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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
Julia SUMPTER, Appellant, v. Robert HARPER, Appellee.
No. 81-2002.
United States Court of Appeals, Fourth Circuit.
Argued June 10, 1982.
Decided July 21, 1982.
Rehearing Denied Aug. 20, 1982.
Edward M. Brown, Charleston, S. C. (Moore, Brown & Davis, Charleston, S. C., on brief), for appellant.
William W. Doar, Jr., Georgetown, S. C., for appellee.
Before BRYAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.
ALBERT V. BRYAN, Senior Circuit Judge:
Plaintiff Julia Sumpter appeals the District Court’s dismissal of her complaint for lack of subject matter jurisdiction, see Fed. R.Civ.P. 12(b), and for failure to state a claim upon which relief could be granted, see id. 12(b)(6). Determining the judgment of the Court to be beyond reproach, we affirm.
I
With her complaint viewed most favorably, it appears that Julia Sumpter was a patient of defendant physician Robert Harper from 1963 until at least February 7, 1980. On the latter date, she visited Dr. Harper’s office with a blood pressure problem. The defendant then, she alleges, improperly diagnosed her as having breast cancer and thereupon recklessly performed a mastectomy without proper facilities or concern for her health and welfare.
In addition to these accusations which, if true, would constitute medical malpractice, plaintiff asserted that Dr. Harper maintained segregated waiting rooms and otherwise treated blacks discriminatorily. Specifically, his allegedly outrageous conduct towards her on February 7 was said to be a product of racial animus. Charging that Dr. Harper was licensed by the State of South Carolina and that he received Federal Medicare-Medicaid funds, plaintiff sought to establish causes of action under the Thirteenth and Fourteenth Amendments as well as under 42 U.S.C. §§ 1981, 1983, and 2000d (1976).
After argument ore tenus, the District Court granted defendant’s motion to dismiss. It observed that both parties are residents of South Carolina, thus concluding that unless the plaintiff could demonstrate the existence of a Federal claim, the suit must be dismissed. Rather than finding a well-pleaded Federal cause of action, the decision was that plaintiff’s complaint actually alleged nothing more than a tort under State law, compelling dismissal. On this appeal, the District Court’s judgment is challenged in each respect save as to the decision as to § 1981.
II
Under both the Fourteenth Amendment and § 1983, a plaintiff charging an unconstitutional deprivation of civil rights (§ 1983), or denial of equal protection (Fourteenth Amendment), must plead and prove, inter alia, action under color of State law. To keep within these straits, plaintiff pleads that South Carolina’s grant of a license to practice medicine establishes an adequate nexus between the State and an otherwise private party to convert his behavior into that of the State’s. This contention, however, is foreclosed by our decision in Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980), cert. denied, - U.S. -, 102 S.Ct. 999, 71 L.Ed.2d 293 (1982).
In Hall, we reviewed the dismissal of a § 1983 action against a State judge who issued an involuntary commitment order, the court-appointed physician who examined the plaintiff, and the attorney appointed to represent the plaintiff. Although the District Court had dismissed the action against all defendants on immunity grounds, we concluded that it properly should have been dismissed because no State action was disclosed. Citing decisions of six other Circuits, we held that a physician, even when acting under court appointment, does not do so ‘under color of State law’ by merely practicing medicine. A fortiori, where the only link is a State license to practice, there is no sufficient ground for concluding that a private physician can be sued under § 1983 for fault in treating his patients. See also Polk County v. Dodson, - U.S. -, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).
Plaintiff’s assertion that the defendant may be guilty of violating the Thirteenth Amendment also is meritless. That Amendment, of course, prohibits slavery and involuntary servitude. While it restrains the conduct of private parties, as well as public entities, there simply is no representation in plaintiff’s complaint that she was subjected to these impositions. Rather, her contention seems to be that defendant’s conduct saddles her with a ‘badge or incident of slavery.’ True or not, defendant’s behavior violates Federal law if, but only if, it breaches some statute enacted pursuant to Section 2 of the Amendment. As noted, however, the claim under § 1983, a key enforcement vehicle for the Thirteenth and Fourteenth Amendments, fails for want of State action.
Finally, we turn to plaintiff’s demand that a trial be had on her claim under Title VI of the Civil Rights Act of 1964,42 U.S.C. §§ 2000d to 2000d-4 (1976). We are unpersuaded; instead, we agree with the District Court’s conclusion that plaintiff failed to posit a tenable Federal claim.
In relevant part, § 2000d declares simply that “[n]o person . . . shall, on the ground of race, color, or national origin, ... be subjected to discrimination under any program or activity receiving Federal financial assistance.” From these words, it seems plain that Congress sought to ensure that all persons be entitled to participate in Federal and Federally-subsidized programs regardless of their race, color, or national origin. Moreover, through the enforcement mechanisms scrupulously ordained in §§ 2000d-l and 2000d-2, Congress made it clear that the policy of the United States henceforth would be to refrain from funding any program which permitted discrimination on a prohibited basis.
What seems equally clear by negative implication is that Congress did not intend Title VI to establish a broad right of action for persons, who are aggrieved by the failure of some Federal program, to seek redress in the Federal courts. For those deficiencies, resort simply must be had to some other Federal legislation authorizing private enforcement or the general statutory and common law of the States.
Illustrating this point is the Fifth Circuit’s recent decision in Drayden v. Needville Independent School District, 642 F.2d 129 (5th Cir. 1981). The Court there held that, at most, § 2000d authorizes suits for declaratory and injunctive relief. Id. at 133. Actions for back pay and other losses were held to be outside the scope of Title VI. Thus, suits for money damages could be maintained, if at all, only under some other Federal or State law.
Similarly, while Title VI might allow this plaintiff to seek to enjoin defendant from discriminating against her in the provision of medical care under Medicare or Medicaid, it clearly affords her no right to seek redress for injuries sustained on account of allegedly negligent or reckless treatment by the defendant doctor. His diagnostic and surgical skills, however, are not subjects of adjudication under Title VI. We accordingly hold that plaintiff, complaining of little more than medical malpractice, lacks standing to prosecute this claim under § 2000d, in an effort to recover money damages. See Taylor v. Cohen, 405 F.2d 277, 282 (4th Cir. 1968) (en banc).
Affirmed.
. This provision states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981 (1976).
. Under this statute,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Id. § 1983.
. This section declares:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Id. § 2000d.
. Given our conclusion that plaintiff may not prosecute this claim under Title VI, we eschew any resolution of the broader question of whether any right of action is available to a private litigant under this statute.
. Neither party pressed the question before us, so we assume that defendant’s participation in Medicare and Medicaid constitutes participation in a “program or activity receiving Federal financial assistance” within the meaning of § 2000d.
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_stpolicy | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure 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".
UNITED STATES of America, Appellee, v. Fernando Luis RODRIGUEZ-SANDOVAL, Defendant, Appellant.
No. 72-1003.
United States Court of Appeals, First Circuit.
Argued Feb. 5, 1973.
Decided March 23, 1973.
Gerardo Ortiz Del Rivero, San Juan, P. R., by appointment of the Court, for appellant.
Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, MeENTEE and CAMPBELL, Circuit Judges.
. “Indeed the better practice would be to instruct the jurors that they may draw the inference unless the evidence in the case provides a satisfactory explanation for the rproved fact], omitting any explicit reference to the statute itself in the charge.” United States v. Gainey, supra at 71 n. 7, 85 S.Ct. at 759.
McENTEE, Circuit Judge.
Fernando Luis Rodriguez Sandoval was tried and convicted for the purchase, sale, concealment and transportation of heroin in violation of 26 U.S.C. §§ 4704 (a), 4705(a), 21 U.S.C. § 174, and was sentenced to concurrent terms of fifteen years imprisonment. He appeals from this conviction as well as from the district court’s denial of his motion for a reduction of sentence. We affirm.
Sandoval’s primary contention on appeal relates to the prosecution’s alleged misuse of the evidentiary presumptions written into 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. The latter section authorizes conviction upon evidence that the defendant had possession of a narcotic drug “unless the defendant explains the possession to the satisfaction of the jury.” Similarly, § 4704(a) provides that “the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.” In making his opening statement, the United States Attorney informed the jury that the government would rely on these presumptions, which he said would “authorize conviction unless the possession [of heroin] is explained to you by the defendant to your satisfaction.” In addition to these comments, the prosecutor made several similar references to the presumptions, both in his opening statement and in his summation. Appellant contends that these statements necessarily and impermissibly drew the jury’s attention to the defendant’s failure to testify, and that his conviction must therefore be reversed under our decision in United States v. Flannery, 451 F.2d 880 (1st Cir. 1971). This argument is without merit. When read in context, it is clear that the prosecutor’s remarks were intended only to explain to the jury what the government’s evidence would be and the theory under which it would press for conviction. Such an explanation could hardly have been made without some reference to the presumptions on which the government intended to rely. While the avoidance of any language having even a slight tendency to highlight the defendant’s failure to testify or produce evidence would have been preferable, cf. United States v. Gainey, 380 U.S. 63, 71 n. 7, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), we do not believe that the prosecutor’s statements caused appellant to suffer any substantial prejudice. The district court took great pains to instruct the jury that the defendant did not have to testify or call witnesses and that the “explanation” of his possession of narcotics could come from any of the facts and circumstances revealed by the evidence. In view of these instructions, the prosecutor’s accurate explanation of the statutory presumptions involved in this case does not warrant reversal.
Appellant also objects to the court’s instructions to the jury on the ground that they made explicit reference to the statutory presumptions in issue, contrary to the “better practice” suggested by the Supreme Court in United States v. Gainey, supra, at 71, n. 7, 85 S.Ct. 754. While the “better practice” was admittedly not followed, Gainey does not require reversal if the “overall reference [of the charge] was carefully directed to the evidence as a whole, with neither allusion nor innuendo based on defendant’s decision not to take the stand.”. Id. at 71, 85 S.Ct. at 759. As noted above, the court carefully instructed the jury that the statutory presumptions did not have to be rebutted by the defendant’s own testimony or evidence in his behalf, but could be overcome by any evidence in the case. These instructions amply met the standard set forth in Gainey, supra. See United States v. Armone, 363 F.2d 385 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966).
The only other matter which warrants our consideration is the question of whether the court contravened the holdings of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Marano v. United States, 374 F.2d 583 (1st Cir. 1967) in sentencing appellant to a term of fifteen years imprisonment when he had received only a ten year sentence following his first conviction of the charges involved in this case. In Maraño, supra, we set forth the general principle that a defendant may not be given a more severe sentence upon retrial than he received following his original conviction. We recognized, however, that a trial judge may properly consider the defendant’s conduct subsequent to the reversal of his first conviction in deciding what sentence to impose after retrial. In the present case, the relevant facts are as follows. Following appellant’s conviction below, a sentencing hearing was held on November 26, 1971, at which time the United States Attorney informed the court that Sandoval had been twice arrested in New York for narcotics violations while on bail pending retrial. The court specifically stated, however, that it would not consider this information in imposing sentence, adding somewhat cryptically that “what I have before me is enough.” The court then proceeded to sentence appellant to six concurrent terms of fifteen years imprisonment. After the appeal in this case had been filed, defendant made a motion in the district court for a reduction of sentence. In response, the trial judge issued a certificate to this court requesting that the case be remanded for resentencing, on the grounds that the sentence of November 26 might have been illegal under North Carolina v. Pearce, supra and Marano v. United States, supra. We remanded the ease for the limited purpose of considering the motion to reduce sentence, without prejudice to the government’s arguing that the court could consider subsequent conduct as defined in Maraño although it had declined to consider it at the time of the original re-sentencing. At a subsequent hearing, the district court clearly indicated that it was now considering a portion of the pre-sentence report which related subsequent circumstances concerning Sandoval’s New York drug arrests and two forfeitures of bail for his failure to appear as ordered, and proceeded to deny the motion on the basis of appellant’s conduct while free on bail pending retrial.
Appellant appears to argue that the court’s initial failure to consider his subsequent conduct irretrievably tainted any increase in his sentence. We do not agree. The record clearly indicates that on remand the court reconsidered the November 26 sentence in light of Maraño and Pearce, read the presentence report it relied on, gave appellant an opportunity to respond, and affirmatively stated its reliance on subsequent conduct in reaffirming the increased sentence. Although this decision was made on a motion to reduce, the nature of the district court’s certificate and our remand make it perfectly clear that the decision was equivalent to a full reconsideration and resentencing. Since the court applied the proper standard on remand, we will not disturb on appeal its decision as to appellant’s sentence.
Affirmed.
. Repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, title III, § 1101(b)(3)(A), 84 Stat. 1292, effective date of repeal being May 1, 1971, Pub.L. 91-513, § 1105(a). The subsection provided in relevant part:
“It shall bo unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; . . . . ”
. Repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, title III, § 1101(b)(3)(A), 84 Stat. 1292, effective date of repeal being May 1, 1971, Pub.L. 91-513, § 1105 (a). The subsection provided in relevant part:
“It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.”
. Repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, title III, § 1101(a)(2), (4), 84 Stat. 1291, effective date of repeal being May 1, 1971, Pub.L. 91-513, § 1105 (a). The section provided as follows:
“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than 820,000.”
. Even if we were to accept appellant’s analogy between the circumstances of this case and Flannery, that decision would not be relevant in the present context. Flannery is applicable only to cases going to trial after November 12, 1971; trial in the instant case began on September 20, 1971.
. Appellant’s original conviction was reversed by this court in Rodriguez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969).
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
BRUNER v. UNITED STATES.
No. 13411.
United States Court of Appeals Fifth Circuit.
June 1, 1951.
Denmark Groover, Jr., Thos. W. Johnson, Macon, Ga., for appellant
Irvin M. Gottlieb, Atty. Department of Justice, Washington, D. C., John P. Co-wart, U. S. Atty., James H. Fort, Asst. U. S. Atty., Macon, Ga., for appellee.
Before HUTCHESON, Chief Judge, and SIBLEY and STRUM, Circuit Judges.
PER CURIAM.
Brought under the Tucker Act, 28 U.S.C. § 1346(d) (2), to recover moneys claimed to be due plaintiff for services rendered under contract with the United States and not paid for, plaintiff’s suit was met by a motion to dismiss on the ground that, under the controlling decision in this circuit, Kennedy v. United States, 146 F.2d 26, plaintiff was an officer of the United States, and the court was without jurisdiction.
The district judge, on evidence sufficient to support his conclusion, found: that the plaintiff was appointed by the Secretary of War, pursuant to Art. II, Sec. 2, Clause 2, of the Constitution; that he was an officer of the United States; and that the court was without jurisdiction of his claim. So determining, he dismissed the suit on that ground, and this appeal followed.
We agree that the case is ruled by Kennedy v. United States, supra, and that the judgment should be affirmed.
Affirmed.
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_r_fed | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
AMERICAN DREDGING COMPANY, Appellant v. LOCAL 25, MARINE DIVISION, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO and Stephen J. Leslie, Joseph F. Erhmann, William F. Zenga and Vincent Motzel, Individually and as Trustees.
No. 14710.
United States Court of Appeals Third Circuit.
Argued Feb. 20, 1964.
Decided Oct. 30, 1964.
Rehearing Denied Dec. 14, 1964.
Hastie, Circuit Judge, dissented.
Harvey B. Levin, Lazarus & Levin, Philadelphia, Pa. (Krusen Evans & Byrne, Philadelphia, Pa., on the brief), for appellant.
Marshall J. Seidman, Weiner, Baseh, Lehrer & Cheskin, Philadelphia, Pa., for appellee.
Before KALODNER and HASTIE, Circuit Judges and KIRKPATRICK, District Judge.
KALODNER, Circuit Judge.
The District Court here denied the plaintiff’s motion to remand to the state court from which it had been removed, a suit, based solely on a state-created right, to enjoin the defendant union’s violation, in the course of a labor dispute, of the “no-strike” provision of its collective bargaining agreement, and subsequently denied the plaintiff’s motion for injunctive relief. It premised its denial of remand on the ground that it had original jurisdiction under § 301(a) of the Labor Management Relations Act,, of a suit for violation of a labor contract, and § 1441 of the Removal Statute permits the removal to a federal district court of a civil action of which it has original jurisdiction under a law of the United States. It based its denial of plaintiff’s motion for an injunction on the ground that it was “without power to grant injunctive relief because of § 4 of Norris-LaGuardia [Norris LaGuardia Act], since this is a 'case involving or growing out of a labor dispute,’ within the meaning of the Act. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 182 S. Ct. 1328, 8 L.Ed.2d 440 (1962).”
The sum of the District Court’s view is that the Norris-LaGuardia limitations on jurisdiction of federal district courts, which the Supreme Court held in Sinclair extends to § 301 in cases growing out of labor disputes, do not divest these courts of subject matter jurisdiction of such cases, viz., the capacity to take cognizance of, or to entertain, but merely strip them of power to grant injunctive relief.
