that the “Cooper rule would require Paup to accept the Court’s earlier award of attorneys fees in full satisfaction of all fees owed to him” and thus would abrogate the “fee contracts that he has with numerous class members.”
In addition the 22 plaintiffs contend that Cooper is not a new policy but merely clarifies an existing policy of denying windfalls to attorneys who represent successful Civil Rights claimants.
We have studied the briefs of the parties and find and determine:
1. That Cooper is not a statement of new law. It is a reassertion of the rule that where the law permits the assessment of fees against a party in a case, that
a) the Court may determine the amount of the reasonableness of the fee to be allowed;
b) that unless such sum allowed is inadequate or unreasonable the parties are bound by such ruling; and
c) that by seeking such a reasonable fee allowance the parties have waived any claim for the allowance of fees other than the amount as determined by the Court to be reasonable.
The Court finds and determines that the above rule complies with the intent and spirit of the Civil Rights enforced in this action.
The Court further finds that the fees allowed in this case are fair and reasonable and are in full satisfaction of all fees which have been claimed for representation of the class in this action.
The Paup motion to direct payment of the additional fees in accordance with the attorney/client fee contracts is Denied.
(R., Vol. I, pp. 268-72.)
On February 25, 1985, prior to the district court’s Memorandum and Order, supra, the court conducted a hearing on Paup’s motion. Although the contingent fee clients of Paup did resist the payment of fees in excess of those awarded by the court for class representation, all parties at the February 25th hearing stipulated-agreed that Paup’s contingent fee contracts were reasonable both at the time they were entered into and at the time of the hearing measured by fees then charged by those engaged in the practice of law in Kansas and, further, that Paup’s clients entered into the contracts freely, willingly and knowingly. (R., Vol. Ill, pp. 14-16.) The sole basis of the contingent fee clients’ objection was that the contingent fee award was in excess of the court’s class action award. {Id., pp. 16-19.)
Opinion
There is no evidence in the record before us that the contingent fee contracts at issue were entered into other than by arms length, honest dealings. The contracts were, as represented to the trial court, entered into freely and knowingly; furthermore, the parties agreed that the contingent fees were reasonable under the prevailing rates of charges by those engaged in the practice of law in Kansas. Accordingly, we shall not, on appeal, consider for the first time contentions challenging the reasonableness of the contingent fees set forth in the contracts. Neu v. Grant, 548 F.2d 281, 287 (10th Cir.1977). Thus, the issue for our resolution is one of law.
In Cooper v. Singer, supra, we recognized, inter-alia, that: “The legislative history does not discuss the impact of an attorney-client fee arrangement on a section 1988 fee award,” id. at 1498; “Johnson [Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974)] thus suggests that the essential inquiry in setting fee awards is reasonableness, regardless of any attorney-client fee arrangements.” Id. at 1499. “Taken together, Johnson and the three cases applying the Johnson factors provide useful but limited guidance on the relationship of a contingent fee award to a section 1988 attorney’s fee award,” and “[t]hus, the Senate Report’s allusion to these cases does not give us a clear indication of congressional intent,” and “we are not surprised that the circuit courts have failed to obtain uniform results in determining the effect of a contingent fee agreement on an attorney’s fee award,” but “we believe that the Supreme Court’s decision in Hensley v. Eckerhart, [461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)], has substantially clarified the issue. In Hensley ... the Supreme Court held that a prevailing party’s section 1988 fee award must be calculated in relation to the degree of success obtained_ Reasonableness provides the benchmark [focusing on the significance of the overall relief obtained in relation to the hours reasonably expended on the litigation] for calculating the award.” Id. at 1500.
“We are inclined to believe that Congress expected section 1988 fee awards to fulfill the client’s fee obligation to his attorney. The legislative history on this issue is sparse; nevertheless, it seems to imply that the fee award should fully define the attorney’s right to compensation.” Id. at 1504. “The issue then is not whether we can restrict a client’s fee obligation in light of the apparent congressional intent of section 1988; rather, the issue is whether we should.” Id. at 1505.
Based upon the above quotations from our Cooper en banc decision, we must respectfully disagree with the district court’s finding that Cooper is not a statement of new law. The en banc opinion consistently pointed to the lack of specific, articulate Congressional guidance in the realm of legislative history, the conflicts between the circuits, and an acknowledgment that this court “should” resolve the issue whether a client’s fee obligation should be restricted to less than that reflected by the contingent fee agreement. Cooper v. Singer was a statement of new law in this circuit. It announced a rule of first impression which was not foreseeable.
Assuming that Cooper v. Singer would require the reduction of the award to Paup from the agreed-to contingent fee percentages contained in the 22 contracts with his clients to the fees determined to be reasonable and allowable in the class action as found by the district court, it can only be so if held to apply retrospectively, as determined by the district court.
Applying the guidelines of Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), we hold that Cooper v. Singer does not apply retrospectively.
Chevron employed a three-prong analysis in the determination whether a judicial decision should be applied retrospectively or prospectively. The Court said:
In our cases dealing with the nonre-troactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied [citation omitted], or by deciding an issue of first impression whose resolution was not clearly foreshadowed [citation omitted]. Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ [Citation omitted.] Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ [Citation omitted.]
404 U.S. at pp. 106-07, 92 S.Ct. at 355.
In relation to the first prong, that Cooper v. Singer did indeed announce a new rule of law deciding an issue of first impression which was not clearly foreshadowed. We are not persuaded by the argument that because the courts have always had the power to supervise contingent fee agreements and to determine their reasonableness under the canons of ethics, Cooper v. Singer does not establish a new rule of law. Our research discloses that Cooper v. Singer seems to be the only opinion holding that a fee shifting award entered by the district court under 42 U.S.C. § 2000e-5(k) constitutes the only “reasonable” fee allowable to an attorney who has contracted with his client under a contingent fee agreement. In Dunn v. H.K. Porter, 602 F.2d 1105 (3rd Cir.1979), the court, while recognizing that when a contingent fee contract is to be satisfied from a settlement fund approved by the trial court pursuant to Rule 23(a), Fed.R.Civ.P., held that there is a compelling necessity to review the reasonableness of fee arrangements by examination of factors beyond the four corners of the contract in order to protect the interests of class members. Where, however, the contingent fee contract is found to meet the “reasonableness” test and was entered into between the attorney and his client (later a class action plaintiff) prior to the litigation, the court opined:
[T]he considerations stressed above argue in favor of deference to the parties’ contractual arrangement. The strong judicial reluctance to enforce the terms of a judicially fashioned bargain upon the parties now presses in favor of honoring the express terms of the fee agreement. The equities are also altered. If the client has entered the contract freely and advisedly, his claim of unfairness is reduced in force. The risk of unfairness to the attorney, in contrast, is sharply increased. For it cannot be said that the attorney is receiving more than he bargained for at the outset of litigation.... We therefore believe that the courts should be loathe to intrude into a contractual relationship between an attorney and client, and that a comparison between the contractual fee and the Lindy (class action) fee, whose method of calculation is designed to meet very different needs, is an inappropriate ground for invalidation of a contingent fee arrangement. Indeed, to allow such a comparison to be the sole basis for voiding an otherwise legitimate contract would require invalidating contingent fee contracts as per se unreasonable whenever damage awards reach large amounts. This, we believe, would be inconsistent with the Canons of Ethics and relevant case law.
602 F.2d at pp. 1111-12.
Other circuit court opinions have held contra to Cooper. Thus, it cannot be said other than that Cooper announced a new rule of law deciding an issue of first impression. In Hamner v. Rios, 769 F.2d 1404 (9th Cir.1985), the court rejected our Cooper rule which limited a § 1988 award to the statutory fee, relying on Pharr v. Housing Authority, 704 F.2d 1216 (11th Cir.1983) which held that when a prevailing party and his attorney have fairly contracted to reach a contingent fee, the agreement should be enforced if reasonable. The Hamner court observed, inter-alia: “Contingent fee agreements enable plaintiffs with meritorious claims but limited finances to obtain counsel, and they are set to account for the risk of nonrecovery. If attorneys begin to view statutory fees in civil rights cases as inadequate, use of the statutory award as a ceiling on fees could lead to a reluctance to represent civil rights plaintiffs, thus frustrating the intent of Congress.” Hamner, 769 F.2d at 1409. In Sullivan v. Crown Paper Bd. Co., Inc., 719 F.2d 667 (3rd Cir.1983) the court held that a contingent fee agreement should be enforced even if greater than the § 1988 statutory fee, and plaintiff would be directed to pay counsel the difference between the statutory award and the contingent fee. Hamner and Sullivan specifically rejected our Cooper rule.
We agree with Paup’s argument that our Cooper opinion represents “a statement of future operating procedure within this circuit [rather] than an ‘across-the-board’ decision intended to bar the enforcement of contingent fee agreements entered into over thirteen years ago.... [T]he opinion ... anticipated what might happen on remand and set down guidelines to be applied in order to avoid what the court believed to be a possible problem if the attorneys in that case [Cooper ] were to receive both the statutory fee award and the percentage of the award provided by their contract. This is a far cry from the result in this case if this Court refuses to apply Chevron and abrogates a contingent fee contract which applies to both the client’s statutory fee award and the back pay award equally.” (Brief of Appellant, pp. 18, 19.)
Next, we consider the second prong of Chevron, i.e., weighing the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. In Cooper, we recognized that impact of the rule announced would require careful attention by lawyers in the future:
We believe that by careful adherence to the professional codes and strict attention to congressional intent, lawyers can draft fee agreements that will eliminate the conflicts between section 1988 fee awards and client fee obligations. In light of our statements, we expect that lawyers practicing before the district courts of our circuit will do so and thereby avoid the need for courts to step in and rectify conflicts on an individual basis.
719 F.2d at 1506. Furthermore, we recognized that judges “[a]re not capable of prognosticating with certainty the actual impact of a fee award ceiling,” id. at 1503 (footnote omitted) on civil rights litigation. Uncertainty of impact weighs heavily against retrospective application of the new rule announced in Cooper.
Finally, we consider the third prong of Chevron, i.e., whether the retroactive application of the Cooper rule will impose injustice or hardship which should be avoided. Based on the record before us, we conclude that to apply the Cooper rule retroactively would work a substantial injustice on Paup. We repeat that the contingent fee contracts were freely, willingly and knowingly entered into prior to the litigation; further, that the parties agreed that the contingent fees set forth in the contracts were fair and reasonable when entered into and currently based upon fee rates of those members of the legal profession practicing in the State of Kansas. Thus, the contingent fee percentages involved in the Paup contracts with the 22 client class members do not result in a “windfall” for Paup as cautioned in Cooper. 719 F.2d at 1499. This is so because the fee arrangement contracts provide that any statutory award of attorney’s fee will be added to any other monetary award and the specified contingent fee percentages will apply to the total amount awarded. Thus, there is no “windfall.” Further, in terms of reliance, there can be no doubt that contingent fee contracts such as those involved here were commonly entered into and relied upon by attorneys and their clients. Therefore, the three-prong analysis of Chevron Oil Company v. Huson leads us to hold that Cooper v. Singer should be applied prospectively.
In summary, the undisputed facts are that: the contingent fee contracts were freely and knowingly entered into between Paup and the 22 clients prior to initiation of the litigation in 1972; Paup performed excellently as lead counsel in this extremely prolonged, complex litigation; the contingent fee awards were stipulated between all parties to be reasonable both at the date of the contracts and at the date of the hearings before the district court; and the degree of success, in terms of results achieved on behalf of the plaintiffs, was overwhelming. Considering these facts, our research reveals other decisions which support our analysis in this case.
In Sargeant v. Sharp, 579 F.2d 645 (1st Cir.1978), the court held that the existence of a contingent fee arrangement was not, in itself, a special circumstance rendering an award of attorney fees unjust, and unless the court finds such circumstances, it may not deny such fees. In Farmington Dowell Products Co. v. Forster Mfg. Co., 436 F.2d 699 (1st Cir.1970), the court held that the fact that a treble damage antitrust plaintiff freely acquiesced in a fee agreement was relevant, but not absolutely controlling, in determining whether the agreed upon attorney fee was permissible under the Code of Professional Responsibility. The court pointed out that factors to be considered were the complexity of problems, quality of work, the difficulties encountered, the length of the litigation, and the results obtained in determining, under the Code, “[w]hat amount it is ethical to receive, not at what share it is ethical to agree upon.” 436 F.2d at 701. And in Palmer v. Shultz, 594 F.Supp. 433 (D.D.C.1984), the court, citing to Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ruled that in making an award of attorney fees in civil rights litigation, the focus is upon the complexity of the litigation, the skill, experience and reputation of the attorney, and the prevailing community rate for the type of work done in arriving at the “market value” which the court referred to as “the touchstone of the fee inquiry.” Id. at 437.
Hensley v. Eckerhart, supra, emphasized that a § 1988 fee award should be particularly calculated upon the degree of success obtained and that excellent results warrant a full compensatory fee. See also, Vinyard v. King, 728 F.2d 428 (10th Cir.1984); Miller v. City of Mission, Kansas, 705 F.2d 368 (10th Cir.1983).
When the district court entered its attorneys’ fee award on December 1, 1982, neither the court nor counsel had the benefit and guidance of Hensley, supra, or Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983).
Mr. Paup pursued this complex, difficult litigation as lead counsel over a period of some thirteen years. He performed diligently and skillfully. He represented clients with limited finances. He assumed the risk of nonrecovery in prolonged, combative litigation. Under all of the circumstances, the contingent fee contracts were reasonable. The results achieved by Mr. Paup on behalf of his fee arrangement clients (and on behalf of the entire class) were overwhelmingly successful, resisted by competent counsel.
We REVERSE and REMAND with instruction that Paup be awarded attorney fees in accordance with his attorney-client contingent fee contracts.
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
TURNER v. UNITED STATES.
Nos. 6288, 6294.
United States Court of Appeals Fourth Circuit.
Argued Oct. 5, 1951.
Decided Nov. 5, 1951.
C. Carter Lee, Rocky Mount, Va., for appellant.
R. Roy Rush, Asst. U. S. Atty., Roanoke, Va. (Howard C. Gilmer, Jr., U. S. Atty., Roanoke, Va., on the brief), for appellee.
Before SOPER, and DOBIE, Circuit Judges, and HUTCHESON, District Judge.
SOPER, Circuit Judge.
These appeals grow out of an indictment of Fred Edward Turner, in two counts, for unlawfully removing and unlawfully concealing one gallon of distilled spirits on which the tax had not been paid in violation of Section 2913 of the Internal Revenue Code, 26 U.S.C.A. § 2913; and also a libel filed against an automobile pick-up truck belonging to Turner which was seized by revenue officers of the United States under Section 3321 of the Internal Revenue Code, 26 U.S.C.A. § 3321, on the ground that it was used for the unlawful removal and concealment described in the indictment, with intent to defraud the United States of the tax. The cases were tried together before the District Judge, without a jury, and resulted in a verdict of not guilty of removal, under the first count, but guilty of concealment, under the second count of the indictment, and a sentence of six months’ imprisonment and a fine of $200; and also in a judgment of forfeiture of the automobile truck in the companion case. The sole question is whether these judgments were justified by the findings of fact which are not in dispute.
On February 4, 1951, in the daytime, two officers of the Alcohol Tax Unit, together with a state officer, were making investigations in Floyd County, Virginia. As they approached a country store they saw the automobile truck in question parked off the road near the store. One of the federal officers recognized Turner sitting at the wheel with three other young men in the cab of the truck. Knowing that Turner had a record for violation of the liquor laws, the officers turned their car around and came back and stopped beside the truck. One officer opened the door of the cab and saw a one-half gallon fruit jar full of illicit whisky on the floor at Turner’s feet. The other men were Harold Allen, a soldier on leave, and his two brothers. Three of the men, including Turner, had been drinking and were intoxicated. As the three Allen men descended from the cab the officers saw another half gallon jar of illicit whisky on the seat. Some of the whisky from this jar had been consumed. In the front compartment of the cab there was a pint bottle with less than an ounce of whisky in it. Harold Allen claimed the whisky as his own and stated that the officers could not do anything to him since he was in the army.
Earlier in the morning Harold Allen procured the two one-half gallon jars of whisky from an unknown source in the woods and brought them with him to the store, and finding no one in the truck placed the jars in the cab and went into the store where he met Turner and his two brothers who had come to the store with Turner in the truck. He invited the three of them to go to the truck and have a drink. They accepted the invitation and went to the truck. When Turner saw the liquor he said that they would have to get it out of the truck. However, he and the others continued to sit in the truck and drank the whisky for about one-half an hour until the officers arrived. During this period the truck was not moved.
Upon these facts the prosecution contends that the purpose of the participants in the incident was concealment which Turner aided and abetted, because the owner of the liquor placed it out of sight in the cab of the unattended truck when he emerged from the woods, knowing that the truck belonged to a friend, and because Turner, while expressing the desire that the whisky be removed from the truck, nevertheless countenanced the transaction by entering the vehicle and permitting it to be used by his friends while he and they enjoyed the whisky.
This argument in our opinion is not convincing. The circumstances under which the liquor was placed in the truck and was being used at the time of the seizure seem to us to be quite inconsistent with the idea of concealment. Had Turner and his friends been intent upon concealment, they would have hardly crowded together on the front seat of the cab and openly drunk from the half gallon jar in broad daylight in view of passers by on a public road. It is undisputed that the soldier on leave had procured the liquor to celebrate his homecoming; that he placed it in the truck without Turner’s knowledge, and that there was no intention on any one’s part to use the truck to transport the whisky. It is hardly reasonable to base an inference of an intent to conceal the liquor or a finding of actual concealment by Turner upon his acquiescence in the use of his truck for a drinking bout with three boon companions, especially as the celebration went on in public for a half hour, during which the actions of the men in drinking from the jar must have been plainly visible, and the jar was used so frequently that three of the men, including Turner, were quite drunk when they were arrested. Our conclusion is that in each case the judgment must be reversed and the case remanded for further proceedings consistent with this opinion. See Vandevander v. United States, 5 Cir., 172 F.2d 100.
Reversed and remanded.
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 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
CHESAPEAKE & O. RY. CO. v. CLAYTON & LAMBERT MFG. CO.
No. 11169.
United States Court of Appeals Sixth Circuit.
April 13, 1951.
LeWright Browning, Ashland, Ky., Le-Wright Browning, of Ashland, Ky., on brief; Browning & Gray, Ashland, Ky., of counsel, for appellant.
W. H. Dysard, Ashland, Ky., W. H. Dysard, of Ashland, Ky., on brief; Dysard & Dysard, Ashland, Ky., of counsel, for appellee.
Before SIMONS, MARTIN and MILLER, Circuit Judges.
MILLER, Circuit Judge.
Appellant, The Chesapeake and Ohio Railway Company, brought this action in the State court to enforce contribution from the appellee, Clayton & Lambert Manufacturing' Company, as an alleged joint tort-feasor, under the provisions of Kentucky Revised Statutes, § 412.030. It was removed to the U. S. District Court, and, following a hearing, was dismissed by the District Judge.
Appellee, a manufacturing company in Detroit, Michigan, entered into certain contracts whereby it undertook the manufacture and production of ordnance material for the United States Navy. By agreement dated May 22, 1942, it leased from the American Rolling Mill 'Company, hereinafter referred to as Armco, a large steel plant west of Ashland, Kentucky, for use in the performance of these contracts. This plant was situated between the tracks and right of way of the appellant and the Ohio River, with the right of way paralleling the property on the south. The appellant operated three main line tracks, over which during the times involved there was an average movement of 120 trains during each 24-hour period. U.S.Route No. 23 was immediately south of and parallel with the tracks and right of way.
By the terms of the above agreement Armco obligated itself to provide a right of way between the leased premises and U. S. Highway No. 23, which access road would cross the appellant’s property and track at the location of an existing private crossing which Armco had the right to use. Armco requested the appellant to put the private crossing in condition for the contemplated use, but because of the proximity of the crossing to certain block signals on the tracks, with resulting traffic complications, it was suggested by the appellant that the proposed crossing be located at a point approximately 1,250 feet west of the existing crossing. The appellant agreed that if the suggested change was made it would construct at its own expense the proposed new .crossing together with a roadway from the original location to the proposed location. The suggested change was approved by Armco. The new private crossing and access road were completed on February 23, 1943. The appellee commenced operations in the leased, plant in May 1943.
The new crossing was used almost exclusively by officials and employees of the appellee and persons transacting business with it. By an understanding between appellee and the Blue Ribbon Lines, a common carrier by bus, motor buses were operated by the Bus Company between Ash-land and the plant, approximately 40 buses per day passing over the crossing. After the plant operation reached its capacity the number of persons employed there was between 1,500 and 2,500, approximately all of' whom passed over the crossing daily, on foot, or in private motor vehicles, or in buses. Following the beginning of the plant operations, complaints concerning the absence of protective devices at the crossing began to be made to the appellee, who relayed them to the appellant. At first the Bus Company declined to go over the crossing, but later upon demand of the Office of Defense Transportation, at the instance of the appellee, provided service over the crossing, access road, and up to the plant. The appellee ascertained that the Navy would pay for crossing protection, and after conferring with the appellant, an agreement was reached on October 5, 1943 under which such crossing protection would be furnished by appellant through its employees 24 hours per day, with appellee reimbursing appellant for the expense at a rate not to exceed $400 per month. This agreement was later reduced to formal contract form dated November 12, 1943, terminable by either party upon thirty days’ notice in writing by which the appellant licensed and permitted the use of its private roadway as a means of ingress and egress to and from the Armco property.
Watchman service was installed at the crossing on November 16, 1943. The watchmen were employees of the appellant and were selected, supervised and controlled by it. Their names were not given to the appellee. The appellee had no control over the watchmen as to how they would accomplish their work or otherwise. The monthly bills for the amount of wages paid by appellant were presented to and paid by the appellee. The bills contained a 10% supervision and accounting charge.
At 6:32 a. m. on January 10, 1945, a motor bus of the Blue Ribbon Lines, carrying at least 60 employees as passengers, and an engine and caboose, being operated by the appellant, collided at the crossing. Two of the passengers sustained injuries from which death subsequently resulted and other occupants sustained personal injuries of varying extent. Thereafter damage suits were filed in the State court against the appellant and the operator of the Blue Ribbon Lines. One suit went to trial and judgment. The suits and other claims for personal injuries were based upon alleged joint and concurring negligence of the watchman on duty at the crossing, of the employees in charge of the train, and of the driver of the bus. The suits and claims were settled by the appellant and the Blue Ribbon Lines, the appellants paying $42,-753.67 in doing so.
The stipulation states that the settlements by the appellant were made in good faith, in accordance with compromise agreements, and were reasonable in amount. Appellant had advised appellee at the time of the accident that in its opinion appellee would be liable for contribution in connection with any loss which appellant might sustain as a result of the accident. Demand for such contribution was later made, and following refusal of appellee to so contribute, appellant filed this action for $21,376.83, being 50% of the amount so expended by it.
At common law there was no right of action for contribution between joint tortfeasors, who were in pari delicto. This common law rule was changed by legislative act in Kentucky, formerly § 484(a) Kentucky Statutes, now carried as § 412.030 Kentucky Revised Statutes, reading — “Contribution among wrongdoers may be enforced where the wrong is a mere act of negligence and involves no moral turpitude.” Under the statute, if the amounts paid by a wrongdoer are paid pursuant to compromises, made honestly and in good faith, a prima facie right to contribution is established, with the legal right in the other to show the non-existence of liability or the absence of a good faith, reasonable settlement. However, a joint tort-feasor can not enforce contribution of another against whom the person injured by the tort has no cause of action. Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086. In order for appellant to enforce contribution in the present case, it must show that the injured passengers had a cause of action against the appellee. Obviously, the appellee was not chargeable with the negligent operation of the bus or with the negligent operation of the engine and caboose, and any liability upon its part would have to arise out of a failure on its part to properly protect the crossing, which in turn would necessarily rest upon a duty to so protect the crossing. Unless such a duty is established, appellant’s case fails.
The District Judge, in dismissing the action, was of the opinion that the case turned solely upon the one proposition, whether appellee owed its employees a duty to see them safely across the railroad tracks in going to and coming from their employment, which duty would have to be based upon the law >of master and servant, which requires the master to furnish the servant a reasonably safe place to work. He ruled that the “safe place to work” doctrine did not extend to the employees riding to work in a public bus on a roadway and railway crossing at such a distance from the employer’s plant, and that appellee was accordingly not a joint tort-feasor from whom contribution could be enforced. On this appeal, appellant concedes that the “safe place to work” rule has no application, but contends that the District Court based its ruling upon a non-existent issue.
The case is argued to us on a different and independent theory. Appellant contends that the appellee, having provided this crossing as the sole means of ingress and egress to and from its plant, thus inviting its employees and other business visitors to use such crossing, was obligated to exercise ordinary care for the safety of such invitees, including their safety while using the crossing; that this duty was a nondelegable duty; and that the appellee was responsible for the negligence of the agency chosen by it to perform this duty. It concedes that the appellant was liable for the negligent act of the watchman, who was its employee, but contends that the responsibility for the conduct of the watchmen was a joint responsibility, thus giving rise to the liability of both appellant and appellee as joint tort-feasors.
Appellant cites a number of Kentucky decisions and other authorities holding that the owner or occupant of property owes to an invitee or business visitor the duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. The rule is well settled, but as so stated and as usually applied it refers to hazards existing on the property itself, such as slippery floors, or defective stairs, or escaping gas, encountered by the invitee after he has entered onto the property. The rule in its general application does not cover hazards encountered by the invitee on the street or highway, even though adjacent thereto, in attempting to reach the. property and before entrance thereon. Gates v. Kuchle, 281 Ky. 13, 134 S.W.2d 1002; Gabriel v. Bank of Italy, 204 Cal. 244, 267 P. 544, 58 A.L.R. 1039. The cases cited are not applicable to the precise question now before us.
Appellant submits several theories upon which such joint liability exists. It contends that the crossing was a private crossing, imposing no duty upon the railroad company, under the general rule in Kentucky, to install or maintain any crossing safeguards, such as gates, lights, bells or watchmen, Stull’s Adm’x v. Kentucky Traction & T. Co., 172 Ky. 650, 189 S.W. 721; Chesapeake & O. Ry. Co. v. Hunter’s Adm’r, 170 Ky. 4, 185 S.W. 140; Dietz’ Adm’x v. Cincinnati N. O. & T. P. Ry. Co., 296 Ky. 279, 176 S.W.2d 699, and that the duty to guard such a private crossing, which was the sole means of ingress and egress to the plant, was upon the appellee; that the appellee as the dominant owner and user of the easement over a private crossing had the duty to maintain it in a safe traveling condition; Spalding v. Louisville & N. R. Co., 281 Ky. 357, 136 S.W.2d 1; that the arrangement under which watchman service was provided was a joint undertaking of both appellant and appellee; Blair v. Durham, 6 Cir., 134 F.2d 729; Hathaway v. Porter Royalty Pool, Inc., 296 Mich. 90, 295 N.W. 571, 138 A.L.R. 955 (with opinion by Judge McAllister, now a member of this Court); that the duty to protect the crossing was a non-delegable duty which was not discharged by the employment of some one else to perform it; Lauer v. Palms, 129 Mich. 671, 89 N.W. 694, 58 L.R.A. 67; Restatement, Torts. Sec. 877; that the watchman at the time of the accident was acting as the agent of the appellee, although he was employed by and paid by the appellant; Louisville, H. & St. L. Ry. Co. v. Illinois Central R. Co., 93 S. W. 4, 29 Ky.L.Rep. 265; Schulte v. Louisville & N. R. Co., 128 Ky. 627, 108 S.W. 941. There may or may not be merit in some of these contentions, when applied to the exact facts of this case, but under our view of the case they become immaterial.
We are of the opinion that liability on the part of the appellee to the injured 'parties, even if established, would not entitle appellant to the contribution from appellee which it now seeks. The Kentucky statute changed the general common law rule which barred contribution between joint tort-feasors who were in pari delicto, but it made no change in the exception to that general rule which allowed the right of indemnity where the person seeking it and the person from whom it was sought were not in pari delicto, as where the party who was compelled to pay the damages was less culpable than the other wrongdoer, although both were equally liable to the person injured. Under that exception to the general rule, the party who was the active wrongdoer or primarily negligent could be compelled to make good to the one secondarily liable any loss he sustained. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165; Middlesboro Home Telephone Co. v. Louisville & N. R. Co., 214 Ky. 822, 284 S.W. 104; Washington Gas Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712. In the present case, the contract between the appellant and the appellee imposed upon the appellant the primary duty of safeguarding the crossing. The ap- . pellee had no participation in the selection, employment, or supervision of the watchmen employed by the appellant and assigned by it to the performance of this duty. The accident was not the result of any act on the part of appellee. As between the appellant-and appellee, the appellant was the active wrongdoer; the appellee being con- . structively liable, if at all, by operation of a rule of law. If appellee had been required to pay a judgment it would have a • right of indemnity for the full amount so paid against the appellant. Such a right necessarily negatives a right of contribution against it.
The judgment of the district Court is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_constit | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America ex rel. Silvio DE VITA, Appellant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey, Respondent.
No. 11399.
United States Court of Appeals Third Circuit.
Argued Oct. 8, 1954.
Decided Nov. 19, 1954.
Isadore Glauberman, Jersey City, N. J., for appellant.
Charles V. Webb, Jr., Newark, N. J., C. William Caruso, Newark, N. J., on the brief, for respondent.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Petitioner and Joseph Grillo had been convicted in a New Jersey state court of first degree murder arising out of an armed robbery. Since there had been no recommendation for mercy by the jury, under the state law the convictions carried mandatory death sentences. A third participant had also been found guilty of murder but as to him a jury recommendation of mercy had resulted in a life sentence.
On the particular phase of the case with which we are here- concerned there had been an application to the state court for a new trial which had been denied. The state supreme court affirmed'that, decision on June 28, 1954. Some time thereafter execution of appellant and Grillo was set for the week of August 15, 1954. During the interval the attorneys who had represented them withdrew from such representation. Appellant’s present attprneys came into the matter August 12,1954, a Thursday. On the next day on behalf of appellant, they made three separate applications to Justices Black, Jackson and Clark for a stay of execution pending application for .certiorari. They .were advised Saturday of the refusal, bf the ápplications. Sunday intervened and. the following day, Monday, they appeared before the district judge on duty at Newark seeking an order directing appellee to show cause why a writ of habeas corpus should not be granted. At that time while a definite day and time for the executions had not as yet been announced counsel expected that they might occur the next day, Tuesday. Under the circumstances the coming into the federal court was entirely proper. To wait until steps could be taken to exhaust the remedy of a formal petition for certiorari would have rendered the federal habeas corpus “process ineffective to protect the rights of the prisoner” as is stated in the alternative clause of the governing statute, 28 U.S.C. § 2254. Appellant and Grillo would have both been dead long since. See. Thomas v. Teets, 9 Cir., 1953, 205 F.2d 236, certiorari denied 346 U.S. 910, 74 S.Ct. 240; United States ex rel. Jackson v. Ruthazer, 2 Cir., 1950, 181 F.2d 588, certiorari denied 339 U.S. 980, 70 S.Ct. 1027, 94 L.Ed. 1384.
There had been no prior application for habeas corpus to the district court on the grounds alleged in the petition. Those grounds were that a trial juror’s fraudulent concealment on voir dire of allegedly disqualifying facts and his untruthful answers with respect thereto indicated such bias and prejudice on his part that DeVita was deprived of a fair trial by an impartial jury contrary to the Fourteenth Amendment of the Federal Constitution. The facts so concealed or. falsified were stated to be that the juror had himself been a victim of a strikingly similar armed robbery within a'.year., of. the trial and that as a result he knew a number of detectives who it is strongly inferred were from the same specialized field of criminal investigation in the municipality which had been .the locale of both offenses.
While, ás will, be seen, examination of the'merits of petitioner’s allegations is not now indicated it should be noted that a primary defense trial objective for all three defendants had been to obtain a jury recommendation of life imprisonment.
As has been stated the petition was filed in the district court August 16, 1954 and application for the writ or a rule to show cause why it should not be issued was made to the sitting district judge that same day. After presentation by counsel the district judge declared a recess. That same afternoon he returned to the bench and read his written decision. In it he stated that the court conceived the Supreme Court opinion in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, “to be the leading case on the problem with which the court is presented now, * * He then said:
“In the Brown v. Allen case the Supreme Court said, ‘Application to district courts on grounds determined adversely to the applicant by the state court should result in a refusal of the writ without more if the court is satisfied by the record that the slate process has given fair consideration to the issues and the offered evidence and has resulted in a satisfactory conclusion.’ ” (Emphasis supplied.)
He further stated:
“Now, the only record which the Court has before it now is the opinion which Mr. Glauberman was good enough to give me, written by Justice Burling.” (Emphasis supplied.)
The court concluded from the above that:
“ * * * my primary consideration in this application, Mr. Glauberman and Mr. Alper, is to see whether state process has given fair consideration to the issues presented here, * * *.” (Emphasis supplied.)
Thereafter the district judge for four typewritten pages quoted from the state court opinion and, quite obviously convinced by that language, stated:
“So it is quite apparent that the court did give ample and full consideration to the question which you now raise here, and under Brown versus Allen it is clear what my duty is under the circumstances * * *
•*****•»
“Therefore, I shall have to deny the writ peremptorily, * * (Emphasis supplied.)
Further on in the opinion the district judge remarked that the state courts “have much more time to consider thp merits that you have raised before me than this court has. I realize the peremptory job that I have so I must dispose of it peremptorily and courageously as is my duty.” (Emphasis supplied.)
At the end of his opinion the judge said he would allow a certificate of probable cause and in his order dismissing the petition appears the following: “ * * -» probable cause for appeal is hereby certified.”
Both sides agree that the Brown v. Allen doctrine was controlling in the district court. We are in accord with that theory.
The underlying facts are simple. The district judge made no attempt to dispose of the petition as insufficient on its face or absent the “record”. See Mr. Justice Frankfurter’s separate opinion in Brown v. Allen, supra, 344 U.S. at page 502, 73 S.Ct. 443, and Mr. Justice Jackson’s concurrence, 344 U.S. at page 647, 73 S.Ct. 430. Cf. Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830. Specifically he examined what he accepted as the state court record in the DeVita case or a substitute therefor but which unfortunately consisted solely of the opinion in that proceeding. In his opinion above referred to he makes it plain that he intended to and believed he had in fact considered the merits of the application. What he did actually was to examine the opinion and from that satisfy himself that the state court had given fair consideration to the issues raised by the petition as Brown v. Allen requires and that it had arrived at the satisfactory conclusion made necessary by the same decision. That the district judge regarded the petition as raising a substantial question or questions is further evidenced by his certification of the action as possessing probable cause for appeal. Appellee argues that this was motivated by the heart rather than the head. Though of no moment in the face of the solemn certification for appeal it is difficult to adopt such construction in the light of the judge's comment immediately prior to his allowance of the certificate in which he decried the cruelty of constant stays in capital cases where there had been convictions.
The state court opinion on which the district judge completely relied was not the “record” alluded to in Brown v. Allen, supra. Footnote 19, 344 U.S. at page 464, 73 S.Ct. at page 411, to that opinion makes this evident. The first sentence of that comprehensive exposition of just what the “record” means reads:
“When an application for habeas corpus by a state prisoner is filed in a federal district court after the exhaustion of state remedies, including a certiorari to this Court, it rests on a record that was made in the applicant’s effort to secure relief through the state from imprisonment, allegedly in violation of federal constitutional rights.”
The final sentence of the footnote states:
“If useful records of prior litigation are difficult to secure or unobtainable, the District Court may find it necessary or desirable to hold limited hearings to supply them where the allegations of the application for habeas corpus state adequate grounds for relief.”
And see Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 869-870, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003; United States ex rel. Holly v. Commonwealth of Pennsylvania, D.C.W.D.Pa.1948, 81 F.Supp. 861, 864, 871, affirmed 3 Cir., 1949, 174 F.2d 480.
The state court opinion does refer to certain evidence and does draw certain factual and legal conclusions therefrom. But without ever seeing the transcript of the state trial it is not enough to take that opinion as the record and from it adjudge that “ * * * the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion.” Brown v. Allen, supra, 344 U.S. at page 463, 73 S.Ct. at page 410. Since the district judge conscientiously construed it his duty to examine the state court record he should have made sure that it was produced before him and, after studying the entire record, should have determined whether the state court had given fair consideration to the issues raised by the petition and had arrived at a satisfactory conclusion thereon. On appeal, with the original record before us, we would be in a position to pass upon the merits.
In the instant situation where the district judge thought it necessary to inquire into the merits of the application but apparently felt himself so circumscribed by the time element that he rendered his decision on the basis of what he had then before him of the state court proceedings, namely, the state court opinion alone, we think it sound law and good practice that this case be remanded to the district court for proper examination of the state court, record on which it is based.
In United States ex rel. McLeod v. Garfinkel, 202 F.2d 392 we reversed the district court’s denial of a writ for habeas corpus because the determination was founded on evidence not before the court. We remanded the cause for further proceedings. In the appeal at bar the finding of the district judge that the state court had given fair consideration to the particular issues raised by the petition and to the evidence connected with these issues and had reached a satisfactory conclusion was not founded on any original evidence at all for there was none before the court. In United States ex rel. Thompson v. Dye, 3 Cir., 208 F.2d 565, 566, after hearing the district judge declined to issue a writ. We reversed and remanded because he had made no finding as to which of the accounts he believed saying “the omitted finding goes to the very essence of the complaint of fundamental unfairness.”
It might be that even in the existent circumstances if the petition on its face were frivolous or patently without justification we could so declare it but we do not so find. Nor do we find any abuse of discretion in the district judge’s decision to investigate the merits of the petition. See Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392; Baker v. Ellis, 5 Cir., 1952, 194 F.2d 865.
Irrespective of the offenses for which they were convicted, DeVita and Grillo were not only entitled to a fair trial on their guilt or innocence but on the all important specific issue of a mercy recommendation by the jury which if given meant their lives would be spared. Since it is alleged that petitioner was tried by a jury that was not impartial on this issue and since the district judge decided without abuse of his discretion to investigate the merits of the application, it is the letter and the spirit of the Fourteenth Amendment that either the original state court record be itself carefully scrutinized or a hearing he held before any conclusion as to the alleged fundamental unfairness of the state court trial is reached. See United States ex rel. Trowbridge v. Pennsylvania, 3 Cir., 1953, 204 F.2d 689; United States ex rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, certiorari denied, Maroney v. U. S. ex rel. Darcy, 346 U.S. 865, 74 S.Ct. 103; United States ex rel. Daverse v. Hohn, 3 Cir., 1952, 198 F.2d 934,. certiorari denied 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704; Ex parte Jacobs, D.C.S.D.N.Y.1954, 123 F.Supp. 393.
The judgment of the district court will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The stay of execution will be continued pending issuance of a new stay by the district court.
. N.J.S.A. 2A:113-4.
. State v. Grillo, 16 N.J. 103, 106 A.2d 294.
. See 28 U.S.C. § 2243.
. Appellee states that under the cireumstancés of the case the issues on this appeal are: “* * * was not the District.; Court justified in accepting the opinion of the New Jersey Supreme Court as the ‘record’ for its determination on whether the writ should issue, and did not the Court below properly deny the writ without plenary hearing?”
. The district judge may have mistakenly assumed that he was under a duty of disposing of the issue immediately. His authority to issue a stay both before and after final judgment is clear from 28 U.S.C. § 2251 which reads: “A justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding.” So instead of being forced to take “the only record which the court has' before it now”, i. e. the state court opinion, the district judge could have stayed the execution pending his disposition of the application. During the period of the stay he could then have seen to it that the true state court record was brought before him.
. The latter requirement was not specifically discussed by the district judge.
. See O’Brien v. Lindsay, 1 Cir., 1953, 202 F.2d 418, 421; cf. our opinion in this action on application for stay, 214 F.2d 823.
. In United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549, relied on by appellee, the trial and appellate state court records were before the district court.
. This is far from being a mere technicality. For example, the state supreme court opinion says, State v. Grillo, supra, 16 N.J. at pages 114-115, 106 A.2d at page 300,:
“Einally Grillo asserted on this appeal that Kuhnle had falsely denied that he knew ‘any of the State’s officers or personnel.’ This point finds no support in the record except insofar as stated in the newspaper article * * *.
“ * * * it is a fair inference that even if the juror had occasional city police protection, that he answered the question as any reasonable person would do when not versed in the law, namely that ‘State’s officers or personnel’ meant State of New Jersey officials or employees and not City of Newark police or County of Essex officials.” (Emphasis supplied.)
Without looking at the state record it would be impossible for the district judge to know whether this point did find any other support in the record and whether the state supreme court’s conclusion was “a fair inference.”
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer: |
songer_appel1_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
SECRETARY PEN CO., Inc., et al. v. EVERLAST PEN CORP.
No. 142, Docket 21855.
United States Court of Appeals Second Circuit.
Argued Jan. 4, 1951.
Decided Jan. 29, 1951.
Rudolf Callmann, Greene, Pineles & Durr, New York City, for plaintiff s-appellants. Orville N. Greene, New York City, and Joseph Y. Houghton, Washington, D. C., of counsel.
Nichol M. Sandoe, New York City, for defendant-appellee.
Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The complaint alleges as a first cause of action that the plaintiff Wuestman is the inventor of an advertising pencil for which U. S. Letters Patent No. 2,264,194 were issued to him on November 25, 1941; that thereafter he granted an exclusive license to manufacture, use and sell his invention to the plaintiff Secretary Pen Company, and that the defendant Everlast Pen Corp. has infringed the patent by making and selling advertising pencils covered by Claims 5, 6 and 7 thereof. The complaint prays for the usual injunction and accounting. The defendant moved for a summary judgment in its favor under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A., dismissing the first cause of action on the ground that defendant’s pencils did not infringe the patent. It based this motion on a copy of the patent, the file wrapper and a stipulation agreeing that certain pencils were representative of those manufactured by defendant and alleged to infringe the claims.
The defense is non-infringement based on file wrapper estoppel. The defendant asserts that the patentee so limited his claims in the prosecution of his application in the Patent Office as not to cover the defendant’s pencils. The three claims involved are set forth in the margin. The judge dismissed all of them on the ground that the defendant’s pencils did not infringe because they involved no sliding contact between the movable advertising element and the stationary one.
In respect to Claim 5, the defendant says that the sleeve in his pencil is not “slidably related” to the fixed element in the center of the pencil because it is only guided, by the interior wall of the cylindrical chamber and does not touch the central element at any point. We do not agree. It is true that this claim, prior to its last amendment, required the movable element “to move by gravity between the ends of said chambered section * * * and relative to” the stationary element. This might have been accomplished without sliding on anything, since any movement of the movable element would be “relative to” the fixed element so long as it was within the same chamber. That this was the meaning of the words “relative to” as the claim stood prior to its last amendment is apparent from its history. Originally Wuestman had claimed only a transparent chamber filled with a transparent liquid and a “carrier means within said section interior adapted to move by gravity from end to end thereof through the liquid contained therein, and said carrier means bearing an advertising display * * * ” As to this formulation of the claim the Examiner had ruled: “rejected on Neal in view of Fitch. The element c of the latter constitutes a carrier means and its indicia is the full equivalent of an advertising display. There would be no invention in placing the label c of Fitch in the liquid container of Neal.” [The Neal patent disclosed a transparent sealed capsule enclosed in a pencil and filled with liquid. Fitch disclosed a transparent package serving as a means of displaying and preserving minute articles of merchandise contained therein; an identifying slip, labelled “c,” was “inclosed loosely with said article.”] Wuest-man then substituted a new claim which added the requirement of a stationary advertising element; the movable element was described as moving “relative” to the stationary one. This, too, was rejected, again on the references to Fitch and Neal, the Examiner explaining that it was merely “aggregative, there being no combination or coaction established between the movable and stationary advertising means.” In other words, the Examiner seemed to be saying: you have simply added a stationary advertising element to Fitch’s free-floating label and that is not an invention in and of itself. Upon that ruling the claim was again amended into its final form so as to describe the movable element as being “slidably related” to the fixed element. We do not see that this amounted to anything more than a disclaimer of the free-floating qualities of Fitch’s label, and cannot agree that the claim as amended, in the light of its history, so clearly requires the moving element to slide upon the fixed one as to justify granting summary judgment for defendant on the ground of file wrapper es-toppel. Qaim 5, as thus amended, is capable of only specifying a sleeve that is “slidably related to” and not one necessarily sliding on or along the fixed element. As it stands it might be met by a sleeve that slides either on the fixed element or on anything else within the tube as — in defendant’s structure — on the inner walls of the chamber.
It may be noted in further support of the plaintiffs’ construction of Qaim 5, that Qaim 7 expressly requires the movable element to be “guided by” the fixed element. This would indicate that Qaim 5 is not limited on its face to a sliding contact between the two elements but is broader, as the plaintiffs contend. “When * * * interpreting a series of claims, a limitation not present in one must not be implied, when the same limitation appears in later claims in the series.” See opinion of L. Hand, J., in Western States Mach. Co. v. S. S. Hepworth Co., 2 Cir., 147 F.2d 345, 350. We decide here only the effect of the bare language of the patent and file wrapper history. We do not, and cannot, decide the effect of any additional evidence which may be introduced at the trial.