The view stated disregards the critical fact that in Sinclair, the Supreme Court, in holding that the jurisdiction conferred by § 301 was subject to the jurisdictional limitations enacted by the earlier NorrisLaGuardia Act, expressly ruled at page 215, 82 S.Ct. at page 1339:
“The District Court was correct in dismissing Count 3 of petitioner’s complaint for lack of jurisdiction under the Norris-LaGuardia Act.” (emphasis supplied)
We can only construe the phrase “lack of jurisdiction” as embracing within its ambit subject matter jurisdiction and accordingly hold that the District Court erred in failing to grant the motion to remand in the instant case on its reasoning that it had subject matter jurisdiction under § 301 within the “original jurisdiction” provisions of § 1441. It merits observation that the background factual situation which constituted the basis of the injunctive action in Sinclair was on all fours with that existing here, as appears in Note 9.
It may be pointed out anent the holding in Sinclair, that the Supreme Court, some 36 years earlier, in General Investment Company v. New York Central Railroad Company, 271 U.S. 228, p. 230, 46 S.Ct. 496, p. 497, 70 L.Ed. 920 (1926) succinctly defined jurisdiction as follows:
“By jurisdiction we mean power to entertain the suit, consider the merits and render a binding decision thereon * * *.” (emphasis supplied)
It is fair to assume that Congress in its use of the word “jurisdiction” in the Norris-LaGuardia Act in 1932 was aware of the Supreme Court’s definition of “jurisdiction” six years earlier, in the foregoing case.
The Norris-LaGuardia Act in its title declared that it was:
“AN ACT
“To amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes.”
In Section 2 — “Declaration of the public policy of the United States” — it was stated in relevant part:
“In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows:
“ * * * therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are hereby enacted.” (emphasis supplied).
In State of Minnesota v. Northern Securities Company, 194 U.S. 48, 24 S.Ct. 598, 48 L.Ed. 870 (1904) the Supreme Court made it clear that the term jurisdiction as used in the Removal Statute means the power to take cognizance of the case upon removal from a state court and to decide it upon its merits. There, an action was brought by the State of Minnesota against the defendants, to annul an agreement and suppress a combination alleged to exist between the defendant corporations, upon the grounds that the agreement and combination were in violation of the laws of Minnesota, and of the anti-trust laws of the United States. The action was removed from the state court to the circuit court of Minnesota on the ground that it was “one arising under the Constitution and laws of the United States,” and was subsequently dismissed by the circuit court on its merits.
The Supreme Court sua sponte raised the question as to whether the case was removable although all the parties to the action “deemed the case a removable one.”
In so doing it stated at page 63, 24 S.Ct. at page 601:
“If the record does not affirmatively show jurisdiction in the circuit court, we must, upon our own motion, so declare, and make such order as will prevent that court from exercising an authority not conferred upon it by statute. * * *
“We proceed, therefore, to inquire whether the circuit court could take cognizance of this case upon removal from the state court, and make a final decree upon the merits.” (emphasis supplied)
After noting that it was the “general policy of these acts [removal statutes], manifest upon their face, and often recognized by this court, to contract the jurisdiction of the circuit [district] courts of the United States”, it was said at pages 64-65, 24 S.Ct. at page 602:
“These cases establish, beyond further question in this court, the rule that, under existing statutes regulating the jurisdiction of the courts of the United States, a case cannot be removed from a state court as one arising under the Constitution or laws of the United States, unless the plaintiff’s complaint, bill, or declaration shows it to be a case of that character. ‘If it does not appear at the outset,’ this court has quite recently said, ‘that the suit is one of which the circuit court at the time its jurisdiction is invoked could properly take cognizance, the suit must be dismissed.’ Third Street & Suburban R. Co. v. Lewis, 173 U.S. 457, 460, 43 L.ed. 766, 767, 19 Sup.Ct. Rep. 451.” (emphasis supplied)
It_is of compelling significanee-here that in Northern Securities, the Supreme Court reversed the denial of remand below on the ground that the removed action did not “really and substantially involve a dispute or controversy within the jurisdiction of the circuit court for the purposes of a final decree * * * ” and, “That being the case, the circuit court, following the mandate of the statute [predecessor of the present § 1447 (c)], should not have proceeded therein, but should have remanded the cause to the state court.” (emphasis supplied)
In the instant case the complaint alleged that the union had violated the “no-strike” clause of its collective bargaining agreement in the course of a labor dispute, and thus it appeared “at the outset” that the District Court could not, under Sinclair, “properly take cognizance of this case upon removal from the state court, and make a final decree upon the merits.”
It cannot be gainsaid that had the plaintiff initially brought suit in the District Court under § 301, alleging in its complaint a cause of action for breach of its collective bargaining agreement, in the course of a labor dispute, and praying for injunctive relief, that the action would have been dismissed for lack of jurisdiction under Sinclair.
To say then that a District Court has subject matter jurisdiction of a cause of action, so as to authorize it to take cognizance of it under the provisions of the Removal Statute, when it does not in the first place have jurisdiction to entertain and decide it upon its merits, is to give sanction to an exercise in futility.
Or putting it another way, for a court to say that it has subject matter jurisdiction enabling it to take cognizance of a case, and then to rule that although the case has merit, it is without judicial power, viz., jurisdiction, to grant a final decree on the merits, is to pursue, what Mr. Justice Frankfurter once character-’ ized, in another context, “a fox-hunting theory of justice that ought to make Bentham’s skeleton rattle,” and to do violence to the holding in General Investment Company v. New York Central Railroad Company, supra, that “By jurisdiction we mean power to entertain the suit, consider the merits and render a binding decision thereon.”
It has been settled for almost a century that federal statutes should be construed and applied so as to avoid “injustice” or “absurd consequences.”
In United States v. Kirby, 7 Wall. 482, pp. 486, 487, 74 U.S. 482, pp. 486, 487, 19 L.Ed. 278 (1869) it was said:
“The authority by which judicial officers take cognizance of and decide causes * * * the power to hear and determine a cause. * * * ”
“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. * * * The reason of the law, in such eases, should prevail over its letter.”
In United States v. Katz, 271 U.S. 354, p. 357, 46 S.Ct. 513, p. 514, 70 L.Ed. 986 (1926) in which Kirby was cited with approval, it was said:
“All laws are to be given a sensible construction; and a literal application of a statute, which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose. * * * In ascertaining that purpose, we may examine the title of the act (citing eases) * * * and the legislative scheme or plan by which the general purpose of the act is to be carried out. (citing cases).”
Here the denial of remand not only led to the “absurd consequence” of leaving the District Court with a case on its judicial hands without judicial power to “make a final decree on its merits”, but also to these serious consequences:
It rendered an “injustice” to the plaintiff in that it deprived it of the benefit of the temporary injunctive relief granted by the state court under state law, prior to the case’s removal, and foreclosed it from the available remedy of a permanent injunction; it ousted the state court of its jurisdiction to apply state law in a field not pre-empted by Congress, in contravention of the historic comity doctrine which proscribes avoidable direct conflicts between federal and state courts; and it thwarted the Congressional policy intended to have § 301(a) “supplement” and “not to displace” or “to encroach upon the existing jurisdiction of the state courts” in suits for violation of collective bargaining contracts in industries affecting interstate commerce. Charles Dowd Box Co., Inc. v. Courtney, 368 U.S 502, 509, 511, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962).
“Tie common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian Law which enacted, ‘That whoever drew blood in the streets should be punished with the utmost severity,’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling cited by Plowden, that the Statute of 1 Edward II., which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner wlio breaks out when the prison is on fire— ‘for he is not to be hanged because lie would not stay to be burnt.’ And we think that a like common sense will sanction the ruling we make, that the Act of Congress which punishes the obstruction or retarding of the passage of the mail, or its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder.”
Elaboration of these serious consequences must yield the right of way to the resolution of this transcending question:
Assuming, arguendo, that the NorrisLaGuardia Act did not deprive the District Court of § 301(a) subject matter jurisdiction, was the action here “founded on a claim or right arising under the Constitution, treaties or laws of the United States”, so as to make it removable, “without regard to the citizenship or residence of the parties”, within the meaning of § 1441(b) of the Removal Statute?
If the answer to that question is that the removed state action was not “founded on a claim or right arising under” § 301(a), it will require the reversal of the denial of remand, independent of the resolution of all the other questions presented by this appeal.
In 1821 the Supreme Court was first called upon to decide when a case “arises under a law of the United States” in the landmark case of Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257.
Speaking for the Court, Mr. Chief Justice Marshall there said (p. 379):
“A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either.” (emphasis supplied) \
It is of compelling significance here that in so holding the Supreme Court rejected the contention that a case arises under the Constitution or a law of the United States merely because it is founded on a right conferred by the Constitution or a federal law.
1 In doing so the Chief Justice said (p. 379):
“If it [the intention of the contention] be to maintain that a case arising under the constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the constitution or h law, we think the construction too narrow.” (emphasis supplied)
In amplification of the rule stated, Mr. Chief Justice Marshall, speaking for the Court, in Osborn v. Bank of United States, 9 Wheat. 738, 822, 6 L.Ed. 204 (1824), declared that a case arises under the constitution or laws of the United States when “the title or right set up by the party may be defeated by one construction of the constitution of law of the United States and [o?-] sustained by the opposite construction.” (emphasis supplied)
More than a half century later, the Supreme Court, in Little York Gold-Washing and Water Company, Limited v. Keyes, 96 U.S. 199, 24 L.Ed. 656 (1878), applied the principles declared in Cohens and Osborn, in construing a provision in the Eemoval Act of 1875, for removal of suits “arising under the Constitution or laws of the United States.”
It there held (pp. 203-204):
“A cause cannot be removed from a State Court simply because, in the progress of the litigation, it may become necessary to give a construction to the Constitution or laws of the United States. The decision of the case must depend upon that construction. The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved.
******
“Before, therefore, a circuit court can be require to retain a cause under this jurisdiction, it must in some. form appear upon the record, by a statement of facts, ‘in legal and logical form,’ such as is required in good pleading, 1 Chit.Pl. 213, that the suit is one which ‘really and substantially involves a dispute or controversy’ as to a right which depends upon the construction or effect of the Constitution, or some law or treaty of the United States.” (emphasis supplied)
In Starin v. New York City, 115 U.S. 248, 6 S.Ct. 28, 29 L.Ed. 388 (1885) orders of the circuit court remanding a case which had been removed from a New York court, were appealed on the ground that the suit was one arising under the Constitution and laws of the United States.
With respect to that contention the Court said (p. 257, 6 S.Ct. p. 31):
“We will first consider whether the suit is one which arises under the constitution or laws of the United States; for, if it is not, the order to remand was right * * *.
“The character of a case is determined by the questions involved. Osborn v. Bank of U. S., 9 Wheat. 824 [22 U.S. 824, 6 L.Ed. 224], If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the constitution or laws of the United States, within the meaning of that term as used in the act of 1875 [the then extant Removal Act]; otherwise not. Such is the effect of the decisions on this subject.”
In affirming the circuit court’s remand of the removed case, the Court further stated (p. 258, 6 S.Ct. p. 32) :
“The decision of these questions [presented by the removed ease] does not depend on the constitution or laws of the United States. There is nothing in the constitution or laws of the United States entering into the determination of the cause, which, if construed one way, will defeat the defendants, or, in another, sustain them.” (emphasis supplied)
In Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912) the Court, following its declaration that “jurisdiction cannot rest on any ground that is not affirmatively and distinctly set forth” in the complaint, said:
“A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laivs, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends.” (emphasis supplied)
In Gully v. First National Bank in Meridian, 299 U.S. 109, at p. 115, 57 S. Ct. 96, at p. 99, 81 L.Ed. 70 (1936), where the doctrine of Shulthis, Starin, and its predecessors, was cited and applied in reversing for failure to remand a removed case to the state courts, it was said:
“Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.”
At pages 112-113, 57 S.Ct. at page 97-98 the Court said:
“How and when a ease arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the [removal] statute, a right or immunity created by the Constitution or laios of the United States must be an element, and an essential one of the plaintiff’s cause of action (citing Starin and First National Bank of Canton, Pa. v. Williams, 252 U.S. 504, 512, 40 S.Ct. 372, 64 L.Ed. 690 [1920]). The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another (citing cases). A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto (citing cases), and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. (citing cases).” (emphasis supplied)
What was said, three years ago, in Pan American Petroleum Corporation v. Superior Court of Delaware In and For New Castle County, 366 U.S. 656, 662-663, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961) is of significant pertinence in the instant case.
There, in re-affirming the doctrines spelled out in Gully, these settled jurisdictional principles were stated and applied:
1. “[Qjuestions of exclusive federal jurisdiction and ouster of jurisdiction of state courts are, under existing jurisdictional legislation, not determined by ultimate substantive issues of federal law.”
2. “The answers depend on the particular claims a suitor makes in a state court — on how he casts his action. Since ‘the party who brings a suit is master to decide tohat law he will rely upon,’ The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.”
3. It is “immaterial * * * that the plaintiff could have elected to proceed on a federal ground”, and “if the plaintiff decides not to invoke a federal right, his claim belongs in a state court.”
4. “It is settled doctrine that a case is not cognizable in a federal trial court, in the absence of diversity of citizenship, unless it appears from the face of the complaint that determination of the suit depends upon a question of federal law. * * * Apart from diversity jurisdiction, ‘a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. * * * and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. * * * ’ Gully v. First National Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 97, 81 L.Ed. 70.” (emphasis supplied).
Applying the principles stated to the instant case we can only conclude that it was not one “arising under” § 301(a), or any other law of the United States, so as to permit removal under § 1441, since the complaint was cast solely on a state-created right to bring suit for violation of a collective bargaining agreement and sought only a remedy available under state law, and there was nothing in the complaint which even remotely suggested that it asserted a claim based on § 301(a), or that it presented a “dispute or controversy respecting the validity, construction, or effect” of § 301 (a), “upon the determination of which the result [of the suit] depends.” We now revert to the “serious consequences”, earlier highlighted, which flowed from the denial of remand.
That denial effectively wrote “finis” to the plaintiff’s action for injunctive relief, available in the state courts, but unavailable in the federal courts. It was an “injustice” to the plaintiff because it denied it its right, under settled law, to be “master of its own case”, viz., the right to cast its action on state-created rights rather than on rights available under federal law, to wit, § 301(a); and it deprived it of the right to proceed in a state court despite the specific holding in Dowd that Congress, in enacting § 301(a), did not make that statute’s jurisdiction “exclusive”, nor did it intend “to deprive a party to a collective bargaining contract of the right to seek redress for its violation in an appropriate state tribunal.”
The denial of remand ousted the state court of its jurisdiction not only in contravention of the historic comity doctrine which proscribes avoidable conflicts between federal and state courts, but in disregard of Dowd’s specific holding that Congress did not intend in § 301(a) “to deprive the state courts of a substantial segment of their established jurisdiction over contract actions,” and “expressly intended not to encroach upon the existing jurisdiction of the state courts,” (emphasis supplied) in suits for violation of collective bargaining agreements in industries affecting interstate commerce.
The specific question presented in Dowd, as the Court put it, was “whether this federal statute [§ 301(a)] operates to divest a state court of jurisdiction over a suit for violation of a contract between an employer and a labor organization.”
The question arose reason of the fact that a Massachusetts trial trial court had rejected an attack upon its jurisdiction in an action by a union against an employer seeking money damages for violation of a collective bargaining agreement, and had subsequently rendered a money judgment in favor of the union. The Supreme Judicial Court of Massachusetts affirmed, ruling that' § 301(a) had not granted the federal courts exclusive jurisdiction over suits for violation of labor contracts in industries affecting interstate commerce.
In affirming the Massachusetts Court’s ruling, the Court said:
“We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule. * * * The legislative history makes clear that the basic purpose of § SOI (a) was not to limit, but to expand, the availability of forums for the enforcement of contracts made by labor organizations.” 368 U.S. 502, 507-509, 82 S.Ct. 519, 522-523, (emphasis supplied)
“The clear implication of the entire record of the congressional debates in both 1946 and 1947 is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations.” Id. page 511, 82 S.Ct. page 525 (emphasis supplied)
The Congressional purpose, “not to limit” or “to displace” state court jurisdiction over labor contracts, when it enacted § 301(a), was nullified by the denial of remand since it effectively sounded the death-knell of the state court’s jurisdiction over the removed action. Thus the denial made the Congressional purpose a co-victim with the plaintiff, which was deprived of its right to seek redress in a state court, and the state court, which was ousted of its concurrent jurisdiction.
In a removal proceeding under § 1441 that statute must be harnessed in a real sense to the specific federal law (here § 301(a)) relied upon as conferring original jurisdiction upon the District Court.
To hold that § 1441 may be recruited to defeat the Congressional purpose in enacting § 301(a) would be to mock reason and to deny justice, where as here, the complaint was based solely on state-created rights and did not, within its four corners, raise or present any controversy with respect to the validity, construction or effect of § 301(a) upon the determination of which the result of the action depended.
There remains for disposition the District Court’s holding that it also had original jurisdiction because other than injunctive relief — money damages— could be granted to the plaintiff under Rule 54(c) of the Federal Rules of Civil Procedure, and a general prayer for “such other relief as the Court may deem appropriate”, which followed the plaintiff’s prayers for specific injunctive relief in its complaint at the time of the removal.
With respect to the District Court’s reliance on Rule 54(c) we need only to call attention to the fact that Rule 82 of the Federal Rules specifically provides that “These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” (emphasis supplied) Rule 54(c) does not confer jurisdiction upon federal district courts and the District Court erred in holding to the contrary
It also erred in holding that the prayer for “such other relief” created original jurisdiction.
The holding could only be sustained on the theory that a complaint based on a single ground of breach of contract presents two separate and independent causes of action when it seeks two remedies — injunctive relief and money damages (assuming arguendo that this complaint can be construed as seeking money damages).
On this score it was recently held that:
“The prayer for relief is no part of the cause of action and should not be considered in determining whether such cause of action is ‘separate and independent’.” Puritan Fashions Corp. v. Courtaulds Limited, 221 F.Supp. 690, 695 (S.D. N.Y.1963).
While the District Court did not advert to the provisions of sub-section (c) of § 1441, it must be assumed that it had them in mind when it inferentially held that the “such other relief” prayer presented a cause of action for damages, “separate and independent”, from a cause of action seeking injunctive relief.
Section 1441(c) provides:
“Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.”
What was said in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S. Ct. 534, 95 L.Ed. 702 (1951) in construing § 1441(c) is dispositive here:
“One purpose of Congress in adopting the ‘separate and independent claim or cause of action’ test for removability by.§ 1441(c) of the 1948 revision in lieu of the provision for removal of 28 U.S.C. (1946 ed.) § 71, was by simplification to avoid the difficulties experienced in determining the meaning of that provision. Another and important purpose was to limit removal from state courts. * * * ” 341 U.S. 9, 10, 71 S.Ct. 538.
“A separable controversy is no longer an adequate ground for removal unless it also constitutes a separate and independent claim or cause of' action. * * * Congress has authorized removal now under § 1441 (c) only when there is a separate and independent claim or cause of action.” Id. at pages 11, 12, 71 S* Ct. at pages 538-539.
“Considering the previous history of ‘separable controversy,’ the broad meaning of ‘cause of action,’ and the congressional purpose in the revision resulting in 28 U.S.C. § 1441(e), 28 U.S.C.A. § 1441(c), we conclude that where there is a single wrong-to plaintiff, for which relief is sought * * * there is no separate and independent claim or cause of action under § 1441(c).” Id. at pages 13, 14, 71 S.Ct. at page 540 (emphasis supplied)
On the score of the District Court’s; resort to the “such other relief” prayer to. establish a jurisdictional base we are compelled to note that there were pending at the time of the denial of remand two separate actions for damages brought, by the plaintiff against the defendants. here.
In summary, we are of the opinion that, a suit brought in a state court, based solely on state-created rights to enjoin a union’s violation, in the course of a labor-dispute, of the “no-strike” provisions of its collective bargaining agreement, is not removable to a federal district court* when the complaint does not disclose within its four corners that it presents a controversy respecting the validity, construction or effect of the Constitution of the United States or § 301(a) or any other federal law upon the determination of which the result of the suit depends.
We accordingly hold that the instant case “was removed improvidently and without jurisdiction” and that the District Court erred in failing to remand it to the State Court from which it was removed in compliance with the mandatory provisions of § 1447(c) of the Removal Statute.
Our brother Hastie disagrees on two grounds:- — (1) that § 4 of Norris-LaGuardia extends to state courts and consequently the Pennsylvania court here was “bound to * * * deny injunctive relief”, so that the plaintiff did not suffer ‘injustice’ by the denial of remand; and (2) in any event, the District Court had original jurisdiction within the Removal Statute because NorrisLaGuardia only limited its equity jurisdiction.
The sum of Judge Hastie’s position on the first point
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_usc2 | 18 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Appellee, v. John D. McGREGOR et al., Appellants.
No. 74-1347.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 11, 1974.
Decided Oct. 7, 1974.
Jack S. Nordby, St. Paul, Minn., for appellants.
Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
Before LAY, ROSS and WEBSTER, Circuit Judges.
ROSS, Circuit Judge.
John D. McGregor, Robert Fletcher, and Fountain Agency, Inc. were each charged in a twenty-six count indictment with the use of the mail for the purpose of executing a scheme to defraud in violation of 18 U.S.C. § 1341. Specifically, the indictment alleged that the defendants, acting as agents for Northland Insurance Co., caused notification of insurance policy cancellations to be sent to Northland for the purpose of obtaining premium refunds from Northland. However, the defendants’ customers, whose policies were cancelled, were never informed of the cancellation. From a verdict finding them guilty of all twenty-six counts, McGregor, Fletcher and Fountain appeal contending that the court erred in denying their motion for transfer to another district and that the evidence was insufficient to establish that they acted with intent to defraud.
During the relevant time period, Fountain Agency, Inc., an insurance agency incorporated in Louisiana, was primarily involved in selling automobile collision insurance, generally on vehicles newly purchased by high risk drivers. The policies were often written by the auto dealer himself acting as Fountain’s subagent and financed together with the purchase price of the auto through finance companies such as General Motors Acceptance Corporation. Fountain, itself, was not the insurer, but merely the agent for several insurance companies, chief among which was Northland Insurance Co., a licensed insurance company in Minnesota.
Fountain had negotiated a retrospective contract with Northland, under the terms of which Fountain earned 80% of the premium and Northland earned 20%. The total premium, however, was forwarded to Northland; the 80% was credited to Fountain’s account at North-land and used as a fund out of which all claims by Fountain’s insureds were paid. After claims adjustment, if the losses did not exceed the agent’s earned premium pool, Northland would refund a pro rata amount of earned premium to Fountain.
These retrospective contracts added to cash flow problems already suffered by Fountain. Not only did Fountain experience a need for revenues to pay operating expenses but it also negotiated collateral contracts with subagents who sold policies under which the subagent, usually the automobile dealer, could retain 20% of the face value of the insurance premium as a commission for the sale of the insurance policy. Fountain thus committed 120% of the premium at the outset.
After it was realized that expanding its business under retrospective contracts did nothing to remedy the cash flow problems, McGregor consulted with other insurance agencies who were also experiencing the same difficulties with retrospective contracts. After consulting with these other agencies and with an employee of the Louisiana Insurance Commission, McGregor determined to undertake a program of cancelling policies without notifying or forwarding refunds to the insured.
Under the plan, notices of cancellation were prepared on arbitrarily selected policies, the originals of which notices were sent to Northland. Copies were prepared for the policyholder and lien-holder, but were not sent. Rather, they mailed other documents to the policyholder and the lienholder by registered mail. Certificates of mailing were obtained for these mailings and sent to Northland with the original of the notice of cancellation as false proof that notices of cancellation had been sent to the policyholder and the lienholder. Northland then refunded to Fountain the prorated unearned portion of the premium on the cancelled policy. In effect, these policies were cancelled to the insuror, but not to the policyholders or lienholders who could still hold North-land primarily liable on the policy since they never received notices of cancellation.
During the periods of cancellation, Fountain paid claims against the can-celled policies out of the refunded premiums. As the cash flow situation improved, Fountain began to rewrite the previously cancelled policies with North-land. Names of the policyholders on the reissued policies were changed slightly so that, as McGregor testified, the computer would not reject the policy application. None of the cancelled premiums were ever refunded to the policyholders. Fountain employees were under instructions to conceal records of these cancellations from Northland representatives. Northland was never reimbursed for its prorata loss of its 20% premium nor for its potential liability under the policy during the period of cancellation. When delays began to develop in Fountain’s ability to pay claims against the can-celled policies and complaints were directed to Northland, the plan came to light.
Motion for Transfer.
The Constitution provides that “The Trial of all Crimes . . . shall be held ip the State where the said Crimes shall have been Committed.” U.S.Const. art. Ill, § 2. The sixth amendment carries a like command. However, Fed.R.Crim.P. 21(b) permits a transfer:
For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district.
This Court has held that the grant of transfer under that rule is a matter of the discretion of the district judge. United States v. Phillips, 433 F.2d 1364 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). In reviewing the district court’s exercise of discretion in these matters, we are guided by the enumeration of factors which were considered in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 243-244, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964):
(1) location of corporate defendant;
(2) location of possible witnesses;
(3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer.
Concerning those factors, the Supreme Court stated that the main office or “home” of the defendant has no independent significance in determining whether transfer to that district would be “in the interest of justice,” although it may be considered with reference to such factors as the convenience of records, officers, personnel and counsel. Id. at 245-246, 84 S.Ct. 769.
18 U.S.C. § 3237(a) provides in part:
Any offense involving the use of the mails ... is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such . . . mail matter moves.
The Supreme Court and other circuits have accordingly held that the government may elect to bring the prosecution in the district where the letter was mailed or where it was delivered. Salinger v. Loisel, 265 U.S. 224, 233-234, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Benson v. Henkel, 198 U.S. 1, 15, 25 S.Ct. 569, 49 L.Ed. 919 (1905); United States v. Sorce, 308 F.2d 299, 300 (4th Cir. 1962), cert. denied, 377 U.S. 957, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964); Kreuter v. United States, 218 F.2d 532, 534 (5th Cir.), cert. denied, 349 U.S. 932, 75 S.Ct. 777, 99 L.Ed. 1262 (1955); Holdsworth v. United States, 179 F.2d 933, 936 (1st Cir. 1950); Kaufman v. United States, 163 F.2d 404, 411 (6th Cir. 1947), cert. denied, 333 U.S. 857, 68 S.Ct. 726, 92 L.Ed. 1137 (1948); Gates v. United States, 122 F.2d 571, 577 (10th Cir.), cert. denied, 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558 (1941); Johnson v. United States, 59 F.2d 42, 45 (9th Cir.), cert. denied, 287 U.S. 631, 53 S.Ct. 83, 77 L.Ed. 547 (1932). Venue for this crime, then, properly existed in Minnesota, the location of the addressee of the fraudulent mail. To determine whether the appellants were entitled to a transfer from the district for trial, the factors announced in Platt come into play. Here the party defrauded was an insurance company based in Minnesota. The chief government witness was the vice president of Northland. Other North-land witnesses and the postal inspectors involved were from Minnesota. Most of the documents entered into evidence during the trial came from Northland’s office. These factors buttress the trial court’s denial of the motion for transfer. The appellants have failed to demonstrate, as required by United States v. Phillips, supra, 433 F.2d at 1368, that some substantial right.has actually been affected. The motion was properly denied.
Sufficiency of Evidence.
We have recently reiterated the essential elements of a violation of 18 U.S.C. § 1341:
“(1) a scheme conceived by appellant for the purpose of defrauding . by means of false pretenses, representations or promises, and (2) use of the United States mails in furtherance of the scheme.” “Scheme” to defraud within the purview of this section involves some connotation of planning and pattern. Thus, intent to defraud is an essential element. It may be inferred by all the facts and circumstances surrounding a transaction. [Additionally] ... to bring the scheme within the ambit of the mail fraud statute, the mails must be used for the purpose of executing the scheme, . . . must be employed before the scheme reaches fruition, . . . yet, need not be contemplated as an essential element of the scheme.
United States v. Nance, 502 F.2d 615, 618 (8th Cir. 1974). The appellants concede that there is no doubt here that the mails were in fact employed and that this use of the mails was an integral part of the activity which the government alleged to be fraudulent. They do, however, contend that the first requisite was not met on this record. They maintain that because McGregor consulted the Louisiana Insurance Commission, because he received advice from other agencies undergoing similar difficulties, and because Fountain paid all claims against the cancelled policies during the periods of cancellation, they did not have the requisite intent to defraud.
In reviewing the sufficiency of the evidence, we note that the verdict must be sustained if there is substantial evidence, taking the view most favorable to the' government to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). United States v. Madden, 482 F.2d 850, 851 (8th Cir. 1973). The district court made clear in its instructions to the jury that specific intent to defraud was essential to a finding of guilt. Given the proper instructions of the district court and the scope of review, we find that there was sufficient evidence of covert conduct which could permit the jury to determine that the appellents acted with the requisite intent to deceive both Northland and the policyholders. Policyholders were never informed of the cancellation. Office personnel were instructed to conceal the cancellation practice from Northland representatives. At the outset the substitution of other documents for the cancellation notices was effectuated by McGregor in the privacy of a closed office without informing office personnel of the procedure. North-land was never reimbursed for its potential risk during the period of cancellation. Names were altered on reissued policies so that a computer would not detect the prior cancellations. Fountain, while paying claims against cancelled policies acted as an insurance company, an enterprise for which it was not licensed and could not meet capitalization requirements. Given this evidence, resolved in the light most favorable to the verdict, it is clear that the jury, as properly instructed, found that the appellants had specific intent to defraud.
For the reasons hereinbefore expressed, the judgment of conviction is affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_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
RICHTER v. HOGLUND et al. SAME v. FARMERS MUTUAL AUTOMOBILE INS. CO. et al.
No. 8104, 8107.
Circuit Court of Appeals, Seventh Circuit.
Jan. 20, 1943.
Fred W. Genrich, Jr., and Herbert L. Terwilliger, both of Wausau, Wis., for appellant.
A. J. O’Melia, of Rhinelander, Wis., Charles F. Smith and Richard P. Tinkham, Jr., both of Wausau, Wis., and Gerald P. Hayes and John A. Kluwin, both of Milwaukee, Wis., for appellees.
Before SPARKS, KERNER, and MIN-TON, Circuit Judges.
MINTON, Circuit Judge.
George Richter, the plaintiff-appellee, sued Lawrence Paul and his insurance carrier, the United States Fidelity & Guaranty Company, and Elvera Hoglund and her insurance carrier, the Farmers Mutual Automobile Insurance Company, to recover for personal injuries he received when Paul’s car, in which Richter was riding as a guest, collided with Miss Hoglund’s car, driven hy herself. Paul in turn filed a counterclaim for personal injuries and property damage against Miss Hoglund and her insurance carrier, and she in turn filed a counterclaim against Paul and his insurance carrier for personal injuries and property damage.
The accident happened near Tomahawk, Wisconsin, and the actions were tried before a jury in the Western District of Wisconsin. Under the comparative negligence statute of Wisconsin, the jury found the defendant-appellant Hoglund one hundred per cent negligent. Richter recovered a judgment on his complaint against Miss Hoglund and the Farmers Mutual Automobile Insurance Company for $15,379.70. On his counterclaim Paul recovered a verdict against Miss Plogluiid of $4,697. After suit was filed but before the trial, the United States Fidelity & Guaranty Company took from Richter a partial release in the nature of a covenant not to sue, in consideration of the payment of $2,750. Nothing was said in the pleadings or on the trial about this transaction, and the release is printed in the record here without having been considered below at all. The court reduced the verdict of Richter to .$11,500, and that of Paul to $4,000, and entered judgment on the verdicts. From this judgment, Miss Hoglund and the Farmers Mutual Automobile Insurance Company appeal.
These facts appear from substantial evidence in the record. About ten o’clock on the evening of May 23, 1940, Lawrence Paul was driving northward on State Highway 51. Elvera Hoglund was driving south along the same road. She was alone, while Richter was a guest in the Paul car and was asleep at the time of the accident. As Paul came around a curve in the road, driving at a speed between forty and fifty miles per hour, he saw Miss Hoglund’s car coming south at a distance of two hundred to three hundred feet. She was driving at a speed between thirty and thirty-five miles per hour. The cars approached on their respective sides of the road until almost opposite each other, when one of the cars got over the center line of the road and on the other car’s side of the road, and a collision resulted.
Paul testified Miss Hoglund’s car came over on his side of the road, and Miss Hoglund testified Paul drove his car over on her side of the road. A disinterested witness, William Yeschek, visited the scene of -the accident the night it happened and saw the skid marks of Paul’s car clearly on the east side of the center line as he traveled north to the point of the collision. At the point of the collision, there was much debris on the east side of the road, and there were deep cuts in the blacktop pavement where the wrecked car of Paul had veered off the east side of the road, turned over twice and landed in a ditch, headed west. The Hoglund car was across tire highway, partly on the east lane and headed almost east. The left front of the Hoglund car had hit the left front wheel and fender of the Paul car. After the accident, Paul asked Miss Hoglund: “ * * * what happened, she come across the road the way she did. She told me that she had been fixing a window on the other side of the road, or down the road, and had swung across that way.” Miss Hoglund admitted the window was stuck and she had-been trying to close it without success, but stated she had stopped down the road before the accident for that purpose, and she denied that she was trying to fix the window while the car was in motion.