Qaim 6 obviously is not infringed by the defendant’s pencils. It calls for a “means within said cJmmbered section to guide such endwise movement of said advertising element.” The italicized words were added after the Examiner had rejected the claim because “the wall of the Neal container would guide the movement of any object within the container.” The walls are not objects “within” the container and the result of this amendment was, in effect, a disclaimer as to defendant’s pencils. I. T. S. Rubber Co. v. Essex Rubber Co., 272 U.S. 429, 444, 45 S.Ct. 136, 71 L.Ed. 335. It is not even contended that Claim 7 has been infringed, nor, in the light of its language, could it be.
For the foregoing reasons, the decree of the court below dismissing Claims 5, 6 and 7 is affirmed as to the dismissal of Claims 6 and 7, but reversed and remanded for trial as to Claim 5; no costs.
. 5. In a device of the kind described, a transparent chambered section having closed ends, a transparent liquid filling said chambered section, a stationary advertising element and a movable advertising element within said chambered section, said movable advertising element being slidably related to said stationary advertising element and adapted to move by gravity between the ends of said chambered section through the liquid contained therein and relative to said stationary advertising element.
6. In a device of the kind described, a transparent chambered section having closed ends, a transparent liquid filling said chambered section, an advertising element submerged in said liquid but adapted to move under gravity endwise there-through between the ends of said chambered section, and means within said chambered section to guide such endwise movement of said advertising element.
7. In a device of the kind described, a transparent chambered section having closed ends, a transparent liquid filling said section interior, a fixed guide means extending axially of said section interior,, a movable advertising means guided by said guide means and adapted to move by gravity between the ends of said section interior through the liquid contained therein, said guide means bearing advertising display, said movable advertising means and said advertising display of said guide means being visible through said liquid and the transparent walls of said sec-. tion.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_appel1_7_5 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Appellee, v. James Edward EDSON, Defendant-Appellant.
No. 73-1323.
United States Court of Appeals, First Circuit.
Argued Oct. 16, 1973.
Decided Oct. 23, 1973.
Joseph F. Flynn, Rockland, Mass., for defendant-appellant.
Henry H. Hammond, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before ALDRICH and CAMPBELL, Circuit Judges.
ALDRICH, Senior Circuit Judge.
Defendant appeals from an order of the district court setting bail pending trial. The facts are somewhat unusual. On March 1, 1972 defendant was convicted upon a plea of guilty of possessing heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following indictment, defendant had been incarcerated because of his inability to supply bail set by the court in the amount of $25,000 with surety. On his plea he was sentenced to eight years imprisonment with the additional parole term provided by 21 U.S.C. § 841(b)(1)(A), with credit for time served. On September 24, 1973 the judgment of conviction was vacated because the sentencing judge had failed to comply with F.R.Crim.P. II. ******Defendant was then brought before a magistrate for a determination of bail.
At this time defendant had served twenty-five months, and, taking into account good time credits, would have been eligible for parole in seven months. We are informed that because of his good prison record he had been granted three “furloughs” and would have been allowed to attend classes at a local university which had accepted him for the current semester.
The magistrate recommended that bail be set again at $25,000 with surety. This recommendation was “adopted and approved” the same day by the district court without evidentiary or other hearing. There is no contradiction of defendant’s claim that he is unable to comply. Defendant is twenty-four years old and unemployed and has no demonstrated resources, nor have his parents. The undisputed effect of this order is that defendant not only remains incarcerated, but, ironically, unlike the situation when he stood convicted, he is no longer entitled to furloughs or to attend school.
Passing the diminished strength that we are disposed to accord to district court findings that merely adopt, without even opportunity for a hearing, the report of a magistrate, the defendant has a considerable burden on appeal. However, in view of the substantial errors contained in the magistrate’s memorandum, we proposed under the special circumstances of this case to exercise the authority vested in us by virtue of the Bail Reform Act, 18 U.S.C. § 3147(b), and order our own bail conditions.
The magistrate’s finding commences, after reciting the procedural history, with a statement that he proposed to disregard the fact that two jail officers had supplied letters expressing their opinion that defendant was sufficiently rehabilitated to resume the responsibilities of living in a free society. He considered the previous sentence to have been awarded not for rehabilitation, but for “punishment . . . not yet complete.” Defendant argues from this last that the magistrate was disregarding the presumption of innocence which was fully restored by the setting aside of his conviction. We agree, except that so far as bail is concerned the presumption is not that, but, as to an untried defendant, a “presumption in favor of releasability.” United States v. Leathers, 1969, 134 U.S.App.D.C. 38, 412 F.2d 169, 171. We add that, rather than being “of no consequence,” the opinions of the jail officials had a direct bearing upon defendant’s “character and mental condition,” as to which the magistrate was specifically directed to inquire. 18 U.S.C. § 3146(b).
Next, the magistrate drew the conclusion that following another trial the defendant would receive “no less a sentence.” He omitted, however, any consideration of the fact that against such a sentence defendant would receive substantial credit for time already served, making the situation quite different from what it was when bail was originally set.
The magistrate then pointed to the fact that the defendant had received two sentences in the state court for similar offenses, but which had been suspended, with probation, very possibly on the ground that defendant was already serving a federal sentence. He opined that to release defendant under these circumstances would be “a slap in the face of the state court.” We have no reason to suppose that the state court would be affronted or would expect the magistrate to do other than his duty. In any event, this court holds no possible obligation to the state court at the expense of defendant’s federal rights. It should be unthinkable that a magistrate would disregard the clear command of Congress because of its indirect effect upon the feelings of judges of another court.
The seriousness of the crime of distributing narcotics may have distracted the magistrate’s attention from the priorities established by Congress by the Bail Reform Act. Until a defendant has been convicted, the nature of the offense, as well as the evidence of guilt, is to be considered only in terms of the likelihood of his making himself unavailable for trial. Determination of what is needed “reasonably [to] assure” defendant’s appearance, not considerations of state comity, controls the setting of bail under the Bail Reform Act.
This defendant, as a practical matter, may well face less than one year in jail. If he were to default, even on personal recognizance, he faces an additional federal sentence. What might seem even more pressing, while conviction of the original offense would not be a violation of his state probation, defaulting even federal bail presumably would be such. Hence defendant would face, in addition, a reactivation of his state sentences. As against this, no affirmative reason has been offered why defendant is likely to flee the state where all his past and present connections appear to be.
Under these circumstances we cannot feel that the government, quite apart from the commendation defendant has earned during his present incarceration, has met the burden now imposed on it by the Bail Reform Act of showing that defendant would violate any bail order that we presently impose. The order setting bail at $25,000 with surety is vacated. The case is remanded forthwith to the district court with instructions to set bail at $5,000 without surety, and to release the defendant in the custody of his mother, who has indicated a willingness to assume such.
. Uncomfortable as it may be for the U. S. Attorney, particularly in the case of a judge who persists over the years in not observing this rule, we place some burden upon him, at least to call the court’s attention at the time to the oversight (not the judge from whom the present appeal is taken.)
. Under F.R..A.P. 9(a) the district court should have stated its “reasons.” We do not remand in this instance to ascertain whether it agreed in the magistrate’s reasoning because of our decision to consider the matter de novo.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_r_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.
DANNER PRESS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16699.
United States Court of Appeals Sixth Circuit.
March 15, 1967.
Edward C. Kaminski, Akron, Ohio, Herman E. Rabe, Buckingham, Doolittle & Burroughs, Akron, Ohio, on brief, for petitioner.
Robert S. Hillman, N. L. R. B., Washington, D. C., for respondent.
Before WEICK, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
CELEBREZZE, Circuit Judge.
Petitioner, Danner Press, Inc., (hereinafter referred to as either Petitioner or Danner Akron), seeks review of an order of the National Labor Relations Board. The Board’s decision and order are reported at 153 N.L.R.B. No. 87. The Board, adopting the findings of the Trial Examiner, found that Danner Akron violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Union concerning its grievance that Danner Akron was assigning struck work to its employees in breach of their collective bargaining contract. The Board also found that the bindery employees of Danner Akron struck in protest against Danner Akron’s refusal to bargain, and that Danner Akron violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they abandoned their strike and offered unconditionally to return to work.
The record discloses the following facts: Petitioner operates a printing business as a job shop in the City of Akron, Ohio. Petitioner employs seven or eight full-time employees and eleven or twelve part-time employees. Approximately one third of Petitioner’s business is derived from Danner Press of Canton, Inc. (hereinafter referred to as Danner Canton), which operates a similar but larger job shop. Local No. 5 of the Bookbinders Union represents the binding employees of both Petitioner and Danner Canton, but in separate bargaining units; and the Union has separate collective bargaining contracts with each Company.
On February 3, 1964, the Danner Canton bookbinders’ bargaining unit commenced an economic strike against Danner Canton. A few days after the strike began, both the employees of Danner Akron and Canton believed that Danner Canton was sending strikebound work to Akron for completion by Danner Akron.
Consequently, on February 17, 1964, Mr. Glenn Moss, International Representative of the Bookbinders, and general employees of Danner Canton, talked to Mr. Swineford at the plant of Danner Akron. Mr. Moss testified that he told Mr. Swineford he was there on a grievance in regard to struck work being performed at Danner Akron. Mr. Swine-ford told Mr. Moss and the committee to leave as they were trespassing. Mr. Moss asked Mr. Swineford when he could get his answer on the grievance, and Mr. Swineford said “tomorrow”. Mr. Swine-ford denied that Mr. Moss asked to discuss or arrange a meeting to discuss with him negotiations concerning the performance of struck work in the Akron plant. Mr. Swineford testified that Mr. Moss asked him to shut down the bindery because they were doing struck work for the Canton plant.
On February 18, 1964, a Danner Akron employee arranged a meeting with Mr. Swineford and with Mr. Moss and Mr. Thur, President of Local No. 5. Mr. Moss, Mr. Thur and several employees of Danner Canton again met with Mr. Swineford. The same views of the conversation and the same result followed as in the meeting the previous day.
After this short meeting of February 18th, the bindery employees of Petitioner met with Petitioner’s President Under-man. Mr. Underman told his employees they had a contract and were obligated to do all the work or they would have to get out. Several employees told Mr. Underman they were doing struck work, and asked him why he would not meet with their Union officials.
On February 19, 1964, Danner Canton employees began picketing Danner Akron. Most of Petitioner’s employees refused to cross the picket line. Later that day, and until March 16, 1964, Petitioner’s employees remained out on strike and picketed Petitioner’s plant until the Danner Canton strike was settled. Neither the International nor the Local was aware of, or took any part in the placement of the original picket line at the Danner Akron plant on the morning of February 19th.
On March 16th, all the striking employees of Petitioner appeared at the plant to start their first shift. Mr. Swineford informed them they had been discharged and replaced.
The evidence of struck work was also conflicting. In September, 1963, Petitioner purchased a McCain machine for their bindery. Because of the large capacity of this machine, and the heavy capital investment, Petitioner agreed to purchase the machine with the understanding that Danner Canton would send more bindery work to Petitioner.
Approximately one-third of Petitioner’s bindery work during 1963 came from Danner Canton. From February 1, 1963 to March 31, 1964 Petitioner did 400 jobs for Danner Canton. Bindery work done for Danner Canton in February, 1963, totaled $861.51, in March, 1963, $7,042.41, in February, 1964, $5,966.42, and March, 1964, $2,480.52.
After the strike began at Danner Canton on February 3rd, the bindery operated only for one shift instead of the normal three shifts. The bindery was not operating at full capacity. On January 30, 1964, Danner Canton received material from Allied Graphic Arts to print and bind a spring and summer catalogue. The proofs were scheduled to go out on January 30th, but did not go out until February 3rd. The proofs came back on February 5th and the job went to press on February 7th. Binding was scheduled to start February 10th, Since the bindery work could not be done in time, the overflow went to Danner Akron. Approximately 1,300,000 pieces were run in Canton and approximately 300,000 pieces were run in Akron.
Mr. Hoffman, Customer Service Representative of Danner Canton, who testified to the above facts, was asked the following questions by the Trial Examiner:
“Q. With only one bindery shift working and with orders on hand which required prompt attention, was there any overflow work caused by this strike which resulted in your shipping work to Akron to be done ?
“A. On any given job or all jobs?
“Q. On any job?
“A. Yes.”
Immediately the Customer Service Representative was asked by Petitioner’s counsel on re-direct examination:
“Q. Mr. Hoffman, with regard to these orders that you had said were to be processed for Canton after February 3rd during the time that the strike was in progress, was the work that was sent to Akron in the nature of overflow work as you have testified?
“A. Yes, it was.
“Q. And are you able to say whether or not this work that went to Akron on the Atkins catalogue job would probably have gone there had there been no strike in the plant at Canton?
“A. Yes.
“Q. —Do you know of your own knowledge, whether the work which was sent to Akron from Canton, which I believe you characterized as overflow, was sent to Akron because of the strike that was in effect in the bindery at Canton ?
“A. No, I do not.”
Early in the proceeding before the Trial Examiner, a lengthy discussion developed between counsel and the Trial Examiner as to the nature of the charge against the Petitioner. The General Counsel for the National Labor Relations Board finally took the position they were trying the case on the theory that the Petitioner failed to bargain on a matter which had not been the subject of previous bargaining, rather than on the theory that the Petitioner failed to negotiate a grievance. The nature of the unfair labor practice charge was crystalized in the following colloquy between the Trial Examiner and counsel:
“Trial Examiner: Now tell me are you definitely ruling this projected theory concerning which I had heard comment from you earlier, namely that by the assignment of struck work to employees that the Respondent was violating the provisions of the contract that it would not require the employees to violate their constitution or bylaws?
“Mr. Szabo: That is correct. We are not.
“Trial Examiner: You are not pursuing it. So that this case may proceed as though this may never have been said by you ?”
The Trial Examiner then found that Petitioner violated Section 8(a) (5) and (1) of the Act by refusing to accept and negotiate the grievance of struck work, and that a finding that Petitioner assigned struck work to its employees was not essential to this holding. The Trial Examiner further found that the employees struck in protest of this unfair labor practice, and that the Petitioner violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they offered to return to work.
The pertinent provisions of the collective bargaining contract between Danner Akron and the Union required the parties
“(1) To appoint a Joint Standing Committee for the Conciliation, consisting of two representatives appointed by the Employer, and two representatives appointed by the Union, to which shall be referred all questions which may arise as to the construction to be placed on any section of this Contract, except as provided otherwise herein or alleged violations thereof, which cannot be settled otherwise herein, and such Joint Standing Committee shall meet when any question of difference shall have been referred to it for decision by the executive officers of either party to this Agreement.
“(2) To present immediately in writing any grievance to the Joint Standing Committee for conciliation. The Committee shall meet to consider any grievance within 48 hours after notice in writing has been filed by either party to the other party. Differences as to scales of wages shall not be considered to be grievances. If an understanding cannot be reached within ten full business days after the grievance has been presented, then the settlement of the grievance shall be left to a Board of Arbitration.”
The bargaining contract provided for certain procedures by which grievances were to be presented and settled. The record discloses these procedures were not followed. The meetings on February 17th and 18th with Danner Akron included the International Representative of the Union, the Local President of the Union and four employees of Danner Canton. No employees of Danner Akron were present at either meeting. No written grievance was presented to Danner Akron.
The Board now takes the position that Petitioner’s contention that the Union failed to file its grievance in accordance with the provisions of their collective bargaining agreement is foreclosed by the express declaration of Petitioner’s counsel that it was not defending the alleged refusal to bargain on this ground. The position of waiver is not well taken. This statement was made prior to the clarification sought by Petitioner’s counsel as to exactly what issues were being tried. Furthermore, this contention should not be available to the General Counsel when the Trial Examiner found that Petitioner refused to negotiate a grievance after the General Counsel said that issue was not in the case.
The confusion, which still persists, as to the nature of the Board’s charge would not have arisen had the provisions of the contract been followed. The parties agreed to an exclusive method of procedure for the presentation of grievances and unless the aggrieved party can show a waiver of such contract procedures, no relief can be obtained where that procedure was not followed. If this procedure had been followed, no question would have arisen as to the nature of the Union’s claim, and the matter may have been settled, or ultimately resolved by the intended and preferential method of arbitration. What was said by the Board in W. L. Mead, Inc., 113 N.L.R.B. 1040 (1955) and approved by the Supreme Court in Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1961), as to the duty to arbitrate, is equally applicable here:
“Every encouragement should be given to the making and enforcement of such clauses. But, if employees may effectively call upon the Board to protect them when they arbitrarily breach clear and binding arbitration clauses of this kind, and turn to the use of economic force for the settlement of grievances rather than to the contractual, quasi judicial procedure, the effect will be to discourage the making of, and the adherence to, contractual arbitration procedures. To hold that a strike in furtherance of such a material breach of a clear and binding contractual arbitration clause is to be protected by this Board would be contrary to the labor policy embodied in the National Labor Relations Act as interpreted by the Courts of Appeals and the Supreme Court.”
We can see no difference between the failure to abide by the contractual requirement to arbitrate and the contractual requirement to follow certain procedures in the presentation of a grievance. See also Midwest Metallic Products, Inc., 121 N.L.R.B. 1317 (1958); and Sohio Chemical Co., 141 N.L.R.B. 810 (1963). While this may appear to be a harsh rule, it is necessary to maintain the integrity of the contract and to provide a uniform and orderly method for settlement of grievances.
The Trial Examiner found that when the picketing of Danner Akron began by Danner Canton employees on February 19th, the failure of Danner Akron employees to enter the plant and work was not due to their employer’s refusal to bargain but out of sympathy with Danner Canton’s employees. Thus the initial walkout and the refusal to cross the picket line was found by the Trial Examiner not to be in protest of the Petitioner’s refusal to entertain a grievance. The Trial Examiner then found that after February 19th, the Danner Akron employees continued to strike because Petitioner refused to meet and negotiate their grievance of struck work, and they then became unfair labor practice strikers.
If the employees of Petitioner were not unfair labor practice strikers when they refused to return to work, we do not see how a change in attitude or motive could cure the defect of their failure to follow the requirements of their contract. We find no evidence in the record that a grievance was filed in accordance with the provisions of the contract. Danner Akron had no obligation to discuss with the employees of Danner Canton a claimed grievance pertaining to the employees of Danner Akron. Nor was petitioner obligated by its contract to accept a grievance from the Danner Canton Union committee.
Since the employees did not follow the grievance procedure, and did not present a grievance in writing, their use of economic force could not be protected under the Act as an unfair labor practice strike. Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., supra. It follows that the Company did not commit an unfair labor practice in hiring replacements for the striking employees.
The Order of the Board is set aside and enforcement is denied.
. International Brotherhood of Bookbinders, Akron Bindery Workers Union, Local No. 5, AFL-CIO.
. While there are ties of management and ownership between the two Companies, the two Companies do not constitute a single employer for purposes of the Act.
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_r_fiduc | 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 "fiduciaries". 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.
PRUDENTIAL INS. CO. OF AMERICA v. NELSON. In re CHICKAMAUGA TRUST CO.
No. 7920.
Circuit Court of Appeals, Sixth Circuit.
Feb. 9, 1939.
Burnet Sizer, of Chattanooga, Tenn. (Sizer, Chambliss & Kefauver and J. B. Sizer, all of Chattanooga, Tenn., on the brief), for appellant.
Chas. S. Coffey, of Chattanooga, Tenn. (Chas. S. Coffey and Coffey, McCoy & Durand, all of Chattanooga, Tenn., on the brief), for appellee.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
This is an appeal from a decree of the District Court denying a petition to review the order of the court’s Referee in Bankruptcy.
The Chickamauga Trust Company, a Tennessee corporation, was adjudged á bankrupt on December 31, 1930. For many years prior to this adjudication it was an entrepreneur with The Prudential Insurance Company of America for procuring and making loans on real estate. So much of the contract between the parties as is material to a decision is as follows:
“Paragraph 2 provides that the correspondent shall submit applications for loans subject to the following conditions:
“‘(a) The Insurance Company shall be the sole judge as to such applications as it may, in its absolute discretion, elect to approve.
“ ‘ (b) The Insurance Company shall be the sole judge as to such papers and documents, legal or otherwise, as it may require to be furnished; (1) when a loan application is submitted for approval and (2) as a condition precedent to disbursement. In each and every case, however, the Correspondent shall furnish to the Insurance Company an accurate statement of the cost of the loan to the borrower by way of commissions presently payable and/or commissions payable on a deferred basis.
“‘(c) The Insurance Company. shall be the sole judge as to who shall furnish, examine and/or sign the documents mentioned, in sub-paragraph (b) preceding and shall be the sole judge as to whether or not such documents are satisfactory in form, execution and contents, and as to the legal sufficiency of the title to the security.’ ”
The Trust Company submitted to the Insurance Company for its approval, applications for loans and when approved, it procured and forwarded notes and mortgages payable to the Insurance Company signed'and acknowledged by the borrower and at the same time an abstract of title.
In some cases the Trust Company advanced out of its own funds, less its expenses and commissions, the sum due the borrower and furnished to the Insurance Company satisfactory evidence of its payment. In others, it forwarded the loan contracts and supporting papers to the Insurance Company, together with a statement of its expenses and commissions. In the first type of cases, the Insurance Company remitted to the Trust Company; in the second, to the Trust Company or a designated depository which made disbursements to the borrower and the Trust Company for its commissions and expenses.
Under the first type of loan the binding contracts were on forms prepared by the Trust Company; in the others, on those of the Insurance Company.
The Trust Company collected for the Insurance Company both principal and interest on the loans, which were deposited to its account in the Hamilton National Bank or the First National Bank of Chattanooga, Tennessee. It mailed to the Insurance Company daily reports showing the amount of the collections and under its agreement was to also remit daily.
At the date of bankruptcy, the Trust Company was indebted to the Insurance Company in the sum of $115,000 for collections made, but not remitted.
Prior to bankruptcy and during the calendar year 1930, the Trust Company had submitted to the Insurance Company on forms provided by the latter, nine applications for loans aggregating $10,663.40, which had been approved by the Insurance Company and the Trust Company notified. Subsequently the Trust Company had the borrowers execute notes and mortgages payable to the Insurance Company for the respective' amounts and it paid to them out of its funds the face thereof, less its charges and commissions and charged against the respective borrowers the amounts of the loans.
At the time of bankruptcy the Insurance Company had approved only the applications for these loans and the Trust Company listed them as assets in its schedule filed in the bankruptcy proceedings. Between March 3 and April 1, 1931, the appellee, F. A. Nelson, Trustee in Bankruptcy for the Chickamauga Trust Company, forwarded by registered mail to the appellant, The Prudential Insurance Company of America, Newark, N. J., the completed papers covering the loans.
In all letters of transmittal the trustee advised the Insurance Company that the respective loan “having been completed according to the application and the terms and rules and regulations of The Prudential Insurance Company” he was inclosing the papers consummating the loan. He concluded his letter by requesting the Insurance Company to send him a check as soon as possible covering the amount due the Chickamauga Trust Company for the. sums paid out by it on this account. The Insurance Company retained the notes and mortgages and advised the trustee that it was giving credit of $11,613.07 on the indebtedness of the Chickamauga Trust Company to it at date of bankruptcy.
Shortly thereafter the trustee filed his petition before the Referee in Bankruptcy praying that an order be entered in the proceedings directing the Insurance Company to pay to him the sum withheld by it. The Insurance Company answered and the matter was submitted to the Referee on a stipulation ol facts and he ordered the Insurance Company to pay said sum to the trustee. On petition to review, the lower court sustained the Referee, hence this appeal.
The validity of the challenged decree depends upon the right of set-off in bankruptcy. The Bankruptcy Act, § 68a, 11 U.S.C.A. § 108(a), declares: “In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the accounts shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.”
The words “debts” and “credits” as used in the Act are correlative. What is a debt on one side is a credit on the other. McCollum, Trustee v. Hamilton National Bank, 303 U.S. 245, 249, 58 S.Ct. 568, 82 L.Ed. 819.
The object of the Statute is to permit a statement of the account between the bankrupt and its creditors with a view to the application of the doctrine of set-off between mutual debts and credits. The provision of the Statute docs not enlarge the doctrine of set-off and can be applied only where the general principles of set-off are present. The court applies it under the general principles of equity. Cumberland Glass Mfg. Company v. De Witt, 237 U.S. 447, 457, 35 S.Ct. 636, 59 L.Ed. 1042.
The principle upon which the rule proceeds is that in case of mutual debts, it is only the balance which is the real and just sum owing by or to the bankrupt. When the trustee was vested with title to the assets of the bankrupt, they were subject only to set-off of claims presently due the bankrupt. The rights of the parties being adjusted in equity as of the date of bankruptcy, all the trustee took as assets and all that he was required to pay was the balance subsequently accruing on the contract between the Trust Company and the Insurance Company. The fact that the debt owing to the bankrupt was not due at the date of his adjudication is immaterial.
If the Insurance Company’s debt to the trustee did not accrue until after bankruptcy, then equity does not permit the set-off because as the debt of the Insurance Company did not exist when the estate of the bankrupt passed into the hands of the trustee, the equities of the bankrupt’s other creditors intervene to prevent the depletion of the assets in the hands of the trustee by extinguishing a good debt due the estate by a bad one due a creditor from the estate.
In all cases oí mutual debts, where the insolvency of one of the debtors and the rights of the other creditors in the assigned estate are involved, equity intervenes and modifies the legal right of set-off in order to promote equality and justice. Compare Scott v. Armstrong, 146 U.S. 499, 513, 13 S.Ct. 148, 36 L.Ed. 1059; Western Powder Mfg. Company v. Brewerton Coal Company, 7 Cir., 81 F.2d 85; Standard Oil Company of New Jersey v. Elliott, 4 Cir., 80 F.2d 158; Hood v. Brownlee, 4 Cir., 62 F.2d 675.
The correct interpretation of the contract between the Trust Company and the Insurance Company determines the rights of the parties on this appeal. If the Insurance Company could have been compelled under the contract at the date of bankruptcy to accept the notes subsequently tendered it by the trustee, it is entitled to set-off. Conversely, if it had an option to accept or decline, it is without the right.
In construing contracts, recourse must first be had to the language of the instrument. A true construction of the words or phrases used is the touchstone of legal right. They are to be interpreted according to their strict and primary acceptation unless from the context of the instrument and the intention of the parties to be collected from it they appear to be used in a different sense, the cardinal rule always being to give effect to the intention of the parties in the light of the surrounding circumstances. It is clear from the contract here in question that the Insurance Company retained the absolute unqualified right in its own discretion to accept or reject any application for a loan tendered it by the Trust Company, and its discretion did not end when it accepted the application. It was thereafter to be the sole judge of the sufficiency of the papers and documents, legal or otherwise, and as to the legal sufficiency of the title as security to support the loan. To be “sole judge” means to come to a conclusion or reach an opinion alone, uncontrolled by others. It is certain from this that at the date of bankruptcy, the Insurance Company had not accepted or approved the sufficiency of the title of the security or the documents supporting the loan, therefore, the trustee had no legal right to compel the Insurance Company to accept the notes and it is not entitled to set-off.
It is a fair presumption from the record in this case that the purpose of the Insurance Company in accepting the notes tendered it by the trustee conditioned on it remitting cash was to use their purchase price as an offset.
Under the provisions of the Bankruptcy Act, § 68b, 11 U.S.C.A. § 108(b), a set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which was purchased by or transferred to him after the filing of the petition or within four months before such filing with a view to such use and with knowledge or notice that such bankrupt was insolvent or had committed an act of bankruptcy.
On the whole case, we are of the opinion the lower court was correct in denying the appellant relief and the decree is affirmed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer: |
songer_appel2_2_2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
FIRST NATIONAL BANK AND TRUST COMPANY, et al., Appellants, v. NATIONAL CREDIT UNION ADMINISTRATION, et al. FIRST NATIONAL BANK AND TRUST COMPANY, et al., Lexington State Bank, Appellants, v. NATIONAL CREDIT UNION ADMINISTRATION.
Nos. 91-5262, 91-5336.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 16, 1992.
Decided April 2, 1993.
Michael S. Heifer, with whom William J. Kolasky, Jr., John J. Gill, and Michael F. Crotty, were on the brief, for appellants.
Jonathan R. Siegel, Atty., Dept, of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay P. Stephens, U.S. Atty., and Douglas N. Letter, Atty., Dept, of Justice, were on the brief, for appellee Nat. Credit Union Admin.
Paul J. Lambert and Teresa Burke were on the brief, for appellees AT&T Family Federal Credit Union and Credit Union National Association, Inc.
Edward C. Winslow and William C. Scott were on the brief, for amicus curiae North Carolina Alliance of Community Financial Institutions.
Before: WALD, SILBERMAN, and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Concurring opinion filed by Circuit Judge WALD.
SILBERMAN, Circuit Judge:
Appellants, four North Carolina banks and the American Bankers Association, challenged the National Credit Union Administration’s (NCUA) approval of several recent applications by AT & T Family Federal Credit Union (AT & T Family) to expand its membership. According to appellants, the NCUA’s decisions violated the requirement of the Federal Credit Union Act (FCUA) that membership in federal credit unions be limited to “groups having a common bond of occupation or association.” 12 U.S.C. § 1759. The banks complain that, by allowing AT & T Family improperly to extend its membership and thereby its number of potential borrowing customers, the NCUA has made the credit union a formidable competitor. The district court applied the “zone of interests” tests for prudential standing and determined that appellants lacked standing to sue. Although we agree with the district court that the appellants were not intended beneficiaries of the FCUA, we think that they are suitable challengers because the statute arguably prohibits the competition of which they complain. This case thus falls within the rationale of Clarke v. Securities Industry Association, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987), and Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971). We reverse and remand to the district court.
I.
Passed in 1934 in the midst of the Great Depression, the FCUA, 12 U.S.C. §§ 1751-1795k (1988), was designed to improve access to credit for people of “small means.” S.Rep. No. 555, 73d Cong., 2d Sess. 1 (1934). For many working Americans, credit at reasonable rates had essentially disappeared in the years following the stock market crash. Lacking the security necessary to obtain loans from banks, working Americans turned to loan sharks who typically charged usurious interest rates, which was thought to reduce the overall purchasing power of American consumers. See 78 Cong.ReC. 12,223 (1934). Congress saw the solution to this problem in a system of federal credit unions that would provide credit at reasonable rates and thus would help spur economic recovery. See id. at 7260, 12,223-25.
To ensure that credit unions fulfilled their purpose of meeting members’ credit needs, Congress restricted credit unions’ management and business activities. For example, a federal credit union is owned and controlled by its members, see 12 U.S.C. §§ 1757-1761, and it can make loans only to members or to other credit unions, see id. § 1757(5). Congress expected that such measures guaranteeing democratic self-government would infuse the credit union with a spirit of cooperative self-help and ensure that the credit union would remain responsive to its members’ needs.
A related provision of the FCUA, the common bond requirement, is at the heart of this case. Section 109 of the Act restricts membership in federal credit unions to "groups having a common bond of occupation or association.” 12 U.S.C. § 1759. For much of the Act’s history, the NCUA interpreted this provision to require all members of a credit union to share the same bond. In the 1980s, however, the NCUA issued a series of Interpretive Ruling and Policy Statements (IRPS) construing the statute to allow a number of different groups, each having its own bond, to form a credit union, even though no overall common bond united the different groups. See 47 Fed.Reg. 26,808 (1982) (IRPS 82-3); 48 Fed.Reg. 22,899 (1983); 49 Fed.Reg. 46,-536 (1984) (IRPS 84-1); 54 Fed.Reg. 31,165 (1989) (IRPS 89-1). The NCUA's most recent interpretation, IRPS 89-1, made clear that a credit union could comprise a “combination of distinct, definable occupational and/or associational groups.” 54 Fed.Reg. 31,165, 31,170 (1989).
Appellants challenged several decisions in which the NCUA applied IRPS 89-1 to approve applications by AT & T Family to expand its field of membership. Until recently, AT & T Family’s membership consisted primarily of employees of AT & T Technologies, Inc., AT & T Network Systems, and Bell Telephone Labs. In late 1989 and 1990, AT & T Family filed eight applications to extend its membership to include groups of employees from other companies such as the American Tobacco Company, Western Auto Supply Company, and WGHP-TV, to name but a few. In all, the NCUA approved the extension of AT & T Family’s membership to 16 new employee groups. Appellants claimed before the agency and in the district court that IRPS 89-1 ignored the statutory language by allowing groups lacking any common bond between them to join together in a credit union. The banks contended that by allowing AT & T Family to expand to 71,000 members in violation of the statute, the NCUA has allowed the credit union, which is exempt from state and federal income taxes, see 12 U.S.C. § 1768, to become a formidable competitor to banks.
The district court granted NCUA’s motion to dismiss for lack of standing. The court determined that appellants were not pressing claims “arguably within the zone of interests” protected by the FCUA. See First Nat’l Bank & Trust Co. v. National Credit Union Admin., 772 F.Supp. 609, 611-13 (D.D.C.1991). Relying on the language of this court’s post-Clarke decisions on prudential standing, see, e.g., Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918 (D.C.Cir.1989) (HWTC IV); Hazardous Waste Treatment Council v. United States Envtl. Protection Agency, 861 F.2d 277 (D.C.Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989) (HWTC II), the district court said that “[t]hose not regulated by an agency have standing only if they are the intended beneficiaries of the specific statute or are nonetheless ‘suitable challengers’ to the statute because their interests coincide with the interests which Congress did intend to protect.” First Nat’l Bank, 772 F.Supp. at 611. The banks were not intended beneficiaries of the Act, thought the district court, because “the Act was passed to establish a place for credit unions within the country’s financial market, and specifically not to protect the competitive interest of banks.” Id. at 612; see also Branch Bank & Trust Co. v. National Credit Union Admin. Bd., 786 F.2d 621 (4th Cir.1986), cert. denied, 479 U.S. 1063, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). Under applicable precedent, the district court believed that the banks were not suitable challengers either. Because the banks and the credit union competed for the same business, any coincidence in their interests “would be at best fortuitous.” First Nat’l Bank, 772 F.Supp. at 612. The banks, according to the district court, could not rely on the Supreme Court’s cases, see, e.g., Clarke v. Securities Industry Ass’n, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987); Investment Co. Inst. v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) (ICI); Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), that granted standing to competitors as suitable challengers because, unlike the competitors in those cases, the banks were not suing under an entry-restricting statute. See First Nat’l Bank, 772 F.Supp. at 613.
II.
It should be noted that no one questions appellants’ Article III standing; that appellants will suffer competitive or economic injury is not in doubt. The question before us is whether under the FCUA the banks can claim prudential standing as well. In other words, are they pursuing an interest (not just an objective), see HWTC IV, 885 F.2d at 925, arguably within the zone of interests Congress intended either to regulate or protect, and, thus, are they among the class of persons entitled to sue to enforce FCUA’s restrictions? See Clarke, 479 U.S. at 396, 107 S.Ct. at 755; Data Processing, 397 U.S. at 153, 90 S.Ct. at 829. This “zone of interests” test ensures that standing is granted only to plaintiffs who will not distort congressional objectives. It excludes those plaintiffs whose “interests are so marginally related-to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399, 107 S.Ct. at 757. Because the banks are not regulated by the common bond requirement, we must inquire whether the banks can be thought to have been “protected” by that statutory limitation on the activities of credit unions. Litigants can qualify as “protected” by a statute if they are intended beneficiaries of the legislation or are nevertheless what we have termed suitable challengers, see HWTC IV, 885 F.2d at 923-24; that is, if their interests are sufficiently congruent with those of the intended beneficiaries that the litigants are not “more likely to frustrate than to further the statutory objectives.” Clarke, 479 U.S. at 397 n. 12, 107 S.Ct. at 756 n. 12.
Appellants claim that they qualify both as intended beneficiaries and as suitable challengers under the FCUA. We agree with the district court, however, that Congress did not, in 1934, intend to shield banks from competition from credit unions. Indeed, the very notion seems anomalous, because Congress’ general purpose was to encourage the proliferation of credit unions, which were expected to provide service to those would-be customers that banks disdained. See 78 Cong.Rec. 7259 (1934) (statement of Sen. Barkley) (“[B]ank[s] ... cannot extend credit to many of these people, because they do not have the required security.”); id. at 12,225 (statement of Rep. Luce) (noting that credit unions would serve those “who do not use and cannot use banks ... for small borrowings”). The common bond requirement, an existing characteristic of state credit unions, was designed, in combination with the restriction that permitted credit unions to loan only to members, to ensure that credit unions would effectively meet members’ borrowing needs. It would seem, therefore, that Congress assumed implicitly that a common bond amongst members would ensure both that those making lending decisions would know more about applicants and that borrowers would be more reluctant to default. That is surely why it was thought that credit unions, unlike banks, could “loan on character.” See id. at 12,-223. The common bond was seen as the cement that united credit union members in a cooperative venture, and was, therefore, thought important to credit unions’ continued success.
To be sure, as time passed — as credit unions flourished and competition among consumer lending institutions intensified— bankers began to see the common bond requirement as a desirable limitation on credit union expansion. To that end, in the 1970s bankers, according to appellants, became active in lobbying Congress to urge the maintenance of the common bond requirement. But that fact, assuming it is true, hardly serves to illuminate the intent of the Congress that first enacted the common bond requirement in 1934. And we find no indication that Congress was, at that earlier time, concerned about the competitive position of banks.
There remains, however, the more subtle question, whether banks can be thought suitable challengers to enforce a requirement designed to benefit the members— particularly potential borrowers — of credit unions. Appellants rely on the Supreme Court’s reasoning in ICI and Clarke, and it seems to us the parallels between those cases and the present one are striking. In ICI the securities industry challenged a ruling by the Comptroller of the Currency that would have permitted banks to slip the Glass-Steagall leash and enter what was considered a part of the securities business. See ICI, 401 U.S. at 618-19, 91 S.Ct. at 1092-93. As the Supreme Court later explained in Clarke, the Glass-Steagall Act, which limited the securities underwriting and investment activities of banks, was designed to protect bank depositors from risky bank activities — not to insulate investment bankers, or indeed, any noncommercial bankers, from competition. See Clarke, 479 U.S. at 398 & n. 13, 107 S.Ct. at 756 & n. 13. Nevertheless, because the investment bankers pursued interests congruent with those of the intended beneficiaries, they were permitted to sue in ICI to enforce Glass-Steagall’s restrictions on banks.
Similarly, in Clarke the ever-vigilant securities industry was permitted to challenge a Comptroller decision that authorized a national bank to offer discount brokerage services not only at its established branches, but also at locations both inside and outside the bank’s home state. The challenge was based on the McFadden Act, which restricts the interstate branching of national banks. See Clarke, 479 U.S. at 391, 107 S.Ct. at 752. The Act was designed to establish competitive equality between national and state banks and thus to protect smaller banks from competition from out-of-state leviathans, see First Nat’l Bank v. Walker Bank & Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 497, 17 L.Ed.2d 343 (1966), not to protect investment bankers. Nevertheless, the investment bankers had standing to sue. The Supreme Court relied on the correlative congressional objective of preventing national banks from gaining too much (“monopoly”) control over credit and money through “unlimited branching.” Clarke, 479 U.S. at 402, 107 S.Ct. at 758. Given that general congressional purpose, the Court thought that the securities industry, which was a competitor at least with respect to discount brokerage services, was a suitable challenger. In other words, even though the Congress that passed the McFadden Act was not at all concerned with the spread of discount brokerage— only branch-banking — and the securities industry was a competitor with regard to the former, not the latter, it was nevertheless permitted to challenge the spread of discount brokerage through the McFadden Act, again because of the congruence of plaintiffs’ interests with those of the intended beneficiaries.
We take from these cases the principle that a plaintiff who has a competitive interest in confining a regulated industry within certain congressionally imposed limitations may sue to prevent the alleged loosening of those restrictions, even if the plaintiffs interest is not precisely the one that Congress sought to protect. The limitations may be restrictions on entry — geographic or product line — or they might be, as in our case, limitations on growth, which are akin to entry restrictions. Like more classic entry restrictions, the common bond requirement, by limiting a credit union’s customer base, effectively prevents the credit union from offering its services and competing in a broader market.
We previously have recognized the particular significance of statutory entry restrictions on prudential standing. In HWTC II, we distinguished the case before us from the Supreme Court’s cases granting standing to competitors {Data Processing, ICI, and Clarke), on the grounds that it did not involve an “entry-restricting” statute. See HWTC II, 861 F.2d at 284. Similarly, in Panhandle Producers & Royalty Owners Ass’n v. Economic Regulatory Administration, 822 F.2d 1105 (D.C.Cir.1987), we noted that “[cjompeti-tors have a seemingly unbroken record of success in securing standing” in eases involving regulatory systems that “restrict[ ] entry into a particular field or transaction.” Id. at 1109. Indeed, the district court attempted to distinguish this case from ICI and Clarke on the grounds that the common bond requirement was not an entry restriction. See First Nat’l Bank, 112 F.Supp. at 613.
Appellees, sidestepping the entry-restriction cases, rely primarily on our refinement of prudential standing analysis in HWTC IV. In that case, an organization of companies that treated hazardous waste and marketed products derived from processed waste sued to force the EPA to adopt stricter environmental regulations on other companies so as to create a greater market for their own services and products. We held that HWTC’s interests (irrespective of its particular objectives in the case before us) were not sufficiently congruent with those of the intended beneficiaries of the statute to make HWTC a suitable challenger. See HWTC IV, 885 F.2d at 924. The treatment firms’ interest was in selling more services and equipment to the regulated companies, and therefore the firms would seek regulations that would increase demand for their product regardless of the effects on the statute’s intended beneficiaries. We concluded that to have standing under the statute, HWTC would have to have shown a systematic alignment of interests with the statute’s beneficiaries, see id. at 924, a standard that appellees understandably claim was stricter than our prior characterization of Clarke as a test requiring “less than a showing of congressional intent to benefit but more than a marginal relationship to the statutory purposes.” HWTC II, 861 F.2d at 283.
Our decision did not rest on a conclusion that the economic interests of the treatment firms were somehow less deserving than the environmental interests the statute was designed to foster; nor was it based on a view that the firms’ economic incentives were inherently less worthy than the economic objectives of the securities industry plaintiffs in ICI and Clarke. On the contrary, the economic motivations could be thought analogous. If the watchword of the treatment firms in HWTC IV was “treatment is good and more treatment is better,” HWTC IV, 885 F.2d at 925, it might be said that the watchword of all competitors with regard to their potential rivals must be “regulation is good and more restrictive regulation is better.” And one cannot base standing on one’s mere status as an economic beneficiary of government regulation of others. In Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the Supreme Court said:
[T]he failure of an agency to comply with a statutory provision requiring “on the record” hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be “adversely affected within the meaning” of the statute.
Id. at 883, 110 S.Ct. at 3186.
The distinction between HWTC IV and the Supreme Court’s Lujan hypothetical on the one hand and ICI and Clarke on the other must be that in ICI and Clarke the potentially limitless incentives of competitors were channelled by the terms of the statute into suits of a limited nature brought to enforce the statutory demarcation dividing the banking and securities industries. The interests the securities industry plaintiffs sought to protect were thus less open-ended and more confined than were the economic interests pursued in HWTC IV, and as a result there was a reduced danger of distorting congressional purpose. By contrast, nothing in the statute in HWTC IV could ensure that there would be any connection at all between the treatment firms’ interests and the statutory purpose. “[TJhere is not the slightest reason to think that treatment firms’ interest in getting more revenue by increasing the demand for their particular treatment services will serve [the statute’s] purpose of protecting health and the environment.” HWTC IV, 885 F.2d at 924. There is, however, a reason to think that a competitor’s interest in patrolling a statutory picket line will bear some relation to the congressional purpose, because the entry-like restriction itself reflects a congressional judgment that the constraint on competition is the means to secure the statutory end. The restriction connects the economic interests of competitors to the purposes of the statute and yet constrains competitors to a limited role in guarding a congressionally drawn boundary. In these circumstances the plaintiffs can be thought to have interests “systematically aligned” with those the statute is designed to benefit.
The securities industry plaintiffs in ICI and Clarke were not seeking to impose new regulations on banks in areas unrelated to an existing, specific statutory norm simply to provide a demand for their services or to weaken banks as competitors. We certainly would not accept as a suitable plaintiff a party who had only a general economic interest in harming a competitor and who, accordingly, sought to impose some new, more onerous regulation upon that competitor. See, e.g., Calumet Indus., Inc. v. Brock, 807 F.2d 225, 228 (D.C.Cir.1986). But, when the plaintiff seeks to enforce a statutory restriction on his competitor — a restriction the plaintiff enjoys as well as the statutory beneficiaries — there is a good deal less risk that recognizing the plaintiffs standing will lead to a misdirection of a statutory scheme.
Our reasoning in HWTC suggests that our reaction might be different if the banks appeared before us, not asking to patrol the common bond picket line, but seeking a new regulation that would squeeze the credit unions into a smaller market or even eliminate them from the market altogether. It is unnecessary, however, to extend our holding into a definitive answer to appellants’ hypotheticals; we concede that the general issue is devilishly complex. We feel confident, however, that this case is a good deal closer to the paradigm of ICI and Clarke than it is to HWTC, and, therefore, we hold that appellants have standing. The judgment of the district court is reversed and the case remanded.
. In HWTC IV, we emphasized that "it is the interests that the challenger seeks to protect and not the challenge with which we must be concerned.” HWTC IV, 885 F.2d at 925.
. The Senate report on the bill praised credit unions for their record of successful service during the Depression, a record that contrasted sharply with a grim history of bank failures, and attributed the success largely to credit unions’ self-government and attentiveness to members’ needs. See Sen.Rep. No. 555, 73d Cong., 2d Sess. 2-4 (1934).
. We cannot agree with the pre-Clarke reasoning of Branch Bank & Trust Co. v. National Credit Union Administration Board, 786 F.2d 621 (4th Cir.1986), in which the Fourth Circuit focused exclusively on the question whether banks’ interests were intended to be protected under the FCUA and concluded that banks do not have standing under the FCUA, see id. at 626. The subsequent explication of the suitable challenger route to standing in Clarke empties the Branch Bank decision of its persuasiveness.
. We have expressed concern in the past about allowing potential plaintiffs to gain standing through a facile assertion that they are enforcing entry-restricting legislation (a concern that again highlights the importance we have implicitly attached to entry restrictions in standing cases). See HWTC II, 861 F.2d at 284. This, of course, is not such a case.
. Perhaps it is also relevant — in considering whether a plaintiff has prudential standing, if not Article III standing, see Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974)— to ask whether, as the Supreme Court may well have in ICI, one can be confident that the intended beneficiaries had sufficient incentive and organizational resources to sue. See HWTC II, 861 F.2d at 284.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer: |
songer_circuit | F | 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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TYPOGRAPHICAL UNION NO. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, Respondents.
No. 14246.
United States Court of Appeals Sixth Circuit.
June 4, 1960.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Thomas A. Roumell, 7th Regional Director, N.L.R.B., Detroit, Mich., for petitioner.
Zwerdling & Zwerdling, Detroit, Mich., Van Arkel & Kaiser, Washington, D. C., for respondent.
PER CURIAM.
This cause came on to be heard upon the petition of the National Labor Relations Board for the enforcement of a certain order issued by it against Typographical Union No. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, their officers, agents, successors and assigns on April 4, 1960, in a proceeding before the said Board numbered 7-CC-106, 7-CC-112, 7-CC-113, 7-CC-114 and 7-CB-623; upon the transcript of the record in said proceeding, certified and filed in this Court, and upon a stipulation providing for the entry of a consent decree of this Court enforcing the order.
On consideration whereof, it is ordered, adjudged and decreed by the United States Court of Appeals for the Sixth Circuit, that the said order of the National Labor Relations Board be, and the same is hereby enforced; and that Typographical Union No. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, their officers, agents, successors and assigns abide by and perform the directions of the Board in said order contained.
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_appel1_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
TRUSTEES OF THE CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT) PENSION FUND, Plaintiff-Appellee, v. RENTAR INDUSTRIES, INCORPORATED, Ratner Enterprises, Incorporated and Rentar Trailer and Container, et al., Defendants-Appellants.
Nos. 90-3214, 90-3473.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 23, 1991.
Decided Dec. 20, 1991.
Joseph M. Bums, David S. Allen (argued), Karen I. Engelhardt, Jacobs, Burns, Sugarman & Orlove, Vincent D. Pinelli, Edward J. Burke, Mary P. Burns, Burke, Smith & Williams, Chicago, Ill., for plaintiff-appellee.
Arnold L. Burke (argued), Siegan, Barba-koff & Gomberg, David R. Kugler, Daniel Kuznetsky, Kugler, Deleo & D’Arco, Chicago, Ill., for defendants-appellants.
Before COFFEY and FLAUM, Circuit Judges, and ENGEL, Senior Circuit Judge.
Honorable Albert J. Engel, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation.
ENGEL, Senior Circuit Judge.
Rentar appeals from denial of its motion for a hearing to demonstrate irreparable harm resulting from an order compelling interim payment of ERISA withdrawal liability. 29 U.S.C. § 1399(c)(2). The sole issue before us is whether the magistrate had discretion to grant relief from the seemingly inflexible requirement under 29 U.S.C. § 1399(c)(2) that an allegedly withdrawing employer make interim payments pending arbitration on the issue of its liability. While the Seventh Circuit has found a narrowly limited discretion to intervene, we hold the court did not abuse its discretion here because the employer failed to make any colorable initial showing of clear right or irreparable injury. We therefore affirm.
I. Background
Couzens was an affiliate and/or wholly owned subsidiary of Rentar, Inc. On December 29, 1982, Rentar, Inc. sold ninety percent of Couzens’ stock to Levitt. On February 7, 1983, Couzens filed an involuntary petition in bankruptcy. Prior to this Couzens had been an employer contributing to the Chicago Truck Drivers, Helpers and Warehouse Workers Union Pension Fund (“the Fund”). See 29 U.S.C. § 1002. On January 21, 1983, Couzens had stopped contributing to the Fund, and when it ceased operations it effectuated a complete withdrawal from the Fund. See 29 U.S.C. § 1383.
When an employer withdraws from a multiemployer pension plan, the employer becomes immediately liable for its proportionate share of unfunded vested benefits. 29 U.S.C. § 1381. Congress designed this requirement in order to establish greater financial stability for these plans. H.Rep. No. 869, Part I, 96th Cong., 2d Sess. 51-54 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News, 2918, 2919-2922. The Employee Retirement Income Security Act (ERISA) further provides that upon withdrawal, a multiemployer pension fund is to determine the employer’s withdrawal liability, notify it of the amount, and then collect the money. 29 U.S.C. § 1382. The Fund calculated Couzens’ withdrawal liability to be $1,082,517, and notified it of the amount.
Collection of the funds proved to be a bit more difficult; Couzens’ insolvency forced the Fund to seek other less direct avenues for payment. The Fund decided to look to the previous owner of Couzens, Rentar, Inc. and its associated companies to satisfy the liability. The Fund attempted to have the sale of Couzens disregarded for purposes of determining and collecting withdrawal liability by alleging that the principal purpose of the December 1982 sale of Couzens by Rentar, Inc. was “to evade or avoid [withdrawal] liability.” 29 U.S.C. § 1392(c).
Understandably, the Rentar defendants (“Rentar”) disputed the Fund’s view of their liability. In November 1989, the magistrate ordered Rentar and the Fund to arbitrate their differences. See 29 U.S.C. § 1401. The Fund then sought interim payments of withdrawal liability from Ren-tar. The 1980 Multiemployer Pension Plan Amendments Act (MPPAA), to further guarantee fund stability, requires withdrawal payments be made pending arbitration:
Withdrawal liability shall be payable in accordance with the schedule set forth by the plan sponsor ... no later than 60 days after the date of the demand notwithstanding any request for review or appeal of determinations of the amount of such liability or of the schedule.
29 U.S.C. § 1399(c)(2). The MPPAA also provides:
Payments shall be made by an employer in accordance with the determinations made under this part until the arbitrator issues a final decision with respect to the determination submitted for arbitration
29 U.S.C. § 1401(d).
Despite this inflexible language, in limited situations courts have been held to have some discretion in ordering payments. See Robbins v. McNicholas Transportation Co., 819 F.2d 682 (7th Cir.1987). McNicho-las provides for a review by the court of the employer’s likelihood of success and the irreparable harm to be suffered due to payment. Rentar sought to present evidence regarding the composition of the control group and the harsh economic effect of the order. Rentar appeals from the order compelling interim payment, and denial of its motion seeking a hearing to present more evidence.
II. Jurisdiction
Before our recent decision in Trustees of the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund v. Central Transport, Inc., 935 F.2d 114 (7th Cir.1991), orders compelling interim withdrawal payments were treated as orders granting or denying injunctions under 28 U.S.C. § 1292(a)(1). See McNicholas, 819 F.2d at 685. As such, the orders could be appealed only if they “might have a ‘serious, perhaps irreparable consequence.’ ” Id., quoting I.A.M. Nat’l. Pension Fund v. Cooper Indus., 789 F.2d 21, 24 (D.C.Cir.1986). To “simplify the subject,” Central Transport held that these orders are not injunctions, but rather are money judgments, final and appealable under 28 U.S.C. § 1291. Central Transport, 935 F.2d at 117.
The Fund challenges the application of the Central Transport rule to the order in this case. While the order in Central Transport compelled payment of the accrued liability and ordered the employer to make future payments as they came due, the Rentar order did not grant prospective relief but ordered payment only of the amount currently due and owing. Because they did not get all of the relief they were seeking and could go back to court to force future payments, the Fund contends that the order could not be considered final. We disagree because this argument places too much emphasis on the scope of the relief granted. Central Transport held that “the terminating order of any suit seeking ‘interim payments’ under § 1399(c)(2) is a final decision, appealable under 28 U.S.C. § 1291.” Central Transport, 935 F.2d at 117. The failure to include prospective relief does not make the order any less final.
III. Requirement of a Hearing to Show Irreparable Harm
Rentar claims the district court had to establish “some procedure” by which an allegedly withdrawing employer could demonstrate the irreparable harm it would suffer as a result of the court’s order compelling it to make interim payments. Originally, Rentar sought a hearing, but has since modified the request to the broader form outlined above. For support Rentar relies upon McNicholas.
In McNicholas the employer appealed from an order compelling interim payments, arguing that making the payments would result in “severe financial hardship and essentially preclude its resumption of operations.” McNicholas, 819 F.2d at 685. It produced figures showing a current annual income barely exceeding the required monthly payments. Under these circumstances the court ruled, “where the trustees bring an action to compel payment pending arbitration, the court should consider the probability of the employer’s success in defeating liability before the arbitrator and the impact of the demanded interim payments on the employer and his business” when exercising its discretion over the issuance of the order compelling payments. Id.
In Central Transport we also addressed the question of the court’s discretion to order interim payments:
McNicholas is at most a recognition that if the fund’s claim is frivolous — if the arbitrator is almost certain to rule for the employer — then the plan is engaged in a ploy that a court may defeat.... Having assured itself that the plan’s claim is legitimate, however, the court should order the making of interim payments and leave the rest to the arbitrator.
Central Transport, 935 F.2d 114, 119 (7th Cir.1991). We hold here that irreparable harm becomes important only if the employer makes an affirmative showing that the pension fund lacks a colorable claim. This standard is compatible, we believe, with the due process interests of the employer and with those of the statutory scheme.
Rentar offers two reasons why the Fund’s case is frivolous. First, the “Rentar defendants were not a parent company or controlled group of Couzens at the time of its alleged withdrawal.” Rentar’s continued reliance on this as a defense ignores the nature of the Fund’s claim. Section 1392 allows a pension fund to reach even companies who did not own or control a company at the time of withdrawal. Second, “[c]omposition of Rentar group should be determined at hearing or by other presentation of evidence of its composition.” Rentar offers no support for this assertion in its briefs, choosing instead to focus on the irreparable harm issue.
Even assuming these two claims would be enough to warrant a determination that Rentar might succeed before the arbitrator, Rentar has offered no evidence whatever to support its assertion of irreparable harm. Rentar has submitted no affidavit or balance sheet to the court. Nor does it argue that due process requires a hearing, but merely asserts its view that the request was “not out of line.” While this may be true, it does not mean that the district court was required to grant a hearing or “other procedure” when no issue of fact existed. It should have come as no surprise to Rentar that without the production of at least some evidence to raise a factual question, the district court was under no obligation to hold a hearing on the question or to establish some other procedure to receive evidence.
For these reasons, the decision below is Affirmed.
. 29 U.S.C. § 1392(c) provides: "If the principal purpose of any transaction is to evade or avoid [withdrawal] liability, this part shall be applied (and liability shall be determined and collected) without regard to such transaction.” The premise of this section is that the defendant did not actually own or control the employer at the time of its withdrawal.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
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
Frank J. PETTINELLI, et al., Plaintiffs-Appellants, v. Edmund R. DANZIG, et al., Defendants-Appellees.
No. 82-3122.
United States Court of Appeals, Eleventh Circuit.
Jan. 12, 1984.
See also, 5 Cir., 644 F.2d 1160.
Anthony N. Del Rosso, P.C., Mineóla, N.Y., for plaintiffs-appellants.
Antinori & Thury, P.A., Paul Antinori, Jr., Tampa, Fla., Rives, Strohauer & Tee-van, P.A., Ronald P. Teevan, Clearwater, Fla., for defendants-appellees.
Before FAY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
FAY, Circuit Judge:
This stockholder’s derivative suit arises out of the formation and capitalization in the early 1970s of Skyway Development Corporation, a Florida land development corporation. The appellants are investors in Skyway who allege that the officers and directors of Skyway violated securities law (15 U.S.C. §§ 77a-77aa), and breached their fiduciary duties as corporate officials causing dilution of appellants’ stock. The appellants also allege that the appellees fraudulently induced them to invest in Skyway. The defendants moved for summary judgment which was granted for all actions or inactions occurring before March 20, 1974. This is the date of a written “Agreement and Release” that settled all claims between these parties prior to that date. The district court denied summary judgment for issues surrounding events after that date because factual issues may still exist for that period of time. We agree with the district court that the 1974 Release conclusively resolves all claims prior to that date and, therefore, affirm.
Appellants raise two issues: (1) whether they were fraudulently induced to execute the 1974 Release under Florida law; and (2) whether the district court properly applied Federal Rule of Civil Procedure 56 in assessing the existence or nonexistence of factual disputes.
Our presentation of the facts is gleaned from appellants’ pleadings, affidavits and memorandum in opposition to summary judgment. By drawing our facts from these documents we will be considering the facts in the light most favorable to the opponents of the motion. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
The appellees formed Skyway to develop property at Terra Ceia in Manatee County, Florida. Between 1970 and 1972 some of the appellees convinced each appellant to invest money or services in Skyway in exchange for yet to be issued stock shares. To persuade appellants to invest in Skyway, appellees represented that they owned the land which was appraised at twenty-six million dollars and that they had already accumulated substantial revenues from other investors. A development plan, including projections for local government permit approval, was part of the presentation to appellants. The appellees further represented that only five hundred shares of Skyway stock would be issued and that each share would have one vote. Appellees would own 52% of the stock, the appellants 29%, and 19% would be retained as treasury shares.
After appellants invested their money and services no stock issued. As early as 1970, appellants made demand for the stock issuance and in 1972 they also requested to examine the corporate by-laws and books. In May of 1972, unannounced to the appellants, the Skyway board of directors met and decided to offer the appellants a refund of their investment in lieu of stock or to offer them a total of 375 shares. The Board also authorized issuance of one thousand shares of Skyway stock. Appellants thereafter demanded stock issuance, an accounting, and asked the board to institute a derivative action against the appellees.
Since its inception, Skyway has had financial difficulties. In 1974 when appellants were requesting a derivative action be brought, the Board, which is substantially the appellees, indicated that a derivative suit could have an adverse impact upon pending local government permit applications, mortgage applications, and could cause cancellation of existing mortgages. Appellees and appellants therefore negotiated a settlement on March 20, 1974 that was embodied in a written Agreement and Release. The Release provides in part:
That in consideration of the issuance nunc pro tunc, as of the respective dates of the aforesaid Purchase Agreements, by Skyway to the Purchasers of the following shares of Skyway common capital stock, the Purchasers individually and collectively for themselves, their heirs, personal representatives, successors and assigns do hereby release, settle, cancel, discharge, remise and acknowledge to be fully satisfied any and all claims, demands, rights, actions and cause of action of every kind, nature and description whatsoever, known or unknown, which the Purchasers, jointly or severally, may now have or hereafter have or assert against Skyway, its present and past officers, directors, stockholders, employees and agents arising out of actions or inac-tions of Skyway and of said persons which have occurred to date; except any claims which they or any one or more of them may have by way of derivative claim against John R. Albershardt, and as to this claim they and each of them agree not to bring or cause to be brought any action thereon without the written agreement of Skyway, and they hereby agree that no action shall be brought on said claim other than by and on the decision of Skyway:
Number of Shares Name
Harry Skiadas 25
George Skiadas 25
Andre B. Buehler 10
Frank J. Pettinelli 10
Eugene F. Pettinelli 50
Anthony N. Del Rosso 10
R. Vol. 2 at 353 (emphasis added). The district court based its partial summary judgment order on this Release.
Appellants also complain of misconduct and fraud subsequent to the Release; specifically, failure to promptly allow inspection of the books according to the Release provision. Any issues based on facts after the March 20, 1974 Release are not relevant to our decision. The district court’s partial summary judgment order only limited the appellants’ suit to events occurring after the Release, therefore, all causes of action arising after the Release date may still be litigated. Because the district court found that no facts were suggested that showed the two corporate ap-pellees were involved in any events after the Release, full summary judgment was granted as to them. ,
Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c). In this case, the propriety of the summary judgment is determined by the substantive ruling on the effect of the Release under Florida law. If the Release is such that it precludes any inquiry into fraud in the inducement, then there can be no factual dispute. If so, the only issue before the trial court was a legal one, susceptible of summary judgment. Appellants’ argument that the trial judge did not consider the existence of questions of material fact in the light most favorable to them would be moot for that rule only applies “when the parties’ dispute is factual.” Federal Deposit Ins. Corp. v. Dye, 642 F.2d 837, 841 (5th Cir.1981) (Unit B). Accordingly, we examine Florida law on fraud to determine if the legal issue of fraud resolves any potential factual questions.
The common law remedy for fraud requires that the plaintiff show that the defendant (1) made a false representation of fact, (2) that the defendant knew was false when made, and (3) that the representation was made for the purpose of inducing the plaintiff to act in reliance of it. Cavic v. Grand Bahama Devel. Co., Ltd., 701 F.2d 879 (11th Cir.1983), citing Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1000 (5th Cir.1974) quoting Poliakoff v. National Emblem Ins. Co., 249 So.2d 477, 478 (Fla. 3d DCA 1971). The misrepresentation must be about a present or past fact rather than a future fact. Cameron v. Outdoor Resorts of America, Inc., 608 F.2d 187, 195 modified in part on rehearing, 611 F.2d 105 (5th Cir.1979). Another element of common law fraud was enunciated in Columbus Hotel Corp. v. Hotel Management Co., 116 Fla. 464, 156 So. 893 (1934). In Columbus Hotel, the court ruled that plaintiffs were not entitled to relief from a fraudulently procured contract because the plaintiffs had no right to rely on the misrepresentations. Thus, in addition to the enumerated three criteria, fraud requires a showing that the plaintiffs had a right to rely on the representations.
In attempting to prove fraud in the inducement in the instant case, the appellants encounter two difficulties: first, showing that a material misrepresentation was made; and second, demonstrating that they were in a position to justifiably rely on any such representation. The Release agreement states that this “Agreement and Release contains the understanding of the parties.” R. Vol. 2 at 355. Appellants argued in the district court and argue here that notwithstanding this clause other representations not embodied in the Release were made. Specifically, appellants assert that it was represented that Skyway would pursue legal remedies against John Alber-shardt to recover stock and would open its books for prompt inspection. Both of these matters were fully addressed m the written agreement and cannot be altered with parol evidence. No other examples or allegations of misrepresentation are offered by the appellants. For purposes of showing fraud, it is sufficient to note that any alleged representations made prior to the Release merge into the Release clauses that address the same terms or representation. See, Jacksonville Paper Co. v. Smith & Winchester Mfg. Co., 147 Fla. 311, 2 So.2d 890 (1941). If one or both of these terms has not been performed then a breach of contract action may be appropriate. Such an action would survive the partial summary judgment as it would be based on events after the Release date.
Even if representations were made that were false and did induce the appellants to enter into the Release in reliance thereon, such reliance was unjustified. In Columbus Hotel, supra, the court prefaced its conclusion that reliance was unjustified with a discussion of the parties involved in the contract. The parties were both represented by counsel and were specifically advised not to rely on any representations. 156 So. at 900. From the beginning of the negotiations it was clear that the parties were in an adversarial relationship. Id. at 899.
In the instant case, the appellants include Anthony Del Rosso, a New York attorney. He was involved in the negotiations and presumably had enough legal acumen to understand and protect his own and other appellants’ interests. Throughout this negotiation period appellants knew from their own dealings that they should not rely on any representations made by defendants. Appellants also knew that by the Release terms, they would not know the condition of Skyway until they inspected the books. Appellants did not insist upon examining the books prior to the execution of the Release and did not insist upon the insertion of any specific written representations as to the financial condition of Skyway. As to action against Albershardt, appellants granted all authority to Skyway in its exclusive discretion. When negotiating or attempting to compromise an existing controversy over fraud and dishonesty it is unreasonable to rely on representations made by the allegedly dishonest parties. See Sutton v. Crane, 101 So.2d 823 (Fla. 2d DCA 1958). Thus, the appellants have failed to make a prima facie case of fraud because they had no legal right to rely on any representations under these circumstances. Further, because the Release itself contains a merger clause appellants have not raised any misrepresentation not covered by the Release upon which they were fraudulently induced to enter the Release. We agree with the district court that under Columbus Hotel, the appellants have not raised a genuine issue as to fraud.
Florida law favors the finality of settlements. DeWitt v. Miami Transit Co., 95 So.2d 898 (Fla.1957); Lotspeich Co. v. Neogard Corp., 416 So.2d 1163 (Fla.3d DCA 1982). In this case appellants contractually waived any right to complain of events prior to March 20, 1974. Partial summary judgment was correct because as a matter of law the appellants have failed to present any issue which would support a prima fa-cie case of fraud in the inducement. We agree with the district court that no facts were introduced that involve the corporations after the Release date, therefore, full summary judgment as to them was proper. We emphasize that performance under or breach of the terms of the Release, and any fraud after the Release date, may still be litigated.
AFFIRMED.
. In Bleemer v. Keenan Motors, Inc., 367 So.2d 1036 (Fla. 3d DCA 1979) an exception to the merger rule was made. The court first announced the general rule that “representations and negotiations which precede and accompany the making of contracts are presumed to have merged into the written contract,” however, the merger rule “has no application where the legal existence or binding force of the instrument is in question.” Id. at 1038. In the instant case, appellants have not contested the legal existence of the 1974 Release, therefore, the Bleemer exception does not apply.
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_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, Plaintiff-Appellee, v. Vilma Allison OLMEDA, Defendant-Appellant.
No. 87-5107.
United States Court of Appeals, Eleventh Circuit.
March 14, 1988.
Miguel Caridad, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.
Leon B. Kellner, U.S. Atty., Susan Tarbe, Linda C. Hertz, Allan B. Kaiser, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and HENDERSON, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
Appellant Vilma Olmeda was convicted of making false declarations before a grand jury in violation of 18 U.S.C. § 1623. Prior to trial, Olmeda moved to suppress the statements she had made before the grand jury. She claimed that her fifth amendment rights had been violated at the grand jury proceeding when, after she had requested an attorney, the prosecutor continued to question her and failed to appoint an attorney for her. On appeal, Olmeda challenges the district court’s denial of her motion to suppress. We affirm.
I.
As Robert Aldana was driving away from his residence on the morning of December 20, 1985, another automobile intercepted him. He was forced at gunpoint from his car, blindfolded, and placed in the rear of a van. His abductors drove him to an apartment at 1560 West 42nd Street in Hialeah, Florida, where they held him captive while they attempted to extort a ransom from his father. When it became clear that no ransom was forthcoming, the kidnappers released Aldana at 11:45 p.m. on the same day.
Agents of the Federal Bureau of Investigation (FBI) traced the extortionate telephone calls to the 42nd Street apartment in Hialeah. On the day after the kidnapping, FBI agents observed appellant Olmeda at the apartment in question, as well as at a shopping center accompanying the alleged kidnappers in the disposal of Aldana’s car.
On January 3, 1986, Olmeda was subpoenaed before the grand jury investigating Aldana’s kidnapping. At the time of her appearance, one of the alleged kidnappers had been indicted; two other persons subsequently were indicted. Although Olme-da never was charged with a substantive offense relating to the kidnapping, she was charged with perjury on the basis of her grand jury testimony that she had not been at the site of the kidnapping on December 21.
When Olmeda appeared before the grand jury, the Assistant United States Attorney conducting the questioning advised her that she had the right not to answer any question if the answer to such question would tend to incriminate her, that anything she said could be used against her in any legal proceeding, that if she had an attorney the grand jury would allow her a reasonable opportunity to consult with that attorney, and that she was not at that point a target of the grand jury investigation, although she could become one in the future. When the prosecutor asked her if she had any questions about her rights, appellant asked, “If I want to talk to an attorney, is there an attorney I can talk to out there, would they give me one or — ” at which point the prosecutor told her, “Ma’am, I really don’t know. I mean, that’s up to you.” After a few more exchanges, the prosecutor stated, “Okay. My question to you is: Do you want to talk to an attorney and not answer questions, or do you want to go ahead and answer questions before this Grand Jury? That choice is yours, Miss.” Olmeda responded, “Well, I would — I would like — I would answer the questions, but, then, at the same time, there’s a question I have, you know, a question that you give me that I have a question to ask, I’d like to maybe be able to step outside and talk to someone about it.” The prosecutor told her that the grand jury had no attorney to give her, and asked, given that situation, if she was willing to answer questions, to which Olmeda replied, “Fine.” Subsequently, Olmeda gave the testimony for which she was convicted. When asked whether she had visited the 42nd Street apartment on Saturday, December 21, the day after the kidnapping, she responded, “No.” When prodded by further questioning, she added that she was there “[a]t no time_ The only place I went — I went and put $5 of gas in the car, came back home and later on that day, about 11-12 o’clock, we went to the bar.” These statements provided the basis for her indictment and conviction for making false statements to a grand jury in violation of 18 U.S.C. § 1623.
II.
Olmeda contends that her request for an attorney at the grand jury inquiry should have halted all questioning until an attorney was appointed to represent her. She compares her situation to that in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which established that the police must stop all custodial interrogation of a suspect once that suspect requests an attorney. In Edwards, the suspect told the police that he wanted an attorney before making a deal with them, at which point their questioning of him ceased and he was placed in jail. The next morning, when two police detectives arrived to question him, he stated that he did not want to talk to anyone. He was told, however, that “he had” to talk, and shortly thereafter he implicated himself in the crime. The Supreme Court held that the use of his confession “against him at his trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona, [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)],” in that “an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation.” Edwards, 451 U.S. at 480-82, 101 S.Ct. at 1882-83.
Olmeda contends, as did the suspect in Edwards, that she invoked her right to consult with an attorney, and that the prosecutor’s continued interrogation of her was as violative of her fifth amendment right to have counsel present during interrogation as was the police detectives’ questioning of Edwards after he had requested counsel. She contends that even though the suspect in Edwards was in a traditional custodial setting, she was similarly under a legal disability as she was compelled by subpoena to be present before the grand jury. She points out that under the Judicial Conference guidelines then in effect, the prosecutor could in fact have obtained an attorney for her, and she argues that his failure to do so violated her fifth amendment rights.
We find it unnecessary to reach appellant’s argument that questioning before the grand jury provides a sufficiently coercive setting as to require the full range of Miranda protections. We note that her contention that Edwards applies to the grand jury setting has not been decided by the Supreme Court. Moreover, the Court has not yet decided whether “the grand jury setting presents coercive elements which compel witnesses to incriminate themselves.... [or] whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses.” United States v. Washington, 431 U.S. 181, 186, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977). In Washington, because the potential defendant had been fully informed of his rights under Miranda, including the right to appointed counsel, pri- or to testifying before the grand jury, the Court declined to decide whether Miranda warnings were constitutionally required in the grand jury setting. 431 U.S. at 190, 97 S.Ct. at 1820.
The Court has clearly decided, however, that “[t]he Fifth Amendment privilege against compulsory self-incrimination provides no protection for the commission of perjury.” United States v. Mandujano, 425 U.S. 564, 609, 96 S.Ct. 1768, 1792, 48 L.Ed.2d 212 (1976) (Stewart, J., concurring in the judgment). Prior to being subpoenaed before a federal grand jury, Manduja-no had been investigated by an agent of the Drug Enforcement Administration (DEA). The DEA agent had given Mandu-jano $650 to obtain some heroin, but Man-dujano shortly returned the money to the agent without producing any drugs, and he failed to keep a subsequent appointment with the agent. The investigation file on Mandujano was then closed, but the DEA agent turned over the information he had obtained to federal prosecutors, who then subpoenaed Mandujano to testify before the grand jury. When called into the grand jury room, Mandujano was told that he did not have to answer any questions which would incriminate him, and that he could be charged with perjury if he provided any false answers. The prosecutor also asked him if he had contacted an attorney, to which he responded that he had not because he could not afford one. The prosecutor replied:
Well, if you would like to have a lawyer, he cannot be inside this room. He can only be outside. You would be free to consult with him if you so chose. Now, if during the course of this investigation, the questions that we ask you, if you feel like you would like to have a lawyer outside to talk to, let me know.
Id. at 567, 96 S.Ct. at 1772. At no time, however, was Mandujano informed that an attorney would be appointed for him at the government’s expense if he was financially unable to retain one. See United States v. Mandujano, 496 F.2d 1050, 1051, n. 1 (5th Cir.1974), rev’d, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976).
During the questioning Mandujano admitted that he had previously been convicted of distributing drugs, and that he had purchased heroin in the previous five months. Nevertheless, he denied knowledge of any drug dealers except for one streetcomer source and disclaimed that he either sold or attempted to sell heroin since the time of his conviction fifteen years earlier. He specifically denied having discussed the sale of heroin with anyone in the past year and said that he would not even attempt to purchase an ounce of heroin for $650.
About one month later, Mandujano was indicted for attempting to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846, and for willfully making false declarations before the grand jury in violation of 18 U.S.C. § 1623. In support of a motion to suppress his grand jury testimony, he argued that as he was a “putative” defendant when he was called before the grand jury, his testimony should be suppressed because he was not given full Miranda warnings. Although the eight justices participating in the Mandujano case were unable to reach a majority decision about whether such warnings were constitutionally required, they all agreed that even if such warnings should have been given, the failure of the prosecution to provide them could not constitute a defense to a charge of perjury based upon the witness’ false testimony. As Justice Brennan explained, “Although the Fifth Amendment guaranteed respondent the right to refuse to answer the potentially incriminating questions put to him before the grand jury, in answering falsely, he took ‘a course that the Fifth Amendment gave him no privilege to take.’ ” 425 U.S. at 584-85, 96 S.Ct. at 1780 (quoting United States v. Knox, 396 U.S. 77, 82, 90 S.Ct. 363, 366, 24 L.Ed.2d 275, 280 (1969)).
Other cases have affirmed the principle that “perjury is not a permissible way of objecting to the government’s questions.” United States v. Wong, 431 U.S. 174, 180, 97 S.Ct. 1823, 1827, 52 L.Ed.2d 231 (1977). In Wong, the unanimous Court held that the defendant’s failure to understand the warning of the right not to answer incriminating questions because of her limited command of English did not require suppression of her false testimony. The Court stated that even the perceived dilemma of being forced to choose between self-incrimination and lying under oath did not justify perjury, and that neither the fifth amendment nor the due process clause required suppression of the defendant’s false testimony. Rather, the witness had the choice of asserting the privilege or answering the question truthfully. For “even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely.” Id. at 180, 97 S.Ct. at 1827 (citing United States v. Knox, 396 U.S. 77, 82-83, 90 S.Ct. 363, 366-67, 24 L.Ed.2d 275 (1969)).
The same principle applies in this case. We need not decide whether the Constitution requires that an attorney be appointed for potential defendants who are subpoenaed to appear before a grand jury and who request to consult with an attorney about the questioning, although we agree that it is better practice, as recognized in the Judicial Conference guidelines, to provide counsel for such witnesses. For even if appellant has a constitutional right to consult with an attorney during the course of the grand jury proceeding, the failure of the government to provide an attorney for her does not excuse perjury on her part. “ ‘Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.’ ” Mandujano, 425 U.S. at 609, 96 S.Ct. at 1792 (Stewart, J., concurring in the judgment) (quoting Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 369, 24 L.Ed.2d 264, 271 (1969) (footnote omitted)).
Olmeda also argues that we should exercise our supervisory power to suppress her grand jury testimony. She reasserts that the prosecutor was incorrect when he informed her that he could not appoint an attorney for her. Olmeda cites a September 30,1986 memorandum from the Administrative Office of the United States Courts reporting that the Judicial Conference has authorized the appointment of counsel for a witness before a grand jury “when there is reason to believe that the witness could be subject to prosecution, contempt, or face loss of liberty.”
Although we agree, as stated above, that it would have been better practice for the prosecutor to have obtained counsel for Olmeda pursuant to the Judicial Conference guidelines, we decline to exercise our supervisory jurisdiction to suppress her testimony in this case. Here, as in United States v. Whitaker, 619 F.2d 1142 (5th Cir.1980), there is no evidence that the government was using the grand jury mechanism to set a trap for Olmeda. Moreover, she was never prosecuted for any substantive offenses. Accordingly, we decline to exercise our supervisory jurisdiction to suppress appellant’s testimony before the grand jury. Thus, we AFFIRM the decision of the district court.
AFFIRMED.
. These three individuals pleaded guilty and were sentenced to 15 years imprisonment.
. The guidelines were published in a Memorandum dated September 30, 1986 from the Administrative Office of the United States Courts.
. Appellant’s argument is based on the fifth amendment, not the sixth amendment right to counsel. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Court held that a person’s sixth amendment right to counsel does not attach until the initiation of judicial criminal proceedings against him or her.
. In Washington, the Court held that the testimony of a grand jury witness suspected of illegal activity could be used against him in a subsequent prosecution for a substantive criminal offense, even though the witness had not been warned prior to giving his grand jury testimony that he was a potential defendant. The Court determined that the warnings which had been given to the defendant, including that he had the right to remain silent and that anything he said could be used against him in court, were adequate to apprise him of his right not to incriminate himself. Accordingly, given the adequacy of the warnings and the circumstances of the grand jury interview, which should have put him on notice that he was a suspect, the defendant need not additionally have been warned that he was a potential defendant. 431 U.S. at 186-90, 97 S.Ct. at 1818-20.
. See abo United States v. Yeager, 537 F.2d 835 (5th Cir.1976) (per curiam) (following Manduja-no ’s holding that "in a perjury prosecution a defendant may not use the privilege against self-incrimination as the basis for suppressing the very grand jury testimony that prompted the perjury charge."); United States v. Smith, 538 F.2d 159, 163 (7th Cir.1976) (“'the Government’s failure to give Miranda-type warnings to a grand jury witness, even one as to whom the proceedings have become accusatory, does not bar a perjury prosecution for false testimony before the grand jury.’ ”) (quoting United States v. DiGiovanni, 397 F.2d 409, 412 (7th Cir.), cert. denied, 393 U.S. 924, 89 S.Ct. 256, 21 L.Ed.2d 260 (1968)) (footnote omitted).
The Eleventh Circuit, in the in banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. Thus, we specifically reserve the question of whether the grand jury testimony of a witness who is later indicted for a substantive offense on the basis of the testimony should be suppressed if an attorney was not made available to the witness upon request.
. See United States v. Smith, 538 F.2d 159, 163 (7th Cir.1976) (affirming the district court’s denial of a motion to suppress the defendant’s grand jury testimony, and noting that "as in Mandujano, the witness was not prosecuted for criminal activity on the basis of incriminating statements made before the grand jury to which Fifth and Sixth Amendment protections might be said to extend. Instead, the witness was prosecuted for committing perjury in answering the grand jury’s questions.’’).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_procedur | C | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
James T. CRUES, Appellant, v. KFC CORPORATION, Appellee.
No. 84-2317.
United States Court of Appeals, Eighth Circuit.
Submitted April 12, 1985.
Decided July 16, 1985.
Barry Ginsburg, Clayton, Mo., for appellant.
John S. Sandberg, St. Louis, Mo., for appellee.
Before ROSS, ARNOLD and JOHN R. GIBSON, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
James T. Crues appeals from a judgment entered on a jury verdict for KFC Corporation on his fraud claim. He argues that the magistrate improperly instructed the jury, primarily in that two converse instructions were given in violation of Missouri procedural law. We affirm.
This is the second time this case has been appealed. Crues obtained a verdict against KFC in the first trial and we reversed because of substantive instruction errors and the failure to submit the issue of punitive damages. Crues v. KFC Corp., 729 F.2d 1145 (8th Cir.1984).
The facts of this diversity case have been discussed in detail on the earlier appeal. 729 F.2d at 1147. The evidence presented during retrial was essentially the same as that in the first trial. Crues’ claim was based on a representation by KFC that a fast-food fish franchise, the H. Salt Seafood Galley, was an “efficient high volume profit producer.” He contended that this statement was fraudulent in that it was made by KFC, who knew it was false and intended that Crues rely on it. This claim was reflected in verdict-directing Instruction No. 8. Instruction No. 10 directed a verdict for KFC if the jury found that the statement was true, that Crues did not rely on it, that Crues did not use ordinary care in relying on it, or that Crues did not suffer damages as a result of the representation. This type of instruction is known in Missouri procedure as a converse instruction. Missouri Approved Instructions Nos. 33.-01-33.15 (3d ed. 1981); Thomas, Converse Instructions Under MAI, 42 Mo.L.Rev. 175, 175-76 (1977). Defendant’s Instruction No. 12, the object of Crues’ appeal, provided:
The evidence shows that on February 7, 1977, KFC Corporation notified the plaintiff that he might want to reconsider starting construction of an H. Salt Seafood Galley restaurant in St. Louis. If you find from a preponderance of the evidence that plaintiff, despite receiving this letter, proceeded with construction based on his own independent decision and not in reliance on representations by KFC Corporation, then you may not consider damages, if any, occurring as a result of plaintiff’s decision to proceed.
The jury returned a verdict for KFC.
I.
Crues argues that Instruction No. 12 was improper because it was a second converse instruction in violation of Missouri instruction law; unduly emphasized evidentiary details favorable to KFC; submitted the “false issue” of Crues’ “proceeding with construction”; was inherently misleading in relating the inducement to purchase the franchise to the decision to proceed with construction; and gave the jury a “roving commission.” These arguments are buttressed primarily with Missouri cases defining state instruction law.
This court recently gave detailed consideration to the relationship between state and federal instruction standards:
[M]any of the states, significantly Missouri, have developed extremely complex rules and procedures and voluminous case law governing instructions. The district judge need not be unduly concerned with arguments asserting the state’s procedural authority relating to instructions as long as the substantive law is correctly stated in a form consistent with the federal procedural law governing instructions. Similarly, on appeal we need not consider the intricacies of state procedural instruction law, as we are asked to do here. Rather, we review the instructions as a whole only to determine that they fairly and adequately state the applicable law.
Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 904 (8th Cir.1985). This passage answers almost all of Crues’ arguments. Our only concern is whether Instruction No. 12 was so misleading that it did not fairly and adequately state Missouri law. The facts show two key dates: July 19, 1976, the date that Crues purchased the franchise; and February 7, 1977, the date that KFC sent the cautionary letter. Instruction No. 12 told the jury that it could find that even if Crues had reasonably relied on KFC’s initial representation, his reliance terminated when he received the February 7 letter. Consequently, the jury was directed that damages suffered by Crues after February 7 could not be awarded if his reliance had ended then. We find nothing misleading in this instruction, which dealt with damages as opposed to the liability defense. Considered with the charge as a whole, Instruction No. 12 did not misstate the applicable law.
II.
Crues also argues that the district court, 546 F.Supp. 217 (D.C.Mo.1982), erred in admitting KFC’s evidence concerning the conduct of other franchisees who elected not to proceed after receiving letters similar to the one Crues received in February 1977. He contends that such evidence was legally irrelevant because of an absence of proof that other franchisees were situated similarly to Crues.
The district court’s evidentiary ruling is subject to review only for an abuse of discretion. See R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266, 275 (8th Cir.1985). We find no such abuse here. First, the evidence introduced by KFC on this matter was cumulative; Crues had introduced similar proof regarding other franchisees in his case in chief. See Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir.1985). Second, there was some evidence, although not substantial, that the other persons who received the cautionary letter were in similar circumstances. Thus, the evidence was relevant. Questions about how similar the other occurrences may have been relate to the weight of this evidence rather than its admissibility. Crues had ample opportunity to cross-examine the foundation witnesses to show the jury that his situation was unique. We also reject the argument that the evidence of similar franchisees was erroneously highlighted by a question from the bench or defense counsel’s closing argument.
III.
Crues also contends that the district court erred in admitting proof concerning KFC’s two offers to convert his fish franchise to a chicken franchise. Crues argues that this evidence was inadmissible as an offer to compromise under Fed.R.Evid. 408.
The admission of this evidence is grounds for reversal only if the district court abused its discretion. There is abundant support for the court’s decision. First, the evidence introduced by KFC was cumulative; Crues had proved the offer during his case-in-chief. Second, the initial offer was made more than three years before the lawsuit was filed. Rule 408 applies only to an offer to compromise a “claim,” and it is not clear that Crues had a claim against KFC in August 1977. To the contrary, his actions at that time showed his intent to proceed with the fish franchise. That the same offer was made after litigation commenced is not a reason to exclude proof of the offer in its initial context. Third, Crues cites no federal cases holding that Rule 408 applies to admissions of compromise against the offeree. The rule is concerned with excluding proof of compromise to show liability of the offeror. C. McCormick, McCormick on Evidence § 264, at 712 (E. Cleary 3d ed. 1984). KFC submitted the offer to show that Crues was unreasonable in relying on the initial representation in continuing the fish operation. This use of evidence violates neither the spirit nor the letter of Rule 408. See Vulcan Hart Corp. v. NLRB, 718 F.2d 269, 277 (8th Cir.1983).
IV.
Finally, we deal with the issue of costs. On September 7, 1984, KFC filed a bill of costs for $7,628.74 with the district court. On September 9, the clerk taxed Crues with this amount even though Crues did not receive notice of or an opportunity to respond to the KFC filing. Consequently, the taxing of costs must be reversed. See Fed.R.Civ.P. 54(d); E.D.Mo.R. 24(C).
On remand, the district court must deny certain costs requested by KFC. KFC claims $3,240 in transcript fees. Of this amount, $2,754.50 was for preparation of the first-trial transcript. This court has held that the prevailing party at the second trial may be awarded the costs of both trials. Superturf, Inc. v. Monsanto Co., 660 F.2d 1275, 1288 (8th Cir.1981). Nevertheless, this court ordered that the parties bear their own costs for the first appeal. We interpret this order to apply to KFC’s expenses in producing a transcript for its appeal from the first trial and the expense of $44.50 for filing the clerk’s record on the first appeal. Nor can KFC recover $250 for use of a special process server, because 28 U.S.C. § 1920 (1982) contains no provision for such expenses. See Zdunek v. Washington Metropolitan Area Transit Authority, 100 F.R.D. 689, 692 (D.D.C.1983); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2677, at 371-72 (1983).
Other requests require further factual determinations, and on remand the district court should consider the following:
(1) KFC seeks expenses for transcribing portions of the first trial that were not ordered for the appeal but for use during the first trial. Crues contends that this figure cannot be assessed as costs in the second trial. Although this expense may be awarded under Superturf the issue is whether these additional transcripts were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2) (1982). The reason for ordering these extra transcripts has not been explained. On remand, the district court should determine the application of section 1920(2), paying particular attention to McDowell v. Safeway Stores, 758 F.2d 1293, 1294 (8th Cir.1985).
(2) KFC also claims costs of close to $1,000 for trial exhibits, including enlargements. 28 U.S.C. § 1920(4) allows fees for “exemplification and copies of papers necessarily obtained for use in the case.” In Nissho-Iwai Co. v. Occidental Crude Sales, 729 F.2d 1530 (5th Cir.1984), the court allowed costs for enlargements of documents where the parties had agreed to use enlarged copies at trial. Whether such costs would be allowed absent an agreement was not decided. Id. at 1553 n. 36. KFC’s supporting materials do not enable us to determine whether the enlargements were “necessarily obtained for use in the case.” This question should be decided by the district court before determining whether expenses for enlargements can be covered by section 1920(4).
(3) KFC also seeks a $300 fee for the deposition attendance of its expert Grossman. Expenses for expert witnesses not appointed by the court ordinarily are limited by 28 U.S.C. § 1821(a)(1), (b) (1982). On remand, however, the district court should consider this expense in light of Nemmers v. City of Dubuque, 764 F.2d 502, 506 (8th Cir.1985), in which the court allowed additional expenses because the expert’s testimony was “crucial to the issues decided.”
(4) Finally, KFC requests reimbursement for expenses relating to copies of depositions. The record does not show whether the deposition copies were “necessarily obtained for use in the case.” This factual question must be addressed on remand, so we need not decide whether expenses for deposition copies can generally be taxed as costs. See generally SCA Services v. Lucky Stores, 599 F.2d 178, 180-81 (7th Cir.1979) (discussing conflict over this issue).
The judgment is affirmed and the taxing of costs is reversed and remanded.
. The Honorable William S. Bahn, United States Magistrate for the Eastern District of Missouri.
. This ruling must be contrasted to our decision on the first appeal. Here we are confronted with what we consider to be procedural requirements under Missouri law concerning instructions. In our earlier opinion we dealt with omission of a critical substantive element. 729 F.2d at 1151-52.