Miss Hoglund was a trained nurse employed in the private hospital of Dr. Henderson at Tomahawk. She directed the injured Richter and Paul to this hospital, where Dr. Henderson treated them. A traffic officer accompanied the parties to the hospital, and requested that a specimen of the urine of Paul and of Richter be taken and sent to the State Toxicologist for analysis to determine whether the parties were intoxicated. Richter and Paul both testified that they were not intoxicated at the time of the accident. Paul admitted that he had had three or four one-ounce glasses, not quite full, of whiskey the forenoon of the day of the accident. Paul met Richter about one-thirty p. m. of the day of the accident, and they drove to Merrill, some sixty miles, where they met Paul’s mother and assisted her with some business transactions. In the middle of the afternoon, while in Merrill, Richter and Paul each drank a bottle of beer. Paul testified that the drinks he had in the morning and the bottle of beer in the afternoon were all the alcoholic beverages he had that day. Richter testified that the bottle of beer was the only alcoholic beverage he had that day. They drove from Merrill to visit a nearby dam, and on to Tomahawk. Richter, who was afflicted with asthma and who had been unable to sleep during the two nights preceding the accident, fell asleep. Paul stopped in Tomahawk for a lunch. Paul then proceeded on from Tomahawk to the scene of the accident, about eleven and one-half miles away.
Paul’s employer saw him just before noon, and testified that Paul was sober at that time. Paul’s mother saw him just before his departure for Merrill about six p. m., and she testified he was sober at that time. The restaurant keeper at Tomahawk knew Paul and remembered that he was in his restaurant around nine p. m., and he testified that Paul was sober then and that he had no drinks there. Dr. Henderson, who treated Paul and Richter after the accident, said he could detect no odor of liquor about either of them.
In order to prove that Paul and Richter were intoxicated, the appellant Hoglund offered Dr. Henderson to prove the taking of the urine specimens. The appellees objected that Dr. Henderson was the physician of Richter and Paul and the matter was privileged, and that Dr. Henderson had no right to take specimens of his patients’ urine and send them to the State Toxicologist. Dr. Henderson was extensively cross-examined and the court manifested considerable concern about the right of Dr. Henderson to take and send the urine specimens, and whether or not he had the consent of his patients to do so. The court finally permitted Dr. Henderson to testify as to the taking of the urine specimens, and their transmittal to the State Toxicologist, and permitted the State Toxicologist, Dr. Kozelka, to testify as to the alcoholic content of the urine and what the presence of this content indicated as to intoxication. The evidence showed that the urine specimens were taken at nine-thirty the morning following the accident. Dr. Kozelka testified the specimen purporting to be that of Paul indicated that he was under the influence of intoxicating liquor, but the specimen of Richter indicated an insignificant amount of alcohol.
The appellants complain that the value of this testimony was destroyed by the court’s questions and observations and the vigorous cross-examination of Dr. Henderson. We have carefully read all of the record with reference to Dr. Henderson’s examination, and we cannot agree with the appellants that the court’s conduct or the cross-examination was prejudicial to the appellants. The concern of the court and of counsel for the appellees Richter and Paul can well be understood. The court had to determine whether or not this evidence was properly obtained and admissible. Dr. Henderson was the appellees’ doctor and was treating the appellees as his patients at the time he was taking their urine specimens and turning them over to third parties. It must also be borne in mind that the appellees were patients in a small private hospital where Miss Hoglund was employed and presumed to be on very friendly terms with her fellow-nurses and her employer, Dr. Henderson. Therefore, it was not unusual for the appellees’ counsel to be somewhat suspicious and vitally interested in ascertaining whether the specimens were properly taken. See Kuroske v. Ætna Life Ins. Co., 234 Wis. 394, 403, 291 N.W. 384, 388, 127 A.L.R. 1505.
In determining whether the doctor’s acts and revelations of things learned and his use of the specimens obtained from his patients while in his care and under treatment were within or without the privilege of Sec. 325.21 of the Wisconsin statutes, the court had a broad discretion as to the extent of the cross-examination of the doctor, and the right of the judge himself to participate therein. In the case at bar, this discretion was not abused. Before the appellants can claim prejudice of their case in the preliminary examination to determine the admissibility of evidence that is finally admitted, they would have to show very extensive and gross abuse of discretion in such preliminaries. We are quite satisfied that such abuse is not present in the instant case.
Furthermore, it is difficult for us to see how a vigorous cross-examination of Dr. Henderson could be prejudicial, when Dr. Kozelka testified at great length as to the alcoholic content of the specimens of urine, and the court instructed fully on the question of intoxication. The issue on the question of intoxication was fairly submitted to the jury, and it resolved that question in favor of the appellees. We see no reason for disturbing this finding.
The appellants next complain that the court erred in refusing to admit in evidence the hospital record of appellee Richter. The appellants never offered the hospital record of Richter. The said record was read in evidence by the nurse Conry while under ci-oss-examination by the attorney for appellee Paul. The attorney for Richter moved to strike all reference to Richter’s hospital record except the time the specimen of urine was taken. The court sustained this motion. The appellants never objected to the motion, or to the striking from the record in accordance therewith. The court stated: “The use of that hospital record was simply for the purpose, the Court had in mind, of ascertaining the time when the — ”
Mr. Genrich: (Attorney for Appellants ■ — Interrupting.) “I see — all right.”
The Court: (Continuing.) “urine was bottled, and it will be used for no other purpose.”
No error was committed with reference to this transaction, first because the appellants made no objection to the motion to strike and the granting thereof; and secondly, because the counsel for the appellants not only did not object to the court’s action, but acquiesced therein.
The next question presented is whether or not the damages awarded were excessive. Richter sued for $15,000, and recovered a verdict of $15,379.70. The amount in excess of $15,000 was the amount of damages proved for hospital and doctor expenses, etc. The trial court reduced this verdict to $11,500.
The evidence showed without dispute that Richter was very seriously injured. He was unconcious until some time the next morning after the accident. He regained consciousness in the hospital. He was strapped to the bed. He had suffered great shock. He was in the hospital for eighteen days. After his discharge therefrom, he did not work any more that summer. He earned fifty dollars a week as a musician when he worked. He suffered a concussion of the brain, and at the time of the trial he suffered some defect to his equilibrium, as demonstrated by the well-known Romberg test. At the time of the trial, he was still suffering from headache, dizziness and backache. He had received three large cuts on his face which left scars, one of which disfigured his left ear; and as the result of one of the other cuts and the injuries he received to his head, there is a complete and permanent loss of muscle control of the left half of the forehead. These muscles are paralyzed. There is an area of hyperesthesia (which means that it is very over sensitive) on the scar in front of the ear. There is a larger area between the eye and the ear in which there is absolutely no' sensation. The lumbar region of the bade was tender at the time of the trial, and pain was excessive when the thigh was drawn up against the abdomen. His pain and suffering were and are great. Richter was thirty-one years old. With such injuries, suffering, disfigurement, paralysis and the permanency of several of the injuries, we do not think the verdict was excessive.
Appellee Paul recovered $4,697. The sum in excess of the $4,000 prayed for in the complaint was damage to his automobile and recompense for doctor and hospital expenses. The court reduced the verdict to $4,000. This verdict is also challenged as excessive.
Paul suffered a head injury, with a cut across his nose and a fracture thereof displacing the septum to the right, causing very serious and almost complete obstruction to breathing through the right nostril. This condition had caused the membranes inside the nose to thicken and interfere with the proper drainage of the sinuses, which caused the plaintiff to suffer severe headaches almost daily, and sometimes they were severe enough to last the entire day. He suffered dizzy spells for a year after the accident. Dr. Brick, who examined him just before the trial, testified that at a cost of $225 an operation could be had upon his nose that would relieve him, but he could not ’guarantee that the operation would give him complete relief, and that in his opinion there would always be some permanent effects of the injury to the nose. The doctor also testified that there was embedded in the skull of Paul what appeared to be a piece of steel, which should be removed, and that the removal would require an operation that would cost $150. Paul was in the hospital only one day, and his doctor bill and hospital bill amounted to $62. The damage to his car was $635. This would leave less than $3,000 to compensate him for: the injuries to his nose; the pain and suffering occasioned by the accident; the pain and suffering he might have to endure in submitting to two operations to correct injuries he received; the time he lost after the accident, amounting to several days; and any time he might lose from his work due to the operations. While this verdict is substantial for the injuries received, we do not think it is so excessive as to indicate undue prejudice, passion or corruption on the part of the jury. Sweet v. Underwriters’ Co., 206 Wis. 447, 240 N.W. 199; Kull v. Advance-Rumely Co., 209 Wis. 565, 245 N.W. 589; McCartie v. Muth, 230 Wis. 604, 284 N.W. 529; Groh v. Krahn, Inc., 223 Wis. 662, 271 N.W. 374; Knaus v. Yoder, 98 Colo. 1, 52 P.2d 1152; Coppock v. Pacific Gas & Electric Co., 137 Cal.App. 80, 30 P.2d 549.
It is urged that the court erred in permitting over appellants’ objection one Prahl, a traffic officer, to testify as to the presence at the time of the trial of certain skid marks on the east side of the center line, both on the blacktop pavement and on the shoulder, and of a gouged place in the east shoulder of the road, at the point on Road 51 south of Road 8 where the accident was shown by other competent evidence to have happened.
Prahl did not attempt to say what caused the marks, except to say that they were such as a car would make, and he did not attempt to say they were made by Paul’s car. Yeschek had testified that the marks made by Paul’s car at the time of the accident were still visible on the highway at the point where the accident happened. That location had been clearly established by competent evidence. Yeschek took Prahl out and showed him the place in question, and Prahl came back and testified as to what he saw with reference to the marks on the highway at that particular point. The purpose of this evidence was to corroborate Yeschek that the marks were still on the pavement at the point of the accident, and not to prove by Prahl when the marks were put there or by what means. These facts had already been established by other competent evidence, and the testimony of Prahl was limited by the court and counsel to the corroboration of Yeschek as to the marks on the road at the scene of the accident at the time of the trial. When so limited it was admissible, and the weight to be given thereto was for the jury.
Finally, the appellants contend that the amount of the Richter verdict should be further reduced by the amount of the payment received from the United States Fidelity & Guaranty Company in consideration of the covenant not to sue. No question was presented to the court below concerning this matter. It is raised for the first time on this appeal. Matters raised here for the first time which should have been considered in the court below will not be considered by us. Springer v. United States, 102 U.S. 586, 26 L.Ed. 253; Towle v. Pullen, 7 Cir., 238 F. 107. If the appellants are entitled to a remittitur on the judgment rendered against them, the District Court is the place to present that claim.
The judgment is 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_appnatpr | 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 "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.
DENICKE et al. v. ANGLO CALIFORNIA NAT. BANK OF SAN FRANCISCO et al.
No. 10329.
Circuit Court of Appeals, Ninth Circuit.
March 1, 1944.
Rehearing Denied April 7, 1944.
Aaron M. Sargent, of San Francisco, Cal., for appellant.
Frederick M. Fisk, Donald Y. Lamont, Chickering & Gregory, all of San Francisco, Cal., for appellee Anglo California Nat. Bank.
Brobeck, Phleger & Harrison, of San Francisco, Cal., for appellee R. S. Dollar.
Edwin V. McKenzie and J. H. Sapiro, both of San Francisco, Cal., for appellee Victor Klinker.
Theo. J. Roche and Sullivan, Roche, Johnson & Farraher, all of San Francisco, Cal., for appellees Mortimer Fleishhacker and Mortimer Fleishhacker, Jr.,
Felix T. Smith, Francis R. Kirkham, Pillsbury, Madison & Sutro, all of San Francisco, Cal., for appellee Irene L. Heyes.
Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
This appeal is from a judgment in a derivative suit (entered pursuant to Rule 23(c) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c) approving a compromise and directing a dismissal. An appeal was taken also from an order denying a motion to vacate the judgment.
The record comprises almost 2,000 printed pages and the briefs are very long, but the questions presented are relatively simple. The suit was filed in November 1938 by appellant Denicke, a stockholder ot appellee Anglo California National Bank (herein for brevity called the Bank.) At the time of the hearing on the petition for compromise in March of 1942 there was on file a second amended complaint containing eight counts, the first of which concerned alleged derelictions of appellees Mortimer Fleishhacker and Herbert Fleishhacker, former directors and chief executive officers of the Bank. The second count was against the same defendants and several other parties with whom it was alleged the Fleishhackers had conspired to cause the making of illegal or fraudulent Bank loans. The remaining counts set up claims against other directors based on the transactions covered by the first two counts and asserting that these directors had substantially abdicated their functions in favor of the Fleishhackers, to the consequent loss of the Bank. The total recovery sought against the several defendants was in excess of five million dollars. As the reason for the institution of the stockholder’s suit it was alleged that the Bank directorate was dominated by adverse interests to the extent that it was impossible to obtain appropriate action to enforce the claims sued upon. Federal jurisdiction was predicated on 12 U.S.C.A. §§ 93 and 503, imposing personal liability upon officers and directors where loss is sustained through violation of the national banking laws.
The Bank itself did not plead to the complaint. Some months after the suit was filed (on April 1, 1939, to be specific) the management underwent a change, so that individuals unconnected with the litigation were brought into active charge of the institution’s affairs. There is evidence that the new management carried on an extensive investigation of the claims asserted in the suit, and there were negotiations both with appellant Denicke and with the defendants looking toward a compromise of the litigation. Another derivative suit brought by Denicke on the Bank’s behalf, apparently against the same parties, was pending before Judge Roche, the instant case being on the calendar of Judge St. Sure. Denicke was represented in both suits 'by the same attorney. The Bank received written offers from the defendants in the two suits to pay the sum of $350,000 in full settlement of the claims, and on July 1, 1941, it presented a petition under Rule 23(c) to obtain court approval of the settlement proposed to be made for that sum. The offers in question had previously been submitted to and unanimously approved by the Bank’s executive committee and by its board of directors; and at a special meeting of the shareholders, called for that purpose and held July 7, 1941, the action of the board in accepting the compromise offer was ratified by a vote of more than 95% of the total outstanding stock.
Following this action the two trial judges jointly heard the petition to compromise. The hearing extended over a period of nine days, during which time numerous witnesses were examined and a large amount of documentary evidence was introduced. Among those testifying were the Bank’s president, its first vice president, and Mr. Mortimer Fleishhacker. In January 1942 the judges denied the petition “without prejudice to the filing by said Bank, if so advised, of separate offers of compromise in each of the actions.” Thereafter separate, offers, in the amount of $200,000 in each suit, were received by the Bank. In the companion action pending before Judge Roche this offer was accepted by the Bank, had court approval, and -there was no appeal.
In the case before us, after notice to all stockholders, a hearing, eventuating in the judgment appealed from, was had on March 31, 1942, on the Bank’s petition to compromise and terminate the litigation. Written objections of appellants had previously been filed, and a pretrial conference had been held. It was stipulated that the record and proceedings had in the hearing on the previous petition be considered as evidence in the matter along with the oral arguments and briefs then before the court. Little additional evidence was offered at the hearing, and that in support of the petition. Upon being asked if he was “through,” counsel for appellants moved for a nonsuit or denial of the petition. The purpose of this motion, as stated in appellants’ brief here, was “to avoid the necessity of offering further proof.” The motion was not ruled on, and the court continued the matter to a later time on the assumption that the case on the petition had been submitted. It is contended that the only matter presented for decision was the motion for nonsuit, and that the case as predicated on the Bank’s petition was not finally submitted at this hearing. In substance, the argument appears to be that appellants were not given the opportunity of making a full showing in opposition to the compromise proposal.
However, no proffered evidence was rejected by the court. As already noted, there had been a very extensive hearing the previous July. A great mass of evidence had been assembled by appellants’ attorney and was before the court or available for submission. Numerous interrogatories had been propounded and answered. And in the period of three and a half years elapsing since the commencement of the suit there had been ample time in which to make use of the various forms of discovery available under the Rules of Civil Procedure. ' Discovery proceedings had been freely resorted to and no requests for discovery had been denied by the court. The answers of the various defendants were on file, and the main case had long been at issue. It is true that in the course of his argument on the motion for nonsuit appellants’ counsel stated that there was a good deal of additional evidence that he had or was assembling, but he added that “rather than take up the time with a detailed hearing on this matter, the petition now pending ought to be denied. The record shows enough to sustain such an order, and that the case continue.” Counsel wished, he said, “to reserve the right to introduce evidence in rebuttal at a later date.” The court observed that it did not want to hear more evidence and would prefer to have it understood that the petition was being submitted on the evidence adduced; to which appellants’ attorney replied that he would “submit the matter on the showing made, on the arguments I have made, and on the briefs already on file.” We see in all this no sufficient reason for believing that appellants were deprived of their day in court.
After the hearing appellants’ attorney continued his investigations and took a number of additional depositions, none of which was offered or received in evidence. On June 29, 1942, the court entered an order denying appellants’ objections and granting the petition of the Bank. Simultaneously the court filed a written opinion reviewing the case at much length. This was followed on July 2, 1942, by a formal judgment approving the compromise and authorizing a dismissal with prejudice upon the Bank’s receiving the sum of $200,000. The sum was paid and the case dismissed.