. The clerk’s docket entries do not reflect a notice to Crues, and KFC left blank the certificate of service portion in the bill of costs filed with the clerk.
. We reject KFC’s argument that our earlier order concerning appellate costs was subject to change depending upon which party prevailed upon retrial.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_abusedis | 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 conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
John PIERCE, Plaintiff-Appellee, v. F.R. TRIPLER & CO. and Hartmarx Specialty Stores, Inc., Defendants-Appellants.
No. 210, Docket 91-7437.
United States Court of Appeals, Second Circuit.
Argued Sept. 17, 1991.
Decided Jan. 28, 1992.
Watson B. Tucker, Chicago, Ill. (Michael P. Rissman, Amy B. Folbe, Mayer, Brown & Platt, Chicago, Ill., Allen Green, Bell, Kalnick, Beckman, Klee & Green, New York City, of counsel), for appellants.
Debra L. Raskin, New York City (Cary A. Bricker, Vladeck, Waldman, Elias & En-gelhard, of counsel), for appellee.
Before MESKILL, PIERCE and MAHONEY, Circuit Judges.
MESKILL, Circuit Judge:
Appellants F.R. Tripler & Co. (Tripler) and its parent corporation, Hartmarx Specialty Stores, Inc. (collectively “Hart-marx”), appeal from a judgment of the United States District Court for the Southern District of New York, Knapp, J, 770 F.Supp. 118, in favor of plaintiff-appellee John Pierce. The case was tried to a jury which returned a verdict for Pierce, finding that Hartmarx had willfully violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA). Pursuant to 29 U.S.C. § 626(b), the district judge doubled the back pay damage award. The district judge also imposed sanctions under Fed.R.Civ.P. 11 against Hartmarx because of its attempts to introduce evidence of the job offer made to Pierce after he had been discharged. The defendants appeal the judgment, contending that the district judge erred by (1) denying its motion for judgment notwithstanding the verdict; (2) wrongfully instructing the jury; (3) excluding the proffered evidence concerning the job offer; and (4) wrongfully imposing sanctions under Rule 11.
We affirm the judgment and damage award but reverse the imposition of Rule 11 sanctions.
BACKGROUND
The plaintiff in this action, John Pierce, was 63 years old in 1986 and had been employed by Tripler, a wholly owned subsidiary of Hartmarx Specialty Stores, Inc., as its controller for approximately twenty years. In 1985 Hartmarx planned a company wide reorganization of its operations, which included a reduction in its workforce and a consolidation of its financial operations. As a result of this reorganization, Pierce’s position was eliminated and in May 1986 he was discharged.
The age discrimination charge here does not flow from that discharge, however. Rather, it stems from Tripler’s failure to promote Pierce to the position of General Manager, a position available at the time of his discharge because of the retirement of the then General Manager, Andrew Kiszka. That position was awarded to Peter Van Berg, age 39.
Hartmarx had hired Van Berg in January 1984, intending to groom him to take over Kiszka’s position upon the latter’s retirement. In the early 1980s Kiszka had listed Pierce as an individual who could assume the duties of General Manager. Kiszka testified that Pierce was not considered as Kiszka’s successor in 1983-84 in part because Hartmarx was seeking “a fairly young person.”
In early 1986 Kiszka announced that he intended to retire that summer. After Kiszka’s announcement, Hartmarx management reviewed Pierce’s personnel file and evaluations in determining who would become the next General Manager of Tripler. They also considered at least one other individual for the position in addition to Van Berg. Van Berg, whose position had also been eliminated in the reorganization, was ultimately named General Manager.
In May 1986 Kiszka told Pierce that his position had been eliminated in the restructuring and that he was to be discharged. Pierce told both Kiszka and Michael Regan, the Hartmarx official responsible for the supervision of Tripler, that he was more qualified than Van Berg to be General Manager and that he should be hired for that position. During one discussion, Re-gan told Pierce not to get angry with him because he, Regan, was young.
Thereafter, Pierce’s attorney, Debra Ras-kin, informed Tripler by mail that she believed that Pierce had a meritorious age discrimination claim in the denial of the promotion, but that Pierce was reluctant to litigate the matter. Raskin proposed a meeting with Tripler in order to “work out an amicable resolution of this matter.” Carey Stein, General Counsel for Hartmarx Specialty Stores, answered Raskin, stating that while he did not believe that Pierce had a claim, he would be happy to speak to Raskin in order to arrive at “an ‘amicable resolution’ of any claim he [Pierce] may have.”
In early June 1986 Raskin and Stein discussed Pierce’s situation but did not come to any agreement. In late July 1986 Pierce filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination. On September 25, 1986, Stein telephoned Raskin offering Pierce a financial position at the Long Island City warehouse of Wallachs, another Hartmarx subsidiary. This conversation engendered some confusion as to whether Pierce would be required to waive his age discrimination claim in order to accept the position.
After this conversation, Raskin wrote Stein stating: “If you are willing to make this offer of employment... without regard to the settlement of Mr. Pierce’s claims, he would, of course, be willing to give it serious consideration.” Stein responded by letter, stating that he was confused by Raskin’s reference to the offer being “in exchange” for a release. He claimed that he had said that he would not offer the job “just for the purposes of settling the lawsuit,” and that he still thought the lawsuit groundless. He further stated that, although the Wallachs position might already have been offered to someone else, if Pierce were still interested Raskin should call and Stein would check back at Wallachs.
This letter was followed a week later by another from Raskin restating her understanding of the telephone call, which was that the job was conditioned on a release of all claims against the company. Stein wrote back to Raskin, implying that the offer had not been conditioned on such a release, but that they should “agree to disagree about what was said in the phone conversation and get on with the lawsuit if that’s what’s to be.” Pierce then initiated this action in the Southern District of New York.
DISCUSSION
1. Hartmarx’s Motion for Judgment Notwithstanding the Verdict
At the close of plaintiff's case, Hartmarx moved pursuant to Fed.R.Civ.P. 50(a), unsuccessfully, for a directed verdict in its favor. This motion was renewed at the close of its own case, and, after the jury returned a verdict for Pierce, Hartmarx moved for judgment notwithstanding the verdict pursuant to Rule 50(b). Both motions were denied. Hartmarx appeals, claiming that there was not sufficient evidence presented at trial from which a jury could conclude that Hartmarx had discriminated against Pierce because of his age.
The denial of a motion for judgment notwithstanding the verdict is a ruling of law subject to de novo review. The test is whether the evidence presented at trial, taken in the light most favorable to the prevailing party, was sufficient to allow a reasonable juror to arrive at the challenged verdict. Schwimmer v. SONY Corp. of America, 677 F.2d 946, 951-52 (2d Cir.), cert. denied, 459 U.S. 1007, 108 S.Ct. 362, 74 L.Ed.2d 398 (1982). We believe that there was evidence presented from which a reasonable juror could find that Hartmarx denied Pierce the job of General Manager because of his age.
Hartmarx claims that in order to be held liable for age discrimination for failing to promote Pierce to General Manager, that position must have been available at the time Pierce applied for it. This unremarkable proposition is clearly correct. See, e.g., Marshall v. Airpax Elecs., 595 F.2d 1043, 1044-45 (5th Cir.1979) (where position already filled there is no claim for discriminatory denial of position). Hartmarx claims that the undisputed evidence shows that Pierce did not apply for the job when it was available.
Hartmarx claims that the decision as to Kiszka’s eventual successor was made in late 1983 and that Pierce did not apply for the position at that time. However, there was evidence that the 1983 decision was only tentative, that Van Berg’s interim performance had been less than spectacular, and that Hartmarx management revisited the decision after Kiszka announced his retirement and considered at least one other individual for the position. The jury could reasonably have concluded that the company made the final decision as to Kisz-ka’s replacement in 1986 after Pierce made known his interest in filling the vacancy.
The company claims that Pierce clearly did not apply for the position of General Manager in 1986. Although Pierce admittedly did not fill out a formal application for the General Manager’s position, “whether a formal application needs to be made for a high-level executive position is a factual question dependent on the particular institutional structure and practices of the employer.” Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir.1981). There was evidence before the jury that there was no such formal application procedure in the Hartmarx organization and that Pierce’s desire for the position of General Manager was communicated to Hartmarx management by Pierce himself and by Kiszka. Moreover, there was evidence that Hartmarx gave some perfunctory consideration to Pierce in making its final decision. The evidence in this regard was sufficient to support the jury’s verdict.
2. Jury Instructions
a. Pretext
Hartmarx requested a jury instruction that the plaintiff has the burden of proving by a preponderance of the evidence that defendants’ stated reasons for their actions were merely a pretext for age discrimination. The court refused to give this instruction, stating that pretext was not a part of the case.
Hartmarx relies on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which established shifting burdens of production on the parties to an intentional employment discrimination case. McDonnell Douglas held that once a plaintiff establishes a prima facie case of employment discrimination by demonstrating that an adverse employment decision was made in circumstances giving rise to an inference of improper discrimination the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its actions. Id. at 802, 93 S.Ct. at 1824; Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Once this burden is met, the plaintiff must demonstrate that the proffered justification is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
Hartmarx argues on appeal that the jury should have been told that Pierce had the burden of proving that the reorganization was a pretext for age discrimination. This argument entirely misapprehends the nature of Pierce’s claim. Pierce does not claim that the elimination of his job was discriminatory. He claims that the refusal to appoint him to the open General Manager position was motivated by his age. There was no need for Pierce under this theory to show that the reorganization was pretextual, and therefore the failure to give such an instruction to the jury was not error.
The task of the jury in an age discrimination case is to determine whether the challenged employment decision would have been the same but for the plaintiff’s age. Hagelthorn v. Kennecott Corp., 710 F.2d 76, 83 (2d Cir.1983). The judge’s instructions adequately apprised the jury of this task.
b. Willfulness
Hartmarx also contends that the judge did not properly instruct the jury on the issue of whether the company had willfully violated the ADEA. The ADEA provides for double damages when the employer willfully violates its provisions. 29 U.S.C. § 626(b). The judge instructed the jury not to consider the issue of willfulness unless and until it determined that the company had intentionally used age as a factor in making the decision not to hire Pierce as General Manager of Tripler. The judge told the jury that if they made such a determination they were next to determine whether the company had knowledge that using age in such a manner violated the ADEA. Therefore, in order to find a willful violation, the jury had to find that the company intentionally engaged in conduct that it knew to violate the ADEA. Under any acceptable interpretation of “willful,” such conduct qualifies.
In Trans World Airlines v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), the Court resolved a split among the circuits concerning the quantum of knowledge necessary for a willful violation of the ADEA. The Court held that an employer has willfully violated the ADEA when it “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” Id. at 126, 105 S.Ct. at 624. The Court rejected a proposed standard that would have found an employer guilty of a willful violation whenever the employer knew of the potential applicability of the ADEA. Id. at 127-28, 105 S.Ct. at 624-25. The Court reasoned that such a broad standard “would result in an award of double damages in almost every case,” a result not intended by Congress. Id. at 128, 105 S.Ct. at 625.
Hartmarx argues that the same result will occur if we sanction the jury charge in this case. Hartmarx requested an instruction that would have allowed the jury to consider its good faith. However, in this trial there was no evidence of good faith. This was not a disparate impact case, where the defendant could claim ignorance of the correlation between its selection mechanism and age. Hartmarx did not claim that age was a bona fide occupational qualification, as in Thurston, nor did it claim that it did not know that Pierce was covered by the ADEA. Where a party presents no evidence to support a particular theory of his case, he has no right to a jury instruction on that point. City of New York v. Pullman Inc., 662 F.2d 910, 917 (2d Cir.1981), cert. denied sub nom. Rockwell Int’l Corp. v. City of New York, 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1982). The jury found that Hartmarx intentionally judged Pierce’s qualification for the promotion by his age, and that it knew that to do so violated the ADEA. Therefore, Hartmarx “knew... its conduct was prohibited by the ADEA.” Thurston, 469 U.S. at 126, 105 S.Ct. at 624. We do not believe that this jury reached a result not contemplated by Congress.
3. Evidence of the Wallachs Job Offer
Hartmarx attempted before trial to have evidence of the subsequent job offer it made to Pierce ruled admissible. The district judge refused to allow the evidence, and Hartmarx contends on appeal that this disallowance was reversible error.
Hartmarx argued that the evidence was relevant for two purposes. First, Pierce’s rejection of the job offer purportedly showed that Pierce had failed to take reasonable steps to mitigate his damages, thus limiting his claim for back pay. Second, evidence of the job offer made in September 1986 allegedly was relevant to Hart-marx’s state of mind in May when it denied Pierce the General Manager position. Pierce opposed the introduction of the evidence, contending that the offer took place in the course of settlement negotiations and thus was inadmissible under Fed.R.Evid. 408. The district court held a hearing and determined that, because the offer was not “unambiguously unconditional,” the evidence was not admissible for either purpose proposed by Hartmarx. The district court did not address the Rule 408 issue.
In order to show a failure to mitigate damages evidence of the failure must first be admissible. Fed.R.Evid. 408 states:
Evidence of {1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence, otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
(emphasis added). Evidence that demonstrates a failure to mitigate damages goes to the “amount” of the claim and thus, if the offer was made in the course of compromise negotiations, it is barred under the plain language of Rule 408. Under Fed.R.Evid. 104(a) preliminary factual questions concerning the admissibility of evidence, such as whether an offer was made in the course of settlement negotiations, are to be determined by the court. See Mundy v. Household Finance Corp., 885 F.2d 542, 546-47 (9th Cir.1989) (district court determines whether offer is within the scope of Rule 408).
It is often difficult to determine whether an offer is made “in compromising or attempting to compromise a claim.” See Brazil, Protecting the Confidentiality of Settlement Negotiations, 39 Hastings L.J. 955, 960-66 (1988). Both the timing of the offer and the existence of a disputed claim are relevant to the determination. Cassino v. Reichhold Chemicals, 817 F.2d 1338, 1342-43 (9th Cir.1987) (offer of severance pay conditioned on waiver of age discrimination claim made contemporaneous with discharge not protected by Rule 408), cert. denied, 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 870 (1988); Big O Tire Dealers v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1372-73 (10th Cir.1977) (correspondence between parties prior to the filing of an action held “business communications” rather than “offers to compromise” and thus outside scope of Rule 408), cert. dismissed, 434 U.S. 1052, 98 S.Ct. 905, 54 L.Ed.2d 805 (1978). However, where a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of Rule 408. The party seeking admission of an offer under those circumstances must demonstrate convincingly that the offer was not an attempt to compromise the claim.
The district court here did not make an explicit determination as to the admissibility of the evidence of the job offer under Rule 408. However, later in imposing Rule 11 sanctions on Hartmarx the district court stated that the offer was conditioned on the release of Pierce’s claims, which is another way of saying that the job offer was an attempt to compromise a claim. Therefore, under the plain language of Rule 408, evidence of the job offer was not admissible to show Pierce’s failure to mitigate damages.
Hartmarx, however, urges us to look behind the language of Rule 408 to its purposes. The Advisory Committee on Proposed Rules stated that the exclusion of evidence of compromise offers “may be based on two grounds. (1) The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position.... (2) A more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes.” Fed.R.Evid. 408, Notes of Advisory Committee on Proposed Rules. Hartmarx contends that neither of these policies would be advanced where, as here, it is the offeror seeking to introduce evidence of the offer. If the offeror is introducing the evidence, according to Hartmarx, we should not worry that the evidence will be unfairly viewed as a concession of weakness of the offeror’s position. Similarly, argues Hartmarx, parties will not be discouraged from free and frank settlement discussions by the knowledge that they may introduce their own statements at trial.
Hartmarx relies on a recent decision by the Supreme Court of Washington that supports its position. In Bulaich v. AT & T Information Sys., 113 Wash.2d 254, 778 P.2d 1031 (1989) (in banc), the court held that Washington’s Evidence Rule 408, which mirrors Federal Rule 408, did not bar admission of a job offer in similar circumstances. The court stated that “when the settlement offeror is the same party attempting to gain the admission of the settlement letter into evidence, the threat of admissibility should not be a deterrent to the articulation of a settlement proposal.” 778 P.2d at 1036. While the reasoning of Bulaich is attractive, we find it unpersuasive.
We believe that admission into evidence of settlement offers, even by the offeror, could inhibit settlement discussions and interfere with the effective administration of justice. As the circumstances under which this issue arose in the district court suggest, widespread admissibility of the substance of settlement offers could bring with it a rash of motions for disqualification of a party’s chosen counsel who would likely become a witness at trial.
The issue of admissibility of the job offer here first came before the district court when the defendant’s attorney, Hartmarx General Counsel Carey Stein, requested from the court permission to withdraw as trial counsel because he intended to testify as to the substance of the job offer. Under the ABA Code of Professional Responsibility (DR 5-102(A)) and the ABA Model Rules of Professional Conduct (Rule 3.7), an attorney who ought to be called as a witness on behalf of his client must withdraw from representation at trial. Stein’s testimony would likely have necessitated rebuttal testimony from Pierce’s attorney, Debra Ras-kin, thus disqualifying her, and perhaps her entire firm, from representing Pierce at trial. Compare DR 5-102(A) (entire firm disqualified) with Rule 1.10 (disqualification of attorney under Rule 3.7 not imputed to members of firm).
It is common for attorneys in pending litigation to be involved in efforts to settle the case before trial actually commences. It is also common that adverse parties have different memories as to what was said at such a meeting. If the substance of such negotiations were admissible at trial, many attorneys would be forced to testify as to the nature of the discussions and thus be disqualified as trial counsel. Indeed, one commentator has noted that the advocate-witness rule itself “means that no lawyer in a law firm that a client wished to serve as trial counsel in threatened litigation could safely attend negotiation sessions designed to avert trial or to renegotiate a contractual arrangement that had become unravelled, for fear of becoming a potential witness.” Wolfram, Modern Legal Ethics (1986) at 379; see also MacArthur v. Bank of New York, 524 F.Supp. 1205, 1210 (S.D.N.Y.1981) (“Parties might well attempt to use this ethical rule, like others, as a litigation tactic.”).
This undesirable result is largely avoided by excluding evidence of settlement negotiations. Hartmarx’s interpretation of Rule 408 would discourage settlement discussions or encourage expensive and wasteful duplication of efforts by “negotiation counsel” and “trial counsel.”
We prefer to apply Rule 408 as written and exclude evidence of settlement offers to prove liability for or the amount of a claim regardless of which party attempts to offer the evidence. See Kennon v. Slipstreamer, Inc., 794 F.2d 1067, 1069 (5th Cir.1986) (“While a principal purpose of Rule 408 is to encourage settlements by preventing evidence of a settlement (or its amount) from being used against a litigant who was involved in the settlement, the rule is not limited by its terms to such a situation. Even where the evidence offered favors the settling party and is objected to by a party not involved in the settlement, Rule 408 bars admission of such evidence unless it is admissible for a purpose other than ‘to prove liability for or invalidity of the claim or its amount.’ ”) (citation omitted).
Hartmarx finally claims that, even if Rule 408 initially applies to the evidence of the job offer, the evidence is admissible under the “other purpose” exception contained in the final sentence of Rule 408. Hartmarx argues that the evidence bears on Hartmarx’s state of mind at the time it refused to hire Pierce as General Manager, and that the evidence under this theory is not for the purpose of proving “liability for or invalidity of the claim or its amount.”
In making this argument Hartmarx directs the court to Wrenn v. Secretary, Dep’t of Veterans Affairs, 918 F.2d 1073 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1625, 113 L.Ed.2d 721 (1991). In that case we held that an offer, to a plaintiff claiming race and age discrimination, of the same job that he claimed had been wrongly denied him, along with seniority and full back pay, supported the employer’s race- and age-neutral reason for failing to hire the plaintiff initially — namely, that it believed the plaintiff was not interested in the job that was available. In Wrenn, however, we did not address whether the evidence of the offer was admissible under Rule 408. There is no indication that the issue ever was raised in that case. Merely because evidence is relevant does not qualify it for admission under Rule 408.
In a disparate treatment employment discrimination case the determinative question is whether, at the time of the adverse employment action, the defendant was motivated by impermissible factors. This is precisely the issue on which Hartmarx seeks to introduce the evidence of the job offer. Such evidence on the merits of the case goes to “liability for or invalidity of the claim” and thus does not fall within the “other purpose” exception to excludability under Rule 408.
The evidence of the Wallachs job offer was properly excluded by the- district court, albeit for the wrong stated reason as we explain below. The evidence should have been excluded under Rule 408. We may affirm on any ground for which there is a record sufficient to permit conclusions of law, including a ground not relied on by the district court. See, e.g., Larsen v. NMU Pension Trust, 902 F.2d 1069, 1070 n. 1 (2d Cir.1990) (citing Alfaro Motors v. Ward, 814 F.2d 883, 887 (2d Cir.1987)).
4. Rule 11 Sanctions
Following trial, the district court imposed sanctions on Hartmarx under Fed.R.Civ.P. 11 for its pretrial attempts to admit evidence of the job offer. The court held that no attorney could in good faith have argued that the evidence was admissible. The district court therefore imposed attorney’s fees and a $3,000 fine on Hartmarx for this violation. Hartmarx appeals, claiming that its position in seeking the introduction of the evidence was not without merit and that the sanctions were therefore unwarranted. We agree.
Rule 11 states that every paper must be signed by a party or its attorney and that such a signature constitutes a certificate that “to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Fed.R.Civ.P. 11.
At the outset, we recognize that “an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). However, “this standard [does] not preclude the appellate court’s correction of a district court’s legal errors, e.g.,... relying on a materially incorrect view of the relevant law in determining that a pleading was not ‘warranted by existing law or a good faith argument’ for changing the law. An appellate court would be justified in concluding that, in making such errors, the district court abused its discretion.” Id. 110 S.Ct. at 2459; see In re Cohoes Industrial Terminal, 931 F.2d 222, 227 (2d Cir.1991).
The district court based its imposition of Rule 11 sanctions on several interrelated factors. First, the court noted that a previous judge in the same case had held as a matter of law that the communications concerning the offer did not constitute an “unambiguously unconditional” offer. Second, the court expressed its agreement with that ruling, stating that “any other conclusion would be absurd.” Finally, the court was influenced by differences between Stein’s testimony in a hearing to determine the admissibility of the evidence and his statements in his affidavits.
In applying the “unambiguously unconditional” standard in determining whether the evidence was admissible to show failure to mitigate damages, the prior judge applied an incorrect legal standard. A victim of age discrimination, like a victim of ethnic, sexual or religious discrimination, is under a duty to use reasonable efforts to mitigate his or her damages by seeking alternate employment and by accepting reasonable offers of employment. See Ford Motor Co. v. Equal Employment Opportunity Commission, 458 U.S. 219, 231, 102 S.Ct. 3057, 3065, 73 L.Ed.2d 721 (1982); Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir.1988). An employer may toll the running of back pay damages by making an unconditional offer to the plaintiff of a job substantially equivalent to the one he or she was denied, even without an offer of retroactive seniority. See Ford Motor Co., 458 U.S. at 232, 102 S.Ct. at 3066.
While an unconditional offer of a job substantially similar to the one denied the plaintiff may, as a matter of law, toll back pay, the ultimate issue in a mitigation of damages question is whether the plaintiff acted reasonably in attempting to gain other employment or in rejecting proffered employment.
“Generally, it is the duty of the trier of fact to weigh the evidence to determine whether a reasonable person would refuse the offer of reinstatement.” Fiedler v. Indianhead Truck Line, 670 F.2d 806, 808 (8th Cir.1982). Whether an offer was unconditional for purposes of mitigation is similarly a question for the trier of fact. Cf. Bruno v. W.B. Saunders Co., 882 F.2d 760, 770 (3d Cir.1989) (evidence sufficient to support jury’s conclusion that offer was conditioned on release of job discrimination claim), cert. denied sub nom. CBS, Inc. v. Bruno, 493 U.S. 1062, 110 S.Ct. 880, 107 L.Ed.2d 962 (1990). The ambiguity of a job offer may affect its weight as evidence against a plaintiff, but not its relevance. There is no requirement that evidence of a job offer be “unambiguously” unconditional, as the district court required, in order to be admissible to show a failure to mitigate damages.
In imposing Rule 11 sanctions, the district court determined that no one could, in good faith, argue that the job offer was “unambiguously” unconditional. This is undoubtedly true. Under the proper legal standard, however, the question is whether any person could, in good faith, argue that the offer was simply unconditional regardless of the clarity with which its uncondi-tionality was expressed. The letters, affidavits and testimony provide evidence from which a trier of fact could find that Pierce could have accepted the Wallachs job without giving up his age discrimination claim. Although the context and some wording in the letters point in the other direction, there was sufficient evidence of uncondi-tionality on the record to support a good faith argument that there was a question of fact regarding the conditionality of the offer.
Finally, the district court relied on differences between Stein’s affidavits and his testimony at the hearing before Judge Wood. In two of his affidavits Stein had stated, in response to an allegation made by Raskin, that “I have never said ‘of course, we do not hire people who sue us.’ ” In the hearing before Judge Wood, Stein testified on direct examination that he had said “we do not ordinarily hire people who sue us.” (emphasis added). Although we do not condone petty word games by attorneys, given the applicable legal standard, the word “ordinarily,” if spoken, could dramatically change the meaning of the disputed sentence. A trier of fact could determine that Pierce’s was not the ordinary case and that the offer was in fact unconditional.
We note that although we hold today that the evidence of the job offer was ultimately inadmissible under Rule 408, Hartmarx had a good faith basis for arguing otherwise. “[T]o constitute a frivolous legal position for purposes of Rule 11 sanction, it must be clear... that there is no chance of success_ Thus, not all unsuccessful arguments are frivolous or warrant sanctions.” Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). The mere fact that the Supreme Court of the State of Washington, in Bulaich, 113 Wash.2d 254, 778 P.2d 1031 (1989), has held that such evidence is admissible despite Rule 408 is enough, in the absence of controlling authority to the contrary, to support a good faith argument for extension or modification of existing law.
Pierce had also requested that the court impose sanctions because of an improper purpose of the motion, i.e., to disqualify plaintiff’s attorney and her law firm by forcing Raskin to testify at trial. Even if there is an arguable legal and factual basis for a motion, an attorney or party violates Rule 11 by presenting that motion to the court for an improper purpose. See Cohen v. Virginia Elec. & Power Co., 788 F.2d 247, 249 (4th Cir.1986) (motion interposed solely for purposes of determining whether opponent would oppose motion, with preconceived plan to withdraw motion if opposed, violated Rule 11). Certainly, if the district judge found that Hartmarx sought to introduce the evidence in order to disqualify Pierce’s attorney then Rule 11 sanctions would have been appropriate. However, the judge made no such finding here and the sanctions cannot be upheld on appeal on that ground.
The imposition of Rule 11 sanctions was based largely on an incorrect legal standard regarding one basis for the admissibility of evidence regarding the job offer. Therefore, we hold that the district court abused its discretion in imposing sanctions on that basis and we reverse the order to that effect.
CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed in all respects except that the imposition
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_fedlaw | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. Norbert K. LACHMANN, Defendant, Appellant.
No. 72-1286.
United States Court of Appeals, First Circuit.
Argued Nov. 8, 1972.
Decided Nov. 29, 1972.
James R. McGowan, Providence, R. I., with whom Lester H. Salter, Providence, R. I., was on brief, for appellant.
Joseph C. Johnston, Jr., Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on brief, for appellee.
Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
ALDRICH, Senior Judge.
Defendant was found guilty by a jury of “willfully” failing to file timely income tax returns for the years 1964-67. 26 U.S.C. § 7203. The receipt of sufficient gross income to impose the obligation, and the failure to file in each of those years were conceded. The principal question on this appeal is whether the government’s burden as to willfulness is as the court charged, or is the heavier one for which he contends. Defendant has so confused the issues that a detailed opinion is called for.
In theory there are at least four alternative meanings of “willfully” as used in this statute. (1) Defendant knowingly and intentionally failed to file, but did not know he was legally obligated to do so. ' (2) Defendant knowingly and intentionally failed to file, knowing that he was supposed to file, but not with the purpose of misleading or defrauding the government of a tax. (3) Defendant knowingly and intentionally failed to file, knowing of the obligation, and with the express purpose of misleading or defrauding the government. (4) Defendant knew of the obligation to file, but failed to file, not by express design, but through inattention or negligence of some sort. The court adopted alternative (2), whereas defendant sought alternative (3). In spite of careful reading of his brief, only during oral argument did we learn that defendant has a still further complaint.
In oral argument defendant advanced the claim that the court’s quoted charge permitted the jury to convict if it found that his failure to file had been due to gross negligence. Asked where he made such a complaint to the district court, counsel pointed to the transcript where the following appears at the end of an extensive post-charge colloquy at the bench.
“[T]he defendant particularly objects to the failure to charge the language of bad purpose, to disobey the law, and the defendant also objects to the failure to charge the substance of paragraphs 7, 8, and 9, alternative 9 which is contained in the supplemental request for charge, 10, 11, 12, 17, 18, and that part of paragraph 20 having to do with the proposition that evidence of good character standing alone may be sufficient in and of itself to create a reasonable doubt of guilt. Thank you, Your Honor.”
Request No. 7 read as follows.
“7. Mere laxity, careless disregard of the duty imposed by law, or even gross negligence, unattended by the specific evil motive is not ‘willfulness’ as that term is used in this case.”
However, the colloquy as a whole shows that defendant’s articulated objections were not as to negligence versus gross negligence but were to the court’s adopting alternative (2), ante, rather than (3), for which defendant contended. It is true that by the time of the charge the court had heard counsel’s argument that defendant may have believed it was sufficient protection for the government to have the information returns filed by defendant’s payors, but this was not enough to put the court on notice that it should explain to the jury that there is a difference between negligence and gross negligence and then instruct it to exclude both.
It is clear under settled decisions that mere blanket enumeration of requests by number is, prima facie, not enough. Charles A. Wright, Inc. v. F. D. Rich Co., 1 Cir., 1966, 354 F.2d 710, cert. denied 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673. Fairness, the candor which counsel owes to the court, and the duty to avoid unnecessary new trials, desirable as that possibility may appear to a defendant as an anchor to windward, requires more. See discussion in Dunn v. St. Louis, San Francisco Ry. Co., 10 Cir., 1966, 370 F.2d 681. The court in the case at bar, with its attention fo-cussed on the debated application of alternative principle (3) as against (2) might only too naturally believe that what it said to exclude negligence or mistake was enough. Indeed, for defendant now to ask for the added distinction, if not pure afterthought, seems a classic example of a violation of the rule expressed in Wright v. Rich, supra, and its purpose.
We have devoted this amount of attention to what would otherwise be routine because of the circumstance that defendant’s brief relies on cases dealing with carelessness, alternative (4), although he is plainly arguing the merits of alternative (3), hereinafter referred to as defendant’s charge, as against (2). His basic thrust is the assertion that there is a “sharp split” in the circuits. In point of fact, such split as exists is almost exclusively over the correctness of alternative (4), an alternative which, except for defendant’s technical point we have just discussed, the court below expressly instructed the jury to reject.
We start with the case of Spies v. United States, 1943, 317 U.S. 492, 63 S. Ct. 364, 87 L.Ed. 418, where, in holding that a conviction for willfully attempting to defeat a tax was not made out by proof of willfully failing to file a return, the Court observed, "[m]ere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness [without proof of an intent to defraud].” 317 U.S. 497-498, 63 S.Ct. 367. This suggestion has been adopted in a number of circuits. United States v. Platt, 2 Cir., 1970, 435 F.2d 789; United States v. Ostendorff, 4 Cir., 1967, 371 F.2d 729, cert. denied 386 U.S. 982, 87 S.Ct. 1286, 18 L.Ed.2d 229; United States v. MacLeod, 8 Cir., 1971, 436 F.2d 947, cert. denied 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647; United States v. Fahey, 9 Cir., 1969, 411 F.2d 1213, cert. denied 396 U.S. 957, 90 S.Ct. 430, 24 L.Ed.2d 422. Defendant cites three cases from the Third Circuit, and two from the Fifth which, he says, are to the contrary. They do not, however, afford him that comfort. It is true that in United States v. Hartman, 3 Cir., 1969, 409 F. 2d 198, the court spoke with approval of an extensive charge which included what we have called defendant’s charge. This it did in affirming a conviction, and without specific reference to any particular portion of the instructions. Such general endorsement, if a holding, is certainly not a strong holding that a reversal would have been required had some individual part been omitted. Even more remotely supportive of the defendant are his cases of United States v. Litman, 3 Cir., 1957, 246 F.2d 206, and Hargrove v. United States, 5 Cir., 1933, 67 F.2d 820. His two remaining citations, United States v. Vitiello, 3 Cir., 1966, 363 F.2d 240, and Haner v. United States, 5 Cir., 1963, 315 F.2d 792, do not touch defendant’s charge even indirectly. Rather, they reverse the district court for instructing that a finding of careless, as distinguished from deliberate, disregard was sufficient to convict. Without doubt there is a sharp split on that issue, see defendant’s cases of Abdul v. United States, 9 Cir., 1958, 254 F.2d 292, and United States v. Bishop, 9 Cir., 1972, 455 F.2d 612, cert. granted 409 U.S. 841, 93 S.Ct. 64, 34 L.Ed.2d 79, 1972, but that is irrelevant to the question before us. In point of fact, defendant has cited no court of appeals decision that has even criticized, let alone reversed, a district court for failure to give his requested charge.
As did the court below, we would reject the concept that in this criminal statute negligence or oversight is to be equated with willfulness. But we also reject defendant’s claim that the conscious intent that the government must show is an intent to defraud the fisc. Conduct chosen with that evil motive is separately provided for in section 7201 of the Code, and is made a felony. Presumptively there was a reason for section 7203. The very fact that Congress regarded violation of that section as a misdemeanor, only, at once supplies the reason and indicates that a less serious motive is addressed to. The Supreme Court’s suggestion in Spies, supra, had a valid base. We consider that the proper conclusion is drawn in those cases, cited ante, which hold that a deliberate intent to disobey the filing requirement is all that is needed.. Manifestly the government’s income tax structure is predicated, generally, on the filing of returns. To hold that every non-complier must go free unless the government establishes an affirmative intent to deprive the government of a tax known to be due would seriously interfere with its operation. We are not surprised that the advertised sharp split in the cases is not to be found.
Defendant’s remaining points may be readily disposed of. The court’s instruction with regard to character evidence while doubtless not as helpful to defendant as he might have liked, seems to us quite sufficient. See the discussion in Mannix v. United States, 4 Cir., 1944, 140 F.2d 250, 253-254. See also United States v. Ramzy, 5 Cir., 1971, 446 F.2d 1184, cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 544; United States v. Fayette, 2 Cir., 1968, 388 F.2d 728, 737; Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, 746-747, cert. denied 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, 114, cert. denied 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597. To the extent that the opinion in appellant’s case of Oertle v. United States, 10 Cir., 1966, 370 F.2d 719, cert. denied 387 U.S. 943, 87 S.Ct. 2075, 18 L.Ed.2d 1329, may go further, we decline to follow it. So, too, was defendant’s request with respect to conflicting inferences adequately given. The court does not have to repeat its charge about burden of proof in every breath. It is hornbook law that precise language of a request, even though accurate, does not have to be adopted. Defendant’s contention that the evidence was insufficient to convict would appear to us frivolous even if the government’s burden were as defendant contends. Nor is this statute unconstitutional for vagueness.
Affirmed.
. The court charged,
“ ‘Willfully’ as used in this law means that the defendant acted voluntarily, purposefully, deliberately, and intentionally in failing to file his return — that is, at the time for filing in failing to do so he had a deliberate intention not to file the return which he knew ought to have been filed.
“This conduct, ladies and gentlemen, must be distinguished from inadvertently, negligently or mistakenly failing to file.
“If you find the defendant in failing to file acted inadvertently, acted negligently or mistakenly then, of course, your verdict must be not guilty. On the other hand, if you find the defendant acted voluntarily, purposefully, deliberately and intentionally in failing to file his returns, then of course if you also find the Government has proven beyond a reasonable doubt the other elements I instructed you on, your verdict must be guilty— and the other elements that have been agreed to. So willfulness is the issue for you to decide.” (Emphasis supplied.)
. Defendant did not testify.
. “Now let’s talk about one other thing, reputation. There was certain testimony that was introduced in this case on behalf of the defendant as to his previous reputation for honesty. Now, such evidence may be properly presented by the defendant charged with the commission of an offense in order to show that his character is such that in all likelihood he is not the type of person who would commit the offense or offenses with which he is charged. I instruct you that you should consider this evidence and give it such weight as you believe it deserves. This evidence concerning the defendant’s reputation for honesty should be considered by you, together with all the other evidence in this case, in determining the guilt or innocence of the defendant. If, when considered with all the other evidence presented during this trial, it creates a reasonable doubt in your mind as to the guilt of the defendant, you should find him not guilty. But I must caution you that the circumstance that an individual has borne a previous good reputation for honesty is not to be used as a reason for showing leniency to one whose guilt, after an honest, careful and intelligent consideration of all the evidence, including such evidence as to a good reputation for honesty, has been established by proof beyond a reasonable doubt.”
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_timely | 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 conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
INVESTORS SYNDICATE et al. v. SMITH et al.
No. 8881.
Circuit Court of Appeals, Ninth Circuit.
July 12, 1939.
Verne Dusenbery and Herbert L. Swett, both of Portland, Or., Stephen H. Boyles,, of Minneapolis, Minn., and Chas. W. Redding, of Portland, Or., for appellants.
S. J. Bischoff and Ralph A. Coan, both of Portland, Or., for appellees intervening creditors and trustee.
McCamant, Thompson, King & Wood, of Portland, Or., for appellee trustee.
Before WILBUR, MATHEWS, and HANEY, Circuit Judges.
HANEY, Circuit Judge.
The controversy here presents, broadly, the question as to whether the trustee of a debtor’s estate is entitled to rents accruing on property owned by the debtor, or whether the mortgagees are entitled to such rents after default by the debtor where the mortgages cover the rents after default as well as the real property in Oregon.
The apartment house properties herein were all owned and mortgaged by persons or corporations prior to the date when either the debtor, or its wholly owned subsidiary acquired them. The following is a list of the mortgaged property, with the names of the holders and the dates of the mortgages:
Property Date of Mortgage Mortgagee Nordell March 10, 1926.'Syndicate Resthaven May 16, 1926 44 Chapman Court November 10, 1926 44 Duplex (1) March 7, 1927 44 Duplex (2) March 22, 1927 44 Adele Manor March 30, 1928 Banks Charmaine July 17, 1928 44 Maravilla Court September 17, 1929 Metropolitan
The mortgages held by the Syndicate each contained a provision permitting the Syndicate to take possession of the mortgaged property, on default, collect the rents and apply them on the amounts due from the mortgagor, and on foreclosure, to have a receiver appointed to collect the rents, to be applied on any amounts due the mortgagee. Separate assignments were executed by the mortgagors of the Nordell, Resthaven and Chapman Court apartments, dated June 30, 1926, June 29, 1926, and November 20, 1926, respectively. By these assignments, the mortgagors assigned to the mortgagees, the rents and income from those particular apartments “to become operative upon any default” by the mortgagors.
The mortgages held by the Bank each contained a provision, assigning the rents to the Bank “from and after default”, to apply the same on any amounts due it, and upon foreclosure, to have a receiver appointed to collect the rents to be applied on any amounts due the mortgagee.
The mortgage held by the Metropolitan contained a provision giving the mortgagee the right to take possession of the mortgaged property, collect the rents, and apply the same upon any indebtedness due the mortgagee, and also provided that the mortgagee “shall have the right to the appointment of a receiver to collect the rents”.
On August 2, 1933, the Bank instituted separate suits to foreclose its mortgages in a state court and sought appointment of a receiver to collect the rents. On August 10, 1933, the state court denied the applications, but entered an order in each suit requiring the debtor, during the pendency of. the suit to render a verified monthly account and report “showing all rentals and other income received from said apartment house and all disbursements made on account thereof during said accounting period” and to pay into court monthly the net income.
On January 29, 1934, in the court below, an involuntary petition in bankruptcy was filed against 'the debtor, and on January 31, 1934, the lower court stayed all suits then pending against the debtor, until entry of an order of adjudication. On motion of the debtor, filed April 25, 1934, the court below, on that day, entered an order permitting the accounting and payment required by the state court order, and permitting prosecution of the foreclosure suits, with leave to the debtor to renew its application for a stay thereof.
The debtor paid the net rentals received into the registry of the state court until the month of June, 1934, when it filed a petition in the bankruptcy court seeking reorganization under § 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, which was superseded on July 11, 1934, by a supplemental answer to the same effect, to the involuntary petition filed. The court below, on July 11, 1934, made an order that the supplemental answer was filed in good faith, and referred the proceedings to a special master. In a hearing before the latter, appellants’ attorneys appeared and announced that they intended “to appear specially” for appellants, objected to the continuance of the debtor in possession of the properties, and to the plan of reorganization.
Upon recommendations of the special master, the bankruptcy court on August 13, 1934, appointed a trustee of the debtor’s estate. The trustee named did not qualify, and on September 10, 1934, a new trustee was appointed. The trustee was ordered to “keep separate accounts of all moneys coming into his possession from each of the several properties of the debtor or its said affiliate, and that the trustee’s accounts shall be kept so that all income and revenues received and expense incurred in the operation of each of such properties can at all times be ascertained and segregated.”
On October 22, 1934, the Syndicate filed a petition praying for leave to institute suits to foreclose the mortgages held by it, and for an order directing the trustee to pay it the net rentals, received from the properties upon which it held mortgages, as well as those which would be received. On October 24, 1934, Metropolitan filed a similar petition with respect to the mortgage held by it. On February 5, 1935, the Bank filed a petition for an order directing payment of the net rentals, received and to be received, to the state court. These petitions were referred to a special master who rendered a report on April 23, 1935, recommending that the petitions be granted. It is not clear, in the record, what action the court took with respect to this report..
On May 21, 1935, Metropolitan filed a motion for leave to institute foreclosure proceedings. The Syndicate filed a similar motion on June 3, 1935. The Bank filed a motion on June 5, 1935, for leave to proceed with its foreclosure suits. The first two motions were granted by orders dated June 13, 1935, and June 11, 1935, respectively. The record does not disclose what action, if any, was taken on the Bank’s motion. Since the permission it sought had already been granted, action on the motion was probably deemed unnecessary.
On October 9, 1935, the bankruptcy court entered an order that reorganization could not be effected, and appointed a trustee to liquidate the debtor’s estate, and ordered the trustee to “keep accounts of all moneys coming into his possession from each of the several properties of the debtors, and that the Trustee’s accounts shall be so kept that all income and revenues received and expenses incurred in the operation of all of said properties can at all times be ascertained and segregated”. On November 20, 1935, the bankruptcy court referred to a special master the hearing and determination of the claims to rent of appellants. On that date all the foreclosure suits above mentioned were still pending.
On November 14, 1936, the special master submitted his report, from which it appears that most of the indebtedness against and value of the apartments is:
Property Value Indebtedness Nordell $27,500.00 $24,807.05 Kesthaven 27,500.00 27,102.94 Chapman Court 47,000.00 50,558.00 Duplex (1) 5,000.00 5,120.78 Duplex (2) 5,000.00 5,123.44 Adele Manor no finding 48,500,00 5 Charmaine no finding 47,000.00 Maravilla Court no finding 28,153.29
With respect to the Nordell Apartment, the special master found: “During recent years, maintenance of the building has been neglected and the interior walls are in a bad state of repair”. Regarding the Rest-haven Apartment he found: “Maintenance of the building has been neglected and it is in a bad state of repair”. Regarding the Chapman Court Apartment he found: “Composition shingles on the roof are curled and not water tight, and the building generally is in a bad state of repair”. Regarding Duplex (1) he found: “For want of repainting, the exterior walls have worn down to the wood siding, and the building is in need of repairs”; and regarding Duplex (2) he found: “Maintenance of this building, and particularly the painting of it, has been neglected”. The condition of the remaining apartments was not mentioned by the special master, and he did not find whether or not waste had been committed. The parties have stipulated here there was uncontradicted evidence received by the special master that “no repairs were made except those necessary to make the rooms habitable”.
The special master considered 1 Or. Code, 1930, § 5-112, which is: “A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law; provided, that nothing in this act contained shall be construed as any limitation upon the right of the owner of real property to mortgage or pledge the rents and profits thereof, nor as prohibiting the mortgagee or pledgee of such rents and profits, or any trustee under a mortgage or trust deed from entering into possession of any real property, other than farm lands or the homestead of the mortgagor or his successor in interest, for the purpose of operating the same and collecting the rents and profits thereof for application in accordance with the provisions of the mortgage or trust deed or other instrument creating the lien, nor as any limitation upon the power of a court of equity to appoint a receiver to take charge of such real property and collect such rents and profits thereof.” In the foregoing statute the proviso took effect May 28, 1927. Laws of Ore.1927, Ch. 310, p. 392. The preceding part of the statute has been in effect since 1862. (Deady, § 323; Hill, § 326; Bellinger & Cotton, § 336; Lord, § 335; Olson, § 335.)