There were no separate findings, but a number of findings are incorporated in the judgment. It was found that the Bank and its representatives, in seeking approval of the compromise proposal, had acted in good faith and for the best interests of the shareholders; that the objections made by appellants were without merit; and that it is for the best interests of the 'Bank and its shareholders that the suit be finally terminated upon receipt of the offered sum.
We see no clear error in these findings. It appeared that Herbert Fleishhacker, the defendant said to have been the beneficiary of the illegal transactions, was in bankruptcy, and there was no possibility of realizing from his estate more than a part of the judgments that had been obtained against him in the earlier secondary suits. Nothing was to be gained by pursuing him further. Following a recapitalization of the Bank, Mortimer Fleishhacker had paid in the sum of $2,590,000 on account of loans in which he had been interested. He and the other former directors were vigorously contesting liability on the merits and on other grounds, including the statute of limitations. Appellants claim that they had adduced sufficient evidence to make out at least a prima facie case of liability for much larger amounts than those offered, but neither of the trial judges was greatly impressed by the showing.
Under all the circumstances we think it was primarily for the shareholders and the presently constituted authorities of the Bank, acting in good faith, to determine whether the best interests of that institution did not lie in the course they asked leave to follow. Cf. Hawes v. Oakland, 104 U.S. 450, 462, 26 L.Ed. 827. Out of more than a thousand shareholders only two, and those the appellants, objected to the compromise. Mr. Thompson, the president, in addition to testifying that the offer was thought advantageous in itself, ad.vanced other reasons for believing that a •continuance of the already protracted litigation would be highly detrimental to the Bank. He dwelt on imponderables of peculiar importance to a banking institution— the difficulty of differentiating in the popular mind between the events of today and those presently under discussion relating to other days, the need of preserving the morale of employees and the goodwill of important customers, the decline in prestige and the loss of public confidence in a bank whose name in constantly in the public eye in connection with litigation of this character.
Appellants insist that the court lacked power to terminate the suit without their consent. Rule 23 of the Rules of Civil Procedure affords no ground for that view, and the California authorities, at least, are to the contrary. It is the rule .in that state that the stockholder is permitted to sue “simply in order to set in motion the judicial machinery of the court.” Whit-ten v. Dabney, 171 Cal. 621, 630, 154 P. 312, 316, quoting 3 Pomeroy’s Equity, 3d Ed., § 1095. His position in the litigation is assimilated to that of a guardian ad litem with power in the court, not in the stockholder, to compromise the rights of the real party in interest, which is the corporation itself, Whitten v. Dabney, supra; Loeb v. Berman, 217 Cal. 716, 20 P.2d 685; Russell v. Weyand, 5 Cal.App.2d 259, 42 P.2d 381. We are not aware of any federal law to the contrary, and in the present circumstances we think it appropriate if not obligatory on us to apply the local rule.
We need not stop to inquire whether the order denying appellants’ motion to vacate the judgment was appealable, for the opinion already sufficiently indicates our view that appellants had ample time and a reasonable opportunity to present a full showing in opposition to the compromise. We find no merit in other points argued.
Affirmed.
The other appellant, Mary E. Doble, sought to intervene in the action at the time of the filing of the petition to compromise, and later appeared in response to an order to show cause directed to all the shareholders.
The second amended complaint had been further supplemented by two additional counts.
The statutes claimed to have been violated are 12 U.S.C.A. ■§§ 83, 84, 375a and 595.
There had been earlier derivative suits by other Bank stockholders against Herbert Fleishhacker which had terminated in the entry of large judgments against that officer. Blum v. Fleishhacker, D.C., 21 F. Supp. 527; Fleishhacker v. Blum, 9 Cir., 109 F.2d 543; Anglo California Nat. Bank of San Francisco v. Lazard, 9 Cir., 106 F.2d 693.
At the shareholders’ meeting appellants’ attorney participated in the discussion and read a prepared statement in opposition to the resolution ratifying the proposed compromise.
Denicke owned 1,600 shares of the common stock of the Bank and Doble 1,752 shares, out of a total of 410,000 shares of common and 1,925,000 shares of preferred outstanding,
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
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.
John P. O’BRIEN, Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION.
No. 13308.
United States Court of Appeals Third Circuit.
Argued Dec. 6, 1960.
Decided June 29, 1961.
Rehearing Denied Aug. 1, 1961.
William J. Ruano, Pittsburgh, Pa., for appellant.
Walter T. MeGough, Pittsburgh, Pa. (Ralph H. Swingle, Pittsburgh, Pa., William L. Standish, IV, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH and FORMAN, Circuit Judges.
FORMAN, Circuit Judge.
In the first count of his complaint plaintiff-appellant John P. O’Brien, charged that defendant-appellee, Westinghouse Electric Corporation (Westinghouse), infringed his Patent No. 2,694,-951, issued on November 23, 1954, on an application filed on November 29, 1947, for a drawing die and method of making the same. In the second count he alleged that Westinghouse committed acts of unfair competition by misappropriating his invention prior to its being patented as a related claim arising under 28 U.S.C.A. § 1338(b). There was no diversity of citizenship between the parties.
The case came on for trial on the complaint, answer and a pretrial order before the court and a jury. The court endeavored to channel the evidence toward the first count (patent infringement) only, but inevitably much evidence was admitted as to the second count (unfair competition).
The record discloses that O’Brien offered proofs substantially as follows: In 1943 Westinghouse had orders for manufacturing commutator bars for dynamos on B-24 bombers. It was having difficulty producing them in proper quantity because in many instances the dies through which the copper was drawn in the production of the commutator bars failed to meet the desired tolerances which were very small or if they met the drawing sizes they would be produced with a twist. Both split steel and solid tungsten-carbide dies were tried without success.
O’Brien, long an employee of Westinghouse, was working as a die setter and group leader at the draw bench in the Westinghouse Copper Mill in Wilkins Township, Pennsylvania. He addressed himself to the problems which were being experienced and in early 1943 submitted suggestions to Westinghouse for a method of making split tungsten-carbide dies, under a suggestion system operated by Westinghouse. Forms were provided by the company for the submission of suggestions which were used by O’Brien in making his submission.
O’Brien testified that he expected to receive ten per cent of the savings effected by his suggestion in its first year of use. This expectation was based on an “Industrial Relations Manual” put out by Westinghouse which stated:
“The Company will grant monetary awards for suggestions which are adopted and put into operation.”
On September 22, 1943, the Suggestion Committee formally acknowledged O’Brien’s suggestion stating:
“This suggestion has been adopted and the following is a consolidated statement of the action involved:
“Split carbide dies in place of solid dies will be used in drawing copper in Section CM-20.”
A token award of $25 was recommended and it was stated that O'Brien's suggestion “will be reopened as soon as savings can be determined.”
There were a number of problems involved in the use of the method of making the dies as suggested by O’Brien which were submitted for solution to the engineers and technicians of Westinghouse. The first split tungsten-carbide die made pursuant to his suggestion was completed by employees of Westinghouse in 1943 on Westinghouse time and with Westinghouse materials. It was used in the years 1943 and 1944 for drawing a large quantity of copper in regular production of the copper commutator bars for Westinghouse’s orders as mentioned above and continued to be used thereafter. Westinghouse purchased machine tools for the production of the die in question. Some difficulty arose in making other dies, but the problems connected with the use of the suggested method were fully solved not later than November 22, 1944. From that time the method was in regular use and at least 55 different dies were made prior to May 1945.
During 1943 O’Brien received a total of $460 for his suggestion. He protested the amount of the award. Thereupon Westinghouse recalculated the net savings due to the use of the die in question and arrived at a figure of $845. A long interval ensued during which O’Brien sought to negotiate with Westinghouse officials for a greater allowance for his suggestion. On January 4, 1947, Westinghouse tendered him an additional check for $810.95, which he did not cash. On January 13,1948, O’Brien through his attorney sent a letter to Westinghouse in which he attempted to rescind the “agreement”, returning the cheek for $310.95 and enclosing a check for $472.50, which covered the $460 he had previously received as the award for suggesting the tungsten-carbide die, as well as $12.50 which he had received for two earlier suggestions.
In answering this letter Westinghouse denied that there was any undischarged contract which could be rescinded and returned the two checks. O’Brien persisted in his efforts to have Westinghouse reconsider the award until he received a letter dated in June 1954 in which Westinghouse suggested that the matter should be considered terminated. Thereafter he instituted this suit on March 7, 1955.
At the close of O’Brien’s proofs Westinghouse moved for involuntary dismissal of O’Brien’s patent infringement claim (the first count of the complaint) under Rule 41(b) F.R.Civ.P., 28 U.S.C.A., on the ground that O’Brien’s own ease had disclosed public use and the existence of a shop right. The court granted that motion and also of its own volition dismissed the second count for unfair competition for lack of jurisdiction.
The contention of O’Brien that should be met at the outset is his claim that the trial court “erred in making its own findings of fact, on disputed issues, allegedly pursuant to Rules 41(b) and 52(a) Federal Rules of Civil Procedure since these rules do not permit such findings in a jury ease.” He particularly pointed to eight findings of the court which he asserts “were represented in the light most favorable to defendant rather than to plaintiff as they should have been.”
In a post-trial memorandum and order the trial court made it clear that it felt required to make written findings pursuant to Rule 52(a) on a motion under Rule 41(b) in a jury case because of the decision of this court in Makowsky v. Povlick, 3 Cir., 1959, 262 F.2d 13, also a jury case, wherein it was said:
“Before considering the merits of the appeal, we comment upon the procedure employed in the district court. It appears that the defendants’ motion for a compulsory dismissal was made and granted under Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C. A dismissal under this Rule, other than for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits, Kuzma v. Bessemer & Lake Erie Railroad, 3 Cir., 1958, 259 F.2d 456, and requires the court to make findings as provided in Rule 52(a). However, no findings appear in the record before us. Accordingly, we shall treat defendants’ motion as one for a directed verdict and the judgment as one entered upon a directed verdict in accordance with Rule 50(a). Meyonberg v. Pennsylvania R. Co., 3 Cir., 1947, 165 F.2d 50, 52.” 262 F.2d at page 14.
In granting the motion under Rule 41(b) the trial court dismissed both of O’Brien’s claims, the count for patent infringement on the merits and the count for unfair competition, for lack of jurisdiction. Therefore even under Makowsky the dismissal of the count for unfair competition did not require findings of fact. It would appear that as to the count for patent infringement the trial court was justified in feeling that Makowsky required it to make findings of fact.
Prior to 1946 this court and the Fourth Circuit held in non-jury cases in each of which a motion was made for involuntary dismissal under Rule 41(b) that such a motion was equivalent to a motion for a directed verdict in a jury case; that the sole question was one of law whether plaintiff’s evidence and all the inferences fairly to be drawn from it in a most favorable light made out a prima facie case for relief and that no findings of fact were required to be made by the court under Rule 52(a) in such circumstances. Federal Deposit Insurance Corp. v. Mason, 3 Cir., 1940, 115 F.2d 548; Schad v. Twentieth Century-Fox Film Corp., 3 Cir., 1943, 136 F.2d 991; Whitley v. Powell, 4 Cir., 1946, 159 F.2d 625. The Sixth, Seventh and Ninth Circuits, on the other hand, held that the question was not whether there was sufficient proof to carry the case to the jury, but that the court itself being the trier of the facts, had a right to apply its own judgment to the plaintiff’s evidence, even though there was some conflict in the plaintiff’s case, or even if there were two possible inferences to be drawn from the plaintiff’s case. The court as the trier of the facts, might apply its own judgment and grant or deny the motion accordingly. Findings of fact were, therefore, held necessary. Gary Theatre v. Columbia Picture Corp., 7 Cir., 1941, 120 F.2d 891; Bach v. Friden Calculating Machine Co., Inc., 6 Cir., 1945, 148 F.2d 407; Barr v. Equitable Life Assurance Society, 9 Cir., 1945, 149 F.2d 634.
In 1946 the Supreme Court amended Rule 41(b) as heretofore indicated by adding the following:
“ * * * in an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).”
Committee Note to Amended Subdivision (b), 5 Moore, Federal Practice, Par. 41.01, at p. 1006 (2 ed. 1951).
In Ettore v. Philco Television Broadcasting Corporation, 3 Cir., 1956, 229 F.2d 481, 484, 58 A.L.R.2d 626, a non-jury case, this court said in passing, no issue being raised on the question:
“ * * * When an involuntary dismissal has taken place under Rule 41(b), F.R.C.P., all facts supplied by the stipulation or coming upon the record from any other source and all reasonable inferences therefrom must be viewed in the light most favorable to the plaintiff.”
In Kahn v. Massler, 3 Cir., 1957, 241 F.2d 47, 48, in an appeal to this court from a decision in another non-jury case, although the question of the effect of the 1946 amendment came up it was not definitively ruled upon, the court saying:
“This is an appeal from a judgment of the District Court for the District of New Jersey. The trial judge granted, upon motion, an involuntary dismissal at the close of the plaintiffs’ case under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C. The district court felt itself bound by the dictum expressed by this Court in Ettore v. Philco Television Broadcasting Corporation, 3 Cir., 1956, 229 F.2d 481, 484, [58 A.L.R.2d 626,] to the effect that the evidence should be considered in the light most favorable to the plaintiff. D.C.D.N.J.1956, 140 F. Supp. 629, 632. In the Ettore opinion the court had in mind Fed.R.Civ.P. 41(b) as it was prior to the 1946 addition. The effect of the 1946 addition to Rule 41(b) did not have to be decided under the circumstances of the Ettore case and we need not examine the addition here. The effect of the 1946 addition * * has not been decided by this Court * * * »
There followed the decision in the Makowsky case holding that findings of fact were required on a motion under Rule 41 (b) in a jury case as aforesaid. Actually no findings had been filed and the court viewed the motion as if it were one for a directed verdict. Something of an anomaly is created by a comparison of the Federal Deposit Insurance Corporation and Schad, non-jury cases, where findings of fact were not required and Makowsky, a jury case, where the indication was that findings of fact were necessary.
Now we are confronted with a jury case in which a motion was made to dismiss at the close of the plaintiff’s case under Rule 41(b) on a count for patent infringement, the granting of the motion, the filing of findings of fact and conclusions of law and the challenge to those findings.
It appears timely to dissipate any confusion that may have grown out of the prior decisions of this court.
It is clear a motion under Rule 41(b) for dismissal at the end of plaintiff’s case, that upon the facts and the law the plaintiff has shown no right to relief, is proper in a case without a jury. Upon granting such a motion the court should make findings of fact and conclusions of law pursuant to Rule 52(a). Upon review the findings must be accepted unless clearly erroneous. It is equally clear that in a jury case the question only can be one of law. Therefore the motion should be for a directed verdict as mentioned in Rule 50. Sano v. Pennsylvania Railroad Company, 3 Cir., 1960, 282 F.2d 936; Kingston v. Mc-Grath, 9 Cir., 1956, 232 F.2d 495, 54 A. L.R.2d 267. If the court grants it no findings of fact are necessary and upon review the evidence must be viewed in the light most favorable to the party against whom the motion is made. Hence in this case it is held that no findings of fact were necessary, any indication in Makowsky v. Povlick, supra, to the contrary notwithstanding.
We will therefore treat the motion under Rule 41(b) in this case as one for a directed verdict, and will disregard the findings of fact of the trial court, reviewing the entire evidence in the light most favorable to the plaintiff and giving him the benefit of all reasonable inferences which may be deduced from the evidence in his favor, Warlich v. Miller, 3 Cir., 1944, 141 F.2d 168, a rule applying as well in patent cases. To adopt any other view in a jury case is to risk the deprivation of a plaintiff’s right to trial by jury under the Seventh Amendment. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458.
Having the foregoing in mind we now pass to O’Brien’s other contentions. He submits that the trial court erred in holding the patent invalid because of public use more than a year before the patent application was filed on November 29, 1947. It will be recalled that Westinghouse used the method of making dies with which many copper commutator bars were produced for installation in airplane motors. When a patentee has used the process of a patent to create a product which has been sold on the market more than one year prior to the patent application, such use of the process and sales constitute “prior use” within the meaning of 35 U.S.C. § 102(b). United States Chemical Corp. v. Plastic Glass Corp., 3 Cir., 1957, 243 F.2d 892. The evidence discloses that while O’Brien did not use the die making method himself, he allowed its use by Westinghouse. This is of no moment for when an inventor allows his invention to be used by other persons either with or without compensation, it will be in public use. Shaw v. Cooper, 1833, 7 Pet. 292, 32 U.S. 292, 8 L.Ed. 689; Root v. Third Avenue Railroad, 1892, 146 U.S. 210, 223, 13 S.Ct. 100, 36 L.Ed. 946; Huszar v. Cincinnati Chemical Works, 6 Cir., 1949, 172 F.2d 6.
O’Brien, however, insists that the use here was “secret” rather than “public” because as he contends “the undisputed evidence clearly shows that only one employee, namly Louis Byers, used the patented method biit did so in secrecy.”
In support of his position he cites Electric Storage Battery Co. v. Shimadzu, 1939, 307 U.S. 5, 20, 613, 616, 59 S.Ct. 675, 684, 83 L.Ed. 1071, to the effect that a secret use exists if “the machine, process, and product were not well known to the employees in the plant, or that efforts were made to conceal them from any one who had a legitimate interest in understanding them.” That case is clearly distinguishable. In it the Court was referring to a use by some one other than the inventor without the inventor’s knowledge. In this case the use by Westinghouse was clearly with the knowledge and consent of O’Brien and indeed at his insistence. Under the facts of this case even if Westinghouse kept the method secret but used it commercially with O’Brien’s knowledge and consent the use would be public. Metatallizing Engineering Co. v. Kenyon Bearing & A. P. Co., 2 Cir., 1946, 153 F.2d 516; Huszar v. Cincinnati Chemical Works, supra. In any event the record clearly shows that the die making method in issue was discussed or disclosed to many Westinghouse employees and discussed with representatives of other companies including Carboloy Company and Firth Sterling Steel Company.
O’Brien insists, however, that public use is not a defense “if an invention is ‘surreptitiously’ used by one other than the inventor”. O’Brien was given every opportunity to produce evidence that Westinghouse obtained and used the die making method by surreptitious means. The record discloses no such evidence.
O’Brien submits that he was the victim of an “unfair act”, upon the part of the secretary of the Suggestion Committee of Westinghouse who dissuaded him from filing an application for a patent on his suggested die making method by informing him that applications for patents could not be filed during the war. He also contends that Westinghouse is estopped from raising the defense of public use to the validity of the patent. We see no merit in either of these contentions. We therefore agree with the trial court that the patent was invalid for prior public use.
O’Brien also urges that the trial court erred in holding that Westinghouse had a shop right that barred his claim for patent infringement. Consideration of this issue is not necessary in view of our agreement with the holding of the trial court that the patent is invalid because of a prior public use.
We now pass to a consideration of the trial court’s action in dismissing O’Brien’s claim for unfair competition, the subject of the second count of his complaint, on the ground that it did not have jurisdiction of that claim under 28 U.S.C.A. § 1338(b). Three reasons were given by the trial court for its action.
One was that the claim for patent infringement is not a substantial one within the meaning of the statute because of the holding of Westinghouse’s shop right and public use.
The requirement that the patent claim be substantial is designed to preclude a collusive back door approach to the federal court. The mere fact that in the case at bar it has been held that O’Brien’s claim for patent infringement is not good because the patent was invalid, does not deprive the patent claim of jurisdictional substantiality. Schreyer v. Casco Products Corp., 2 Cir., 1951, 190 F.2d 921, certiorari denied, 1952, 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683; American Securit Co. v. Shatterproof Glass Corp., D.C.D.Del.1958, 166 F.Supp. 813, affirmed 3 Cir., 1959, 268 F.2d 769.
In American Securit Co. v. Shatterproof Glass Corp., supra, Judge Steel correctly stated the test to be applied here, when he said:
“Presumably § 1338(b) means nothing more than the claim under the patent law must satisfy the test of substantiality generally exacted when a jurisdictional challenge is asserted in a federal court. In such instances the question is whether the claim jurisdictionally assailed is ‘obviously without merit’ or its unsoundness ‘ “clearly results from previous decisions” ’ of the Supreme Court. Levering & Garrigues Co. v. Morrin, 1933, 289 U.S. 103, 105, 53 S.Ct. 549, 550, 77 L.Ed. 1062. Jurisdiction to adjudicate is wanting only where the federal claims stated in the complaint are so unsubstantial as ‘to be frivolous or * * * plainly without color of merit’. Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 306, 44 S.Ct. 96, 98, 68 L.Ed. 308. If it appears that a plaintiff is *not really relying upon the patent law for his alleged rights’ then the claim does ‘not really and substantially involve a controversy within the jurisdiction of the court’; otherwise jurisdiction exists regardless of whether the claim ultimately be held good or bad. The Fair v. Kohler Die & Specialty Co., 1913, 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.” (Emphasis supplied.) 166 F.Supp. 813, 824.
The evidence adduced here does not indicate that the patent claim was frivolous or colorable or contrary to controlling cases. It follows therefore that O'Brien’s patent claim was substantial within the purview of § 1338(b).
Another reason advanced by the trial court for failure of jurisdiction under that section was that the claim for unfair competition is not related to the claim for patent infringement “because the former arose in 1943 whereas the latter did not arise until the patent is-
sued on November 23, 1954 and thus the two claims involve widely different periods of time and different proof.”
A related claim as used in the statute refers to one which may be proved by substantially the same facts. Maternally Yours, Inc. v. Your Maternity Shop, 2 Cir., 1956, 234 F.2d 538; American Securit Co. v. Shatterproof Glass Corp., supra; Bullock v. Sears, Roebuck Co., D.C.N.D.N.Y.1956, 142 F.Supp. 646; Falcon Products v. Hollow Rod Sales & Service Co., D.C.S.D.Cal.1955, 135 F. Supp. 91. Virtual identity of proof of the federal and non-federal claims is not required. Maternally Yours, Inc. v. Your Maternity Shop, supra; American Securit Co. v. Shatterproof Glass Corp., supra. The fact that the claims for unfair competition arose prior to the claim for patent infringement does not make the former unrelated to the latter. Darsyn Laboratories v. Lenox Laboratories, D.C. D.N.J.1954, 120 F.Supp. 42, affirmed 3 Cir., 1954, 217 F.2d 648. Difference in time was not regarded as crucial in determining whether a claim was related under § 1338(b), in Maternally Yours, Inc. v. Your Maternity Shop, supra.
In Falcon Products v. Hollow Rod Sales & Service Co., supra, the claim for unfair competition under § 1338(b) was based on the use of confidential information disclosed three years prior to the issuance of a patent. Moreover, as was pointed out in Darsyn Laboratories v. Lenox Laboratories, supra, a claim for unfair competition based on acquisition and conversion of a trade secret could only arise prior to the issuance of a patent. After the issuance of the patent such a claim for unfair competition would be inconsistent since the grant of the patent is a public disclosure not only of the process defined in the claims but also of any trade secrets described in the specifications.
Aside from the issue of chronological identity it is clear that a claim for unfair competition based on the misappropriation of a novel idea given in confidence is related to a claim for patent infringement under 28 U.S.C.A. § 1338(b). Schreyer v. Casco Products Corp., supra; Telechron, Inc. v. Parissi, 2 Cir., 1952, 197 F.2d 757; Kleinman v. Betty Dain Creations, 2 Cir., 1951, 189 F.2d 546, 549 (Dissent by Judge Clark). We therefore disagree with the ruling of the trial court that because the two claims involved different periods of time the claim for “unfair competition” is not related to the claim for patent infringement within the requirements of § 1338 (b).
Still another reason advanced by the trial court for failure of jurisdiction was that “The said cause of action is not in fact an action for unfair competition within the meaning. of 28 U.S.C.A. § 1338(b) because the parties were not in competition and the method involved was not submitted in confidence or misappropriated but was used with the consent and permission of plaintiff and plaintiff’s only claim is for an alleged breach of contract over which this Court has no jurisdiction in the absence of diversity of citizenship which does not exist.”
O’Brien submits that actual competition between the parties is not a required element of unfair competition as the term is used in § 1338(b).
It has long been held that the doctrine of unfair competition extends to the misappropriation for the commercial advantage of one person of a benefit or a property right belonging to another. Ettore v. Philco Television Broadcasting Corp., 3 Cir., 1956, 229 F.2d 481; Schreyer v. Casco Products Corp., supra; Telechron, Inc. v. Parissi, supra. Moreover, it has been said:
“Competition, direct or indirect, is not an essential element of the action [unfair competition], * * * There is no fetish in the word competition. The invocation of equity rests more vitally upon unfairness.” 1 Nims, Unfair Competition and Trade-Marks, p. 4 (4th ed. 1947).
In Federal Trade Commission v. Real Products Corp., 2 Cir., 1937, 90 F.2d 617, it was held that all persons are free to enter the trade at any time and are therefore potential competitors.
We therefore differ with the trial court in its holding that there was no jurisdiction over the second count for unfair competition on the ground that the parties were not in actual competition.
We do, however, agree that the die making method involved was not submitted in confidence or misappropriated but was used by Westinghouse with the consent and permission of O’Brien, but we make this holding on the merits rather than on the question of jurisdiction. Cf. Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308; The Fair v. Kohler Die Co., 1912, 228 U.S. 22, 33 S.Ct. 410, 57 L.Ed. 716.
To recapitulate the evidence submitted in O’Brien’s own case: He made his suggestions on forms furnished by the company at the top of which is the statement “Suggestions of outstanding merit will be sent to the War Production Board, Washington, D. C.” Each form also carried the notation “The Suggestion Committee will act as a clearing house for suggestions which will aid in the general War effort and having no Westinghouse application.” The suggestion form was not marked with any security classification such as “restricted”, “confidential” or “secret”. At the bottom of the form was written “All suggestions become the property of the Company.” O’Brien desired to have his suggestion used to the point of insistence. Only in that way could savings be effected and he receive an award. Westinghouse was willing to pay him a given percentage out of any savings accruing to it by reason of the use of his suggestion and did so, although the amount due came into dispute. As suggested by the trial court there is at most a dispute between O’Brien and Westinghouse as to whether there has been paid to him all of the percentage of savings accruing to Westinghouse which is due to him and that controversy was not for the federal court.
Viewing the evidence introduced by O’Brien in a light most favorable to him (as we must in considering a motion for a directed verdict) it is clear that no reasonable jury could find that the die making method was submitted in confidence or misappropriated.
We have not overlooked the fact that O’Brien claims he was not permitted to introduce all of the evidence he had on the issue of unfair competition. In his brief, however, he asserts that such evidence concerns his defenses on the issues of shop right and public use. Those issues are specifically related to his claim for patent infringement and not his claim for unfair competition. We cannot perceive how any evidence O’Brien may yet introduce on the issues of shop right and public use could change the holding that he has no claim for unfair competition.
We therefore conclude that the trial court had jurisdiction of the claim for unfair competition under § 1338(b), but Westinghouse is entitled to a verdict in its favor on the second count of the complaint on the merits because the proofs of the plaintiff failed to disclose unfair competition. We have indicated approval of the ruling of the trial court on the first count for patent infringement. Its ruling on the second count for unfair competition also will be affirmed but for the reasons assigned herein.
. The claims of Patent No. 2,694,951 are directed solely to a method of making a split-tungsten-carbide die such as used for drawing copper bars.
The die involved in this action has been held to be unpatentable by a final decision of the Court of Appeals for the District of Columbia of December 18, 1958, in a suit brought by O’Brien against the Commissioner of Patents, No. 14,379. Plaintiff can recover no damages for patent infringement for the use of the unpatented die, but is limited to damages because of the use of the method of making tbe die as covered by the patent claims. Paragraphs 5 and 8 of the pretrial order entered by the trial court on March 30, 1959 with the consent of the parties.
. Section 1338(b) of Title 28 U.S.C.A. provides:
“(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent or trade-mark laws.”
. At the top of the suggestion form there appears the following language:
“Your Country in the interest of National Defense and our Victory objective, needs your ideas and your ingenuity in the form of practical suggestions. Ideas, that will speed up production, conserve labor and materials, and otherwise promote our war efforts, are urgently needed.
“Suggestions of outstanding merit, will be sent to the War Production Board, Washington, D. C.
"The Suggestion Committee will act also as a clearing house for suggestions which will aid in the general war effort, but having no Westinghouse application.
“To help your Country, your Company, and you, to win the fight for Victory, send your ideas to the Suggestion Committee, using this form, or any piece of paper. Keep ’em flowing! More Production Sooner!”
At the bottom of the form it was stated:
“All suggestions become tbe property of tbe Company.”
. The Manual further provided:
“12. Determination of Awards “a. In all cases where suggestions result in a calculable savings, it is recommended that the award be based on ten per cent (10%) of the net savings or five per cent (5%) of the gross savings, whichever amount is the greater. (Careful attention should be given before paying higher percentages than the above.)
# * * u
$ $ # * *
“(1) In determining savings, the following factors should be considered whenever applicable: labor savings, material savings, increased production, operations eliminated, reduction of material cost, use of cheaper stock, etc., as estimated for one (1) year from the date the suggestion is placed in operation * *
. No explanation is offered in the record as to the difference between $770.95 and $845.
. The trial court disposed of the motion as follows:
“I hold in this ease — I’m sorry, I have to hold in this case what I can see the law to be, based on the evidence that you presented, Mr. Ruano, and my ruling on that — I’m going to suggest that counsel put the matter in findings, because if I grant the motion under 41(b) I have got to make findings. Findings should be based on a contractual relationship, and because of that contractual relationship Westinghouse had the right to use that, they were to pay him certain monies, but that is not this case, see? The suit on the patent, he cannot assert any claim or relief under the patent in this case. The court doesn’t have jurisdiction of the other matter, the contract or the unfair competition.”
Subsequently the court filed written findings of fact and conclusions of law. The conclusions of law are as follows:
“1. This Court has jurisdiction of the cause of action for patent infringement by virtue of 28 USC 1338(a).
“2. Defendant has a shop right to use the method of the patent in issue because the method was worked out, developed and reduced to practice by a group of employees of defendant, working under the direction of supervisory employees of defendant in the shops and laboratories of defendant on time paid for by defendant, using materials, tools, machines and equipment paid for and owned by defendant with the full knowledge, approval and consent of plaintiff.
“3. The patent in issue is invalid because of public use within the established legal meaning of 35 USO 102(b) more than one year before the patent application was filed on November 29, 1947, in that defendant began making dies using the method claimed in the O’Brien patent in 1943 and continued making such dies using the claimed method in the years 1944 and 1945. Such dies were used in those years for the regular production of copper bars for shipment, use and sale.
“4. This Court does not have jurisdiction under 28 USO 1338(b) of the causes of action denominated as unfair competition for each of the following reasons:
“a. The said cause of action is not in fact an action for unfair competition within the meaning of 28 USC 1338(b) because the parties were not in competition and the method involved was not submitted in confidence or misappropriated but was used with the consent and permission of plaintiff, and plaintiff’s only claim is for an alleged breach of contract over which this Court has no jurisdiction in the absence of diversity of citizenship which does not exist here.
‘‘b. The claim for patent infringement is not a substantial one within the meaning of 28 USC 1338(b) for each of the following reasons:
“(1) It is clear from the admissions in the pleadings and plaintiff’s own evi-
deuce that defendant has a shop right in the invention in issue; and
“(2) The invalidity of plaintiff’s patent by reason of prior public use clearly appears from the admission in the pleadings and plaintiff’s own evidence.
“c. The claim for so-called unfair competition is not related to the claim for patent infringement within the meaning of 28 USO 1338(b) because the former arose in 1943, whereas the latter did not arise until the patent issued on November 23, 1954 and thus the two claims involve widely different periods of time and different proof.”
. Rule 41(b) as pertinent here, provides:
“ * * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall malee findings as provided in Rule 5B(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.”
The italicized two sentences were
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_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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHICAGO ROLL FORMING CORPORATION, and Machinery, Scrap Iron, Metal and Steel, Chauffeurs, Warehousemen, Handlers, Helpers and Alloy Fabricators Union, Local 714, I.B. of T., Respondents.
No. 17318.
United States Court of Appeals Seventh Circuit.
Nov. 6, 1969.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Ian Lanoff, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Michael N. Sohn, Jerome Weinstein, Attys., N. L. R. B., for petitioner.
Marvin Sacks, Chicago, 111., Levin & Berger, Chicago, 111., of counsel, for respondent Union.
Before DUFFY, Senior Circuit Judge, SWYGERT and CUMMINGS, Circuit Judges.
DUFFY, Senior Circuit Judge.
The National Labor Relations Board (Board) petitions for enforcement of its decision and order issued on October 23, 1967, finding respondent Chicago Roll Forming Corporation (Company) and the Union guilty of violating respectively Section 8(a) (1) and (3) and Section 8 (b) (1) (A) and (2) of the National Labor Relations Act (Act) as amended, (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151 et seq.) Although the Company has acquiesced in the Board’s ruling, the Union challenges it.
The Board found that the Company and Union through their agent Bone respectively violated the Act by threatening various employees with reprisals and in discharging and causing the discharge of employees Scott, Hawkins and Walker because they engaged in protected union activities.
James Bone was the Union steward for the Company’s production, maintenance and shipping employees. Harold Beebe was the Company’s president; Gobal Stalker was the plant superintendent. Richard Schumacher was the Union business representative.
Bone, as Union steward, signed up employees for the Union. He would also present grievances including the matter of discharges to superintendent Stalker. Bone would aid an employee in his presentation of grievances to Stalker. If the matter was not resolved, Bone would then .confer with Beebe.