The special master' concluded: (1) That although prior to the 1927 amendment, any agreement pledging the rents from the property mortgaged, as security for the mortgage debt, was void as against public policy, at the same time, it was the law that a receiver could be appointed to collect the rents, and if the mortgagee acquired possession of the mortgaged property, peaceably, he had the right to collect the rents; that the 1927 amendment did not change the law, but merely made clear what the intent was in 1862, but if it did, it was applicable to all mortgages anyway ; and that therefore the mortgages were all on the same footing; (2) that “the order of this court dated September 10, 1934, directing that rentals and income from the various properties should be kept segregated, the obedience of the respective mortgagees to have those rentals kept separate for their benefit, operated as a sufficient sequestration of those rentals to preserve the rights of the mortgagees in them”; (3) that the same result would be reached by the reasoning that the trustee was required to pay the taxes on the properties as a part of the operating expenses, and that it was his “surmise” that the taxes would be as much as the rentals collected. He, therefore, recommended that the rentals in the hands of the trustee should be held by the trustee for the benefit of appellants.
Exceptions to that report were filed, and the bankruptcy court, upon hearing, held:
“ * * * the proviso did not change the body of the statute which denies to a mortgagee any remedy for obtaining possession of the mortgaged premises. The mortgagor may still refuse possession, retain the rents and profits, and he will not be liable therefor * * * The law is unchanged that the mortgagor still has the right of possession, although a pledge or mortgage of the rents and profits may be enforced strictly in accordance with the statute upon equitable premises if full protection be given to intervening rights * * *
“These stipulations, therefore, under the law of Oregon, amount only to an equitable assignment of the rents and profits and as such may be applied between the original parties and their respective assignees. No right therein or lien thereon exists until the payments become due and are reduced to possession either by the mortgagee or the receiver of a court * * *
“Clearly enough, then, the mortgagees did not have any right to the rents, issues or profits under the Oregon law because they did not come into actual possession of the real property nor did they follow the specialized remedy set out in the amendment of 1927 to have the rents, issues and profits set aside for them.”
The court also held that the Bank had no greater rights than the other mortgagees because the state court did not take possession of the property through a receiver, but authorized the debtor to continue in possession.
With respect to its prior order requiring separate accounts to be kept, the court held that “it did not express any intention of giving any mortgagee an interest” in the rentals and that what the order required “was only sound bookkeeping”.
Finally, with respect to the question as to whether the rents should be sequestered, the court held : “ * * * The bankruptcy court should not be required to sequester rents in the hands of its trustee for the benefit of adverse parties suing the trustee in alien tribunals. The equitable assignments were inchoate * * * The courts in which they were foreclosed did not give the remedy prescribed by the statute and appoint a receiver * * * The mortgagees had no right otherwise to collect the rents and profits. Therefore, this court could not sequester the rents and profits for their benefit.” Accordingly, the court on June 8, 1938, made an order that all rents from real property subject to mortgages collected prior to sale on foreclosure, be held and disbursed by the trustee in payment of expenses of administration and general claims. This order is challenged.
At all times here pertinent,® § 24 of the Bankruptcy Act, 44 Stat. 664, 11 U.S. C.A. § 47, provided as follows:
“(a) The * * * circuit courts of appeal * * * are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases.
“(b) The several circuit courts of appeal * * * shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law * * * the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised by appeal and in the form and manner of an appeal * * * to be allowed in the discretion of the appellate court.
“(c) All appeals under this section shall be taken within thirty days after the judgment, or order, or other matter complained of, has been rendered or entered.”
Being uncertain as to whether the order here complained of was appealable under § 24(a) or § 24(b), appellants applied both to the District Court and to this court for allowance of the appeal and obtained such allowance from both courts. The application to the District Court was filed on June 30, 1938. The District Court allowed the appeal on July 1, 1938. The application to this court was filed on July 2, 1938. This court allowed the appeal on July 19, 1938. Thus, it is seen, the appeal was allowed by the District Court, but not by this court, within the 30-day period specified in § 24(c).
Because the appeal was not allowed by this court within the 30-day period, appellees have moved to dismiss it. The motion is not well founded. The order complained of was made, not in the ordinary course of bankruptcy proceedings, but in a controversy arising in such proceedings. Compare Robert Moody & Son v. Century Savings Bank, 239 U.S. 374, 377, 34 S.Ct. 602, 58 L.Ed. 816. Hence, it was appealable under § 24(a), and the District Court was the proper court to allow the appeal. That court’s allowance of the appeal was timely and sufficient. Allowance by this court was unnecessary.
Even if, as contended by appellees, the order complained of was appealable only under § 24(b), still the appeal was in time. Application for its allowance having been filed in this court within the 30-day period, the fact that this court’s order allowing the appeal was not made until after the 30 days had expired is immaterial. The appeal was “taken”, within the meaning of § 24(c), when the application was filed. In re Foster Construction Corp., 2 Cir., 49 F.2d 213, 214; In re Hoffman, 7 Cir., 82 F.2d 58, 59; Price v. Spokane Silver & Lead Co., 8 Cir., 97 F.2d 237, 239.
A further ground of appellees’ motion is that appellants have joined in a single appeal, instead of taking three appeals, as appellees contend they should have done. We think appellees’ contention is without merit. The appeal is not from three orders, but from one only. Each appellant has, it is true, a separate interest, but all have a common interest in reversing, if they can, the order appealed from. The questions presented are common to them all. It was proper, therefore, for them to join in a single appeal. Crim v. Woodford, 4 Cir., 136 F. 34, 36. The motion should be denied.
Appellees’ contention that the assignments of error are too vague to raise any question for review is rejected. We think the assignments are sufficient.
Appellants contend that they had a right to the rents and profits after default by the debtor, and that they also had the right to obtain them by taking action'in the bankruptcy proceedings.
Rights of Mortgagees Before 1927
At common law a mortgage was regarded as a conditional conveyance, by which the legal title to the estate vested in the mortgagee, who, upon execution of the mortgage, was entitled to the possession and enjoyment of the 'property, unless agreed to the contrary. See 19 R.C.L. §§ 86, 89.
The code provision made vast changes, however. In Oregon a mortgage on real estate conveys no legal or equitable title or interest in the property covered by the mortgage. It merely creates a lien, which constitutes security for the debt, and grants to the mortgagee the right, upon default by the mortgagor, to have the property sold to satisfy the debt secured. Onfy upon foreclosure and sale, can the mortgagor be divested of his title and possession. In Teal v. Walker, 111 U.S. 242, 252, 4 S.Ct. 420, 28 L.Ed. 415, it was held that in Oregon a mortgagee is not entitled to the rents and profits of the mortgaged property, even after default, unless he obtains possession of the property, and that a stipulation in á mortgage providing that the mortgagor would surrender possession of the mortgaged property to the mortgagee upon default was void as against the public policy of Oregon as expressed in the statute above quoted. That case, by analogy, compels a like holding with respect to a stipulation regarding the fruits of possession, i. e., that upon default, the rents and profits would be applied on the debt secured by the mortgage.
Of course, a mortgagor may voluntarily relinquish possession of the mortgaged property to the mortgagee, and if he does, the mortgagee is entitled to retain possession as against the mortgagor, and those claiming under him, until the debt is paid, and “may bring an action of trespass as though the title were vested in him unconditionally”. Johnson v. Pacific Land, Co., 84 Or. 356, 358, 164 P. 564, 565. A mortgagee in possession must account for, and apply, the rents and profits on the debt secured; is entitled to reimbursement for keeping the property in repair, but “cannot collect pay for services rendered for himself” in attending the mortgaged property, or obtain “reimbursement for permanent improvements which he installs.”
With respect to appointment of a receiver in a mortgage foreclosure suit, in Couper v. Shirley, 9 Cir., 75 F. 168, 170, it was held that a mortgagor and mortgagee have no power to bind the courts by a stipulation for the appointment of a receiver to collect and apply on the debt secured by the mortgage, the rents and profits, and that a court had no authority to appoint a receiver pursuant to such a stipulation “independent of any equitable condition which might be shown to exist”. The Supreme Court of Oregon has never passed on that precise point. Although it was intimated in Caro v. Wollenberg, 68 Or. 420, 428, 136 P. 866, that a contrary rule existed, in State ex rel. Nayberger v. McDonald et al., 128 Or. 684, 695, 274 P. 1104, the case of Couper v. Shirley, supra, was cited.
The general law regarding appointment of a receiver is not at all clear. 2 Ore. Code Ann., 1930, § 32-702 provides:
“A receiver may be appointed by the court in the following cases:
“1. Provisionally, before judgment or decree, on the application of either party, when his right to the property, which is the subject of the action, suit or proceeding, and which is in the possession of an adverse party, is probable, and the property or its rents or profits are in danger of being lost or materially injured or impaired. * * * ”
It is extremely doubtful that such provision authorized appointment of a receiver on behalf of a mortgagee pending foreclosure, because it required three things; (1) A probable “right to the property”; (2) possession of such property m the adverse party; and (3) danger that the property or its rents and profits would be lost or materially injured or impaired. As seen, the mortgagee had no right to the mortgaged property, but only a right to have it sold. See also: State ex rel. Nayberger v. McDonald et al., 128 Or. 684, 696, 274 P. 1104 as explained in McKinney v. Nayberger et al., 138 Or. 203, 219, 295 P. 474, 2 P.2d 1111, 6 P.2d 228, 229.
However, Brayton & Lawbaugh v. Monarch Lumber Co., 87 Or. 365, 389, 169 P. 528, 536, 170 P. 717, indicates that the court had power to appoint receivers in cases other than those prescribed in the statute mentioned. It is there said: “ * * * it may be conceded that the general rule is that a mortgagee rightfully in possession of mortgaged property cannot be ousted by the appointment of a receiver at the instance of the mortgagor or one claiming under the mortgagor without first paying or 'tendering the amount due on the mortgage debt; but this rule like • most general rules has its exceptions. If the mortgagee is committing waste and is insolvent, equitable relief may be necessary. * * * ” If a mortgagee, rightfully in possession, may not be ousted by the appointment of a receiver, except in certain cases, then it would seem as logical to say that a mortgagor, rightfully in possession, may not be ousted, except in the same cases. We think this is an expression that a receiver might be appointed in either case. See also: Kountze v. Omaha Hotel Co., 107 U.S. 378, 395, 2 S.Ct. 911, 27 L.Ed. 609; Grant v. Phoenix Mut. Life Ins. Co., 121 U.S. 105; 117, 7 S.Ct. 841, 30 L.Ed. 905; Gordon v. Washington, 295 U.S. 30, 37, 55 S.Ct. 584, 79 L.Ed. 1282; annotations: 26 A.L.R. 38, 41; 36 A.L.R. 609; 55 A.L.R. 533; 87 A.L.R. 1008; 111 A.L.R. 730.
The courts are not in harmony as to the sufficiency of the grounds for the appointment of a receiver. One fule seems to be that a receiver will be appointed where the security is inadequate. 26 A.L.R. 49. Another is that there must be not only inadequacy of the security but also insolvency of the mortgagor. 26 A.L.R. 50. Still another is that there must be not only inadequacy of the security and insolvency of the mortgagor but also waste or danger of loss or destruction of the property. 26 A.L.R. 55. The latter rule is the one which we think to be the rule in Oregon as a necessary conclusion of the language in Brayton & Lawbaugh v. Monarch Lumber Co., supra. See, also, Kountze v. Omaha Hotel Co., supra, 107 U.S. at page 395, 2 S.Ct. 911, 27 L.Ed. 609; Grant v. Phoenix Mut. Life Ins. Co., 121 U.S. 105, 117, 7 S.Ct. 841, 30 L.Ed. 905.
From the foregoing it can be seen that a mortgagee did not acquire the right of possession of the mortgaged premises, or the right to the rents and profits therefrom, even though stipulations therefor upon default were contained in the mortgage; and that a receiver could not lawfully be appointed in a mortgage foreclosure suit unless the equitable grounds mentioned above existed, even though the mortgagor and mortgagee stipulated in the mortgage, that a receiver might be appointed upon default.
•Effect of the 1927 Amendment
What has been said refers to the law under the statute as it existed before amendment. Such statute will be hereafter called the code provision, and the part added in 1927 will be called the amendment.
The amendment provided that the code provision should not “be construed as any limitation upon the right of the owner of real property to mortgage or pledge the rents and profits thereof”. It does not say that if such a mortgage were made, the mortgagee could enforce the same, or specify how it could be enforced. Should those rights be implied? It is clear that such provision permitted the mortgagee to obtain a mortgage or pledge of the rents and profits of the mortgaged property (excepting, possibly, farm lands and homesteads — a question we do not decide).
The illegality of such a provision being removed, what is the effect of a stipulation in a mortgage pledging or assigning the rents and profits? It is generally held that such a stipulation does not of itself transfer the rents and profits, but merely creates a lien which becomes effective only when the mortgagee either obtains possession, or has a receiver appointed to collect the rents. American Bridge Co. v. Heidelbach, 94 U.S. 798, 800, 24 L.Ed. 144; Teal v. Walker, supra, 111 U.S. at page 248, 4 S.Ct. 420, 28 L.Ed. 415; Freedman’s Saving & Trust Co. v. Shepherd, 127 U.S. 494, 502, 8 S.Ct. 1250, 32 L.Ed. 163; 41 C.J. 628, § 605. We are required to apply the law of Oregon. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 205, 58 S.Ct. 860, 82 L.Ed. 1290. In the absence of a decision by the Supreme Court of Oregon settling the meaning of the amendment, we think the law in Oregon is as stated above.
Since the mortgage or pledge of the rents and profits did not enable the mortgagee to obtain them, the second and third provisions of the amendment sought to enable the mortgagee to obtain them. The second provision of the amendment provided that the code provision should not be construed “as prohibiting the mortgagee * * * from entering.into possession of any real property* other than farm lands or the homestead of the mortgagor * * * for the purpose of operating the same and collecting the rents and profits thereof for application in accordance with the provisions of the mortgage * * Thus, with respect to real property other than farm lands and homesteads, the mortgagee is no longer prohibited from taking possession of the mortgaged property. If a mortgagor stipulated in the mortgage that the mortgagee might have possession of the mortgaged property upon default, the amendment permitted the agreement to be carried into effect, regardless of the code provision. It was apparently implied that a mortgagee might obtain possession of the property as against the occupant by the ordinary possessory remedy conferred on one having the right to possession.
In the event that upon default a mortgagee elected to foreclose without obtaining possession, then the third provision of the amendment created an alternative remedy to obtain the rents and profits, by appointment of a receiver, which accomplished the same purpose. Apparently, the only requirement for appointment of a receiver, is that “such” rents and profits must be mortgaged or pledged. If they are not, then the only power to appoint a receiver is that existing on the equitable grounds mentioned above.
We hold that with respect to real property other than farm lands and homesteads, the code provision was so modified by the amendment that the owner of real property other than farm lands and homesteads may lawfully mortgage or pledge the rents and profits of his real property; that a mortgagor of real property other than farm lands and homesteads may lawfully stipulate in the mortgage that the mortgagee is entitled to possession upon default by the mortgagor, and if he does, the mortgagee may recover possession by an appropriate remedy; that if a mortgagor mortgages or pledges the rents and profits of real property, other than farm lands and homesteads, a court may appoint a receiver to collect them, by virtue of that fact alone, in a foreclosure suit; and in all other respects the code provision is still effective.
' Application of the 1927 Amendment
Since the mortgages to the Bank and the Metropolitan were all executed after the effective date of the amendment, it is of course applicable to them. The mortgages executed to the Syndicate were all executed prior to the effective date of the amendment.
It is contended that the amendment is applicable to the Syndicate mortgages, because it merely clarified the code provision. We think the amendment deliberately changed the law. It is further contended that the amendment related only to remedy or procedure, but we think it dealt with substantive rights. The Syndicate, by the mortgages, obtained no rights to the possession of the mortgaged property, or to the rents and profits therefrom, because the stipulations in that respect were invalid when made. The statute indicates no intention of validating such stipulations previously made. Giving the amendment prospective effect, as we should (Libby v. Southern Pacific Co., 109 Or. 449, 452, 219 P. 604, 220 P. 1017), it is applicable only to mortgages subsequently executed. The provision regarding appointment of a receiver is effective only if there is a mortgage or pledge of the rents and profits, which are absent in the Syndicate mortgages because the stipulations intended for that purpose were invalid.
Effect of the Bankruptcy Proceedings
Regarding the conflict between state and federal courts, the rule has been stated to be: “when a court of competent jurisdiction takes possession of property through its officers, this withdraws the property from the jurisdiction of all other courts which, though of concurrent jurisdiction, may not disturb that possession; and that the court originally acquiring jurisdiction is competent to hear and determine all questions respecting title, possession, and control of the property”. Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 737, 51 S.Ct. 270, 272, 75 L.Ed. 645. Accordingly, where a mortgagee sues in the state court to foreclose its mortgage, and that court takes possession of the mortgaged property, the subsequent bankruptcy does not deprive the state court of jurisdiction to proceed. Isaacs v. Hobbs Tie & Timber Co., supra. On the other hand, if bankruptcy proceedings are commenced prior to the foreclosure suit, then the bankruptcy court has custody of the property, through the trustee who has actual or constructive possession (Isaacs v. Hobbs Tie & Timber Co., supra, 737), and the mortgagee may not proceed to foreclosure in a state court without consent of the bankruptcy court. Straton v. New, 283 U.S. 318, 321, 51 S.Ct. 465, 75 L.Ed. 1060; Ex parte Baldwin, 291 U.S. 610, 615, 54 S.Ct. 551, 78 L.Ed. 1020.
As can be seen from the above, the intervention of the bankruptcy removed the right of the mortgagees to obtain possession of the mortgaged property, or to foreclose and obtain the appointment of a receiver whereby they could obtain the rents, without the consent of the bankruptcy court. In the event that the bankruptcy court did not consent to foreclosure, the question immediately arises as to whether the mortgagees are deprived of any remedy to obtain the rents. While there is ground for holding in the affirmative, in that in general, one purpose of the bankruptcy act is to abolish or restrict remedies, this court has held that where the bankruptcy court grants a petition of the mortgagee to sequester rents and profits, the mortgagee, is entitled to such rents from the date of the filing of the petition, which necessarily implies that the bankruptcy court has power to make such an order. American Trust Co. v. England, 9 Cir., 84 F.2d 352. Compare: In re Hotel St. James Co.,. 9 Cir., 65 F.2d 82; Duparquet Huot & Moneuse Co. v. Evans, 297 U.S. 216, 222, 56 S.Ct.. 412, 80 L.Ed. 591.
The present controversy, however, does not concern the power to do so, but the propriety of its exercise. Upon what circumstances should the bankruptcy court order a sequestration of the rents? Without attempting to mark the limits, we say that such power ought not to be exercised in cases where the mortgagee would have greater rights in bankruptcy than he would have, had bankruptcy not intervened. Whether there are or should be other limits on the exercise of the power, it is unnecessary here to determine because appellees assume that if the mortgagees have a right to the rents and profits the bankruptcy court should enforce such right.
Insofar as the Syndicate is concerned, its application to sequester the rents and profits was properly denied, otherwise it would be placed in a better position by the intervening bankruptcy
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_appnatpr | 3 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Esse Forrester O’BRIEN, joined by her husband, John L. O’Brien, and William F. O’Brien, Appellants, v. UNITED STATES of America, Appellee.
No. 24291.
United States Court of Appeals Fifth Circuit.
March 22, 1968.
Rehearing Denied June 3, 1968.
D. M. Wilson, Wilford W. Ñaman, Bryan, Wilson, Olson & Stem, Ñaman, Howell, Smith & Chase, Waco, Tex., for appellants.
William O. Murray, Jr., Asst. U. S. Atty., San Antonio, Tex., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Raymond N. Zagone, Attys., Dept, of Justice, Washington, D. C., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.
Before RIVES and GEWIN, Circuit Judges, and HANNAY, District Judge.
HANNAY, District Judge:
The proceedings below arose out of the exercise of the power of federal eminent domain. The condemned land consisted of some 87.78 acres out of a tract of 210.-65 acres owned by Appellants within the confines of the City of Waco, McLennan County, Texas. The purpose of the condemnation was the establishment of the Waco Reservoir Project in the Brazos River Basin in that locale of north central Texas.
The greater bulk of the taken land was for the purpose of extending the already existing adjacent lake. Included in this area was acreage on the outer periphery of the extended lake. This was taken for purposes necessary and incident to its use and control. No issue is presented here as to the right of the sovereign to take, subject to just compensation, this portion of the condemned land. An issue is presented as to the extent of acreage taken for the purpose of a necessary substitute road; the remaining question here involves the general issue of just compensation.
I.
The Appellants’ land comprised, and mainly consisted of, a promontory overlooking a portion of the old lake and the area below the lake. The lake, as extended by the condemnation, drove a two pronged salient into the promontory. The promontory pointed generally in a northerly direction. At its foot and along the water’s edge there was a road of sufficient width to accommodate two vehicles. (Emphasis added throughout). This was part of the old Lake Shore Drive. It extended from an area below the old dam which was to the east of Appellants’ property around .the northern edge of Appellants’ property and on westerly. The intended use of the condemned land necessarily inundated this old Lake Shore Drive as it crossed Appellants’ land. For the purpose of a substitute road, a relocated Lake Shore Drive, the government condemned approximately 9 acres of Appellants’ land. Approximately 6 of these acres were taken in fee; the remaining approximate 3 acres were taken as a perpetual and assignable easement. The 6 acres consist of a strip 100 feet in width. The 3 acres is a strip of 50 feet in width. It is adjacent to the 100 foot strip. The 100 foot strip was for immediate construction of new roadway. This road is of two lane .dimension. Transfer of the entire 9 acre strip to the City of Waco, which had received the condemned portion of the old Lake Shore Drive as a dedication from the landowners, was contemplated. There is nothing in the record to suggest that fulfillment of this purpose was ever other than a virtual certainty. Appellants complain that the taking of the entire 9 acre strip was unauthorized; that it exceeded the area embraced by the old road and was a design to enable the City of Waco to eventually construct a roadway of as many as four lanes.
As a general and fundamental principle, the exercise of the sovereign right of eminent domain is within the legislative power and mere questions of its range and extent in particular cases are ordinarily not subject to judicial correction and control. West Inc. v. United States, 5 Cir., 374 F.2d 218, 221, and authorities cited. Absent improper or corrupt subversion of legally delegated authority to define the extent of condemnation, this decision rests with the appropriate Executive officer concerned. West, Inc. v. United States, supra, at 222-223. There is no dispute that the taking here in question was for a valid public use. The Declaration of Taking by the Secretary of the Army states, inter lia:
“The public uses for which said land is taken are as follows: The said land is necessary adequately to provide for the construction and operation of a flood control project and for other uses incident thereto. The said land has been selected by me for acquisition by the United States for use in connection with the establishment of Waco Reservoir on the Bosque River in the Brazos River Basin, Texas, and for such other uses as may be authorized by Congress or by the Executive Order.”
There is no showing of prejudice to Appellants resulting from this taking for the new roadway. There is no specific issue of just compensation in respect to this particular item of land.
Appellants rely upon wording in the Flood Control Act of 1960, Title 33, U.S.C.A. Section 701r-1(b), amended in 1962. This amendment redesignated subsection (b) as subsection (c) and, by Appellants’ concession, did not otherwise alter the controlling statute in material parts.
Title 33, U.S.C.A. Section 701r-1(c) reads:
“For water resources projects to be constructed in the future, when the taking by the Federal Government of an existing public road necessitates replacement, the substitute provided will, as nearly as practicable, serve in the same manner and reasonably as well as the existing road. The head of the Agency concerned is authorized to construct such substitute roads to design standards comparable to those of the State, or, where applicable State standards do not exist, those of the owning political division in which the road is located, for roads of the same classification as the road being replaced. The traffic existing at the time of the taking shall be used in the determination of the classification. In any case where a State or political subdivision thereof requests that such a substitute road be constructed to a higher standard than that provided in the preceding provisions of this subsection, and pays, prior to commencement of such construction, the additional costs involved due to such higher standard, such Agency head is authorized to construct such road to such higher standard. Federal costs under the provisions of this subsection shall be part of the non-reimbursable project costs.”
The statute, read in its entirety, supports the action of the government rather than the complaint of the Appellants. An added consideration is the prospective need for maintenance. The ruling in Seneca Nation of Indians v. United States, 2 Cir., 338 F.2d 55, 57, certiorari denied, 380 U.S. 952, 85 S.Ct. 1084, 13 L.Ed.2d 969, is appropriate here:
“We see no reason to interfere with this reasonable exercise of delegated administrative discretion as to the amount of land required for the relocation of the road. Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). * * * as the District Court found, the increased highway requirements result in part from the * * * Project itself. Because the Secretary of the Army acted within his authority and reasonably, we affirmed the judgment.”
II.
The issue of compensation was submitted by the District Court to a Commission under Rule 71A(h), Federal Rules of Civil Procedure, in December of 1962.
The Commission submitted its first report on June 28, 1963. It is undisputed that the highest and best use of the property before the taking was residential subdivision. The valuations placed by the Appellants’ witnesses and those made by the witnesses for the government were at great variance. The two witnesses for the Appellant set the just compensation figure at $367,375.00 and $345,675.00 respectively. Two of the government’s witnesses were of the opinion that the property had been enhanced by the taking. The evidence of the third government witness was excluded by the Commission because “ * * * he had considered access to the property in fixing market value after the taking.” This question of access, and the consideration to be given to it, is the kernel of the issue now before the Court. The Commission’s recommendation at that time was that the property had a market value before taking of $420,000.00; that it had a market value after taking of $308,528.20; and that the difference and the amount of just compensation was $111,471.80.
The report was to be many times recommitted to the Commission before there was a final acceptance by the District Court. In their protracted course, the proceedings below were to transpire before three separate District Judges over a course of some four years and seven months. By final judgment entered August 16, 1966, the District Court accepted the Minority Commission’s report awarding compensation in the amount of $70,-224.00. The Majority Commission adhered to its original assessment from which, indeed, the minority had relented only after the second recommittal.
The power of a District Judge in reviewing the findings and recommendations of a Commission under Rule 71A (h), Federal Rules of Civil Procedure, is the same as its power over the findings of fact by a Master under Rule 53(e) (2), Federal Rules of Civil Procedure. United States v. Merz, 376 U.S. 192, 198-200, 84 S.Ct. 639, 11 L.Ed.2d 629.
Rules 71A(h) provides, inter alia:
“ * * * If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 58.”
Rule 53(e) (2), Federal Rules of Civil Procedure, provides, inter alia:
“ * * * In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. * * * The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”
The rule of decision in this Circuit in Rule 71A (h) proceedings is that the Court of Appeals reviews the determination of the District Court rather than that of the Commission in applying the “clearly erroneous” standard to the finality of the prior findings of fact. United States v. Twin City Power Company of Georgia, 5 Cir., 253 F.2d 197; United States v. Tampa Bay Garden Apartments, Inc., 5 Cir., 294 F.2d 598; Parks v. United States, 5 Cir., 293 F.2d 482; United States v. 2,872.88 Acres of Land, etc., 5 Cir., 310 F.2d 775, modified in United States v. Merz et al., 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629.
Viewed upon the whole, but not without exception as hereafter to be shown, “the evidence before the commission met the standard of substantiality to withstand a reversal by the district court.” 310 F.2d, at 779. The record reflects that the topography of the taken land was characterized by ravines and crevices — a factor most likely adverse to residential development of the land. Increased water frontage of the remaining property unimpeded by the old Lake Shore Drive clearly touches upon the question of enhancement of value. The improved artery, the new Lake Shore Drive, could reasonably be said to have the same enhancing effect. It does but very little to diminish the increased new water frontage. Lastly, the valuation of what is in effect $800.00 for each acre taken, in light of the record and the applicable test of market value of the whole before and after the taking, is generally within the bounds of reasonableness.
III.
The area in which exception must be taken to the conclusion below is on the question of access, legal access, to the new roadway. This does not involve Appellants’ land that lies east of the new lake salient. This portion, in its present extent, remains adjacent to the Forrester Lane that was the easternmost boundary of Appellants’ property. Appellants’ land west of the new lake salient, however, was effectively landlocked by the project. Prior to the taking Appellants’ property had at least three access routes to adjacent roadways. All of these are now denied the western sector of Appellants’ land.
There is, it is true, evidence in the record that the City of Waco would, as a practical and prospective matter, make the new Lake Shore Drive available to newly created routes of access that may be established by the Appellants. This Court agrees with Appellants that there is a substantive distinction between this prospective practical accessibility on the one hand and accomplished legal access on the other. The District Court patently recognized this unsolved problem area in the case. In its third recommittal to the Commission the District Court directed the majority to specify the amount of severance damages, if any, that they attributed to the alleged loss of access. The majority responded with a specific finding of severance damages arising out of loss of access in the amount of $5,-000.00. This was based upon a government’s witness’ testimony that it would require $5,300.00 to build a road from the homesite on the west side to the new Lake Shore Drive. There was no existing road from this homesite to the new Lake Shore Drive. This homesite was located practically the entire depth of the property northward of the new Lake Shore Drive. The majority commission report was thus responsive to the Order of Recommittal.
The minority commission, in its previous report, had in effect stated that the question of access had been considered in its determination of just compensation in the amount of $70,224.80. In the same third Order of Recommittal the minority was directed to elaborate on the basis of its assessment with particular emphasis on the access issue. This point was emphasized in an amendment to the third Order of Recommittal. It stated in material part:
“It further appearing to the Court that if * * * the minority member should state that in the original report of the Commission he did not consider what the amount of severance damages, as such, attributable to the alleged loss of access would have been, he should make additional findings with respect to the following:
(d) Assuming that there was loss of access, what do you now consider would have been the amount of severance damages properly attributable to such loss of access giving the path followed and specifying the testimony or other evidence relied upon?”
There was, after all, a discrepancy of $41,247.80 between the original and eventual assessment of the Minority Commission.
The Minority Commission’s ensuing report, which was otherwise adequately detailed and reasoned, was non-responsive on the Court directed issue of severance damages arising from loss of access. The following quotation from this report, in addition to others that could be extracted from it, will amply demonstrate this fact:
“ * * * It is very difficult for me to assume that there was a loss of access. I cannot feature the Government’s spending so much money to build a road and then not letting the landowners use it. I do not believe that there is any evidence that says that the City or the Federal Government is going to deny access when the road is completed, I therefore, cannot answer the question asked by the Court: ‘Assuming that there was a loss of access, what do you now consider would have been the amount of severance damages properly attributable to such loss of access, giving the path followed and specifying the testimony or other evidence relied upon?’ The only way that I could consider that there would be no access, would be to disregard the testimony of the city officials and of Mr. John L. Smith of the Corps of Engineers, which I have set out in my report.”
This non-responsiveness by the Minority Commission on what may now be called the severance damage issue continued through the fourth Order of Recommittal and the minority’s answer, or lack of an answer, thereto. In this limited but material respect the minority not only neglects a material finding of fact but forecloses, on its own motion and erroneously, a question of law. This Court is of opinion that the Minority Commission provided no substantial basis for acceptance of his assessment in this limited respect. This deficiency may be treated in light of a responsive specific finding in the record on the issue of severance damages due to loss of access.
This Court is of the considered opinion that this litigation can and should be concluded by adding to the District Court’s determination of just compensation the specific finding in the record of severance damages due to loss of legal access, to wit, $5,000.00. United States v. Merz, supra; Rules 72A(h) and 53(e) (2), Federal Rules of Civil Procedure.
Accordingly, the judgment below is affirmed as modified herein and remanded to the District Court for proceedings consistent herewith.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_crmproc1 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Appellant, v. NATIONAL SECURITY AGENCY et al.
No. 77-1975.
United States Court of Appeals, District of Columbia Circuit.
Argued March 27, 1978.
Decided May 15, 1979.
William A. Dobrovir, Washington, D. C., for appellant.
Michael F. Hertz, Atty., Dept, of Justice, Washington, D. C., with whom Earl J. Sil-bert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Robert E. Kopp, Atty., Dept, of Justice, Washington, D. C., were on the brief, for appellee. Leonard Schait-man, Atty., Dept, of Justice, Washington, D. C., also entered an appearance for appel-lee.
Before TAMM and ROBINSON, Circuit Judges, and OBERDORFER, United States District Judge, United States District Court for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by SPOTTS-WOOD W. ROBINSON, III, Circuit Judge.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
The Founding Church of Scientology of Washington, D.C., Inc., the appellant, complained in the District Court of the refusal of the National Security Agency (NSA), the appellee, to release documents requested by appellant under the Freedom of Information Act. The court, relying upon an affidavit submitted by the agency, ruled that the materials solicited were protected from disclosure by joint operation of Exemption 3 of the Act and Section 6 of Public Law No. 86-36, and granted summary judgment in favor of NSA. We find that NSA failed to establish its entitlement to a summary disposition of the litigation. Accordingly, we reverse the judgment appealed from and remand the case for additional proceedings before the District Court.
I
NSA was created by order of the President in 1952 and endowed with a twofold mission. Its first major task is shielding the Nation’s coded communications from interception by foreign governments. Its second principal function, implicated by appellant’s document request, entails acquisition of information from electromagnetic signals and distillation of that information for assimilation by the intelligence community and national policymakers. As a part of the latter activity, NSA surreptitiously intercepts international communications by a variety of means.
In December, 1974, appellant sought access, pursuant to the Freedom of Information Act, to all records maintained by the Agency on appellant and the philosophy it espouses, as well as records reflecting dissemination of information about appellant to domestic agencies or foreign governments. Subsequently, appellant’s request was enlarged to embrace all references touching on L. Ron Hubbard, founder of the doctrine of Scientology. NSA’s reply was that it had not established any file pertaining either to appellant or Hubbard, and that it had transmitted no information regarding either to the entities specified in the demand. In March, 1975, appellant enumerated other Scientology organizations with respect to which pertinent records might exist. NSA again denied possession of any of the data sought.
In the course of Freedom of Information Act proceedings against the Department of State and the Central Intelligence Agency (CIA), appellant learned that NSA had at least sixteen documents concerning Scientology, appellant and related organizations. So advised, and armed with details solicited from CIA, NSA succeeded in locating fifteen of those items in warehouse storage, and obtained a copy of the sixteenth from CIA. Release of these materials was resisted, however, on grounds that they were protected from disclosure by provisos of the Act relating to national security matters and to confidentiality specifically imparted by other statutes.
In August, 1976, appellant commenced suit in the District Court to compel NSA to conduct a renewed search of its files and to enjoin any withholding of the materials desired. Appellant served numerous interrogatories on NSA inquiring into its efforts to locate responsive records, its classification of documents, and its correspondence with CIA with respect to the items theretofore uncovered. Purportedly to avoid revelation of functions and activities assertedly insulated by the Act from public scrutiny, NSA declined to supply more than minimal information in answer to the interrogatories.
Then, invoking Public Law No. 86-36 and Exemption 3 exclusively, NSA moved for dismissal of the action or alternatively for summary judgment in its favor. In support of the motion, NSA tendered the affidavit of Norman Boardman, its information officer, and offered to furnish a more detailed but classified affidavit for in camera inspection. Appellant vigorously opposed any ex parte submission and sought more extensive public airing of the issues. The District Court was of the view that Section 6 of Public Law No. 86-36 was an Exemption 3 statute foreclosing compulsory release of the sought-after data. In that light, and on the basis of Boardman’s public affidavit, the court ordered summary judgment for NSA. From that action, this appeal was taken.
II
Appellant begins with a challenge to the District Court’s holding that the sixteen documents admittedly retained by NSA enjoy a protected status. Appellant then complains of the court’s failure to probe more thoroughly NSA’s protestations respecting possession of other relevant material. In pressing the first point, appellant concedes that Section 6 of Public Law No. 86-36 is a law bringing Exemption 3 into play but claims inadequacies in the agency’s showing, upon which the District Court awarded summary judgment. More particularly, appellant contends that the Board-man affidavit lacked sufficient detail to enable an informed determination as to whether disclosure of any or all of the sixteen items would illuminate agency activities of which the public was not already aware. We, too, believe that Section 6 is an Exemption 3 statute and that NSA’s affidavit did not furnish a satisfactory basis for testing the exemption’s applicability to the data appellant seeks.
A
As originally enacted, Exemption 3 authorized the withholding of information “specifically exempted from disclosure by statute.” The exemption was amended in 1976, however, “to overrule [a] decision of the Supreme Court” which had sanctioned rejection of a records request on grounds that nondivulgence was authorized by a statute conferring a “broad degree of discretion” on an agency to conceal data “in the interest of the public.” Under the exemption as amended, materials are deemed “specifically exempted from disclosure by statute” only if the “statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Subsection (A) reaches only those laws that mandate confidentiality “absolute[ly] and without exception”; it condones no decisionmaking at the agency level. Subsection (B), on the other hand, does contemplate some exercise of administrative discretion in closely circumscribed situations, “but its unmistakeable thrust. is to assure that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch.”
The provision on which NSA relies to trigger Exemption 3 into operation is Section 6 of Public Law No. 86-36, which states that with exceptions inapplicable in this case
nothing in this Act or any other law (including, but not limited to, the [Classification Act of 1949]) shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or of names, titles, salaries, or number of the persons employed by such agency.
Plainly, Section 6 insulates the information specified from mandatory divulgence though it does not purport to bar voluntary disclosure by NSA itself. Since it countenances administrative discretion to publicize or maintain secrecy, Section 6 lacks the rigor demanded by Subsection (A) of Exemption 3. But appellant acknowledges, and the District Court ruled, that, within the meaning of Subsection (B), Section 6 “refers to particular types of matters to be withheld.” More specifically, in material part the provision protects information laying open “the organization or any function of the National Security Agency,. [or] the activities thereof.”
Our examination of Section 6 and its legislative history confirms the view that it manifests a “congressional appreciation of the dangers inherent in airing particular data,” and thus satisfies the strictures of Subsection (B). The section was enacted at the request of the Department of Defense. The Department’s immediate aim was termination of personnel oversight by the Civil Service Commission, which would subject highly sensitive agency activities to inspection. Exclusion from the Classification Act, administered by the Civil Service Commission, was thought to be “consistent with the treatment... accorded other agencies engaged in specialized or highly classified defense activities.” The purpose and scope of the bill proposed was broader, however, for, as the Department explained, “[t]he unique and highly sensitive activities of the Agency require extreme security measures.” Accordingly, the bill incorporated provisions “exempting the Agency from statutory requirements involving disclosures of organizational. matters which should be protected in the interest of national defense.”
The Senate report focused on relieving NS A from the requirements of the Classification Act. But it also echoed the Department’s concern over publicity of NSA’s “very highly classified functions vital to the national security.” The statutory language similarly evinces a purpose to shield the matters enumerated from indiscriminate public consumption. Section 6 ordains unequivocally that “nothing in this Act or any other law (including, but not limited to, the [Classification Act]) shall be construed to require... disclosure.”
Thus, Section 6 embodies far more than “a vague apprehension that [the] Agency might someday fall heir to sensitive information.” It reflects instead a congressional judgment that, in order to preserve national security, information elucidating the subjects specified ought to be safe from forced exposure. The basic policy choice was made by Congress, not entrusted to administrative discretion in the first instance. It follows that Section 6 is a statute qualifying under Exemption 3.
Even the most casual reading of Section 6 suggests, however, a potential for unduly broad construction. On the one hand, the section embraces personnel matters of a fairly restricted character and susceptible of little interpretation. Literal application of those terms might expectably honor the congressional policy underlying Section 6 without doing violence to the Freedom of Information Act’s “overwhelming emphasis upon disclosure.” On the other hand, Section 6 encompasses “any information with respect to the activities” of NSA, and that implicates superficially the gamut of agency affairs. To be sure, the legislation’s scope must be broad in light of the agency’s highly delicate mission. But a term so elastic as “activities” should be construed with sensitivity to the “hazard[s] that Congress foresaw.” As we have observed in an analogous context, “[t]o fulfill Congress’ intent to close the loophole created in Robertson, courts must be particularly careful when scrutinizing claims of exemptions based on such expansive terms.”
NSA has not based its repulsion of appellant’s informational request upon an illusory need to safeguard “secrets” either familiar to all or unrelated to its operational modes. In the agency s words, its “claim.. is not made with respect to its general functions or activities”; it seeks instead to halt any divulgence of “information in such detail so as to let potential adversaries know which specific communications circuits are not secure, and which communications, depending on the circuits through which they were transmitted, the Agency is likely to possess or not possess.” That position, if substantiated, would undercut appellant’s reliance on the Senate’s far-ranging disclosure of NSA’s operations in the course of recent investigations of gross illegalities on the part of intelligence agencies, for the Senate inquiries seemingly stopped short of revealing specifics about the agency’s intelligence capabilities, which still warrant stringent protection from compulsory exposure. With this background, then, we proceed to examine whether the District Court adequately undertook to adjudicate the applicability of Section 6 to the materials appellant seeks.
B
Congress has directed that in reviewing agency rejections of Freedom of Information Act requests, “the court shall determine the matter de novo, and may examine the contents of. agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b).” Very importantly, “the burden is on the agency to sustain its action.” The legislative history of the Act explains that “the Government should be given the opportunity to establish by means of testimony or detailed affidavit that the documents are clearly exempt from disclosure,” and that the court should “accord substantial weight to an agency’s affidavit.” But, as in the recent past we
have noted, “conclusory and generalized allegations of exemptions” are unacceptable; if the court is unable to sustain nondivulgence on the basis of affidavits, in camera inspection may well be in order. As Congress has declared, “in many situations” review of requested materials in chambers “will plainly be necessary and appropriate.”
We think the District Court failed in this litigation to conduct a true de novo review consonant with the foregoing principles, and that summary judgment was precipitously entered. The showing made by NSA consisted wholly in the public affidavit of Norman Boardman, its information officer. Boardman avowed that the materials requested “were acquired in the course of conducting lawful signals intelligence activities,” and that “[rjelease of any record or portion thereof would disclose information about the nature of NSA’s activities including its functions.” He further explained:
I have determined that the records involved in this case and specific information about those records such as numbers, dates, and type of information contained therein cannot be disclosed, because to do so would jeopardize national security functions the Agency was established to perform.... Disclosure of specific information which may be related to a specific individual or organization. in the context of [the agency’s] singular mission would reveal certain functions and activities of the NSA which are protected from mandatory disclosure by Section 6 of Public Law 86-36.
Boardman additionally maintained that his averments were as detailed as security constraints allowed:
It is not possible to describe in a publicly filed affidavit the material in and dates of the documents held by NSA, because this would... enable a knowledgeable person to determine the nature of the documents... and thus disclose intelligence sources and methods... In short, any further factual public description of material would compromise the secret nature of the information and would compromise intelligence sources and methods.
In our view, the Boardman affidavit was far too conclusory to support the summary judgment awarded NSA. The agency acknowledged to the District Court, and has represented to us on appeal, that the documents in issue have been suppressed, not on account of their “substantive content,” but because release to appellant would reveal “vital national security information concerning the organization, function and communication intelligence capabilities of the NSA.” But the Boardman affidavit furnishes precious little that would enable a determination as to whether the materials withheld actually do bear on the agency’s organization, functions or faculty for intelligence operations. Rather, it merely states, without any elucidation whatever, that compliance with appellant’s demand would reveal “certain functions and activities... protected from mandatory disclosure by Section 6,” and would “jeopardize national security functions the agency was established to perform.” Barren assertions that an exempting statute has been met cannot suffice to establish that fact, yet one will search the Boardman affidavit in vain for anything more.
Not only does the Boardman statement fail to indicate even in the slightest how agency functions might be unveiled, but it also lacks so much as guarded specificity as to the “certain functions and activities” that might be revealed. From aught that appears, the sixteen documents may implicate aspects of the agency’s operations already well publicized. Suppression of information of that sort would frustrate the pressing policies of the Act without even arguably advancing countervailing considerations.
Before this court, NSA has endeavored to remedy the deficiencies of its presentation in the District Court. As we have noted, the agency has identified as the subject of its concern the publication of information in such detail that its interception capabilities with respect to particular communications circuits might be exposed. Were NSA able to establish its claim in that regard, immunization by Section 6 at least to that extent would be assured. But the appropriate occasion for such an undertaking was during the proceedings before the District Court, in the context of de novo consideration of appellant’s demand.
Aside from their bearing on the substantive decision ultimately to be made, NSA’s averments on appeal have significant ramifications for the conduct of the litigation. In particular, they compellingly evince the feasibility of further elaboration of the agency’s public affidavit. We acknowledge, of course, that public explanations of a determination to withhold need not “contain factual descriptions that... would compromise the secret nature of the information,” but we see no reason why NSA’s open and informative representations to this court could not have been encouched in the initial affidavit And we suspect that the public record can be developed further still without untoward risk to the agency’s statutory mission were it to exercise sufficient ingenuity.
The importance of maximizing adversary procedures in suits such as this cannot be gainsaid. Participation of the information-requesters to the fullest extent feasible is essential to the efficacy of de novo re-examination of the agency’s action. Not insignificantly, the parties and the court, if sufficiently informed, may discern a means of liberating withheld documents without compromising the agency’s legitimate interests. To that end, discovery may be employed to develop more fully the basis of nondisclosure or the lack of it. As we have also said, “[t]he court may. require the agency to submit under protective seal affidavits that are more detailed than those made available to the plaintiff,” and after scrutiny thereof “the court may order release of any portions of these in camera affidavits that it determines will present no danger of unauthorized disclosure.” These salutary devices were abruptly aborted in the case at bar by unquestioning reliance upon the conclusory Boardman affidavit.
It is much too soon to tell whether NSA can establish its claims by more detailed public or classified affidavits, or whether in camera review of the controverted documents themselves will become essential to the resolution proper. What is clear, however, is that the Boardman affidavit was inadequate to discharge the burden firmly placed by Congress on agencies that would withhold records in the face of proper Freedom of Information Act requests. Indeed, the District Court’s uncritical acceptance of the affidavit deprived appellant of the full de novo consideration of its records-request to which it is statutorily entitled. Insofar as the sixteen documents admittedly withheld are concerned, this litigation must return to the District Court.
Ill
Appellant raises a second issue on this appeal. It concerns NSA’s claimed inability to locate pertinent documents in addition to the sixteen it is known to now have in hand. More precisely, appellant argues that under the circumstances the agency’s single affidavit and limited interrogatories-responses claiming thoroughness in its searches did not suffice to meet its burden in that regard; additional discovery was imperative, we are told, to ensure that all relevant records have been unearthed. We agree that NSA did not demonstrate the unavailability of other materials sufficiently to entitle it to summary judgment.
Appellant’s first request, made in December, 1974, extended to all documents bearing on its activities and on transmission of information about appellant to other agencies, governments and individuals. That demand was soon broadened to include items relating to appellant’s founder. In January, 1975, NSA informed appellant that it had neither established a file or record on these subjects nor passed on any information of either sort. This response, according to the Boardman affidavit, was largely “based on negative results of searches conducted at my request by the NSA organizations having files that may reasonably have contained information or records of the kinds requested.” On five subsequent occasions appellant specified additional subjects and submitted further details that might aid in locating pertinent materials. In each instance, Boardman reported, agency units “that could be reasonably expected to contain records of the kind described” were instructed to search their files, and supposedly “thorough searches” repeatedly failed to ferret out data of the kind demanded.
Subsequently, appellant learned in the course of discovery in a Freedom of Information Act proceeding against the Department of State and the Central Intelligence Agency that sixteen documents encompassed by appellant’s request had been provided to CIA by NSA and that NSA had advised against their release. Once informed of that development, NSA contacted CIA to obtain identifying details; and an ensuing search uncovered fifteen of the sixteen which, Boardman said, “were found in warehouse storage, not retrievable on the basis of subject matter content.” NSA later obtained a copy of the sixteenth from CIA.
Beyond revelations affording this much light, the Boardman affidavit contained little else material to the processing of appellant’s several requests, and NSA’s replies to appellant’s interrogatories were almost totally uninformative in that respect. They do explain that searches were made by departments in which sought-after materials expectably might repose, and that the organization of the agency’s files precluded retrieval on the basis of information furnished by appellant; and averments superficially similar did pass muster in the first of our recent Goland decisions. However, the competence of any records-search is a matter dependent upon the circumstances of the case, and those appearing here give rise to substantial doubts about the caliber of NSA’s search endeavors. More specifically, they pose the question whether further search procedures were available and within the agency’s ability to utilize without expending a whit more than reasonable effort. Summary judgment, then, was improper because an issue of material fact— the adequacy of the search — was apparent on the record.
The Boardman affidavit informs us that “[t]here is no central index to all of the Agency’s files. Some files have records in alphabetical order by name, title, or subject matter. Other files are in chronological order; of these, only some, not all, have indexes by name, title, or subject matter of the records they contain.” In no way, however, did Boardman attempt to relate these characteristics of NSA’s general filing system to the particular searches conducted for appellant. All the affidavit says, though over and over, is that almost always the quests were in vain, and that, we believe, does not satisfactorily dispel the questions arising in the present situation. The fact that nothing pertinent is found on a file search might suggest, of course, that nothing pertinent was on file, but here there is a countervailing circumstance arguing powerfully the other way.
Despite searches in some number, fifteen responsive documents concededly in NSA’s possession were passed by, and but for help from another intelligence agency seemingly would never have come to light. NSA tells us that its “files... are oriented to subjects of foreign intelligence interests and are not structured to permit retrieval by subjects of the type included in [appellant’s] Freedom of Information Act request.” NSA adds that “[t]he fifteen records found in warehouse storage [were] not retrievable on the basis of subject matter content. Only the identifying data supplied by the CIA enabled NSA to locate copies of the records here.” The difficulty with this attempted explanation is that it generates more problems than it solves.
On the one hand NSA states that some of its files are indexed or alphabetically arranged “by name, title, or subject matter” —details appellant supplied profusely — and on the other hand it declares that its files “are not structured to permit retrieval by subjects of the type included in [appellant’s] requests.” And notwithstanding the latter representation, which would appear to immediately doom any search whatsoever for appellant, NSA professes to have conducted several, and to have done so “thoroughly.” On a broader scale, since NSA’s prime mission is to acquire and disseminate information to the intelligence community, it seems odd that it is without some mechanism enabling location of materials of the type appellant asked for, particularly with identifying details as extensive as those furnished. Even absent other modes of subject-matter classification, it is not at all apparent why NSA might not have searched on the basis of “subjects of foreign intelligence interests” likely to be involved. Presumably, CIA was able to identify the fifteen documents on clues no different from those provided NSA by appellant and, in turn, to identify them for NSA; just why NSA could not have done that on its own is hardly evident from what NSA has offered thus far. If there was no other way, just why NSA did not resort to this process of cross-communication with CIA with respect to other documents demanded by appellant is not at all clear. NSA has never claimed that the search procedures it employed were the only methodology feasible and, everything considered, it has not yet eliminated an unavoidable inference that its technique may have left something to be desired.
Lest we forget, the District Court disposed of this litigation by summary judgment. It is well settled in Freedom of Information Act cases as in any others that “[sjummary judgment may be granted only if the moving party proves that no substantial and material facts- are in dispute and that he is entitled to judgment as a matter of law.” It is equally settled in federal procedural law that
[t]he party seeking summary judgment has the burden of showing there is no genuine issue of material fact, even on issues where the other party would have the burden of proof at trial, and even if the opponent presents no conflicting evi-dentiary matter. “[T]he inferences to be drawn from the underlying facts. must be viewed in the light most favorable to the party opposing the motion.”
So, to prevail in a Freedom of Information Act suit, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.”
When the agency “has not previously segregated the requested class of records production may be required only ‘where the agency [can] identify that material with reasonable effort.’ ” And, of course, in adjudicating the adequacy of the agency’s identification and retrieval efforts, the trial court may be warranted in relying upon agency affidavits, for these “are equally trustworthy when they aver that all documents have been produced or are unidentifiable as when they aver that identified documents are exempt.” To justify that degree of confidence, however, supporting affidavits must be “ ‘relatively detailed’ and nonconclusory and must be submitted in good faith.” Even if these conditions are met the requester may nonetheless produce countervailing evidence, and if the sufficiency of the agency’s identification or retrieval procedure is genuinely in issue, summary judgment is not in order.
NS A did not shoulder the burden cast upon summary-judgment movants by these salutary principles. Giving appellant the benefit of the inferences favorable to its cause, the record in its nebulous state simply does not establish the absence of a triable issue of fact — the adequacy of the searches NS A made. To accept its claim of inability to retrieve the requested documents in the circumstances presented is to raise the specter of easy circumvention of the Freedom of Information Act. Few if any requesters will be better informed than appellant on the particulars of data that may have been obtained clandestinely by a governmental intelligence agency. To be sure, an agency is not “ ‘required to reorganize its [files] in response to’ ” a demand for information, but it does have a firm statutory duty to make reasonable efforts to satisfy it. If the agency can lightly avoid its responsibilities by laxity in identification or retrieval of desired materials, the majestic goals of the Act will soon pass beyond reach. And if, in the face of well-defined requests and positive indications of overlooked materials, an agency can so easily avoid adversary scrutiny of its search techniques, the Act will inevitably become nugatory. In the situation before us, undiscriminating adoption of NSA’s ill-elucidated assertions of thoroughness in its searches would threaten to excuse it substantially from the operation of the Act.
We conclude, then, that the case warranted a more exhaustive account of NSA’s search procedures than it advanced. That reckoning is now due, and to the extent practicable it should be made on the public record. Following that, it may well become necessary for the District Court to entertain in camera affidavits in order to assess de novo whether NSA has met its burden. The end result of that degree of attention to the problem by the litigants and the court may be origination of search procedures at once efficacious and reasonable. The Freedom of Information Act summons at least a conscientious effort in that direction.
The summary judgment for NSA is reversed. The case is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
. Pub.L.No.89-487, 80 Stat. 251 (1966), codified by Pub.L.No.90-23, 81 Stat. 55 (1967), as amended by Government in the Sunshine Act, Pub.L.No.94-409, § 5(b)(3), 90 Stat. 1247 (1976), codified at 5 U.S.C. § 552 (1976) (hereinafter cited as codified).
. 5 U.S.C. § 552(b)(3) (1976).
. Pub.L.No.86-36, § 6, 73 Stat. 63 (1959), codified at 50 U.S.C. § 402 note (1976), quoted in text infra at note 25.
. Founding Church of Scientology v. NSA, 434 F.Supp. 632 (D.D.C.1977).
. Memorandum from President Harry S. Truman to the Secretary of State and the Secretary of Defense, “Communications Intelligence Activities” (Oct. 24, 1952). See S.Rep.No.755, 94th Cong., 2d Sess. 736 (1976). NSA is a separately organized agency within the Department of Defense, and is controlled by the Secretary of Defense.
. Exemption 1, 5 U.S.C. § 553(b)(1) (1976), immunizes from compulsory disclosure information that is
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]
As the District Court did not predicate the summary judgment on this exemption, we do not consider its applicability here. See text infra at notes 9-10.
. Exemption 3, 5 U.S.C. § 552(b)(3) (1976), quoted in text infra at note 19.
. See notes 6-7 supra.
. Quoted in text infra at note 25. Initially, NSA also advanced 18 U.S.C. § 798 (1976) and 50 U.S.C. § 403(d)(3) (1976) as Exemption 3 statutes. For a discussion of these provisions in the context of litigation against NSA, see Baez v. NSA, 76-1921 (D.D.C. April 7, 1978). NSA’s summary judgment motion and the District Court’s decision, however, rested only on Pub.L.No.86—36. We limit our consideration accordingly.
. Quoted in text infra at p. note 19.
. Founding Church of Scientology v. NSA, supra note 4, 434 F.Supp. at 633.
. Id.
. See text supra at note 6.
. Discussed in Part III infra.
. 5 U.S.C. § 552(b)(3) (1976).
. H.R.Rep.No.1441, 94th Cong., 2d Sess. 14 (1976) (conference report), referring to Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975).
. Administrator v. Robertson, supra note 16, 422 U.S. at 266, 95 S.Ct. at 2148, 45 L.Ed.2d at 174.
. 49 U.S.C. § 1504 (1976), providing that, upon objection of any person, agency officials “shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.”
. 5 U.S.C. § 552(b)(3) (1976).
. 122 Cong.Rec. H9260 (daily ed. Aug. 31, 1976) (remarks of Representative Abzug).
. American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 415 & n.33, 574 F.2d 624, 626 & n.33 (1978) (discussing legislative history).
. Id. at 417, 574 F.2d at 628 (footnote omitted).
. Pub.L.No.86-36, 73 Stat. 63 (1959) (“[t]o provide certain administrative authorities for the National Security Agency”), as amended, 50 U.S.C. § 402 note (1976).
. 5 U.S.C. § 654 (1958), repealed by Pub.L. No.86-626, 74 Stat. 427 (1960).
. Pub.L.No.86-36, § 6, 73 Stat. 64 (1959), in 50 U.S.C. § 402 note (1976).
. Founding Church of Scientology v. NSA, supra note 4, 434 F.Supp. at 633.
. See text supra at note 19. Concurring in this view are Baez v. NSA, supra note 9; Kruh v. GSA, 421 F.Supp. 965, 967-968 (E.D.N.Y. 1976).
. See text supra at note 25.
. American Jewish Congress v. Kreps, supra note 21, 187 U.S.App.D.C. at 417, 574 F.2d at 628.
. Letter from Donald A. Quarles, Acting Secretary of Defense, to Richard M. Nixon, President of the Senate (Jan. 2, 1959), included in S.Rep.No.284, 86th Cong., 1st Sess. 2-3 (1959).
. Id. at 3 (letter).
. See note 24 supra.
. S.Rep.No.284, supra note 30, at 3 (letter); see id. at 2 (text of report).
. Id. at 3 (letter).
. Id. (letter).
. Id. at 1-2 (text of report).
. Id. at 1 (text of report).
. See text supra at note 25.
. American Jewish Congress v. Kreps, supra note 21, 187 U.S.App.D.C. at 417, 574 F.2d at 628.
. Accord, Baez v. NSA, supra note 9; Kruh v. GSA, supra note 27, 421 F.Supp. at 967-968.
. “[N]ames, titles, salaries, or number of the persons employed by [the] agency.” See text supra at note 25.
. Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Compare Baker v. CIA, 188 U.S.App.D.C. 401, 580 F.2d 664 (1978), in which we construed literally § 7 of the Central Intelligence Agency Act of 1949, ch. 227, § 7, 63 Stat. 211 (1949), codified at 50 U.S.C. § 403g (1970), which exempted “from the provisions of section 654 of Title 5, and the provisions of any other law which requires the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency... We noted, however, that to require that sought-after personnel material be in fact linked with intelligence, security, sources or methods would render § 403g “mere surplusage, since such a showing would necessarily bring the requested information within the purview of § 403(d)(3) [see note 46 infra] and thereby immunize it from disclosure without the need for a separate statutory exemption.” Baker v. CIA, supra, 188 U.S.App.D.C. at 405, 580 F.2d at 668. We observed, too, that “section 403g creates a very narrow and explicit exception to the requirements of the” Freedom of Information Act. Id 188 US.App.D.C. at 407, 580 F.2d at 670.
. See text supra at note 25.
. American Jewish Congress v. Kreps, supra note 21, 187 U.S.App.D.C. at 418, 574 F.2d at 629.
. See note 16 supra and accompanying text.
. Ray v. Turner, 190 U.S.App.D.C. 290, 323, 587 F.2d 1187, 1220 (D.C.Cir. 1978) (concurring opinion). We spoke there of 50 U.S.C. § 403(d)(3) (1976), which instructs the Director of the Central Intelligence Agency to protect “intelligence sources and methods from unauthorized disclosure.” We observed that, “while the ‘particular types of matters’ listed in Section 403g (e. g., names, official titles, salaries) are fairly specific, Section 403(d)(3)’s language of protecting ‘intelligence sources and methods’ is potentially quite expansive.”
It may be that Congress intended to confer no greater protection to NSA’s “activities” by enacting Pub.L.No.86-36 than it did to CIA by complementary operation of §§ 403g and 403(d)(3). See Baez v. NSA, supra note 9. The Senate Report discussing Pub.L.No.86-36 likened the secrecy afforded NSA to that' allowed other intelligence agencies exempted from the Classification Act, which would include CIA. See S.Rep.No.284, supra note 30, at 2 (“[
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer: |
songer_respond1_3_3 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. UNITED STATES of America, Respondent, American Trucking Association, Inc., Intervenor.
No. 83-1228.
United States Court of Appeals, District of Columbia Circuit,
Argued Feb. 13, 1984.
Decided June 12, 1984.
As Amended June 12, 1984.
Joseph E. Santucci, Jr., Washington, D.C., with whom Robert M. Baptiste and Roland P. Wilder, Jr., Washington, D.C., were on the brief, for petitioner.
Kathleen S. Markman, Atty., Dept. of Transportation, Washington, D.C., for respondent.
Nelson J. Cooney and Robert A. Hirsch, Washington, D.C., entered appearances for intervenor.
Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
J. SKELLY WRIGHT, Circuit Judge:
The International Brotherhood of Teamsters, petitioner in this case, seeks to have this court overturn new regulations issued after notice and comment rulemaking by the Bureau of Motor Carrier Safety of the Federal Highway Administration (the agency). In order to promote highway safety, the agency or its predecessors have for 40 years regulated the number of consecutive hours that a truck driver is allowed to drive. See 49 C.F.R. § 395 (1982) (codification of current regulations). To enforce these regulations, the agency has traditionally required that drivers keep a log detailing the amount of time they spend on duty. The log had to be kept on a particular form of the kind specified by the agency.
In the rulemaking at issue here, see 4ÍI Fed.Reg. 53383 (Nov. 26, 1982), the agency revamped the logkeeping requirements. The changes were essentially threefold: (1) The new rules permit drivers to use record-keeping forms of their own design, rather than the standardized forms specified by the prior regulations. (2) The new rules permit drivers to omit from their record-keeping forms seven items of information included on the old mandatory forms. (3) The new rules substantially broaden the exemption from the recordkeeping requirement for certain local drivers. After briefly recounting some background information concerning the recordkeeping requirements, we discuss each of these three specific changes in turn.
I. The Recordkeeping Requirement
Since 1938 the agency or its predecessors have required drivers to keep logs, which are of crucial importance in the enforcement of the regulations governing maximum driving and on-duty time. Enforcement agents refer to the logs in roadside inspections; if an examination of the log indicates that the driver is not in compliance with the maximum hours regulations, he may be placed off duty. 47 Fed.Reg. at 53384. In addition, the agency conducts management audits at terminals to determine a carrier’s overall compliance with the maximum hours regulations. Id. The agency has noted that the log is “the principal document that is accepted by the court system as evidence to support enforcement actions for excess hours of service violations.” Id. In the agency’s words, “Currently, [the driver’s log] is the only single universally recognized instrument available to both Government and industry to insure compliance with the hours of service rules.” Id. The agency has underlined its belief in the importance of the recordkeeping requirement by stating that “[germination of [the] recordkeep-ing requirement * * * would be contrary to the very essence of the safety regulatory philosophy of the [agency] and in contradiction to the Act under which it was promulgated.” Id. The importance of a record-keeping requirement is not at issue in this ease.
The form of the log changed only rarely over the years, most notably in 1952 and 1965. See id. Before 1977 drivers had to fill out a separate form for each 24-hour period on duty. However, on November 4, 1977 the agency promulgated regulations permitting drivers to combine the single-day form, MCS-139, with copies of a supplementary form, MCS-139A, to enable them to keep track of periods as long as seven days without filling out a separate form for each day. See 42 Fed.Reg. 58525 (Nov. 10, 1977). Until the current regulations, however, drivers have had a choice between at most two kinds of forms (single-day or multi-day) on which they could record the required information.
The log forms in use before the current rulemaking contained two important types of information. Most important was a “grid” on which a driver would indicate for each hour of the day his duty status: “off duty,” “sleeper berth,” “driving,” “on duty (not driving).” See, e.g., 49 C.F.R. § 395.8 at 489 (1982) (example of completed log under old rules). In addition, the rules required the driver to fill in much other information, such as the date, total mileage, vehicle identification, name of co-driver, home terminal, etc. Under the old rules the driver had to keep a copy of the log in his possession while on duty for 30 days and the driver’s employer had to keep the logs on file for 12 months. 49 C.F.R. §§ 395.8(s), 395.9(u) (1982).
II. Use of Non-Standardized Forms
The agency’s new rules retain the grid used on its earlier forms, as well as much (but not all, see Part III infra) of the information that was formerly required. The agency continues to require that drivers and carriers retain the logs for the same time periods as under the old rules. The major difference is that the drivers need no longer use the standardized forms prescribed by the agency (although those forms continue to be perfectly acceptable). Instead, the driver may use forms of different designs as long as those forms contain at a minimum the grid plus certain other prescribed information.
The point of the change is to reduce the paperwork burden. The logkeeping forms under the old rules had to contain precisely the information specified under those rules, no more and no less. Therefore, many carriers were forced to insist that their drivers fill out one form for internal company purposes (for example, keeping track of drivers’ time for payroll records) and another form to meet the agency’s logkeeping requirements. Because the agency’s logs in form or content were unsuitable for internal company use, the carriers and drivers in effect had to keep two sets of books. This burden has been eliminated under the new rules, which approve the use of company-designed forms in place of the formerly-required logs, as long as the company’s forms contain the grid plus other specified information.
Incredibly, the union in this case addresses its major challenge to this innocuous-seeming change in rules. The union argues that the change was arbitrary and capricious under Section 10 of the Administrative Procedure Act, 5 U.S.C..§ 706(2)(A) (1982), because the agency illicitly traded safety concerns for the economic benefits of the reduction in paperwork.
The agency’s authority to issue safety regulations derived from 49 U.S.C. § 304(a)(1) (1976), which stated:
It shall be the duty of the [agency]—
(1) To regulate common carriers by motor vehicle * * *, and to that end the [agency] may establish reasonable requirements with respect to * * * uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.
The union’s primary argument is that this provision prohibits the agency from taking any action that advances any other goal at the expense of a decrease — however slight — in highway safety. In addition, the union argues that the former logkeeping requirement should be accorded a particularly strong presumption of validity because it had been a (moderately) consistent and (very) longstanding agency interpretation of its regulations. Finally, the union supports its position on the ground that the large majority of comments received by the agency concerning the new regulations expressed support for the old rules.
The agency largely seems to agree with the union: “The safety of the traveling public must not be compromised by weakening a national enforcement capability solely for the purpose of reducing paperwork burden.” 47 Fed.Reg. at 53387. However, according to the agency, reduction of the paperwork burden is a desirable goal if “this course of action would preserve the national hours of service enforcement capability * * Id.
In support of its authority to consider goals other than safety, the agency makes two arguments. First, it argues that Section 304(a) merely authorizes it to promote safety in a sensible and reasonable fashion under the circumstances; such a statute should not (in the absence of some indication to the contrary) be read as a mandate that the agency must remain completely oblivious to all other desirable policy objectives while carrying out the statutory goals. In other words, according to the agency the statute permits it to consider factors other than safety in exercising its delegated authority. Second, the agency points out that other statutes command it to consider other goals. In particular the agency points to the provisions of 44 U.S.C. § 3501 et seq. (Supp. V 1981), which require federal agencies to do everything in their power to minimize the burdens imposed on private parties by the agencies’ need to gather information. The statute explicitly forbids any agency from “conduct[ing] or sponsoring] the collection of information unless * * * (1) the agency has taken actions * * * to * * * (B) reduce to the extent practicable and appropriate the burden on persons who will provide information to the agency.” 44 U.S.C. § 3507(a) (Supp. Y 1981). Sections 3504 through 3509 set up a comprehensive scheme vesting in the Office of Management and Budget (OMB) authority to review agency information collection requests and reject those that impose unnecessary paperwork burdens on private parties. According to the agency, this entire scheme would make no sense if OMB was the only agency that could attempt to reduce paperwork; rather the statutory provisions necessarily imply that other agencies will on their own attempt to reduce the burdens they impose on the regulated entities. Moreover, in this case it seems that the agency was in large part following OMB instructions to reduce the burdens caused by the old logkeeping requirements. See 47 Fed.Reg. at 53385.
We generally agree with the agency. The union fails to call our attention to any special features of the regulatory scheme that would indicate that Section 304(a) should be interpreted so as to exclude the agency from taking nonsafety goals into account in enacting or modifying safety regulations. Moreover, this court has rejected a very similar challenge to action taken by the same agency pursuant to the same statute. In Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216 (D.C.Cir.1983), we held that it was “permissible for the agency to consider costs and benefits in deciding not to amend its regulations.” Id. at 1222. It should be similarly permissible for the agency to consider the economic costs in deciding to amend the same regulations. In the absence of clear congressional direction to the contrary, we will not deprive the agency of the power to fine-tune its regulations to accommodate worthy nonsafety interests.
Given that it was permissible for the agency to consider nonsafety-related factors in evaluating its logkeeping requirements, our review must ask whether in this case the agency acted arbitrarily and capriciously in promulgating the new rules that permit drivers to keep their logs on non-standardized forms.
In its original notice of proposed rulemaking, the agency had suggested that it might abolish the standardized log requirement altogether. See 47 Fed.Reg. 7702 (Feb. 22, 1982). The proposed rules would have replaced the standardized log with a regime in which each driver or carrier would be required to keep a log that included at least certain minimum information; these nonstandardized logs could record the information in any form at all. See id. at 7705. A large majority of the 1,300 comments received by the agency were opposed to this — or any — change, though many of these comments were postcard forms expressing little or no rationale for the opposition. The weightiest concern expressed was the need for uniformity; by permitting each carrier to use an entirely different form the new rules would cause confusion among federal and state enforcement agents who were accustomed to use the old standardized forms. Safety, according to some of the commenters, would necessarily suffer as enforcement agents would be forced to spend more time deciphering the myriad of individualized forms with which they would be faced. A subsidiary concern expressed was that the change could encourage each state to promulgate its own forms for use within its borders, thus causing an increased — rather than a decreased — paperwork burden.
The agency responded to these comments by deciding to retain significant elements of standardization. Thus, although drivers need not use standardized forms under the new rules, whatever form they use must contain the standardized, easily-recognizable grid. As the agency said, “The presence of a standard grid on the carrier’s form will result in universal recognition of any document tendered as an official hours of service record, thus overcoming most objections to the complete elimination of a standardized form requirement.” 47 Fed.Reg. at 53387. The agency’s conclusion is thus that the combination of standardized grid plus nonstandardized recording of other data will not significantly hinder enforcement of the maximum hours regulations. Cf. Int’l Ladies’ Garment Wkrs. Union v. Donovan, 722 F.2d 795, 821-822 (D.C.Cir.1983) (discussing deference to agency’s “predictive judgments about areas that are within the agency’s field of discretion and expertise”). It is of course possible that the agency’s judgment on this point is wrong. But the agency has made a reasonable prediction based on its experience with the old forms, the comments received in the rulemaking proceeding, and the results of a pilot program to test alternative recordkeeping systems. See Al Fed.Reg. at 53387. If we accept (as we must) the agency’s reasonable prediction that the new rules have no substantial impact on enforcement of safety regulations, we must conclude that the agency did not act arbitrarily or capriciously in adopting the new rules on the basis of the economic benefits of decreased paperwork.
The union does raise one further challenge to this aspect of the new rules. The new rules were based in part on data gathered when an outside consultant arranged for small groups of drivers to use alternative recordkeeping methods for a test period. See id. at 53385. The agency admitted that the test program had a natural (and unavoidable) bias toward changing the old rules because “drivers in the program were all employed by fleets whose managements were initially receptive to experimentation with the alternate concepts.” Id. According to the union, given this admitted bias it was irrational for the agency to rely on the data gathered by the test program to support its claim that the new rules would in fact reduce the paperwork burden. Moreover, the union claims that the agency erred in using the consultant’s estimate of savings ($164.1 million) in deciding that the new rules were justified; as the union points out, the final rules adopted did not precisely match the recommendations on which the consultant’s estimate was based.
We agree with the union that the consultant’s estimate cannot be taken to be an absolutely accurate prediction of savings from the new rules; indeed, we would perhaps doubt any such figure accompanied by a claim of absolute accuracy. However, given that permitting nonstandardized forms under the new rules will not have a substantial impact on safety, the agency would be acting rationally in adopting the new rule as long as some significant economic advantage could be achieved. Even if the precision of the $164.1 million savings estimate is doubtful, the estimate does supply substantial evidence that the new rule would offer a significant economic advantage. Therefore, finding that the agency acted reasonably in permitting the use of nonstandardized forms, we reject the union’s attack on this aspect of the new rules.
III. Omitting Seven Items of Information
Although we find the agency not to have acted arbitrarily and capriciously in the central thrust of the rulemaking at issue— permitting the use of nonstandardized forms — we have much greater difficulty with subsidiary changes that the agency made at the same time. The first of these changes governs the types of information that must be included on the recordkeeping forms. The new rules require drivers to use the standardized grid and to include on any form they use the following eight “data elements”: date, total miles driving today, truck or tractor number, name of carrier, driver’s signature/certification, 24-hour period starting time, main office address, and remarks. 47 Fed.Reg. at 53389. However, the new rules no longer require drivers to include seven items of information that were a part of the log forms required by the old rules: total mileage today, name of co-driver, home terminal address, total hours, shipping document numbers or name of shipper and commodity, origin, and destination or turnaround point. Id. at 53387. The union alleges that these items of information are vitally important as checks on the driver’s accuracy in filling out the grid. For instance, in an audit at a carrier’s terminal an enforcement official could compare a particular driver’s grid with the grid of his co-driver to determine if the drivers accurately reported their hours driving and their hours on duty not driving. Similarly, in a highway check an enforcement agent could compute the distance from a driver’s origin to his current location and compare that with the supposed total time to determine whether it was possible for the driver and co-driver to cover that distance in the amount of time indicated.
The agency attempted to justify omission of the seven items from the new record-keeping requirement by stating that “it has been determined that certain information currently required on the log may be unnecessary for enforcement purposes.” Id. The agency noted that “[tjhese deletions are expected to reduce driver preparation by approximately 50 percent without affecting the enforcement capability.” Id. at 53388. This is literally all the agency had to say about its action. Its brief comments are not accompanied by any explanation of how the 50 percent saving was calculated. In addition, unlike the agency’s careful attention to the arguments advanced against its decision to permit drivers to use nonstandardized forms, the agency in deciding to omit the seven items does not discuss, consider, or otherwise admit the existence of the possibility that the items have been useful to enforcement agents over more than 30 years. And the agency’s rulemaking makes no citation or reference whatever to the administrative record, which appears to us to be devoid of any support for the deletion of the seven items.
Our review of the agency’s action in this case is based on the principles we recently outlined under the “arbitrary and capricious” standard of the APA in Int’l Ladies’ Garment Wkrs. Union v. Donovan, supra, 722 F.2d at 814-815. The “keystone” of our inquiry is “to ensure that the [agency] engaged in reasoned decisionmaking.” Id. at 815. The agency itself must supply the evidence of that reasoned decisionmaking in the statement of basis and purpose mandated by the APA. Id. at 814-815; see 5 U.S.C. § 553(c) (1982). Although we will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), a corollary of this oft-cited statement is that we have neither the expertise nor the authority to substitute our judgment for that of the agency and provide an explanation where the agency’s path is entirely uncharted.
In this case the seven items of information seem to have been required for at least 30 years; this indicates that those items were once thought to serve some law enforcement function. We fully recognize that “[rjegulatory agencies do not establish rules of conduct to last forever,” American Trucking Ass’ns, Inc. v. Atchison, Topeka & Santa Fe R. Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847 (1967), and that agencies must be given ample latitude to “adapt their rules and policies to the demands of changing circumstances,” Permian Basin Area Rate Cases, 390 U.S. 747, 784, 88 S.Ct. 1344, 1369, 20 L.Ed.2d 312 (1968). Accord Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, -, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (quoting above cases). Nonetheless, when an agency seeks to change a settled policy, the record must at least indicate what led it to make the change. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). As the Supreme Court stated in Motor Vehicle Manufacturers, supra, 463 U.S. at -, 103 S.Ct. at 2866, “If Congress established a presumption from which judicial review should start, that presumption * * * is not against safety regulation, but against changes in current policy that are not justified by the rulemaking record.” (Emphasis in original.)
In the light of the above principles, our review focuses on whether the agency explained its change of policy with respect to the seven items of information. Of course, the agency’s unsupported assertion that these items are “unnecessary” is insufficient, for such an' unsupported assertion states a result, not a reason. And aside from the bald assertion that the items are unnecessary, we can find no other indication in the record as to why the agency decided to change its long-established policy. Therefore, in the light of the record evidence and the agency’s own conclusions — and in the absence of any hint as to the basis for the agency’s conclusion that the items were “unnecessary for law enforcement purposes” — we are forced to conclude that the agency acted arbitrarily and capriciously in omitting the seven items from the new recordkeeping requirement.
IV. The 100-Mile/12-Hour Exemption
The final issue in this case concerns the agency’s expansion of an exemption from the recordkeeping requirement. Before the spring of 1980 the logkeeping regulations contained an exemption for drivers who, operated their vehicles beyond a 50-mile radius from their work reporting location and returned to their work reporting location within 15 hours of reporting for duty. See 49 C.F.R. § 395.8(t) (1982). The exemption (subject to some further qualifications not relevant here) only applied if the driver’s employer maintained full time cards or other records showing the number of hours the driver is on duty, the time the driver reports for work, and the time the driver leaves each day. The exemption seems to be based on the assumption that many drivers engaged in primarily local deliveries spend as much or more time out of the truck as they do in the truck. Therefore, the burden imposed by a requirement that they keep track of every minute is rather more severe than the burden imposed by the same requirement on long-distance drivers, while the possibility that the local drivers will actually be behind the wheel for periods longer than permitted under the maximum hours rules will be slim. Therefore, although these drivers continued to be covered by the maximum hours rules, they were exempted from the logkeeping requirements.
In 1980 the agency modified the exemption from the logkeeping requirement by increasing the 50-mile limit to 100 miles while decreasing the 15-hour limit to 12 hours. 45 Fed.Reg. 22042 (April 3, 1980). After the agency made this change, petitions were filed to change the rules once again. A number of carriers contended that companies with heavy seasonal swings — such as home heating oil and farm fertilizer delivery — must keep their drivers on duty extra hours during their busy seasons. Yet many of these companies are engaged in merely local deliveries and have no need to send their drivers beyond the 50-mile limit. Thus, it was argued, these companies were penalized by the modification made in 1980. The suggested remedy was to reinstate the old 50-mile/15-hour limit as an alternative exemption; drivers who met either its requirements or the requirements of the 100-mile/12-hour rule would be exempt from the recordkeeping requirement. 47 Fed.Reg. at 53388. In response to these requests the agency simply expanded the exemption, adding three hours to the time limit; the new rules thus exempt drivers who go no more than 100 miles from their base and are on duty no more than 15 hours a day. The union argues that this expansion was arbitrary and capricious.
The agency justifies expanding the exemption by noting that the problem raised by the 1980 changes — i.e., making the exemption inapplicable to some drivers who previously could have taken advantage of it — “was unintended.” Id. The agency goes on to note that expanding the exemption does not
negate the 10 hour driving time rule. Under this exemption a driver may not drive more than 10 hours following 8 consecutive hours off duty, nor drive after being on duty 15 consecutive hours. While the log exemption would make violating more difficult to detect, we believe that investigative techniques will allow adequate enforcement of the regulation. If experience shows this is not the case, appropriate rulemaking action will be initiated.
Id.
To the extent that the above provides any justification at all for expansion of the exemption, we find that it is inadequate. The statements concerning the availability of “alternative investigative techniques” might be a reasonable basis for modifying the regulation when accompanied by a record that revealed what those techniques were; in this case the agency provides no examples of such techniques or any references or citations to the record that support the existence of such techniques. Cf. Int’l Ladies’ Garment Wkrs. Union v. Donovan, supra, 722 F.2d at 818-826. Moreover, the agency itself notes the crucial importance of the recordkeeping rules it is promulgating. See 47 Fed.Reg. at 53384 (termination of recordkeeping requirement “would be contrary to the very essence of the safety regulatory philosophy of the FHWA and in contradiction to the Act under which it was promulgated”). It is difficult to square the agency’s emphasis on the importance of the recordkeeping requirement with the alleged easy availability of alternative enforcement techniques.
The agency does seem to believe that the expansion is justified because the effect of the 1980 change (bringing some formerly exempt drivers within the ambit of the recordkeeping requirement) was “unintended.” Unfortunately, this result could not have been (and in fact was not) unintended. When the agency made the 1980 changes, it increased the distance and decreased the number of hours for the exemption. As a matter of logic, the two changes would necessarily result in requiring some nonexempt drivers {i.e., those who travel only 50 miles from their home base but stay on duty for 12 to 15 hours at a stretch) to comply with the recordkeeping requirement. As a matter of fact, the agency seems to have been fully cognizant of this result in 1980; as it pointed out then:
Another argument raised by certain commenters against the 12-hour limit was that some drivers may now be operating within the 50-mile radius exemption who, under the 100-mile radius exemption, would now have to prepare a log. However, since FHWA is expanding the area of operation fourfold, a limitation is necessary to ensure that the hours of service are not violated. * * * It should be clearly understood that once a driver exceeds that 12-hour limitation, the 100-mile exemption would no longer be applicable for that day and the hours of service for that day would have to be recorded on a driver’s log.
45 Fed.Reg. at 22043. The 1980 rules merely adjusted the mileage and time limits to bring different drivers (not necessarily more drivers) within the exemption. The agency may not thus rely on the intentions underlying its 1980 changes to now expand the exemption significantly. In short, the agency has failed to provide any justification — either in its current rulemaking or by referring to its 1980 changes — for expanding the exemption. We understand the agency’s inability to provide a justification, because our examination of the record fails to disclose any material that could provide the basis for such a justification.
V. 'Conclusion
Agency action comes before us for review accompanied by a presumption of regularity, and we hesitate to overturn it because an agency has published an inartful statement of basis and purpose in the Federal Register. Particularly with respect to relatively minor changes like those made by the agency in this case, we would not interfere with the agency’s decision where its course “may reasonably be discerned.” We therefore uphold the agency’s modification of the recordkeeping requirement to permit drivers to use their own forms. However, the agency has failed to demonstrate that it engaged in reasoned decision-making or that it had any basis at all for its decisions to omit the seven items of information and expand the exemption from the recordkeeping requirement. For this reason, we hold that the agency acted arbitrarily and capriciously in adopting the new rules to the extent that they omit the seven items of information from the recordkeep-ing requirement and to the extent that they expand the exemption from the recordkeep-ing requirement.
Affirmed in part and vacated in part.
. Section 304(a)(1) grants authority only to regulate common carriers. However, §§ 304(a)(2) and 304(a)(3) grant similar power to regulate contract and private carriers. Section 304(a) is by terms a grant of authority to the Interstate Commerce Commission. The Commission's power to regulate driver qualifications and safety were delegated after 1966 to the Federal Highway Administration as a division of the Department of Transportation. See 49 U.S.C. §§ 1655(e)(6)(C) and (f)(3)(B) (1976). Authority has in turn been delegated to the Bureau of Motor Carrier Safety. See 49 C.F.R. § 301.60 (1982). Since the promulgation of the regulations in question, § 304(a) has been superseded by Pub.L. No. 97-449, 96 Stat. 2438, codified at 49 U.S.C.A. § 3102 (1983). The new provision grants power to the Secretary of Transportation to prescribe regulations for "qualifications and maximum hours of service of employees of, and safety of operation and equipment of" motor carriers.
. We reach this conclusion while construing the specific statute at issue in this case. We express no opinion about whether other safety statutes — which may embody varying congressional directives and may establish varying regulatory systems — should be similarly interpreted. Cf., e.g., American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) (interpreting 29 U.S.C. § 655(b)(5) (1982)).
. The closest approximation that we can find to an explanation of the agency’s rationale for omitting the seven items of information occurs in the discussion of the issue in the agency’s brief on appeal. See brief for respondent at 25-27. It is well settled that our review cannot be based on post hoc rationalizations by counsel. See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, -, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 245-246, 9 L.Ed.2d 207 (1962). It is noteworthy that the discussion in the brief does not contain a single citation to the record.
. The expansion of the exemption under the new rules may be more significant than the apparent 25% expansion from 12 to 15 hours would indicate. The maximum hours regulations — stripped of qualifications irrelevant for present purposes — limit a driver to 10 hours behind the wheel each day. 49 C.F.R. § 395.3 (1982). Before the instant rulemaking drivers whose tour of duty lasted less than 12 hours were eligible for the exemption. Thus only drivers who spent less than two hours out'of 12 (one-sixth) of their on-duty time not driving would break the maximum hours rules. The rules must therefore have been predicated on dle assumption that it was unlikely that local drivers would spend less than one-sixth of their on-duty time not driving. Under the new rules, however, a local driver whose tour of duty lasts 15 hours may still qualify for the exemption; the comparable assumption must therefore be that local drivers will spend at least five hours out of fifteen, or one-third of their on-duty time, not driving. Thus, at least when seen from this perspective, the new rules represent a doubling (from one-sixth to one-third) of the amount of time that the agency is willing to assume a local driver is not driving during a given tour of duty.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
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.
SAUNDERS v. WILKINS.
No. 5385.
Circuit Court of Appeals, Fourth Circuit
Dec. 6, 1945.
Arthur Dunn, of New York City, and Moss A. Plunkett, of Roanoke, Va., for appellant.
V. P. Randolph, Jr., Asst. Atty. Gen. (Abram P. Staples, Atty. Gen., of Virginia, on the brief), for appellee.
Before SOPER and DOB1E, Circuit Judges, and HARRY E. WATKINS, District Judge.
SOPER, Circuit Judge.
This action was brought by Henry L. Saunders, a citizen of Virginia, qualified under Article 1, Section 2, Clause 2 of the Constitution of the United States to be a candidate for the office of Representative in the Congress of the United States from the State, against Ralph E. Wilkins, Secretary of the Commonwealth of Virginia. The complaint alleged that on October 18, 1943 Saunders notified the Secretary of his intention to be a candidate to he elected to that office by the electors of the State at large at the general election to be held on November 7, 1944; that he filed with his notice a petition signed by two hundred and fifty qualified voters of the State at large, in accordance with § 154 of the Code of Virginia of 1942, and thereupon it became the duty of the Secretary of State to notify the Secretary of the Electoral Board of each county and city of the State of such candidacy; and that the defendant failed to perform this duty, but instead, on August 3, 1944, returned the declaration of candidacy and refused to certify the name of the plaintiff as such candidate. It appears from the correspondence filed with the complaint that the Secretary’s refusal to certify the candidacy was based on an opinion of the Attorney General of the State which held that under the laws of Virginia no such office as member of the House of Representatives from the State at large existed, and no election was being held for that position.
The complaint charged that by the failure and refusal of the Secretary to certify the name of the plaintiff as a candidate for the office plaintiff was denied his political rights under the Constitution of the United States and was entitled to recover from the Secretary damages in the sum of $20,000 under R.S. § 1979, 8 U.S.C.A. § 43.
The complaint was met by a motion to dismiss on the ground that it failed to state a cause of action since questions relating to the apportionment of representatives among the several States are political in their nature and reside exclusively within the determination of Congress and hence the plaintiff was not deprived of any right by the action of the Secretary. The District Judge accepted this view and dismissed the bill, holding that the office of Representative at Large from Virginia does not exist because Virginia has divided its. territory into nine districts in conformity with the number of representatives allotted by Congress, and that it is only when a State fails to take such action that the office of Representative at Large comes into being.
The theory of the appellant’s case may be thus summarized: Virginia has abridged the right of certain inhabitants of the State, twenty-one years of age and citizens of the United States, to vote for the choice of Presidential electors and for Representatives in Congress, and hence under the terms of § 2 of the Fourteenth Amendment the basis of representation of the State should be reduced in the proportion which the number of such citizens bears to the whole number of citizens twenty-one years of age in the State. The abridgment of the right of certain citizens of Virginia to vote, to which the plaintiff refers, results from §§ 18, 20, 21, 22, 23 and 24 of the State Constitution and § 22 of the State Tax Code whereby certain requirements and qualifications for registration and voting are set out, including the payment of a poll tax, and the result, according to the plaintiff, is that sixty per cent of the inhabitants of the State are deprived of the right to vote. By reason of this action of the State it became the duty of Congress to make a corresponding reduction in the number of representatives allotted to Virginia, and if this had been done, Virginia would have been entitled to not more than four representatives.
In disregard of this duty, Congress passed § 2(a) of the Act of November 15, 1941, Chap. 470, 55 Stat. 762, 2 U.S.C.A. § 2b, whereby it was provided that each State shall be entitled in the 78th and in each Congress thereafter until the taking effect of a reapportionment to the number of Representatives shown in the statement transmitted to Congress by the President on January 8, 1941, based upon the method known as the method of equal proportions, no State to receive less than one member. Under this apportionment Virginia was allotted nine representatives; and they have been since elected by the voters of the nine districts into which the State was divided by the Act of the Virginia, legislature of 1934. Virginia Code of 1942, §§ 70, 71 and 72. Both of these Acts, the Act of Congress and the Act of the State Legislature, are invalid and of no effect since they are in conflict with § 2 of the Fourteenth Amendment, and consequently Representatives to Congress from Virginia must be chosen from the State at large, just as if ■no redistricting of the State had been made by the Legislature. The situation is likened to that which was considered by the Supreme Court of Appeals of Virginia in Brown v. Saunders, 159 Va. 28, 166 S. E. 105, wherein the Virginia Apportionment Act of 1932 was declared to be in conflict with the State Constitution in that it failed to divide the State into districts composed of as nearly an equal number of inhabitants as possible, and the court held that it was necessary for the electors in the State at large to select all nine members to represent the State in the national legislature. See also, Carroll v. Becker, 285 U. S. 380, 52 S.Ct. 402, 76 L.Ed. 807; Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L. Ed. 795.
Section 22(c) (5) amended by § 1 of the Act of Congress of November 15, 1941, Ch. 470, 55 Stat. 761, 762, 2 U.S.C.A. § 2a(c) (5), provides for such a contingency by directing that if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large. Since the number of districts into which the State of Virginia is divided under the existing State law exceeds the number of Representatives in Congress to which the State is entitled, it follows that they must be elected from the State at large. See, Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795. Moreover, under Article 1, Section 2, clause 3 of the Federal Constitution each State shall have at least one Representative in Congress.