Bone had additional responsibilities to those pertinent to his position as Union steward. For a period he was identified as “foreman” and leadman in the Company’s paintshop and in September 1965, he became the leadman in charge of fifteen employees in the welding and fabrication department. As leadman, Bone was responsible for the completion by his department of work orders which had been given to him to fill.
Bone assigned jobs to the employees under him and described to them the welding work to be done. He trained new welders, inspected the work and ordered corrections when necessary. Bone had a desk in the welding department for the performance of paper work.
When Bone was short handed, he would inform superintendent Stalker who would either obtain additional help or would authorize Bone to get more help from the leadmen of other departments.
When there was overtime to be worked in either the welding department or elsewhere, Bone, after authorization by Stalker, would recruit and select the employees to handle same.
Bone occasionally recommended employees for hire, promotion, discipline and discharge, but he did not have final authority in these areas. Bone’s duties as leadman took up about 50% of his time. Bone was paid by the hour and received the same overtime premiums that the hourly workers received.
Union member James Scott was a laborer under Bone in the welding and fabrication department, and had been employed by the Company for about three years.
During the week ending November 6, 1965, James Scott became concerned over Bone’s concurrent duties as shop steward and as leadman for the Company. He and his wife drafted a protest letter stating that Bone could not give fair representation to the Union and to the Company at the same time.
Scott met with four Company employees at Scott’s home. They all signed the protest letter. Scott solicited signatures of nine additional employees. Two of these, Walker and Hawkins, had been recently employed by the Company and were not yet members of the Union. They were probationary employees.
Scott sent copies of the signed protest letter to Bone, to Union business representative Schumacher and to Joint Council No. 25 of the Teamsters Union. That same day, Bone asked employee Williams whether they were trying to stab him in the back. Bone then declared that “they would get” the employees “one by one for signing that petition.” In a conversation with Scott about Hawkins and Walker, Bone said “I am going to fire them.”
Plant superintendent Stalker asked Bone to inform Hawkins and Walker that he wanted to see them, but later Stalker approached these two employees at their respective work stations and told them to punch out and go home. Hawkins and Walker asked if there was something wrong with their work and Stalker replied “No” but the “big bosses couldn’t keep [him] any more * * * because [he was] trying to make trouble between the Union and the men.”
The Board also found that Walker asked superintendent Stalker why he was being discharged and whether his work was unsatisfactory, and that Stalker replied it was due to the letter he signed when he wasn’t in the Union. Bone also stated he was fired “because of the petition that [he] signed.”
The next day, Bone told Scott to report on the following day to the paint booth and replace Leonard Burton who, for the past year, had been operating the spray gun. Scott declined because of his sinus condition. The following morning Scott reported to Stalker at his office and again explained he could not take the paint job because of his sinus condition. Then Bone advised Scott to take the paint job but Scott replied he could not do so because of his health. Bone then said to Stalker “If he don’t take it, give him his check.” Scott asked Bone to file a grievance for him or to give him a statement for his discharge, but Bone refused. Stalker then brought Scott his final check and Scott left. Later Schumacher told Scott that president Beebe would not take Scott back under any circumstances.
The Board found that Bone was acting on behalf of the Union. The Board also found that Bone aided in the discharge of the three employees in his role as Union steward. On this basis the Union was held liable for Bone’s actions.
We must determine whether or not substantial evidence on the record as a whole supports the Board’s finding that James Bone, acting as the agent of the Union and supervisor for the Company, threatened employees because of their protected activities, and that the Union and the Company caused the discharge of employees James Scott, Eddie Walker and Willie Lee Hawkins also because of their protected activities. Revere Copper & Brass, Inc. v. N. L. R. B., 324 F.2d 132, 135 (7 Cir., 1963).
The voluminous record in this case is full of conflicting testimony. The trial examiner was required to make credibility resolutions. Saginaw Furniture Shops, Inc. v. N. L. R. B., 343 F.2d 515, 516 (7 Cir., 1965), and he did so. On the basis of his credibility resolutions, the trial examiner found the testimony of Stalker as to the alleged loafing incidents by Hawkins and Walker was manufactured out of whole cloth.
Pertinent is the language in Saginaw Furniture Shops, Inc., supra,, at page 517: “Petitioner contends that there is greater reason to accept the testimony of its witnesses than those called by the General Counsel. If we were to decide the case de novo upon our reading of a dry record, we might be inclined to accept petitioner’s version of the facts. Our role, however, is limited. Where there is a conflict in the testimony of witnesses, the determination of credibility is peculiarly for the trial examiner as the trier of facts. Sunshine Biscuits, Inc. v. N. L. R. B., 274 F.2d 738 (7 Cir., 1960). Moreover, if the credited testimony supports conflicting inferences, the inferences drawn by the examiner must be accepted if reasonable when considered in the light of the entire record. Sunshine Biscuits, Inc. v. N. L. R. B., supra. The briefs and oral argument present us with two hopelessly irreconcilable versions of what took place * * *. Consequently we are constrained to resolve the questions before us by utilizing the norms we have just stated.”
Walker testified he was never reprimanded by the Company official or representative for being either late or absent. Hawkins testified he was criticized by Stalker for being late on only one occasion, but at the same time he was complimented on the good work he was doing in the paint shop.
We hold the Board had substantial credible evidence to conclude that in view of the testimony of Bone’s explicit threats to fire Walker and Hawkins because they signed the protest, and since neither Walker nor Hawkins was late or absent on November 26 when they were fired, that the alleged past misconduct of these employees was resurrected. That the real motivation in their dis-charge was their participation in the letter of protest.
As to Scott, his dismissal came just two days after Bone received the protest which he had prepared. Bone’s remark, credited by the trial examiner, “they would get one by one” the employees who participated in the protest, indicates clearly the true reason for Scott’s dismissal. It is undisputed that Scott had performed his work well for over three years of his employment although at one point he was forced to change his job classification from welder to laborer because of his health problem.
The Board had substantial credible evidence and was justified in holding that neither Bone nor Stalker was genuinely interested in replacing Burton for the operation of the spray gun although that was the reason given for Scott’s new assignment.
There is substantial credible evidence on the record as a whole that the reasons asserted for Scott’s dismissal were false, and that the real motive was to get rid of the man who sought to upset the roles which Bone played as leadman for the Company and steward for the Union.
We hold there is substantial credible evidence to justify the Board concluding that Bone was acting on behalf of the respondent Union. We therefore uphold the Board’s ruling that the respondent Union should be liable for the acts performed on its behalf by its agent Bone.
We hold that the order of the Board should be
Enforced.
. The Board’s decision and order are reported at 167 NLRB No. 134.
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_r_fed | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
McCARTHY et al. v. SAFEWAY STORES, Inc.
No. 21, Docket 20239.
Circuit Court of Appeals, Second Circuit.
Oct. 24, 1946.
Abraham M. Fisch, of New York City, for appellants.
Harold Schaffner and Reginald V. Spell, both of New York City, for appellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
PER CURIAM.
The plaintiffs appeal from a judgment dismissing their complaint, entered upon the verdict of a jury, in an action to recover damages for the defendant’s negligent driving of one of its trucks. The only point presented is that the testimony so clearly established the defendant’s negligence that the judge should have taken the issue from the jury. However, at the close of the evidence the plaintiffs did not ask the .judge to do this, and to leave them only the amount of the damages: and it necessarily follows that he did not commit any error in not doing so. Not only was he not bound so to limit the issues; but it would have been an error if he had, for he would have deprived the plaintiffs of that right to a verdict which they had demanded in their complaint under Federal Rules of Civil. Procedure, rule 38(b), 28 U.S.C.A. following section 723c, and which, had they succeeded, would have put them in a much stronger position on an appeal. This leaves nothing for us to review; nor does the order which denied the plaintiffs’ motion for a new trial. Flint v. Youngstown Sheet & Tube Co., 2 Cir., 143 F.2d 923.
The plaintiffs urge that there are cases where the verdict is so shockingly unjust that an appellate court will intervene ex mero motu, even though the defeated party has not asked that the issue should be taken from the jury; and, arguendo, we will assume that we have such a power .in extreme cases. Even so, there would be not the slightest justification for intervening here; for the case involved a straight conflict of testimony whose solution was not in the least obvious. On what conceivable theory it would have been proper for the judge, or would now be proper for us, to upset the verdict, we cannot imagine.
Judgment affirmed.
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_treat | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. Laura TROMBLEY, Defendant-Appellant.
No. 83-1492.
United States Court of Appeals, Sixth Circuit.
Argued March 15, 1984.
Decided April 25, 1984.
See also, D.C., 563 F.Supp. 564.
Gershwin A. Drain, Kenneth R. Sasse, argued, Detroit, Mich., for defendant-appellant.
Leonard R. Gilman, U.S. Atty., Michael J. Lavoie, Art Noel, argued, Detroit, Mich., for plaintiff-appellee.
Before KEITH and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
KEITH, Circuit Judge.
The appellant, Laura Trombley, was indicted in a multiple count indictment in which she and four other individuals were charged with violations of 18 U.S.C. § 2, § 2312 and § 2313. A jury trial was held, and appellant was convicted on Count Three of transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. §§ 2312 and 2. She was convicted on Count Four of receiving a stolen motor vehicle which was part of and constituted interstate commerce in violation of 18 U.S.C. § 2313. Appellant was sentenced to three years probation with a fine of $1,000 to be paid within two years. This appeal followed. For the reasons set forth below, we affirm.
In March of 1982, the FBI conducted an undercover project in Detroit known as Project Derings. The goal of the project was to have undercover agents introduced to individuals who were involved in large scale commercial auto theft rings. To facilitate the introduction, undercover FBI agents represented themselves as corrupt employees of the Michigan Secretary of State’s office who were selling fraudulent titles, registrations, and license plates to automobile thieves for $1,000.
Joseph Finnegan, an undercover agent, adopted the identity of Joe Booker and posed as a corrupt official of the Secretary’s Office. On June 16, 1982, Agent Finnegan prepared a Michigan vehicle title, registration, and a license plate for Laura Irene Trombley, who resided at 23072 North Brookside Drive, Dearborn Heights, Michigan. Finnegan delivered these documents to Gwen Clemens, who conveyed them to the appellant through Eric Fair (Eric Fair was also indicted in this case).
Approximately six months later, on December 9, 1982, Agent Finnegan recorded a telephone conversation with Ms. Trombley. The overall thrust of the conversation was her complaint that the paperwork for the 1981 Seville, which she had obtained from Eric Fair, did not adequately legitimize the stolen automobile. During this conversation, she made several admissions. The appellant admitted that she had acquired a 1981 Cadillac Seville for $3,700, instead of a Lincoln Continental, in approximately March of 1982. She also admitted that she took out a loan for $3,000 from General Finance, using the car as collateral. The loan was used to take a trip to Texas to visit her son who was in the hospital. In driving to Texas, appellant indicated that she had travelled across sixteen state lines, and in doing so, was concerned about the result if she had been stopped by police. She further admitted that she knew the car was “hot”. In response to the undercover agent’s question as to why she decided to acquire the car knowing it was “hot”, the appellant stated: “Well, because my son owed me some money and uh, my son knew Eric and Sam.” The appellant acknowledged that she knew that the vehicle identification number had been altered on the automobile. Finally, the appellant admitted that she had driven to Texas accompanied by her mother. Throughout the conversation, the defendant persisted in efforts to acquire additional paperwork for the automobile which she hoped would make it “legal”.
Eric Fair testified that he met the appellant through one of her sons and attempted to obtain a Lincoln Continental as requested by the appellant for $2,500. He was unable to obtain a Lincoln, but did acquire a 1981 Seville. He took the Seville to the house of one of appellant’s sons. Trombley inspected the car, which had a broken window and a damaged ignition. Ms. Trombley gave Fair money to repair these items, and the car was taken to her garage.
Fair also testified that the appellant contacted him some time later and told him the plates had expired and she could not get them renewed. Trombley told Fair that she had to get the plates renewed so that she could visit her son in Texas. Fair gave the appellant’s phone number to the undercover agent (Agent Finnegan) so he could contact her about the problem with the paperwork.
The evidence showed that the 1981 Cadillac had been stolen from Lorraine Harris in late February 1982. According to Ms. Harris the automobile had less than three thousand miles when stolen and was valued at $14,500. In December 1982 there were approximately eight thousand miles on the car’s odometer.
The appellant admitted that she travelled to Texas in the summer of 1982 but that she went in a 1968 Cadillac instead of the 1981 Cadillac Seville. She stated that she took the older car because it had more space for luggage and a roomier backseat for her mother. When confronted with her tape-recorded admission to undercover agent Finnegan that she had taken the Seville to Texas, she said that it was a false statement. The appellant said she told the undercover agent she had taken the car across state lines in an effort to try and scare him into getting proper paperwork.
The sole question presented for review is whether appellant’s pre-arrest, out-of-court admission to an undercover government agent that she transported a stolen motor vehicle between Michigan and Texas was sufficiently corroborated to establish the jurisdictional element of interstate transportation.
The appellant contends that the government relied entirely on the tape recorded admissions made during the conversation with the undercover FBI agent to prove that the stolen 1981 Cadillac Seville travelled in interstate commerce. The appellant claims that because the prosecution failed to provide any independent corroboration of the admission, the conviction should be reversed. The government submits that the appellant’s admission that the stolen 1981 Cadillac Seville was transported to Texas was corroborated elsewhere in the government’s case. Furthermore, even if corroboration was lacking, the defendant’s entire statement to the undercover agent was amply corroborated as a whole, and sufficient to prove interstate transportation.
The Supreme Court has recognized that the government must introduce independent evidence to establish the trustworthiness of a defendant’s statement. Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954). The Supreme Court further held in Smith v. United States, 348 U.S. 147, 155, 75 S.Ct. 194, 198, 99 L.Ed. 192 (1954) that the corroboration rule was applicable not only to confessions but also to mere admissions where the admission is made after the fact to an official charged with investigating the possibility of wrongdoing, and the statement embraces an element of the case.
It is generally recognized that corroboration in federal court does not entail independent proof of each element of the offense charged. The purpose of corroboration is to ensure the reliability of the confession or admission of the accused. United States v. Bukowski, 435 F.2d 1094, 1106 (7th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Thus, the requirement is only that there be extrinsic evidence corroborating the admission as a whole which, taken together with the admission, is sufficient to support a finding of guilt beyond a reasonable doubt. United States v. Gravitt, 484 F.2d 375, 381 (5th Cir.), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1973). If there is extrinsic evidence tending to corroborate the confession, the confession as a whole is admissible, and some elements of the offense may be proven entirely on the basis of a corroborated confession. United States v. White, 493 F.2d 3 (5th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 186, 42 L.Ed.2d 147 (1974).
In United States v. Wilson, 436 F.2d 122 (3d Cir.), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 654 (1971), the court examined a corroboration issue which is virtually on all fours with the present case. In Wilson, the defendant made an admission to a Philadelphia detective that he drove a Dodge Charger from Philadelphia to California. In other parts of the defendant’s admission he stated where he had purchased the car and that he was stopped by a policeman in California. These other parts of defendant’s admission were corroborated. The court stated that since two parts of the defendant’s admission were corroborated by other evidence, this established the trustworthiness of the entire admission and the prosecutor could prove the element of interstate transportation solely by the defendant’s admission.
In the present case, the government could prove the interstate transportation element entirely by the appellant’s statements to Agent Finnegan, provided there were other parts of the defendant’s statement which were corroborated.
The appellant talked with the undercover agent because she had been told by Eric Fair that he was the one who provided the paperwork in the past for the stolen car. Since appellant was unable to obtain renewed license plates for the car, she contacted the undercover agent to obtain the necessary paperwork from him. During this conversation appellant made numerous admissions relative to her acquisition of the stolen car, her use of the stolen car, her knowledge that the car was stolen, and her transportation of the car from Michigan to Texas and back. Specifically, she admitted the following: that she received the car from Eric Fair; that she had two different sets of papers for the car; that the first set was entirely wrong; that she paid $3,700 in full for the car; that she had initially ordered a Mark VI for $2,500, but had to pay an additional $1,200 for the Cadillac Seville because it was “too hard to take”; that she took the car across sixteen state lines to visit her injured son in Texas; that she knew the car was stolen; that she bought the car knowing it was “hot” because her son owed her some money and this would “cross the bill off”; that her mother went to Texas with her; and that she knew the vehicle identification number was altered by changing a five to an eight. In the second conversation, held minutes after the first one, the appellant continued to complain about the adequacy of the paperwork for the car and persisted in her attempts to obtain paperwork which would “legitimize” the stolen car. At one point appellant again admitted that she knew the car was stolen, and said “they tell me this is all legal when they give you this paperwork”.
The appellant’s preceding statements were corroborated by other evidence presented in this case. Eric Fair testified that he delivered the stolen car to Trombley’s house, that the vehicle identification number had been changed, that he delivered the paperwork for the stolen car to the appellant, and that she told him she was going to see her sick son in Texas. The appellant’s admission that the vehicle identification number was altered from five to eight was also corroborated. Special Agent Charles Poplinger of the FBI testified as an expert witness that the defendant’s title contained a vehicle identification number which had been altered by changing a five to an eight. Additionally, all defense witnesses testified that Trombley travelled to Texas in the summer of 1982 to visit her sick son.