The conclusion derived by the appellant from the aforegoing argument is that all Representatives in Congress from Virginia must be elected by the voters of the State at large and that the Secretary of State should have certified his candidacy. It is manifest that the underlying purpose of this argument and of the instant suit is to bring about the abolition of the Virginia poll tax law. A direct attack upon its constitutionality is not made, doubtless because the decisions generally hold that a State statute which imposes a reasonable poll tax as a condition of the right to vote does not abridge the privileges or immunities of citizens of the United States which are protected by the Fourteenth Amendment. The privilege of voting is derived from the State and not from the national government. The qualification of voters in an election for members of Congress is set out in Article 1, Section 2, Clause 1 of the Federal Constitution which provides that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. The Supreme Court in Breedlove v. Suttles, 302 U.S. 277, 283, 58 S.Ct. 205, 82 L.Ed. 252, held that a poll tax prescribed by the Constitution and statutes of the State of Georgia did not offend the Federal Constitution. The court said (302 U.S. 277 at page 283, 58 S.Ct. at page 208, 82 L.Ed. 252):
“To malee payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the Fourteenth Amendment. Privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate. Minor v. Happersett, 21 Wall. 162, 170 et seq., 22 L.Ed. 627; Ex parte Yarbrough, 110 U. S. 651, 664, 665, 4 S.Ct. 152, 28 L.Ed. 274; McPherson v. Blacker, 146 U.S. 1, 37, 38, 13 S.Ct. 3, 36 L.Ed. 869; Guinn v. United States, 238 U.S. 347, 362, 35 S.Ct. 926, 59 L.Ed. 1340, L.R.A.1916A, 1124. The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources. Hamilton v. Regents, 293 U.S. 245, 261, 55 S.Ct. 197, 203, 79 L.Ed. 343.”
See also, Pirtle v. Brown, 6 Cir., 118 F. 2d 218, 139 A.L.R. 557, certiorari denied 314 U.S. 621, 62 S.Ct. 64, 86 L.Ed. 499; Annotation, 139 A.L.R. 561; Campbell v. Goode, 172 Va. 463, 2 S.E.2d 456; Stone v. Smith, 159 Mass. 413, 34 N.E. 521; McPherson v. Blacker, 146 U.S. 1, 39, 13 S. Ct. 3, 36 L.Ed. 869.
It is the contention of the appellant, however, that even if the Virginia poll tax law does not offend the first section of the Fourteenth Amendment, nevertheless the statute falls within the terms of the second section of the Amendment by abridging the right of citizens of the United States to vote, and therefore the Apportionment Act of Congress of 1941 and the Redistricting Act of the State Legislature, which failed to take into account the effect of the poll tax act, are invalid with the consequences outlined above. We think that this contention presents a question political in its nature which must be determined by the legislative branch of the government and is not justiciable. It is well known that the elective franchise has been limited or denied to citizens in -various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of Representatives by Congress. Willoughby, Constitution, 2d Ed. pp. 626, 627.
It was held in' Luther v. Borden, 7 Howard 1, 42, 12 L.Ed. 581, that it rests with Congress to decide whether a State government is republican in form, as contemplated by Article 4, Section 4 of the Federal Constitution; and in Coleman v. Miller, 307 U.S. 433, 456, 59 S.Ct. 972, 83 L.Ed. 1385, 122 A.L.R. 695, it was decided that the efficacy of a ratification of a proposed amendment to the Federal Constitution by a state legislature which had previously rejected it is a question for the political departments. In the last mentioned case it was said (pages 454-455 of 307 U.S. .433) that in determining whether a question is political and not justiciable, the dominant considerations are the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for judicial determination. It is our opinion that the question involved in the pending case, viewed from either aspect, will be seen to be political. It is quite clear that we lack the means of deciding whether or not Virginia is entitled to nine Representatives in Congress upon the information before us. It is true that the complaint contains the allegation that the effect of the Virginia poll tax is to disenfranchise sixty per cent of the citizens within the State. But we have no means of knowing the effect upon the suffrage of the restrictions imposed by the statutes of other states in the form of poll taxes or other qualifications for voting. We could not say, even if the question lay within our power, whether Virginia is entitled to nine out of the total number of four hundred and thirty-five Representatives provided by Congress without ascertaining the number to which other states are entitled when the provisions of the second section of the Fourteenth Amendment are taken into consideration.
It is equally true that the court is without power to reduce the number of Representatives fixed by Act of Congress or to decide in case the number of Representatives from Virginia should be reduced, what disposition should be made of the vacancies thus caused, or to what states they should be allotted in order to maintain the total ordained by Congress. It is clear that there can be no finality on any of these questions until Congress exercises the authority and performs the duty entrusted to it by the Constitution. It is true that the pending case takes the form of a suit for damages against the Secretary of State for failure to certify the candidacy of the appellant, but in order to fix liability upon the Secretary, it would be necessary for this court to hold that notwithstanding the Act of Congress, the number of Representatives from Virginia and therefore of other states in the Union as set out in the Act' of Congress is erroneous and should be changed. This determination we have no power to make.
The case cannot be distinguished in principle from that before the Supreme Court of Nebraska in State v. Boyd, 36 Neb. 181, 54 N.W. 252, 19 L.R.A. 227, where an action was brought to compel the Governor of the State to call an election for three additional members of Congress to fill vacancies caused by the failure of Congress to allot to the State the number of Representatives to which it was entitled under the census of 1890. In dismissing the action the court said: (36 Neb. at pages 188, 189, 54 N.W. at page 254, 19 L.R.A. 227)
“ * * * There is much force in the objection that the states entitled to increased representation are thereby deprived of the same for two years. The question, however, is political, rather than judicial, and it is difficult to perceive in what way the courts can remedy the defect. With the present improved modes of taking the census and classifying the returns, the population of each state can be ascertained within a few months after the actual enumeration, so that the apportionment can be made in December or January following the taking of the census. It would seem but justice that this should take effect in the succeeding congress, and we may confidently trust to that spirit of fairness so characteristic of the American people, to correct the wrong. The courts, however, have no authority to declare that a greater number of representatives shall be elected and admitted to congress than the statute specifies; and the writ must be denied, and the action dismissed.”
See also, Daly v. Madison County, 378 Ill. 357, 365-366, 38 N.E.2d 160.
The judgment of the District Court will be affirmed.
These sections provide in substance as follows:
Section 18 provides that every citizen of the United States, twenty-one years of age, resident of the State one year, of the County six months and of the Precinct in which he offers to vote thirty days next preceding the election, and has paid his State poll taxes, shall be entitled to vote for members of the General Assembly.
Section 20 provides that every citizen of the United States having the qualifications of age and residence required in § 18 shall be entitled to register provided that he has personally paid all State poll taxes assessed against him for the three years next preceding.
Section 21 provides that a person registered under § 20 shall have the right to vote for all officers elected by the people, provided that he shaE as a prerequisite to the right to vote personaEy pay six months prior to the election all State poE taxes assessed against him under the Constitution during the three years next preceding, unless exempted by § 22 from the payment of poll tax.
Section 22 exempts persons who served in the army or navy of the United States or the Confederate States in the war between the States.
Sections 28 and 24 exclude from registering and voting insane persons, paupers, persons convicted of certain crime, members of the armed forces temporarily in the State, &e.
Section 22 of the State Tax Code, Code Ya.1942 Appendix, p. 2641 levies a capitation tax of $1.50 per annum on every resident of the State not less than twenty-one years of age, except those pensioned by the State for müitary services, $1.00 to be applied to the aid of the public free schools and the residue to be paid by the State into the treasury of the county or city in which it was coEected, to be used as the authorities thereof shall determine.
The statement of the President is contained in a message to Congress which was referred to the Committee on the Census and printed as Document No. 45, H.R., 77th Cong.,' First Session, 16th Decennial Census of Population.
The total number of representatives is fixed at 435 by the Act of February 14, 1912, 87 Stat. 1728, 2 U.S.C.A. § 2.
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_numappel | 99 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
TUCKER et al. v. TEXAS AMERICAN SYNDICATE et al.
No. 12355.
United States Court of Appeals Fifth Circuit.
Dec. 7, 1948.
Carlisle Cravens, of Fort Worth, Tex., H. C. Upton, of San Angelo, Tex., and Dexter Hamilton, of Dallas, Tex., for appellants.
William E. Allen and J. B. Wade, both of Fort Worth, Tex., for appellee.
Before HOLMES, WALLER, and LEE, Circuit Judges.
HOLMES, Circuit Judge.
This is a voluntary reorganization proceeding under Chapter 10 of the Bankruptcy Act, as amended, 11 U.S.C.A. §§ 501-676. The petition alleges that the debtor is a business trust or joint stock association, duly organized under the laws of Texas, and that it is unable to pay its debts as they mature. 11 U.S.C.A. §§ 526, 528, 530, 531, 541, 543, 544, 545. The nature of the debt- or’s business is alleged to be owning land, farming, operating ranches, raising live stock, acquiring and developing land for oil and gas, and engaging generally in the oil business. Numerous motions and other pleadings were filed on behalf of creditors and claimants, objecting to the jurisdiction of the court and averring that the petition was not filed in good faith. After hearing evidence and argument, the court overruled the motions to dismiss, approved the petition as properly filed, and directed that the debtor be continued permanently in possession of the property.
There are two principal issues presented on this appeal: first, whether the debtor’s petition states the requisite jurisdictional facts; second, whether-the petition was filed in good faith. We shall deal with these issues in the order stated.
Although it is alleged that the debt- or is unable to pay its debts as they mature, it appears from the face of the petition that the largest claim against it is one for $79,-300; that this item is in suit; the debtor has plead failure of consideration; and has filed a cross-action for the sum of $1,538,-999.90. The only other debt specifically mentioned in the petition is alleged to be due to the State of Texas in the sum of $11,500. It elsewhere appears in the petition that the debtor owns lands valued at between three hundred and six hundred thousand dollars, and that claims have been asserted against it in the total sum of $124,437.20, which includes the item of $79,300 previously mentioned. The petition does not state the assets, liabilities, capital stock, and financial condition of the corporation as is required by the Bankruptcy Act, 1TU.S.C. A. § 530(4). There is no allegation as to the amount of cash or liquid assets available for the payment of debts, nor of specific facts showing the need for relief under Chapter 10, 11 U.S.C.A, § 530(7); but the pleadings are subject to amendment even on a question of jurisdiction; and, therefore, without deciding the first point, we pass to the second, as was done in Ex Parte Bakelite Corporation, 279 U.S. 438-448, 49 S.Ct. 411, 73 L.Ed. 789.
The record contains much oral and documentary evidence. At the outset1 of the hearing the debtor admitted that the trust estate was not insolvent. The court below found as a fact that the syndicate had no money to pay its debts, but it made no finding as to the vast resources of this organization, which would have enabled it to raise sufficient money to pay every debt owing by it. The evidence shows clearly that, although the market value of the real estate owned by the debtor was sufficient for the purpose, it made no effort to borrow money to meet its maturing obligations; on the contrary, it got rid of all of its cash, amounting to nearly $100,000, by paying debts that were not due and making improvements on real estate that were not absolutely necessary.
On November 30, 1947, the day after the petition was filed, according to the books of the debtor itself, it owned total assets of $421,167.38, and owed the aggregate sum of $41,173.87, disclosing a net worth on that date of $379,993.51. Within less than a year before filing the petition for reorganization, the debtor paid the State of Texas the sum of $27,936.22 on an indebtedness not then due, and during the same time spent for improvements on the Wade Ranch an amount exceeding $34,582.95.
When the petition was filed, the only debts then due, which were liquidated as to amount and not contested as to liability, were about $2200 due for additional improvements on the Wade Ranch, and $1000 due a bank in Fort Worth. These amounts were inconsequential in comparison with the admitted assets and income of the debt- or. No plausible reason is advanced for the debtor’s getting rid of its cash assets in this manner other than that it was done to enable the debtor in this proceeding to urge its inability to pay its debts as they matured. We think the finding that the petition was filed in good faith was clearly erroneous, and should be set aside.
Prior to approving the petition as properly filed, the court ordered a stay of proceedings in five suits pending in various state courts of Texas; four of them were brought by the debtor, Texas American Syndicate; the. only suit against the debt- or was one wherein it was sought to enforce liens upon lands of the debtor located in Texas; and the decision thereof obviously will be governed by the laws of Texas; the other four cases are actions in trespass to try title to lands also situated in Texas. They were instituted by the debtor, and their decision likewise will be governed by the laws of Texas. If not a distinct disservice, at least it would be a work of supererogation for the bankruptcy court to take all these land suits away from the state courts and try them in the federal court.
The Texas courts are the repositories of the law of that state. It is to their decisions that the federal courts must look to ascertain the Texas law in local matters. This is preeminently true with reference to the law of real estate situated in Texas. For this reason, as well as because the local courts are more convenient to the litigants, and may be less expensive, we think the order staying proceedings in these five cases was improvidently granted and should be dissolved.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_usc1 | 38 | 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.
NEGRON v. UNITED STATES.
Circuit Court of Appeals, First Circuit.
February 9, 1929.
No. 2253.
George L. O’Hara, of Boston, Mass. (Pedro Amado Rivera and Aureliano Rivas, both of San Juan, Porto Rico, and Maurice J. Power, of Boston, Mass., on the brief), for plaintiff in error.
John V. Spaulding, Asst. U. S. Atty., of Boston, Mass. (John L. Gay, U. S. Atty., and Jesus A. Gonzalez, Asst. U. S. Atty., both of San Juan, Porto Rico, on the brief), for the United States.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. '
JOHNSON, Circuit Judge.
The plaintiff in error was convicted in the District Court of the United States for the District of Porto Rico for the violation of the Act of Congress approved. June 7, 1924, e. 320, § 500, 43 Stat. 628, as amended by the Act of March 4,1925, e. 553, § 17, 43 Stat. 1311 (38 USCA § 551).
This act is known as the World War Veterans’ Act, and section 500 of the same, so far as material, is as follows:
“Except in the event of legal proceedings under section 19 of title I of this act, no claim agent or attorney except the recognized representatives of the American Red Cross, the American Legion, the Disabled American Veterans, and Veterans of Foreign Wars, and such other organizations as shall be approved by the director shall be recognized in the presentation or adjudication of claims under titles II, III, and IV of this act, and payment to any attorney or agent for such assistance as may be required in the preparation and execution of the necessary papers in any application to the bureau shall not exceed $10 in any one ease. * * * Any person who shall, directly or indirectly, solicit, contract for, charge, or receive, or who shall attempt to solicit, contract for, charge, or receive any fee or compensation, except as herein provided, shall be guilty of a misdemeanor, and for each and every offense shall be punishable by a fine of not more than $500 or by imprisonment at hard labor for not more than two years, or by both such, fino and imprisonment.”
One Juan R. Perez, a veteran of the World War, had made application to the Veterans’ Bureau at Washington, D. C., for compensation, with the assistance of tho American Red Cross in San Juan, Porto Rico, but after a long delay he was led to apply to Negron for bis assistance. , The manager of the Veterans’ Bureau in San Juan, Porto Rico, received a communication from Washington in 1922 to examine tho applicant.
Porez testified that Negron assisted him in obtaining compensation, which he had been trying to obtain for seven years. Negron secured an affidavit from one Dr. Crespo, which was forwarded to Washington to be used in connection with the claim of Perez. Ultimately Perez received $3,755.70, from which Negron took $1,877.85, being 50 per cent, of the compensation received.
Perez enlisted in tho army of the United States in 1908 and was discharged on March 12, 1919. Ho afterwards was in several hospitals, and both of Ms legs were amputated to arrest tho progress of the disease with which he was afflicted.
The errors assigned are that the court refused to order a verdict for the defendant, failed to instruct the jury as requested by the defendant, and eired in tho admission of tesiimony.
It clearly appears from the testimony of Perez, and from a letter introduced in evidence, written to Perez by Negron December 17, 1927, that Negron assisted Perez in preparing’ his claim for compensation. In this letter the writer asked him to send his discharge and “give me some data that I need in order to start your claim.” He then gives specific directions in regard to the evidence which will be needed, and also directs Mm to get a medical certificate from Dr. Crespo, and to send all letters which he may have received from the Veterans’ Burean. It is clear that there was evidence to he submitted to tho jury, and that the request for a directed verdict was correctly denied.
Tho instructions which the court failed to give related to the papers which had been introduced in evidence. The court was asked to instruct the jury that in order to convict the defendant it was incumbent upon the government to prove beyond a reasonable doubt that those papers were prepar ed and executed by his direction. In regard to the services rendered to Perez by Negron the court correctly charged the jury as follows:
“If you believe from tho evidence beyond a reasonable doubt that the defendant was the agent of Juan R. Perez in the matter of tho claim of the said Juan R. Perez for compensation under the World War Veterans’ Act of 1924, and that as such agent he furnished such assistance as was required in the preparation and execution of the necessary papers in regard thereto, and that ho received a greater sum than $10 therefor, then you must convict the defendant.
“The law reads: 'Assistance * * * in the preparation and execution of the necessary papers.’ That does not mean that tho defendant prepared all of the papers, or that he necessarily prepared any of the papers. If he gave his assistance in such preparation and execution,, that is all that is required.”
This instruction fairly covered tho request that was made.
It is also assigned as error that tho court erred in not instructing the jury that it was incumbent upon the government “to prove beyond a reasonable doubt that the papers introduced by the government in evidence were necessary papers in order to convict the defendant.” It is not clear from the record what papers are referred to in the requested instruction, but they evidently were the application of the soldier, his discharge, and affidavits showing his disability, all of which were forwarded to Washington. That these were “necessary papers” is shown by the fact that compensation was awarded, and that in the letter of Negron to Perez above referred to they were deemed to be necessary,
It is also assigned as error that the testimony of an attorney — Picornell—was admitted. His testimony related only to tho identification of certain incriminating letters which were left by Negron at the home of. Poj'oz for Ms signature, and wMch in substance stated that Negron had dealt honorably and _ faithfully with him, that he had made a mistake in asking’ for an investigation of his case, and that Negron had never received any compensation from him greater than that allowed by law and had done nothing in violation of the World War Veterans’ Act. These letters were introduced in evidence for the purpose of showing acknowledgment of guilt by Negron and an attempt on his part to evade its consequences. The court ruled that the evidence of Picornell did not violate the duty owed by Picornell as an attorney to Perez, and it is evident that its only purpose was to identify the letters which were brought by Perez to Mm. There was no error in tho admission of these letters ia evidence.
We find no merit in any of the errors assigned. The record clearly discloses that Negron received half of the amount paid to Perez, which was a violation of the World War Veterans’ Act; that when the cheek for the full amount of the compensation was received hy Perez he went to Negron with it, as the latter had instructed him to notify him upon its receipt; that at this time Negron had his discharge and other papers that came from Washington; that when he received the check he went to San Juan to cash it in order to pay Negron for his work — "the letters he wrote to Washington, and everything, I had to pay him for his services. I don’t know how many letters he wrote to Washington. I know that he wrote to Washington because I sent to him a doctor’s certificate of Dr. Crespo.” He also testified that he had received a letter from Negron stating that, instructions had been received from Washington to send him to the hospital.
The judgment of the District Court is affirmed.
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_dueproc | 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 interpretation of the requirements of due process by the court 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".
NORTH WHITTIER HEIGHTS CITRUS ASS’N v. NATIONAL LABOR RELATIONS BOARD.
No. 8819.
Circuit Court of Appeals, Ninth Circuit.
Jan. 12, 1940.
Rehearing Denied Feb. 7, 1940.
Ivan G. McDaniel, of Los Angeles, Cal., for petitioner.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Ruth Weyand, Mortimer B. Wolf, Samuel Edes, and Owsley Vose, Attys., National Labor Relations Board, all of Washington, D. C., for respondent.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
STEPHENS, Circuit Judge.
Charges by the Citrus Packing House Workers Union Local No. 21,091, were laid before the National Labor Relations Board, that North Whittier Heights Citrus Association was guilty of unfair practices by interfering with, restraining and coercing twenty-eight employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act [49 Stat. 449, 29 U.S.C.A. § 151 et seq.], sometimes herein referred to as the “Act”, and sometimes herein referred to as the “Wagner Act”, by discouraging membership in a union and by discriminating in regard to hire and tenure of employment of such employees in closing its plant August 14, 1937 and not recalling these employees to work when the plant reopened August 24, 1937. Thereafter the Board issued its complaint in regard thereto, the Association filed its answer, and a hearing was had. At the opening of the hearing the Association filed its motion to dismiss the proceedings upon the ground that its employees were agricultural laborers and therefore exempt from the Board’s jurisdiction, and that its operations do not directly burden or affect interstate or foreign commerce. The hearing proceeded and the Board made and filed findings and conclusions and its order to cease and desist certain unfair labor practices and to reinstate twenty-seven of such employees, and ordered certain additional affirmative action. The complaint was dismissed in so far as it contained allegations of unfair labor practices with respect to O. W. Rudick, one of the twenty-eight employees mentioned in the complaint. The Association petitioned this court to review the proceedings and to set aside the order, to which the Board filed its answer and affirmatively requested enforcement of the order. Hereinafter the Association will be designated as the “Petitioner”, and the National Labor Relations Board as the “Board”.
There is competent and substantial evi7 dence to support the following factual account of the proceeding. Petitioner is a corporate body organized and existing under the California Agricultural Products Marketing Act [Act No. 146, General Laws of California] with a membership of about 200 citrus fruit growers. It is engaged in the business of receiving, handling, washing, grading, assembling, packing and shipping the citrus fruit of its members and others for marketing under a marketing contract with the Semi-Tropic Fruit Exchange, which has a marketing agreement with the California Fruit Growers Exchange. Through these agencies practically all of the fruit handled by Petitioner moves directly from its plant to vehicles for transportation under the direction of the California Fruit Growers Exchange into interstate and foreign commerce.
Employees of Petitioner are generally persons residing at no great distance from the packing house and most of them have worked in the packing house for many years. The work is seasonal and dependent upon fruit condition in orchard, and consistent with such influences it has been the practice of Petitioner to give notice of suspension of operations and notice when' about to reopen.
During the latter part of July, 1937, some agitation for wage increase was going around among the employees and there was some wage increase granted, but there was no general increase. The union heretofore mentioned was formed during this same month and the activity of employees toward that end was met with disapproval by the plant manager. Early in the succeeding month the manager issued a written notice to the employees that they need not join a union under coercion and that they were not under the terms of the Wagner Act. One of the employees was warned in his home by his superintendent to quit talking union in the packing house and quit going to union meetings. On the night of August 10th, 1937, a stranger was excluded from a union meeting and he immediately joined the manager who had been waiting outside in his automobile. On July 30th the manager shook his finger in employee Joseph Matlock’s face and warned him that his wife’s activity in securing membership in the union must be stopped or that he would “clean house”. There were other acts attributable to the packing house management which tend to the Conclusion that it was attempting to prevent the formation of the union.
On August 13th, 1937, Petitioner through its manager issued the following signed notice:
“To All Employees:
“Due to conditions beyond our control, orange packing will be discontinued indefinitely at 12:00 o’clock noon, Sunday, August 14, 1937. The lemon house will also shut down for an indefinite period beginning at the same time. Therefore it will be necessary that all employees in all departments of both the orange and lemon division be laid off until work is resumed, and are notified to return.
“Upon your request, your pay in full may be obtained at the office Monday afternoon.”
The plant was closed at noon of the next day, at which time there were 118 employees working in the plant. Work was resumed August 23rd, but not all of the employees were notified to return. No grader had joined the union and no grader among the laid off employees failed to be recalled to work. Twenty packers had joined the union, and while all of the nonunion packers had been recalled but three of the union employees were recalled to work. There were twenty lemon packers, of whom six had joined the union. No union employee in the lemon division of the packing house was recalled, while thirteen of the fourteen non-union employees were recalled. No other union employees were recalled to work in the packing house. Thus twenty-seven of the thirty-two union employees were not recalled, while only eight of the eighty-two non-union employees were not recalled, and some of the eight were later recalled to work. At the reopening of the plant seventeen, and shortly thereafter seventeen more nonunion new employees were put to work. No additional union men were put to work.
Mrs. Shermer, head of the orange packing department, testified that there were good workers in the union who were not recalled. Additional detailed facts may be related under the different points raised in the case.
The Board’s order was that the petitioner
“1. Cease and desist:
“(a) From interfering with, restraining, or coercing its employees in the exercise ■of the rights to self-organization,' to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in con•certed activities for the purpose of collective bargaining or other mutual aid and protection, guaranteed in Section 7 of the Act.
“(b) From spying, maintaining surveillance, or employing any other manner of espionage over the meetings or meeting places and activities of the Citrus Packing House Workers Union, Local No. 21091, ■or any other labor organization of its employees.
“(c) From discouraging membership in Citrus Packing House Workers Union, Local No. 21091, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment, or by threats of such discrimination.”
Petitioner was also ordered to take affirmative action by reinstatement without prejudice to former seniority rights and privileges of all of the employees named in the complaint except O. W. Rudick, and to make them whole as to loss of wages; to post notices as to the cease and- desist ■order; and to notify the Regional Director as to steps taken in compliance with the order.
Petitioner presents its plea for relief under six designated points, and we shall consider them in the order of their presentation in its brief.
Are the Packing House Workers Agricultural Laborers?
The production and marketing of citrus fruits in California have undergone changes as have various other activities in their transition from “one man” affairs to “big business”. The public regard for the product itself has changed from that of a pretty and tasty tidbit to that of a standard widely used fruit food. Large acreages, in fact large sections of the State of California, are devoted almost wholly to this horticultural product. In the early day everything connected with the product was done “on the farm”. Experience produced better fruit, better fruit created greater demand, greater demand impelled system in handling. Possibly the most marked change in this transition was that of systematic marketing and uniformity in preparation for marketing, and these changes brought about the desirability of separating certain processes from the service of the* “farmer” to specialists. The farmer also learned through bitter experience that-individual grove product sale to middlemen or through consignment to independent fruit marketers resulted too often in ruin. The vast and comprehensive system which has been hereinbefore briefly alluded to was built up to adequately handle this large industry and to eliminate the practices which were so costly to the growers. Thus the growers themselves have separated from the farm, the work-now done in the packing house and with which we are here concerned, and have assigned it to an incorporated organization brought into being by the growers for such particular purpose. -
We shall proceed to consider whether or not those employed in petitioner’s packing house are “agricultural laborers” and as such exempt under the Act from the Board’s jurisdiction.
The pursuit of definitions of “agricultural laborers” through the cases leads to confusion because generally the case definitions have grown out of special statutory phraseology or out of judicial effort to conform to legislative intent. While it is quite impossible to phrase -an all inclusive yet accurate definition of the term “agricultural laborer” as it is used in the Wagner Act the intent of Congress is not at all obscure.
The very first statement of the Act is: “Section 1 [§ 151]. The denial by employers of the right of employees to organize and the refusal by employers to accept the. procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce [interstate and foreign] ^ »
In Section 2, subdivision (3), of the Act it is provided that unless the Act explicitly states otherwise, the term “employee” shall include “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, * * * but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse.”
The purpose of the Act is clear and we find the Act specifically excepting three kinds of employees from its provisions. It would seem profitable to consider whether or not there is a “common denominator” in these three exemptions. We think there is. Why is “any individual employed by his parent or spouse” exempted? Because (not excluding other reasons) in this classification there never would be a great number suffering under the difficulty of negotiating with the actual employer and there would be no need for collective bargaining and conditions leading to strikes would not obtain. The same holds good as to “domestic service”, and the same holds good as to “agricultural laborer” if the term be not enlarged beyond the usual idea that the term suggests. Enlarge the meaning of any of these terms beyond their common usage and confusion results. 'When every detail of farming from plowing to delivering the produce to the consumer was done by the farmer and his “hired man”, this common denominator was present. But when in the transition of citrus fruit growing from this independent action to the great industry of the present in which the fruit is passed from the individual grower through contract to a corporation for treatment in a packing house owned and run by such corporation, to be delivered by this corporation to an allied corporation for transportation and market, we think the common denominator has ceased to exist. The fact that these corporations are allied through their membership of growers does not, in our opinion, affect the situation under consideration. See Pinnacle Packing Company et al. v. State Unemployment Commission, decided February 19, 1937, by the Circuit Court of Jackson County, Oregon.
Petitioner in his brief points to these important changes and concludes, “It therefore becomes important to devise some test or touchstone to determine whether certain practices are agricultural or industrial”. It can hardly be contended that agriculture and industry are opposites generically speaking. Agriculture is a great industry. So, of course, petitioner has used these terms in their more limited meanings, and has perhaps unwittingly discovered his sought after “touchstone”.
Industrial activity commonly means the treatment or processing of raw products in factories. When the product of the soil leaves the farmer, as such, and enters a factory for processing and marketing it has entered upon the status of “industry”. In this status of this industry there would seem to be as much need for the remedial provisions of the Wagner Act, upon principle, as for any other industrial activity.
Petitioner maintains that the nature of the work is the true test. Perhaps it would more nearly conform to the true test to say that the nature of the work modified by the custom of doing it determines whether the worker is or is not an agricultural laborer.
Petitioner argues that if each member of the non-profit cooperative corporation that runs the packing house were to personally hire and direct those doing his own packing and sorting, the work would be agricultural and his employees would be agricultural laborers; that it follows, therefore, that in the case of the same members acting under a single organization to accomplish the same result there can be no change in the nature of the work nor in the status of the persons doing it. The conclusion does not follow. The factual change in the manner of accomplishing the same work is exactly what does change the status of those doing it. The premise laid down by petitioner in this phase of its argument is not, however, the exact situation facing us. The packing house activity is much more than the mere treatment of the fruit. When it reaches the packing house it is then in the practical control of a great selling organization which accounts to the individual farmer under the terms of the statute law and its own by-laws.
There are many instances related in the authorities showing that work done in one way is agricultural labor and workmen doing the same nature of work but under different circumstances are not agricultural laborers, and vice versa. See Trullinger v. Fremont County, 223 Iowa 677, 273 N. W. 124. Also see Miller & Lux, Inc. v. Industrial Accident Commission, 179 Cal. 764, 178 P. 960, 7 A.L.R. 1291, in which it is held that a workman employed by the Land Company to repair farming equipment was engaged in farm labor; Mullen v. Little, 186 App.Div. 169, 173 N.Y.S. 578, 580, where a farm laborer storing ice for use on the farm was held to be a farm laborer for the reason that the work was “incidental to farm purposes”; and Maryland Casualty Co. v. Dobbs, Tex.Civ.App., 1934, 70 S.W.2d 751, where one working for a company whose business was the spraying of citrus trees was held not to be a farm laborer. There is confusion in the so-called threshing machine cases, as may be ascertained by reference to the note in 13 A.L.R. 955.
So to be agricultural labor, the work need not be strictly related to the crop, and every work related strictly to the crop is not of necessity agricultural labor and those doing it agricultural laborers. It is said in Re Boyer, 65 Ind.App. 408, 117 N.E. 507, 508: “While the threshing of wheat may be a part of the work necessary to be done on the farm, the farmer himself rarely does it. On the contrary, he has it done by some one who is specially equipped with the machinery to do this kind of work. Wheat threshing is a business or industrial pursuit in and of itself, entirely separate and independent of farming.” Here is an admirable example of the nature of the work, modified by the custom of doing it affecting the category into which the work falls — agricultural or industrial. See, H. Duys & Co. v. Joseph M. Tone, Commissioner, 125 Conn. 300, 5 A.2d 23.
The opinion in the case of Pinnacle Packing Co. v. State Unemployment Commission, supra, a case arising under a cooperative arrangement for processing and marketing fruit, contains some apt language. We quote: “The fruit growers who are engaged in the care, cultivation, picking, and delivery of the products of the orchard to be processed, graded, packed and marketed are engaged in agricultural labor and are exempt from the provisions of the statute. As soon as the fruit is delivered by the growers to the plaintiff for processing, grading, packing, and marketing, then the exemption ceases. The plaintiffs engaged in processing, grading, and packing and marketing the fruits are engaged in industry and are, therefore, subject to the provisions of the act and are not exempt as being engaged in agricultural labor.”
We conclude that the workers in petitioner’s packing house are not agricultural laborers and are therefore not exempt from the operation of the Act.
Interstate Commerce.
Petitioner contends in its second point as follows: “Briefly, it is the contention of petitioner that when it handles the fruit by picking, grading and packing the same, the fruit is not yet in the channels of trade and commerce, either intrastate or interstate”.
At this late date it hardly seems necessary to devote a great deal of attention to this branch of the case. The facts show that the work done by the packing house is in every sense specialized factory work applied to fruit that has left the orchard. The major part of the fruit is moved directly by the packing house workers, through the agency of two allied corporations, into the rail cars for prompt movement in interstate trade. Most certainly any considerable interference in such work would affect the free flow of interstate commerce. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. American Potash & Chemical Corp., 9 Cir., 98 F.2d 488, 495, certiorari denied 306 U.S. 643, 59 S.Ct. 582, 83 L.Ed. 1043; National Labor Relations Board v. Santa Cruz Fruit Packing Co., 9 Cir., 91 F.2d 790, 791, affirmed 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138, certiorari denied 304 U.S. 575, 58 S.Ct. 1045, 82 L.Ed. 1539; National Labor Relations Board v. Biles-Coleman Lumber Co., 9 Cir., 98 F.2d 18.
It is also too late to argue that there would still be a free flow of fruit entering interstate commerce fully up to the market demand even if no fruit from this packing house should be shipped, and therefore no prohibited effect upon interstate commerce would result. The law condemns practices which substantially affect the free and normal flow of interstate commerce, under conditions that are not denied as existing here. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S. Ct. 96, 44 L.Ed. 136; McCall v. People of the State of California, 136 U.S. 104, 10 S.Ct. 881, 34 L.Ed. 391, and authorities last above cited.
Were the parties “employees”?
If they were “employees” were they entitled to reinstatement with back pay?
Petitioner next argues that the notice of the shutdown from the manager to .the packing, house workers constitutes a discharge and a complete break in the relation of employer and employee. There were in this business seasonal shutdowns and occasional temporary shutdowns. The Board found that the shutdown in question was not in the nature of an unfair labor practice, but was in fact caused by the condition of the fruit on the trees. The notice itself treats the shutdown as due to conditions beyond the control of the employer and states that “Therefore it wih be necessary that all employees * * be laid off until work is resumed, and are notified to return.” It is argued by petitioner that unless the relationship of employer and employee continued to exist through the period of the lay off, which continued relationship it denies, the Board’s order of reinstatement with back pay from date of resumption cannot be sustained.
This position is based upon § 10 (c) of the Act, 29 U.S.C.A. § 160(c), which authorizes the Board in proper cases to “take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate' the policies of the Act [this chapter]” and upon the definition of the term “employee” as found in § 2 (3) of the Act. This definition is as follows: “(3) The term ‘employee’ shall include any employee * * * and * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice * * Petitioner holds that the work has ceased as to the laid off workers and, as found by the Board, the cessation of work was not “as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice”. That therefore they ceased to be employees when the packing house closed down. The Board meets petitioner upon this issue with two answers. The first is that the workers did not cease to be employees with the layoff for the reason that under a proper construction of the statute their “work has not ceased” with the layoff. It is our opinion that the Board’s construction on this phase of the proceeding has support. This shutdown and layoff was no more than a suspension of work. It was not a termination of work. It was in accordance with long established custom. The relation of employer and employee does not always depend upon continuity of actual every day work. In the instant suspension of actual operation the employees of long standing and experience were “laid off until work is resumed” on account of a condition of fruit. The notice' itself holds out a “notice to return” when conditions have become right, which came about ten days later. In the circumstances, we see no reason for differing with the Board in its holding that the layoff because of the temporary shutdown did not sever the relation of employer and employee.
The evidence clearly shows that when the plant reopened after the fruit was in a condition to be handled, the workers named in the complaint other than O. W. Rudick were not put back to work because of their’ union activities. These employees were ready, willing and able to resume work with the reopening of the plant. The Board found that O. W. Rudick was not entitled to reinstatement and he has not resisted this conclusion. In these circumstances the Board’s order for reinstatement of these workers and for back pay from resumption of plant activity was proper. Michaelson v. United State, 7 Cir., 291 F. 940, 942; Iron Molders’ Union v. Allis-Chalmers Co., 7 Cir., 166 F. 45, 52, 20 L. R.A.,N.S., 315; Dail-Overland Co. v. Wyllis-Overland, Inc., D.C., 263 F. 171, 188; Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 136-138, 112 A.L.R. 948; National Labor Relations Board v. Carlisle Lumber Co., supra.
The Board also contends that whether or not the suspension of work for the ten days terminated the relation of employer a.nd employee between the packing house and those at work when the suspension became effective, the order of reinstatement with pay is supported by the provision of § 8 (3) of the Act, 29 U.S.C.A. §-158 (3), prohibiting “discrimination in regard to hire”. As we agree with the Board that the shutdown did not affect the relation of employee and employer as to those working at the time of the shutdown, it is unnecessary for us to consider this additional point.
Subppenas.
Petitioner’s next point is to the effect that requests to the Board for the issuance of certain subpoenas were met with the reply that: “It is necessary for you to furnish statement of reason for application and of evidence you expect to be established by testimony of individuals together with statement of their positions before the Board can act on your application.” Petitioner claims that such requirement encroached upon its rights but that in order to go forward with the proceeding it was compelled to grant this request. Petitioner does not specify any prejudice done it, and a very careful perusal of the evidence does not convince us that it suffered any prejudice by complying with the Board’s request. In the circumstances, even if we were to hold that the request was wholly unwarranted in law (upon which subject we express no opinion) we would not be warranted in nullifying the Board’s order. As tersely put in the Board’s brief, “Due process, however, is not concerned with technicalities, but with prejudicial infringement of substantial rights * * * ”, citing National Labor Relations Board v. Mackay Radio & Tel. Co., 304 U.S. 333, 351, 58 S.Ct. 904, 82 L. Ed. 1381, and Morgan v. United States, 304 U.S. 1, 19, 58 S.Ct. 773, 999, 82 L.Ed. 1129.
Petitioner complied with the Board’s request as to all of the persons for whom it requested subpcenas excepting' as to one Grace Stevens. Upon the request for subpoenas under the compliance it did not mention Grace Stevens. It held her name out for the purpose of complaining that it was deprived of her testimony. This procedure did not put petitioner in any better position, in fact, it quite adversely affected it, for the Board had the right to assume that no request was before it regarding a subpoena for her attendance upon the hearing.
The Findings of Fact.
The next point may be clearly understood by quoting the black faced heading under it in petitioner’s brief: “The so-called findings of fact upon which board bases its order are not findings of fact but are admixture of recitation of evidence, argument of the person or persons making the findings, and conclusions of fact not based upon evidence and in utter disregard of material and competent evidence.” We need not consider this point for the reason that petitioner does not point to any single instance in the record supporting the assertion. We are not compelled to search the record for undesignated error claimed upon an omnibus assertion.
Due Process.
The next point is a claim that: “The Board has failed to accord petitioner a fair, full and impartial hearing and in its conduct'of the proceedings has denied petitioner due process of law.”
The statement under the last preceding - point applies as well here.
Petitioner is denied .relief, and the order of the Board is ordered enforced.
It should, however, he understood that this proceeding concerns packing house workers and packing house work solely, and that there are here no facts as to picking the fruit nor as to any treatment of the orchard. It appears from the stipulation of facts that petitioner to some extent does handle the picking, spraying, fertilizing, etc., and that some of the workers in the packing house are at times employed by petitioner to do such work. However, the employment for packing house work and for orchard work are separate and apart.
Question: Did the interpretation of the requirements of due process by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mortimer W. COAKLEY, Plaintiff, Appellant, v. POSTMASTER OF BOSTON, MASSACHUSETTS et al., Defendants, Appellees.
No. 6758.
United States Court of Appeals First Circuit.
March 16, 1967.
David D. Dretler, Boston, Mass., for appellant.
Gordon A. Martin, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., Thomas P. O’Connor, Asst. U. S. Atty., were on brief, for appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
Plaintiff appeals from the district court’s refusal to set aside an order of the defendant postmaster discharging him from his civil service position in the Boston Post Office. While holding this position plaintiff was also employed as a full-time fireman (boiler tender) by the Boston Housing Authority. The postmaster claims that Postal Regulation 712.811 prohibits plaintiff from working full-time for the Housing Authority while regularly employed by the Post Office and ordered him to give up one job or the other. He refused to relinquish either job and the postmaster discharged him.
Regulation 712.811 states “Regular (per annum) postal employees may hold state or local government part-time positions.” The postmaster asserts that this regulation by implication precludes regular postal employees from holding full-time positions with a state or local government. Plaintiff contends that this regulation does not apply to him because his job with the Boston Housing Authority is not a “state or local office” within the meaning of this regulation and that in any event the regulation itself is unreasonable.
We agree with the Postmaster that Regulation 712.811 precludes by implication regular postal employees from holding state or local government full-time positions. Any other interpretation would not make sense. We also agree that even though the title of the regulation uses the word “office” its applicability is not limited to top echelon officials. This regulation is much broader in scope and is intended to cover outside employment in general. Nor can we accept plaintiff’s argument that the Authority is not a state or local agency within the purview of the regulation. Cf. E. W. Wiggins Airways, Inc. v. Massachusetts Port Auth., 362 F.2d 52, 55 (1st Cir., cert, denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966). That case held that a state Authority with similar statutory powers and duties was a public agency.
We now turn to the question of whether this regulation is reasonable. Rules and regulations made by government agencies in order to be valid must have a rational basis. Pan American Petroleum Corp. v. Federal Power Comm., 352 F.2d 241, 244 (10th Cir. 1965); N.L.R.B. v. Esquire, Inc., 222 F.2d 253, 256 (7th Cir. 1955). The difficulty in this case is that neither the record nor the regulation itself reveals its rationale. For this reason, we remanded the case to the district court for the limited purpose of receiving evidence as to its rationale. Regrettably, this hearing left the answer as much in the dark as it was before.
Clearly, under this regulation plaintiff, while holding his post office position, could work as a full-time boiler tender for a private employer but could only work as a part-time boiler tender if his employer were a state or municipal agency. We have not been given nor have we discovered any good reason for such a distinction. It can hardly be said that this distinction is based on job interference in view of the fact that there are other regulations under which the postmaster may forbid a postal employee from holding any outside position, public or private, full-time or part-time, which tends to interfere with his postal employment. Moreover, from a practical point of view there appears to be no intrinsic difference between public and private employment. Both demand a high degree of loyalty and require that the employee render efficient service, one no less than the other. Nor do we think that considerations based on sovereignty or comity between nation and state or the likelihood of conflicts of interest between the two, especially in times of emergency, enter into or constitute the rationale of this rule. For example, a full-time postal employee, working part-time for a state or municipal agency would be just as subject to conflicting demands on his time in case of an emergency as would an employee holding two full-time positions.
We are not persuaded by the government’s argument that the long history of prohibitions against dual office holding, both federal and state, and the fact that these prohibitions have been widely adopted and accepted in and of itself supports the reasonableness of this particular regulation. This is a non sequitur. We are not considering the reasonableness of a regulation forbidding all “moonlighting.” Cf. Mulry v. Driver, 366 F.2d 544 (9th Cir. 1966). The government further points out that until recently regular civil service employees were precluded from all outside public employment and the fact that this regulation does not go the full distance in relaxing this prohibition does not make it unreasonable. This argument falls short in that it sheds no light whatever on the rationale behind the distinction which the rule makes between apparently identical public and private employment.
In the absence of any good reason for such a distinction, it would seem that it can only be based on a per se objection to regular postal employees holding a second full-time public position as distinquished from a second full-time private one. In other words, the only reason for this distinction is that it is so because it is so. From this we can only conclude that the regulation in question is unreasonable on its face.
Judgment will be entered vacating the judgment of the district court and remanding the case for further proceedings not inconsistent with this opinion.
. Coakley v. United States Civil Service Commissioners, 252 F.Supp. 639 (D.Mass. 1966).
. There is no dispute that plaintiff, a full-time career mail handler, was a regular (per annum) postal employee at the time of his discharge.
. He also contends that this regulation violates the Fourteenth Amendment in that it discriminates against a group but we find no merit in this contention.
. For the most part, the defendant merely produced certain documents tracing the history and development of rules with reference to outside employment, none of which reveal the reasoning behind the distinction between full-time public and full-time private employment as made in the rule in question. Additionally, the defendants listed several state cases dealing with the various state prohibitions against dual office holding.
. Sections 712.82 and 744.451.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_counsel1 | 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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
NATIONAL LABOR RELATIONS BOARD et al., Petitioners, v. DAVID BUTTRICK COMPANY, Respondent.
No. 6636.
United States Court of Appeals First Circuit.
Heard April 5 and 6, 1966.
Decided May 26, 1966.
Warren M. Davison, Washington, D. C. , with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman and Linda R. Sher, Washington, D. C., were on brief, for petitioner.
Mark G. Kaplan, Boston, Mass., with whom Samuel E. Angoff and Angoff, Goldman, Manning & Pyle, Boston, Mass., were on brief, for Milk Wagon Drivers and Creamery Workers Union, Local No. 380, intervening petitioner.
John J. Delaney, Jr., Boston, Mass., with whom Murray S. Freeman, Gordon P. Ramsey, Duane R. Batista and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.
OPINION OF THE COURT.
COFFIN, Circuit Judge.
This petition of the National Relations Board seeks enforcement of a Board order that respondent company shall henceforth engage in collective bargaining in good faith with the exclusive representative of its employees, Milk Wagon Drivers and Creamery Workers Union, Local No. 380, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America. Respondent’s position in this unfair labor practice proceeding and in an earlier representation proceeding has been that Local 380 is subject to a disqualifying conflict of interest by reason of its alleged subservience to International and the existence of a substantial loan by a pension fund, serving International’s members in another geographical area, to Whiting Milk Company, one of respondent’s competitors.
The conflict is asserted to lie in pressures that could be brought to bear on Local 380, through efforts of the Fund and International to protect the loan, to take action adverse to or refrain from taking action favorable to respondent and its employees. The Board and its subordinate officers have consistently ruled that there has been insufficient showing of such a connection between Local 380 and the Fund or such participation by the Local in the loan negotiations as to disqualify it from serving as the bargaining agent for respondent’s employees.
Factual Background
Respondent is a dairy products processor and distributor, with its principal place of business in Arlington, Massachusetts. Until September 1964, respondent had approximately thirty drivers servicing twenty-three retail milk delivery routes in some eighteen communities in the Greater Boston area. Eight routes were in Arlington where it was a major distributor. Competition in the entire area served involved several other companies and several hundred milk route drivers.
Local 380 has since 1910 represented milk company employees in the Boston area, and has about 1500 members who are employed by five or six milk companies and several other enterprises. Of these, 600 are employed by Whiting, which serves a much wider area than Greater Boston, and includes neighboring states. Local 380 .is an affiliate of International, and subject to its constitution. Since 1961 it has had its own by-laws, which deal with membership requirements, dues, meeting rules, duties and election of officers and barn stewards, and methods of approving compensation of officers, expenditures, and collective bargaining agreements.
After corporate reorganization in a federal district court, Whiting came under new management, in or around 1960. Financing was secured through short term bank loans. In 1962, Whiting was exploring sources of longer term financing. The chairman of the board of Whiting became interested in discussing the possibilities of a loan from the Fund and approached a business agent of Local 380 for an introduction to the General President of International. A meeting took place betweeen the two men in July 1962 and a meeting of the Fund’s trustees and Whiting’s chairman occurred in September 1962, followed by another meeting of the two men in the early spring of 1963. Local 380 played no part in any negotiations. Finally, in the spring of 1963, a loan in the total amount of $4 million was forthcoming, being secured by mortgages of real and personal property, including good will, a pledge of all stock, open end resignations of principal officers and directors, and the right to operate the debtor’s business in case of default of any obligation “without restrictions or limitations of any kind”. A year later, in July 1964, application was made for an additional loan of $700,000, for expansion into the distribution of refrigerated foods. This was granted in January 1965.
In September 1964, 29 of respondent’s retail driver employees went on strike, which strike is still continuing, no replacements having been hired. On October 7, 1964, the Board’s Regional Director ordered an election, which was held on October 29,1964, resulting in the ultimate certification of Local 380 as the collective bargaining agent for respondent’s employees.
A formal request to bargain was declined by respondent because of Local 380’s alleged disqualification, and the unfair labor practice proceeding followed. In this second procedural stage, respondent proffered the following additional evidence; (1) the actual granting of the additional $700,000 loan; (2) acquiescence by Local 380 in Whiting’s initiating discussions with employees about a possible reduction of the work week and elimination of some jobs, and some changes by Whiting in this direction without union protest; and (3) Whiting’s decision in 1965, for the first time, to engage in individual bargaining rather than to continue its participation in multi-employer bargaining. The Trial Examiner concluded that respondent’s affirmative defense, Local 380’s disqualification, had not been sufficiently established to rebut the prima facie case of refusal to bargain. The Board affirmed and subsequently denied respondent’s motion to reopen the record to receive allegedly new evidence of control by International’s General President over both the Fund and bargaining activities of local unions.
The Board’s Conclusions
Because we disagree with the approach taken by the Regional Director, Trial Examiner, and the Board, it is essential that the basis of their conclusions be understood. The first decision — in the representation proceeding — was made for the Board by its Regional Director. The issue occasioning this opinion was disposed of in a footnote, as follows:
“2. The Employer contended that, although the' Petitioner herein is a labor organization within the meaning of the Act, it is disqualified from participating in the instant proceeding, in view of the fact that Central States, Southeast and Southwest Areas’ Pension Fund, a joint labor-management administered fund, had recently loaned certain sums of money to a competitor of the Employer herein. The record in the instant case indicates that Petitioner is not affiliated with said Fund nor did it participate in the negotiations concerning said loan. Accordingly, it is determined that the Petitioner is a labor organization that may participate in the instant proceeding before this Board. Auburn Rubber Company, Inc., 140 N.L.R.B. 919, fn. 3.”
We do not take issue with the findings of non-affiliation and non-participation in loan negotiations, nor with the citation to Auburn Rubber Company, Inc., supra, which contains a similar footnote conclusion that another Teamsters local was not “affiliated” with the Funds. Our difficulty is that we do not think the issue of disqualification on the asserted ground of conflicts of interest can be so easily disposed of. The footnoted findings are correct answers to the wrong questions.
Similarly, when the Board affirmed the Trial Examiner’s findings and conclusions in the unfair labor practice hearing, it took substantially the same position on the conflicts of interest issue. The Trial Examiner considered that the basic arguments had already been rejected by the Board as not being supported by the evidence then before it. He concluded that the proffered new evidence of the additional loan, the talk and acts of Whiting relating to eliminating some jobs and shifting to unilateral bargaining did not add enough to overcome the General Counsel’s prima facie case. The Board, in affirming, said in a footnote:
“ * * * like the Trial Examiner, we find that the entire record, as supplemented by these additional facts, contains insufficient evidence of any definite or substantial connection between the Union and the loans by the Fund to Whiting which allegedly give rise to such a conflict of interest as would disqualify the Union from representing Respondent’s employees.”
Again, we accept the factual statement that there was insufficient evidence of a “definite or substantial connection” between the union and the loans to Whiting, if by this is meant either formal affiliation between Local 380 and the Fund or involvement by the local in the loan negotiations. But, again, this does not dispose of the issue, for it is the interrelationship of powers and temptations created by the Fund’s loans to a competitor of respondent which gives rise to the problem, without regard to the circumstances leading to the existence of the loans. The principles attaching to the concept of conflicts of interest in the fiduciary field generally, and also in the field of collective bargaining, look to the prevention and forestalling of conditions which are likely to divide loyalties. Were proof of union “betrayal” required to trigger the application of sanctions, this constructive operation of the law would be largely nullified. We therefore take issue, not with the interpretation of the testimony, nor, of course, with the facts as revealed by the documentary evidence, but rather with the test or standard applied and the application of the undisputed facts to such standard.
While we have often considered ourselves restrained by the teaching of Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we consider that a fair and sensitive resolution of the basic issue in this case involves the kind of “judgment as to the proper balance to be struck between conflicting interests” where we would not be expected or required to feel bound by administrative conclusions. N. L. R. B. v. Brown et al., 1965, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839.
Precedents and Principles
While the Board may have been correct in saying of the specific circumstances in Bausch & Lomb Optical Company, 1954, 108 N.L.R.B. 1555, 1562, that the case was “unique”, we suspect that as union pension funds continue to grow, particularly with multi-employer contributors, the question of possible conflict between investment protection and worker representation motives is likely to arise with increasing frequency.
We recognize the presence of a number of conflicting objectives which must somehow be kept in balance. There is the right of employees under Section 9(a) of the Labor Management Relations Act (29 U.S.C. 159(a)) to have bargaining representatives of their own choosing. But there is the correlative duty of complete loyalty of such representatives to their constituents, Ford Motor Co. v. Huffman et al., 1953, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048. On such a loyalty depends in large measure the “reasoned discussion in a background of balanced bargaining relations upon which good faith bargaining must rest”. Phelps Dodge Copper Products Corp., 1952, 101 N.L.R.B. 360, 368. On the other hand, there is the obvious right of pension funds to put their funds to good use and not to be unduly circumscribed in their investment opportunities.
At the same time we are mindful of the increasing concern over the eroding effects of direct and even attenuated conflicts of interest, particularly on the part of public officials. In the labor field, similar concern has found its way into legislation, i. e., the Welfare and Pension Plans Disclosure Act of 1958, 29 U.S.C. Sec. 301 et seq., and the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 401 et seq. Moreover, bargaining units have been said to have a quasi-legislative function, binding individuals whether consenting or not. See “Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959”, 58 Mich.L.Rev. 819 n. 4 (1960), citing Steele v. Louisville & N. R. Co. et al., 1944, 323 U.S. 192, 202, 65 S.Ct. 226, 89 L.Ed. 173. But we must also accept the cautionary advice that “Courts should take care, in borrowing fiduciary principles from other areas of the law, to avoid interfering with such union activities”. Note, 37 N.Y.U.L.Rev. 486, 504 (1962). This is particularly pertinent in a field where Congress has not seen fit to attempt specific legislation.
While there is widespread interest in union democracy, as evidenced by the “Bill of Rights” in the Labor Management Reporting and Disclosure Act, supra, Subchapter II, Sec. 411-415, there is good reason for the great national unions to retain considerable central authority to be able to root out subversion and corruption (See Cox, supra, 58 Mich.L.Rev. at 847) and to remain effective in large scale collective bargaining.
The pertinent cases in this field are few. Perhaps the leading case is Bausch & Lomb Optical Company, supra. In this case a local union sought to be recognized as the company’s bargaining agent, despite its ownership of a competing concern in the same city. There was no evidence that the union had taken any action to benefit its own company. The Trial Examiner, in ruling for the union, had observed that any abuses could be cured by invoking remedies available under laws prohibitive of acts in restraint of trade. The Board, however, reversed the ruling, pointing out the necessity for a bargaining agent to have “single-minded purpose” and “complete loyalty”, saying, 108 N.L.R.B. at 1559:
“While we agree with the Trial Examiner that no evidence of specific abuse by the Union in the bargaining relationship has been presented, we cannot ignore or disregard the innate danger involved were we to order this Respondent to bargain with a union which is also its business competitor.”
The Board referred to the mutuality of concern which sometimes leads to a wage compromise between union and management in the interest of business survival and said, “this retarding influence upon inordinate demands may well be eliminated * * *. Indeed, the success of one [company] could well mean the failure of the other.” 108 N.L.R.B. at 1560. It went on to say that it was not fair to put upon the company the burden of trying to disentangle employee from investment motivation, for the company “would be effectively deprived of its right to refuse even to discuss excessive demands designed to force it out of business.” 108 N.L.R.B. at 1561. It observed also that the union, representing 7 of 11 wholesale optical firms and the respondent, had considerable control over the labor market.
It concluded by saying:
“We do not believe it is incumbent upon the Board to hold, in a situation such as involved here, which possesses latent dangers, that merely because the hazards which can be anticipated have not yet been realized, the Respondent-employer is nonetheless under a statutory duty to bargain. We do not mean to imply that given the opportunity the Union would inevitably take advantage of its position in the manner before indicated. It is enough for us that it could and that the temptation is too great.” 108 N.L.R.B. at 1562.
To this must be added Chicago Typographical Union No. 16 et al, 1940, 86 N.L.R.B. 1041. Here the Board recognized almost twenty years ago that “the essential indicia of complete local autonomy” are “freedom in the Local to disregard the ‘advice’ of the International and to conclude negotiations independently.” The Board went on to point out the specific obligations of the local union to submit contract proposals and negotiated contracts to the International for approval, or risk the withholding of strike benefit funds. Although this procedure was not always followed, the Board said, “All we need decide and do decide here is what powers the membership contract vests in the organization.” 86 N.L.R.B. at 1047 n. 15.
Bausch & Lomb was admittedly a clear case of immediate, direct competition. This is a case of contingent competition. But we distill the following points from this and other cases: (1) it is the innate danger to be guarded against; (2) the existence of this danger does not require proof of abuse of trust, so long as there is sufficient power and temptation to commit such abuse; (3) such a danger, if proximate enough, without evidence of present abuse, can poison the collective bargaining process by subjecting every issue to the questioning of ulterior motives; (4) where such proximate danger exists, it is not exorcised by the mere existence of other legal remedies such as those created by anti-trust legislation; and (5) the keystone freedom required on the part of a local union seeking to become an exclusive collective bargaining agent is the freedom to conclude such bargaining negotiations free of the suspicion that it is motivated by any purpose other than its loyalty to the employees it represents.
In seeking to measure the proximateness of the hazard, we see little utility in asking the general question whether or not the local union is “autonomous”. Few locals would have complete autonomy. We can conceive of a local with a large area of autonomy which may nevertheless be required to subordinate or share its authority with its international as to a key function of the bargaining process. It is possible, on the other hand, to conceive of a local which is subordinate in many respects to its parent international union and yet free of any meaningful restriction in its power to set an independent course in its collective bargaining activities. The cases, therefore, which hold that service on a local does not constitute service on an international, e. g., Morgan Drive Away, Inc. v. International Brotherhood of Teamsters et al., 7 Cir., 1959, 268 F.2d 871, cert. denied, 361 U.S. 896, 80 S.Ct. 199, 4 L.Ed.2d 152 (but cf. International Brotherhood of Teamsters et al. v. United States, 4 Cir., 1960, 275 F.2d 610, 614 n. 4, cert. denied, 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011), or that an international is not responsible for wrongful acts of its locals, e. g., International Brotherhood of Electrical Workers, Local 5 (Franklin Electric Construction Co.), 1958, 121 N.L.R.B. 143, do not necessarily establish the Criteria for resolving a conflicts of interest case. What is required is a selective scrutiny of those key powers which a local bargaining agent must be able to exercise with undivided loyalty if it is to engender confidence at the bargaining table.
Coming to the facts of this case, and focussing on what we feel to be pertinent, Local 380 is subject to the following exercise of' authority by International: (1) to arbitrate a controversy if the General President submits the matter to the General Executive Board and the Board feels that the local should arbitrate (International Constitution, Art. VI, Sec. 3); (2) to submit its management to a trustee appointed by the General President, if the latter believes that the local union is acting to “jeopardize the interests of the International Union, or its subordinate bodies” or if he feels such action is necessary to assure the performance of “duties of a bargaining representative” (Art. VI, Sec. 5(a)); (3) to desist from strike if the General President disapproves (Art. XII, Sec. 1(c)); and (4) to submit proposed collective bargaining contracts to the Joint Council and Area Conference and, if such contract provides for a lower standard of working conditions and wages than those prevailing in the area, to await the approval of the General Executive Board of International (Art. XII, Sec. 11(a) and (d)).
Area Conferences, which have the power to approve proposed collective bargaining agreements and also to name the union trustees on the Fund’s Board are “at all times subject to the unqualified supervision, direction and control of the General President * * * ” (Art. XVI, Sec. 1).
Translating these powers into practical terms, if Local 380 were willing to accept less than the average wages in order to assist respondent to reenter the retail milk delivery market, its ability to so agree is conditioned on acceptance by the Area Conference, which is wholly under the “unqualified supervision, direction, and control of the General President”, and the General Executive Board. But the General President has a fiduciary responsibility to the Fund to see Whiting, a competitor, do as well as possible. On the other hand, if Local 380 wished to ask for substantially higher than average area wages, and were willing to strike for them, the General President faces the possible chain effect of wage escalation on Whiting and might well feel conscience-bound to cause the Area Conference to veto such strike and/or advise the General Executive Board to order arbitration. If Local 380 were zealously to pursue policies which began to hurt Whiting, the General President might even come to the conclusion that the interests of the International (i. e., nearly $5 million of the Fund’s money) were in jeopardy, and order a trusteeship. Alternatively, he or the General Executive Board might feel called upon to bring pressures short of these ultimate sanctions.
These possibilities, the extent to which they constitute “innate dangers”, their effect on the bargaining process, the feasibility of devising reasonable proscriptions and safeguards — these we think ought to have been the concern of the Board, not whether the local union was “affiliated” with the Fund or had participated in the negotiations leading to the Fund’s loan.
Were we to affirm the Board’s petition in this case, we would in effect be giving carte blanche to unthinking debt financing by unions in enterprises with which they had bargaining relationships. Some of these chickens would come home to roost in eases of default and operation of the debtor by the union or its fund. But the more difficult problem would be coping with the problems of collective bargaining while lender and borrower were bending every effort to avoid default.
But were we simply to remand this case to the Board with instructions to dismiss the underlying representation petition, as respondent urges, we would be setting the stage for a wholesale reshuffling of collective bargaining relationships in the milk industry in the Boston area and perhaps beyond, without giving the Board or the International opportunity to try to come to terms with a problem which was not foreseen when a loan was made in undoubtedly good faith to an enterprise in need.
While we have not hesitated to differ with the Board on what we believe to be an issue of judgment involving basic policy where the underlying facts are undisputed and largely documentary, we recognize that, given basic guidelines, the expertise of the Board is necessary to arrive at a workable solution. One thing is sure. What might have been a unique case twelve years ago will be a commonplace of tomorrow if suitable guidelines and safeguards are not devised.
We therefore remand this, matter to the Board for reconsideration in the light of what we have said, in order that it may assess the potential, not merely the actuality, of conflict of interest and frame an order which, hopefully, will balance the legitimate interests of the Fund, respondent, International, Local 380, and respondent’s employees.
. Intervenor in this proceeding and hereafter referred to as “Local 380”. The International union will be referred to as “International”.
. The fund, hereafter called “the Fund”, is the Central States, Southeast & Southwest Areas Pension Fund. This is one of several large pension funds, to which employers and employer associations contribute for the benefit of their employees who are members of International and affiliated union organizations, The Fund is administered by 16 trustees, 8 chosen by various employer groups, and 8 by the four subscribing Area Conferences of International, and their local unions. (These are the Central States Conference of Teamsters, the Central States Drivers Council, the Southern Conference of Teamsters, and the Southern States Drivers Council.) All trustees serve at the pleasure of their appointing authority. In the event of deadlock, provision is made for an agreed upon or court appointed “neutral party”. As of January 31, 1963 the Fund’s assets were $213,389,-484.68.
. The larger of these being Hood’s, Whiting, United Farmers, and Woodland, with a number of smaller dealers and independents.
. An extensive resume of International’s constitution, before 1961, is contained in International Brotherhood of Teamsters et al. v. United States, 4 Cir., 1960, 275 F.2d 610, 612-614, cert. denied, 1960, 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011. Significant changes were enacted at International’s 1961 convention. General Teamsters, Local 249, 1962, 139 N.L.R.B. 605, contains a further summary of key provisions.
Pertinent sections will be discussed later in the opinion.
. This evidence is in the form of transcripts of Fund meetings and other records which are referred to and drawn upon in a recently published book, James, “Hoffa and the Teamsters — A Study in Union Power”, 1965. The General Oounsel’s opposition to the motion was based on the fact that (1) the underlying records used in the book were not newly discovered, since they were as available to respondent as to the authors; (2) the documents refer to a period of time antedating the Whiting loans; and (3) they do not bear on “the sole issue in this case, i. e., whether Local 380 participated in the negotiations for the aforesaid loan or has any other connection with that transaction.” While, as will be obvious, we feel that “the sole issue” is quite a different one, we do not find reversible error in the Board’s denial of the motion as made. Our reading of the book does not add to our understanding of the basic powers, duties, and temptations, which, wholly apart from a past course of conduct, in our view create the conflict of interest problem. Moreover, the motion raised the specter of masses of documentation much of which would be remote in time and irrelevant to the issue. We add, however, that in reconsidering this matter the Board would do well to ascertain the magnitude of the problem described in the sections entitled “Truckers, Trustees, and Las Vegas Resorts”, and “The Union’s Conflict of Interest”, James, op. cit. supra at 271-273, 292-294.
. The Auburn case illuminates the potential conflict of interest between union investment and union representation. Here the Fund had bought municipal bonds issued by the city of Deming, New Mexico, to build a plant and attract an Indiana rubber company. The Teamsters sought to become the bargaining agent in lieu of the United Rubber Workers, AFL~ CIO, which had represented the company’s employees. The letter asserted that the reason lay in assuring a bargaining policy which would not jeopardize the Fund’s investment. This claim was deemed to have been asserted too late, i. e., after the representation election. The Regional Director, however, went on to say that there appeared to be no conflict. We are not impressed by the extent of analysis given the problem. See 46 Note, Minn.L.Rev. 573, at 582 n. 30 for a critical comment.
. Not cited in any brief submitted to us was the provocative Note, Union Investments in Business: A Source of Union Conflicts of Interest, 46 Minn.L.Rev. 573 (1962), which deals with the problems of conflict of interest in an era when mounting union reserves and pension funds present widespread opportunities for capital investment.
. The most concrete example of this concern is the recent comprehensive revision of laws relating to conflicts of interests affecting federal officials. Public Law 87-849, 76 Stat. 1119 (1962), 18 U.S.C. §§ 201-218 (1963). This was in part stimulated by a report “Conflict of Interest and Federal Service 3 (1960)” by the Special Committee on the Federal Conflict of Interest Laws, of the Association of the Bar of the City of New York. See Petrowitz, “Conflict of Interest in Federal Procurement”, 29 Law and Contemporary Problems 196 (1964).
. A 1959 study, for the Fund for the Republic, by Leo Bromwich, entitled “Union Constitutions”, observes, p. 18: “ * * * the uniformly vast powers granted to the chief executive in the American labor movement lead to the reflection that such crystallization of power is called forth by the union’s very existence — the natural response, perhaps, of a sprawling organization to the compelling pressures of industrial life.”
. Other Board cases bearing on this issue concern unions unsuccessfully seeking to be bargaining representatives of affiliated unions. In each case the Board prohibited the relationship because of the difficulty in maintaining a single-minded purpose. General Teamsters, Local 249, 1962, 139 N.L.R.B. 605; Seafarers International Union, 1962, 138 N.L.R.B. 1142; Oregon Teamsters Security Plan Office, 1957, 119 N.L.R.B. 207.
. At the opposite end of the spectrum from Bausch & Lomb are such cases as those where the union investment was in a cooperative store restricted to members and posed no threat to a store with 2300 employees as in Lord & Taylor, 1965, 150 N.L.R.B. 81, and where union members as individuals took on dual roles when they participated in stock purchase plans, as in Richfield Oil Corp. v. N. L. R. B., 1956, 97 U.S.App.D.C. 383, 231 F.2d 717, 58 A.L.R.2d 833, cert. denied, 351 U.S. 909, 76 S.Ct. 695, 100 L.Ed. 1444.
. Cf. United States v. Mississippi Valley Generating Co., 1960, 364 U.S. 520, 549, 550 n. 14, 81 S.Ct. 294, 5 L.Ed.2d 268.
. “The anti-trust laws * * * seem to provide protection only to competing employers; they provide no remedy to the employees who are represented by a union whieh bargains in bad faith because of conflicting interests.” Note, 46 Minn.L.Rev. at 598.
. See, for example, the discussion in Note, 46 Minn.L.Rev. at 583-586.
. We note that Canon V of the AFL-CIO Code of Ethical Practices 39 (1958) states: “Neither the AFL-CIO nor any national or international union affiliated with the AFL-CIO should invest in or make loans to any business enterprise with which it bargains collectively.” (We also note that there has apparently been no attempt to enforce this provision. Note, 46 Minn.L.Rev. 573, 589). In so noting we do not mean to imply that what has been undertaken voluntarily by one labor organization should by court or administrative fiat be imposed involuntarily on another, particularly where we are concerned with a union-management administered pension fund rather than an international union per se. Our purpose rather is to underscore the need for discriminating analysis in weighing hazards and devising fair and feasible means for dealing with them.
. For example, we note that Article XXV, Sec. 2 of International’s Constitution states:
“If any provision of this Constitution shall be declared invalid or inoperative, by any competent authority of the executive, judicial or administrative branch of the federal or state government, the General Executive Board shall have the authority to suspend the operation of such provision during the period of its invalidity and to substitute in its place and stead a provision which will meet the objections to its validity and which will be in accord with the intent and purpose of the invalid provisions * *
As for the Board’s powers, “It likewise has discretion to place appropriate limitations on the choice of bargaining representatives should it find that public or statutory policies so dictate.” N.L.R.B. v. Jones & Laughlin Steel Corp., 1947, 331 U.S. 416, 422, 67 S.Ct. 1274, 1278, 91 L.Ed. 1575.
. The language of Judge Washington in American Broadcasting Co. v. Federal Communications Commission, 1951, 89 U.S.App.D.C. 298, 191 F.2d 492, 501, may not be inappropriate here: “There would appear to be many possibilities for action in this case. The Commission has never made a determination based upon a thorough study of those possibilities. We think it is incumbent upon the Commission so to do.”
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_appel2_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 second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
Howard T. FISHER, Howard T. Fisher & Associates, Inc., an Illinois Corporation, and Thomas H. Fisher, Plaintiffs-Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Defendant-Appellee.
No. 14214.
United States Court of Appeals Seventh Circuit.
Feb. 27, 1964.
Rehearing Denied April 20, 1964.
Thomas Hart Fisher, Norman Crawford, Chicago, Ill., for plaintiffs-appellants.
Francis B. Libbe, David Jacker, John W. Kearns, Jr., Chicago, Ill., for defendant-appellee, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel.
Before DUFFY, CASTLE, and KILEY, Circuit Judges.
KILEY, Circuit Judge.
The district court dismissed this diversity suit because the “matter in controversy” did not exceed $10,000.00. Plaintiffs have appealed.
The decisive issue is: At what time did Hartford’s obligation to defend its insureds in suits against them arise. The district court decided the obligation did not arise until after the suits were filed, thereby limiting insured’s right to attorney’s fees to services rendered since that time. Attorney Thomas Hart Fisher’s claim for fees and expenses was reduced, accordingly, below the jurisdictional amount. We agree with the decision.
Hartford’s policy covered construction work and bound Hartford to pay any sums for which the insureds would become “legally obligated to pay” because of injuries; and to “defend any suit” against insureds “even if * * * groundless, false or fraudulent.”
An accident occurred on the property, covered by the policies, on August 18, 1957, injuring several persons. Two suits arising from the accident were filed against the insureds. Hartford did not tender an unconditional defense, but reserved its right to withdraw its defense and to deny coverage under its policy. It later brought a declaratory judgment suit with respect to its obligations under the policy. It settled both personal injury suits before trial, and the declaratory judgment action was “dismissed” after trial on the merits.
Plaintiffs then brought this damage suit for alleged breach of the defense clause by Hartford, and claimed expenses and attorney’s fees for services rendered by Attorney Fisher in representing them in the three suits.
The issue raised by the pleadings and defendant’s motion to dismiss is whether the court had jurisdiction over the subject matter because of lack of jurisdictional amount.
The statute conferring jurisdiction calls for strict construction and when plaintiffs’ allegation was challenged by Hartford they had the burden of supporting the allegation by competent proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951, (1942). And if, on the record made before it, the district court should have been convinced “to a legal certainty” the claim is for less than the jurisdictional amount, the court did not err. Jones v. Drewery’s, Ltd., 149 F.2d 250, 251 (7th Cir.1945), Berger v. Austin, Nichols & Co., 170 F.2d 330, 332 (7th Cir.1948), Columbia Pictures Corp. v. Grengs, 257 F.2d 45, 47 (7th Cir. 1958).
Plaintiffs refer us to the Annotation at 43 A.L.R.2d 694 for Illinois cases to support the “well established * * * law” that the district court erred in excluding from consideration fees of Attorney Fisher for services rendered prior to commencement of suit. The reference is unavailing. None of the cases support the theory, directly or indirectly. On the contrary, if any implication for the case at hand can be seen in the Illinois cases referred to it is that the court ruled properly.
We are not persuaded that the district court erred in applying the rule that it did, in excluding from consideration claims of Attorney Fisher for services rendered before the filing of suit. It follows, we think, that the court’s dismissal for want of jurisdiction was not erroneous.
There is no merit in the argument that because the face amount of Hartford’s policy exceeded $10,000.00, that amount was in controversy in this suit, brought for attorney’s expenses and fees for alleged breach of the defense clause. Cases such as Hardware Mut. Cas. Co. v. Schantz, 178 F.2d 779 (5th Cir.1949), where the dispute was about coverage, are not pertinent.
Finally, we see no merit in plaintiffs’ contention that they were erroneously denied the right to amend their complaint. Plaintiffs’ amendment sought to increase the “expenses incurred” by Attorney Fisher in the “three actions” from $78.09 to $598.66, and thereby meet the jurisdictional requisite. Plaintiffs did not seek to amend until after the court had filed its opinion “dismissing plaintiffs’ complaint,” and did not make any showing, outside of the bare increase in figures, to substantiate the increase. Since defendant had filed its answer prior to this attempted amendment, it was discretionary with the district judge whether or not to grant plaintiffs leave to amend. Rule 15(a), Fed.R.Civ.P. In view of the district court’s observation in its opinion dismissing the complaint that plaintiffs used “unorthodox means” to show jurisdiction, there is a “justifying reason appearing for the denial” of the leave to amend, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), and nothing has been shown to the contrary to this court.
We have examined plaintiffs’ other contentions and find no merit to them.
Affirmed.
. 28 U.S.C. § 1332.
. Howard T. Fisher and Howard T. Fisher & Associates, Inc.
. While this cause was pending before this court, a third personal injury action was filed against insureds. We have taken judicial notice of this suit.
. Plaintiffs ask for $11,048.09 — $10,970.00 was for professional services rendered by Attorney Fisher, and $78.09 was for “expenses incurred.”
Defendant asserted that the time spent by Attorney Fisher between the date of the accident and the date the first personal injury lawsuit was filed (34% hours) was not a proper element of damages, and that accordingly the damages asked should be reduced by $1,370.00— to $9,678.09.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer: |
songer_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Vincent REED, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 92-1736.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 18, 1992.
Decided Feb. 1, 1993.
As Corrected Feb. 1, 1993.
Martin S. Agran (argued), Agran & Agran, Chicago, IL, for petitioner-appellant.
Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., John J. Tharp, Jr. (argued), Chicago, IL, for respondent-appellee.
Before BAUER, Chief Judge, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge.
Vincent Reed, the defendant in a criminal prosecution under 21 U.S.C. § 841(a)(1), appeals a district court order denying his motion to vacate the sentence under 28 U.S.C. § 2255. On appeal, Mr. Reed raises three issues that he asserts warrant reversal: (1) whether the prosecutor’s decision to prosecute the defendant under federal rather than state law deprived the defendant of due process of law; (2) whether the statute under which the defendant was sentenced was unconstitutionally vague; and, (3) whether the district court should have applied the rule of lenity in interpreting the sentencing statute. Because we conclude that appellant has not demonstrated cause and prejudice for his procedural default, we do not reach these issues and affirm.
I. BACKGROUND
Detectives for the Chicago Police Department arrested Mr. Reed at Midway Airport on August 1, 1988, after a search of his luggage produced approximately two kilograms of phencyclidine (“PCP”). He was charged with possession with intent to distribute 1,985 grams of PCP, in violation of 21 U.S.C. § 841(a)(1). Before trial, Mr. Reed sought to suppress the PCP seized by the police. This motion was denied by the district court. After a bench trial, the district court found Mr. Reed guilty of the charge and, on March 13, 1989, sentenced him to ten years in prison under 21 U.S.C. § 841(b)(1)(A), the minimum term of imprisonment permissible under the statute. The district court did not fine him because it found him to be impecunious.
Mr. Reed appealed his conviction to this court. He argued that the district court erroneously denied his motion to suppress the PCP as the product of an illegal seizure. We affirmed his conviction on January 29, 1990. United States v. Reed, No. 89-1607, order at 1, 1990 WL 8025 (7th Cir. Jan. 29, 1990) (unpublished order). On May 16, 1991, Mr. Reed filed a motion under 28 U.S.C. § 2255 to vacate the sentence. The district court denied the motion on January 27, 1992. He then appealed that denial to this court on March 27, 1992.
II. ANALYSIS
Before this court can address the substantive issues which Mr. Reed presents, we must determine whether he has established cause for his failure to raise the issues in his § 2255 motion on direct appeal and actual prejudice from the alleged errors. In the present case, Mr. Reed does not attempt to establish cause and prejudice in his appellate brief. He asserts that it is unnecessary to do so because the district court held that he “did not deliberately bypass the appellate process.” United States v. Reed, No. 91 C 3013, order at 2 (N.D.Ill. Jan. 27, 1992) (unpublished order). The Supreme Court of the United States, however, has rejected the “deliberate bypass” standard in favor of the “cause and prejudice” analysis. United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); see also Coleman v. Thompson, — U.S. -, -, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); Barksdale v. Lane, 957 F.2d 379, 385 (7th Cir.1992). Consequently, we must require a demonstration of cause and prejudice before permitting federal habeas review.
In his reply brief, Mr. Reed, for the first time, presents a cause and prejudice analysis. He addresses the issue of cause by stating that “[i]n the case at bar, the cases upon which defendant relies were not available at the time his original appeal was filed and therefore the legal basis for the claim was not reasonably available to his counsel.” Reply Brief for Appellant at 2. Relying upon Reed v. Ross, 468 U.S. 1, 14-16, 104 S.Ct. 2901, 2909-10, 82 L.Ed.2d 1 (1984), Mr. Reed submits that the novelty of the claims raised in his § 2255 motion justifies his failure to raise the claims on direct appeal. In Reed v. Ross, the Supreme Court held that “the failure of counsel to raise a constitutional issue reasonably unknown to him [at the time of direct appeal] is one situation in which the requirement [of cause] is met.” Id. at 14, 104 S.Ct. at 2909. Mr. Reed’s situation, however, differs from the one contemplated in Reed v. Ross in three significant ways.
Mr. Reed argues that the Government, by electing to prosecute him under federal law rather than state law, violated his right to due process of law. He relies upon four recent cases to support his assertion. These cases, however, do not stand for the proposition that federal prosecutors may not charge a defendant under federal law when state law provides a lesser penalty. They only address the issue of the proper scope of prosecutorial discretion within the federal forum. Indeed, under principles of dual sovereignty, both the state and the federal government may sentence a defendant for actions criminal under both state and federal law. See Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985); Abbate v. United States, 359 U.S. 187, 194-95, 79 S.Ct. 666, 670-71, 3 L.Ed.2d 729 (1959). Consequently, Mr. Reed’s assertion of cause based on the recent availability of case law is irrelevant and unpersuasive. The cases upon which he relies provide no basis for collateral attack and thus do not provide cause.
Mr. Reed also argues that he was sentenced under an unconstitutionally vague sentencing statute, 21 U.S.C. § 841(b)(1)(A). He claims that the statute’s language which states “[i]n the case of a violation ... involving ... 100 grams or more of phencyclidine (PCP) ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life ... a fine ... or both,” does not provide “a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” Brief of Appellant at 7 (citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954)). Mr. Reed argues that a reasonable person could interpret the statute as giving the district court the discretion to sentence a defendant to either imprisonment or a fine. This ambiguity, he continues, “violates the Due Process notice requirement.” Brief of Appellant at 8. In support of this proposition, Mr. Reed cites several cases, including United States v. Colon-Ortiz, 866 F.2d 6, 9 (1st Cir.1989). Colon-Ortiz, however, was decided on January 19, 1989, two months before he was sentenced. Consequently, Mr. Reed should have “realized that there was a reasonable basis in the existing law for making this claim.” Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217, 222 (7th Cir.1987). More importantly, cases standing for the legal proposition Mr. Reed now asserts — that the statute does not provide adequate notice of prohibited conduct — are not new to our law. See United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2203-04, 60 L.Ed.2d 755 (1979) (“Vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.”); see also United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954) (a statute is unconstitutionally vague if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden”). Thus, Mr. Reed cannot establish cause for his failure to raise this claim of statutory vagueness on direct appeal.
Finally, Mr. Reed maintains that the district court should have applied the rule of lenity to interpret the allegedly unconstitutionally vague statute, 21 U.S.C. § 841(b)(1)(A). All of the cases he cites, however, were decided before he was sentenced. Thus, Mr. Reed had a reasonable basis to raise this issue on direct appeal. As a result, he cannot satisfy the cause requirement by asserting the novelty of the claims raised in his § 2255 motion.
III. CONCLUSION
Because Mr. Reed cannot demonstrate cause in this case, we need not address the issue of prejudice. His failure to establish cause precludes the necessity of any further discussion. The judgment of the district court is affirmed.
Affirmed.
. See United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); Belford v. United States, 975 F.2d 310, 313 (7th Cir.1992) ("a section 2255 motion can not raise ... constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal”).
. Issues raised for the first time in a reply brief typically are not reviewed by this court. See Chrysler Credit Corp. v. Louis Joliet Bank & Trust, 863 F.2d 534, 540-41 (7th Cir.1988); Taylor v. Peabody Coal Co., 838 F.2d 227, 229 (7th Cir.1988). Nevertheless, as we now demonstrate in the text, after reviewing these arguments, we find Mr. Reed's appeal meritless.
. United States v. Harrington, 947 F.2d 956, 964 (D.C.Cir.1991) (addressing the prosecutor’s discretion under the federal sentencing guidelines); United States v. Stanley, 928 F.2d 575, 582-83 (2d Cir.1991) (recognizing that the prosecutor’s control over charging decisions affects the resulting sentence); United States v. Kikumura, 918 F.2d 1084, 1119 (3d Cir.1990) (Rosenn, J., dissenting) (expressing concern that the sentencing guidelines have replaced judicial discretion with prosecutorial discretion); and, United States v. Boshell, 728 F.Supp. 632, 637 (E.D.Wash.1990) (stating that under the sentencing guidelines the prosecutor’s decision on what to charge dictates the sentence imposed).
. The first circuit in Colon-Ortiz, although stating that the "or both” language of § 841(b)(1)(B) rendered that statute unclear, emphasized that the statute was not unconstitutionally vague given the extensive legislative history. Colon-Ortiz, 866 F.2d at 11. Thus, the case does not support Mr. Reed’s argument. See also United States v. Olloh, 927 F.2d 1, 2 (1st Cir.1990). United States v. Jones, 902 F.2d 1152, 1153 (4th Cir.1990), also cited by the appellant, deals with a different criminal section, 18 U.S.C. § 844(a).
. Even if we had found cause for Mr. Reed's procedural default, the requirement of prejudice could not be satisfied. He cannot demonstrate that the alleged errors at trial worked to his actual and substantial disadvantage because his claims are clearly without merit and did not affect his sentence. See United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982). Mr. Reed claims that the federal prosecutor violated his due process rights by charging him under federal law, rather than under more lenient state law. This claim is entirely without merit. As we have noted, both federal and state officials may prosecute a defendant for crimes punishable under both federal and state law. See Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985); Abbate v. United States, 359 U.S. 187, 194-95, 79 S.Ct. 666, 670-71, 3 L.Ed.2d 729 (1959).
Mr. Reed also argues that § 841(b)(1)(A) is unconstitutionally vague because it states, “such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life ... a fine ... or both.” 21 U.S.C. § 841(b)(1)(A). He argues that this language is "ambiguous” as it suggests that the court may choose between imprisonment or a fine, and therefore does not provide sufficient notice as mandated by the Due Process Clause. This interpretation, however, is directly at odds with the elimination of probation, parole, and suspended sentences as options under the statute. To accept Mr. Reed's interpretation would require one to believe that Congress intended to permit either sentences of a fine with no imprisonment or sentences of ten years or more with no options for parole or probation. It is highly unlikely that Congress would enact such a sentencing scheme. Indeed, all courts reviewing § 841(b)(1)(A) have interpreted it as requiring mandatory sentences. See, e.g., United States v. McMahon, 935 F.2d 397, 400 (1st Cir.1991); United States v. Hoyt, 879 F.2d 505, 511-12 (9th Cir.1989), modified in other respects, 888 F.2d 1257 (9th Cir.1989); United States v. Martinez-Zayas, 857 F.2d 122, 128-29 (3d Cir.1988); United States v. Musser, 856 F.2d 1484, 1486 (11th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989).
Finally, Mr. Reed asserts that the district court should have applied the rule of lenity to interpret the unconstitutionally vague provisions of § 841(b)(1)(A). This argument, however, is not persuasive. Because the statute is not unconstitutionally vague, the rule is inapplicable and not at issue. Thus, Mr. Reed’s claims concerning the rule of lenity are also without merit.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_juryinst | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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".
James GORNICK, Appellant, v. UNITED STATES of America, Appellee.
No. 7301.
United States Court of Appeals Tenth Circuit.
July 15, 1963.
David L. Wood, Fort Collins, Colo., for appellant.
Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.
Before BREITENSTEIN, HILL and SETH, Circuit Judges.
SETH, Circuit Judge.
The appellant was indicted upon two counts, the first count for an escape from the Honor Farm of the United States Penitentiary at Leavenworth, Kansas, in violation of 18 U.S.C. § 751, and the second count for assaulting with a deadly weapon a federal employee while in the performance of his official duties, in violation of 18 U.S.C. § 111. Appellant moved for separate trials on each of the two counts of the indictment and the motion was denied. The case was tried before a jury and the appellant was found not guilty on Count I and guilty on Count II. Appellant filed a motion for a new trial on Count II which was denied.
The record shows that the appellant had been convicted in 1957 upon a plea of guilty to bank robbery and was being confined at the time in question at the Honor Farm of the United States Penitentiary at Leavenworth, Kansas. On the night of June 9, 1961, the officials at the Honor Farm found that the appellant was not in the dormitory as required and began a search for him. Two prison officers found the appellant walking along a highway in the vicinity of, and in the direction of the Honor Farm. When they approached him they ordered him to enter the car and he did so. As they were returning to the prison in the car, one of the officers noticed that the appellant had a knife in his hand and a scuffle ensued during which the officer was disarmed and the appellant pointed the officer’s pistol at the other officer who was driving the car and demanded that he “drive on.” The driver however stopped the car and pointed his own pistol at the appellant, and told him to “lay the pistol down.” The appellant did so, and he was returned and placed in confinement.
The appellant on this appeal urges that the trial court abused its discretion in not granting a severance and in not providing a separate trial for each of the two counts. He further urges that the trial court was in error in denying his motion for a judgment of acquittal because there was insufficient evidence to establish the elements of the offense of assault in that fear and apprehension on the part of the victim are material elements of the crime, and there was no evidence of such fear and apprehension. Further errors are urged in the charge and in the trial court’s failure to grant appellant’s motion to suppress certain testimony.
Rule 8(a) of the Federal Rules of Criminal Procedure provides that offenses may be charged in the same indictment if the acts or transactions are “connected together.” The matter of motions for severance is covered by Rule 14 which provides in part that if it appears that a defendant or the government is prejudiced by the joinder of offenses, the court may order an election or separate trials. Both the parties concede that the granting of separate trials or severance is a matter of discretion for the trial court. The action of the trial court will not be reversed except for clear abuse of discretion. Dauer v. United States, 189 F.2d 343 (10th. Cir.); Dennis v. United States, 302 F.2d 5 (10th Cir.). We do not believe that there has been any showing of prejudice to the appellant by the refusal to grant separate trials on each of the counts. As indicated above, appellant was found not guilty on the first count and guilty on the second. This court in Latses v. United States, 45 F.2d 949 (10th Cir.), in considering an alleged misjoinder of counts stated that the ordinary rule is that an acquittal on one misjoined count cures the misjoinder. The same holding is found in Beaux-Arts Dresses v. United States, 9 F.2d 531 (2d Cir.), where the court said that the result is the same as if the accused had been convicted upon an indictment with but one count. The same holding is found in Morris v. United States, 12 F.2d 727 (9th Cir.), and Weinhandler v. United States, 20 F.2d 359 (2d Cir.).
The appellant next contends that it was error not to grant his motion for judgment of acquittal and his motion for acquittal notwithstanding the verdict. The later motion was made in conjunction with a motion for new trial. The contention is that the evidence was not sufficient to sustain the verdict for the reason that it was not shown that the officer against whom the alleged assault was made was put in fear of bodily harm. The record shows that the accused pointed a loaded revolver he had just taken from another officer at the victim and told him to drive on. The record shows that the officers customarily kept their revolvers loaded. Appellant cites Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199, but in that case the question was whether the accused intended to inflict harm. The evidence was sufficient to support the verdict on this point and the jury was properly instructed on the elements of assault.
The appellant complains of the instructions given to the jury concerning possible bias of witnesses and thé effect of coercion and compulsion in the commission of a crime. We have examined the instructions on these points and under the facts developed during trial, the jury was given adequate guidance and we find no error.
Appellant moved unsuccessfully to suppress the testimony and evidence presented by an F.B.I. agent concerning statements made by the accused. The appellant testified that he gave him the “story” and there is no evidence that it was not so voluntarily given. There is no error in the use of memoranda by this witness when testifying. This is a matter in the discretion of the trial court. The trial court carefully and thoroughly examined this matter, and he observed the witness. There was no abuse of discretion.
Affirmed.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
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