The appellant’s admission that she drove across state lines is also corroborated. Lorraine Harris, the owner of the car, testified that the car was stolen in February of 1982 and that there were less than three thousand miles on the car at the time of the theft. The appellant testified that there were approximately eight thousand miles on the car when she talked to the undercover agent in December of 1982. The only reasonable explanation for the additional five thousand miles was the appellant’s trip to Texas. The appellant testified that she did not drive the car prior to obtaining insurance on July 14, 1982. Approximately one week later she left for Texas. On October 22, 1982, appellant’s husband attempted to get new plates for the car, but was unable to do so. After this date the car was kept in the appellant’s garage. Therefore, the only reasonable explanation for the additional mileage was the trip to Texas. These facts corroborate the appellant’s admission that she drove to Texas.
Based on these facts, corroboration exists for both the whole and the part of the appellant’s admission, establishing the jurisdictional element of interstate transportation.
Accordingly, we affirm the judgment of the Honorable Thomas P. Thornton of the United States District Court for the Eastern District of Michigan.
. Title 18 U.S.C. § 2 provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
Title 18 U.S.C. § 2312 provides:
Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Title 18 U.S.C. § 2313 provides:
Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
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_state | 54 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America v. John W. JENRETTE, Appellant.
No. 83-2281.
United States Court of Appeals, District of Columbia Circuit.
Argued May 23, 1984.
Decided Sept. 18, 1984.
Kenneth M. Robinson and W. Gary Kohl-man, Washington, D.C., with whom Dennis M. Hart and Stanley Brand, Washington, D.C., were on the brief, for appellant.
Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Reid H. Weingarten, Atty., U.S. Dept, of Justice, Washington, D.C., were on the brief, for appellee.
Before WRIGHT, TAMM and STARR, Circuit Judges.
Opinion for the court filed by Circuit Judge TAMM.
TAMM, Circuit Judge:
Former Congressman John Jenrette appeals his conviction on bribery charges stemming from the undercover operation by the Federal Bureau of Investigation (FBI) known as “Abscam.” Jenrette contends that 1) the trial court erred in declining to instruct the jury on the defense of duress; 2) the evidence adduced at trial established entrapment as a matter of law; 3) the FBI’s conduct during the investigation violated principles of due process; and 4) the government failed to disclose certain evidence required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the reasons expressed below, we affirm the conviction.
I. Background
This court is by now quite familiar with the FBI’s undercover operation known as Abscam. See United States v. Weisz, 718 F.2d 413, 416-17 (D.C.Cir.1983), cert. denied, — U.S. -, -, 104 S.Ct. 1285, 1305, 79 L.Ed.2d 688, 704 (1984); United States v. Kelly, 707 F.2d 1460, 1461-63 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983). The Abscam operation involved a fictitious, FBI-created entity, Abdul Enterprises, which was purportedly operated by wealthy Arabs interested in United States investments. During the period relevant to this case, FBI agent Anthony Amoroso assumed the role of president of the organization, and Melvin Weinberg posed as its financial advisor. Through various “middlemen,” Weinberg and Amoroso offered bribes to members of Congress. In return, the Abscam operatives asked the congressmen to introduce private legislation that would permit their Arab clients to immigrate to the United States.
Jenrette became involved in the Abscam operation through his friend and co-defendant John Stowe. In November 1979, Weinberg told Stowe that his Arab clients were interested in discussing with Jenrette the possibility of a private immigration bill. Weinberg asked Stowe to determine whether Jenrette would introduce such a bill for $100,000. Trial Transcript (Tr.) (Amoroso), Joint Appendix (J.A.) volume II (II) at 227-28. On December 3, 1979, Stowe met with Weinberg and Amoroso to arrange a meeting with Jenrette.
The events that resulted in Jenrette’s indictment for bribery began on December 4-6, 1979. On December 4, Jenrette and Stowe met with Weinberg and Amoroso at a townhouse on W Street in Washington, D.C. During the meeting, Amoroso explained that his clients needed help immigrating to the United States. Transcript of Taped Meeting of Dec. 4, 1979. J.A. volume III (III) at 737-43. Jenrette stated that he would introduce or arrange to have introduced a private immigration bill. Id. at 744. Amoroso then told Jenrette: “We’re talking about fifty thousand dollars now and fifty thousand dollars when this thing is introduced.” Id. at 747. After some discussion about simultaneously introducing a bill in the Senate, Jenrette indicated that he would like to review the immigration laws before accepting the money. Id. at 759. Jenrette explained that he didn’t want to take the money without “feeling comfortable about being able to do it.” Id. at 760. Although Amoroso again offered Jenrette the money during the December 4 meeting, Jenrette postponed his response until the following day when he would know whether he could help Amoroso’s clients. Id. at 766-70. Jenrette then assured Amoroso: “[D]on’t get me wrong... I got larceny in my blood. I’d take it in a... minute.” Id. at 772.
Jenrette phoned Amoroso the following day and stated that he would go forward with the transaction but probably could not arrange a meeting that day. Transcript of Telephone Call of Dec. 5, 1979. J.A. Ill at 788-89. On December 6, Jenrette informed Amoroso by telephone that he wanted Stowe to pick up the money. Jenrette explained that if Stowe received the money, he (Jenrette) would be “a little bit... away from a section in the code about... public officials.” Transcript of Telephone Call of Dec. 6, 1979, J.A. Ill at 799. Amoroso agreed to give the money to Stowe. Id. at 800. After Stowe picked up the money, Jenrette confirmed with Amoroso receipt of the $50,000. Transcript of Telephone Call of Dec. 6, 1979, J.A. Ill at 806-07.
On January 7, 1980, Jenrette and Stowe again met with Amoroso and Weinberg. At this meeting, Jenrette brought up the immigration problem and indicated that he might be able to get Senator Strom Thurmond interested in the deal. Transcript of Meeting of Jan. 7, 1980, J.A. Ill at 852-53. Jenrette and Stowe continued to have contact with the Abscam agents regarding the proposed bribery of Senator Thurmond until their arrest on February 2, 1980.
On June 13, 1980, Jenrette and Stowe were indicted on one count of conspiracy to commit bribery and two counts of bribery. After a full trial, a jury found Jenrette and Stowe guilty on all counts. Both Stowe and Jenrette filed motions seeking a judgment of acquittal on the ground that the government’s investigation was so outrageous as to offend due process, and that the evidence established entrapment as a matter of law. Alternatively, Jenrette and Stowe sought a new trial on the ground that the government failed to comply with the disclosure requirement of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After a lengthy post-trial hearing, United States District Judge John Garrett Penn denied the motions. United States v. Jenrette, Cr. No. 80-289 (D.D.C. Aug. 4, 1983), J.A. volume 1(1) at 83-84. Subsequently, Jenrette was sentenced to two years’ imprisonment and fined $30,000.
Jenrette appeals his conviction and the denial of his motion for acquittal or retrial. In addition to the three claims raised in his motion before the district court, Jenrette asserts that the district judge erred in refusing to instruct the jury on the defense of duress. For the reasons set forth below, we find Jenrette’s contentions merit-less. Accordingly, we affirm the conviction and the district court’s judgment.
II. Analysis
A. Duress
The defense of duress excuses criminal conduct only where the defendant committed the illegal action “under an unlawful threat of imminent death or serious bodily injury____” United States v. Bailey, 444 U.S. 394, 409, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980). If the defendant had any reasonable, legal alternative to committing the crime, the defense of duress will not obtain. Id. at 410, 100 S.Ct. at 634. In most eases, a defendant need not produce strong evidence to obtain a jury instruction on duress. Where, however, the evidence is insufficient as a matter of law to support a finding of duress, the district court’s refusal to instruct the jury on duress is not erroneous. United States v. Shapiro, 669 F.2d 593, 596-97 (9th Cir.1982). See United States v. Peltier, 693 F.2d 96, 98 (9th Cir.1982) (per curiam). See also United States v. Bailey, 444 U.S. at 412, 100 S.Ct. at 635.
Jenrette contends that he accepted the bribe only because he feared death or injury at the hands of Weinberg and Amoroso. According to Jenrette, Weinberg and Amoroso deliberately portrayed themselves as mobsters. Jenrette maintains that because he suffers from paranoia induced by alcoholism, this “gangster image” induced a reasonable fear of imminent danger. Jenrette testified that his fears were substantiated by a threat from Weinberg.
We conclude that the evidence offered by Jenrette is insufficient as a matter of law to justify a finding of duress. Assuming that Jenrette reasonably believed Weinberg and Amoroso were gangsters and that this belief produced a reasonable fear, we still find no evidence that Jenrette was threatened with imminent bodily harm on December 6 when he accepted the bribe. Similarly, Jenrette cites no evidence in the record that a threat of imminent harm at the January 7 meeting caused him to suggest involving Senator Thurmond in the immigration deal. Furthermore, Jenrette does not argue that he had no reasonable, legal alternative to accepting the bribe money. As noted, the bribe was first offered at the December 4, 1979 meeting. Although Jenrette allegedly feared for his life, he did not accept the money on December 4. Instead, he left the townhouse and made arrangements for an intermediary to collect the money two days later. Even if Jenrette reasonably believed he was in imminent danger while at the townhouse, he has offered no explanation for his failure to take alternative action, such as notifying law enforcement officials, during the next two days.
Jenrette’s actions belie his assertion that he acted under threat of imminent harm and that he had no alternative but to accept the bribe. Accordingly, we find, as a matter of law, that the cited evidence cannot support acquittal on the basis of duress. The district court, therefore, did not err in declining to instruct the jury on the defense of duress. See United States v. Shapiro, 669 F.2d at 596-97.
B. Entrapment
Entrapment occurs when a defendant commits a crime not due to any predisposition, but solely as a result of government inducement. See United States v. Russell, 411 U.S. 423, 428-29, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973). A defendant raises the issue of entrapment by producing evidence of government inducement. United States v. Burkley, 591 F.2d 903, 911-16 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979). Once the defendant properly raises the defense, the prosecution bears the burden of disproving entrapment by showing beyond a reasonable doubt that the defendant was predisposed to commit the crime. Id. at 915-16. Jenrette contends that the government failed to sustain its burden to prove predisposition. Consequently, Jenrette argues that, as a matter of law, the defense of entrapment bars his conviction.
We note at the outset that the scope of our review is limited. At trial, the issue of entrapment was submitted to and rejected by the jury. We may overturn the jury’s rejection of the entrapment defense only if no reasonable jury could have found that the government proved predisposition beyond a reasonable doubt based on the evidence produced at trial. See United States v. Jannotti, 673 F.2d 578, 599 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). After reviewing the record in this case, we conclude that there was ample evidence to support the jury’s verdict.
A defendant is predisposed if he exhibits a “ ‘state of mind which readily responds to the opportunity furnished by the [government] to commit [the crime] ____’” United States v. Burkley, 591 F.2d at 916 (quoting Hansford v. United States, 303 F.2d 219, 222 (D.C.Cir.1962) (en banc)). Predisposition may be proved by showing that the defendant “responded affirmatively to less than compelling inducement ____” Id. at 916. Here, the videotape of the December 4 meeting and the taped phone conversations of December 5 and 6 demonstrate that Jenrette readily responded to the government’s bribe. Jenrette’s statements during the meeting indicate that he was well aware that the Ab-scam agents were offering a bribe and that accepting the bribe was illegal. Although Jenrette refused to take the money on December 4, his assurances that he had “larceny in [his] blood” and his suggestion that a third person receive the money indicate that his refusal did not stem from an unwillingness to accept a bribe. Rather, Jenrette’s own statements suggest that he refused the money only because he was concerned about his ability to perform his end of the bargain and because he wished to formally insulate himself from illegal activities. After accepting the bribe on December 6, Jenrette further exhibited a willingness to commit illegal acts by suggesting the possibility of bribing another government official. In light of this evidence, we cannot say that no reasonable jury could have found that Jenrette was predisposed to commit the crime.
Jenrette argues, however, that the nature and scope of the government’s inducement effectively negates this evidence of predisposition. First, Jenrette contends that the government made several unsuccessful attempts to engage him in illegal conduct prior to the December 4 meeting. Second, Jenrette argues that after he refused the bribe on December 4, he was threatened by Amoroso and Weinberg until he accepted the bribe on December 6. Finally, Jenrette contends that the amount of the bribe was so excessive, especially in light of his financial and psychological condition, as to constitute compelling inducement sufficient to overcome the government’s evidence of predisposition.
We are again mindful that we may overturn the jury’s finding of predisposition only if no reasonable jury could have made such a finding in light of the evidence. The evidence adduced at trial does not conclusively establish that Jenrette was subjected to persistent attempted inducements. Similarly, the transcripts of the recorded telephone conversations of December 5 and 6 contain no evidence that Weinberg or Amoroso employed threats to assure Jenrette’s acceptance of the bribe. Transcripts of telephone conversations of Dec. 5 & 6, 1979, J.A. III at 779-824. We find this evidence insufficient to warrant overturning the jury’s verdict.
Similarly, we must reject the claim that the amount of money offered as a bribe in and of itself shows a lack of predisposition. We need not determine here whether a promised monetary reward can ever be so substantial as to establish a lack of predisposition. We conclude only that under the circumstances of this case, the amount of the bribe was not so excessive as to mandate a finding that no reasonable jury could have found predisposition.
In sum, we find sufficient evidence to support the jury’s rejection of the entrapment defense. Accordingly, we reject Jenrette’s assertion that the evidence at trial established entrapment as a matter of law.
C. Due Process
Jenrette further contends that the FBI’s Abscam investigation, as directed toward him, was so outrageous that principles of due process bar his conviction. In United States v. Kelly, 707 F.2d 1460 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983), this court rejected a similar claim that the government’s conduct of the Abscam investigation violated fundamental fairness. The panel concluded that the due process clause bars a conviction only in the “rare instance of ‘[pjolice overinvolvement in crime’ that reaches 'a demonstrable level of outrageousness.’ ” Id. at 1476 (quoting Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring)). The Kelly panel determined that such a level of outrageousness is not established by showing “obnoxious behavior or even flagrant misconduct on the part of the police[.]” Id. at 1476. Rather, due process guarantees are violated only in the narrow category of cases where the challenged conduct includes “coercion, violence, or brutality to the person.” Id. (quoting Irvine v. California, 347 U.S. 128, 133, 74 S.Ct. 381, 383, 98 L.Ed. 561 (1954)). Since the FBI’s conduct toward Kelly did not involve “the infliction of pain or physical or psychological coercion,” no due process violation existed. Id. at 1477.
Jenrette argues that Kelly is not dispositive of this case because the FBI’s conduct toward him differed from that employed in the Kelly investigation. Specifically, Jenrette contends that the FBI “targeted” him with no “reasonable suspicion” that an investigation would reveal criminal behavior. In addition, Jenrette claims that the FBI failed to record certain phone calls that were critical to his defense.
Contrary to Jenrette’s assertion, claims of this kind were indeed raised in Kelly. Even if we assume Jenrette has compiled more complete and detailed evidence of misconduct than was compiled in Kelly, we must still reject Jenrette's due process defense. The character and not the amount of the alleged misconduct is determinative in assessing the fundamental fairness of the investigation. Because none of these claimed instances of misconduct involve the type of coercion, violence, or brutality described in Kelly, they do not rise to the level of a due process violation. We therefore affirm the district court’s conclusion that principles of due process do not bar Jenrette’s conviction.
D. The Brady Claim
Finally, Jenrette contends that the district court erred in denying his motion for a new trial based on the government’s failure to comply with the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady mandates that upon request the prosecution disclose any evidence favorable to an accused where that evidence is material either to guilt or to punishment. Id. at 87, 83 S.Ct. at 1196.
In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court clarified the materiality aspect of Brady’s disclosure requirement. Where a defendant has made a request for specific information that is not disclosed, that information is considered material if it might have affected the outcome of the trial. Id. at 104, 96 S.Ct. at 2397. Where the defendant has made no request or a general request for exculpatory evidence, the undisclosed evidence is material only if, in the context of the entire record, it creates a reasonable doubt as to the defendant’s guilt. Id. at 112-13, 96 S.Ct. at 2401-02. There is some disagreement as to whether Jenrette specifically requested all the undisclosed information. We need not resolve this question, however, because a new trial is not warranted under either standard.
After a lengthy hearing and after examination of voluminous records and materials, the district court concluded that if the government had disclosed the alleged Brady information, the outcome of the trial would not have changed. United States v. Jenrette, Cr. No. 80-289, slip op. at 55 (D.D.C. July 30, 1983); J.A. I at 74. The district judge is, of course, best suited to evaluate the significance of the undisclosed material. His judgment accordingly deserves great deference. See United States v. Provenzano, 615 F.2d 37, 49 (2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810 (1980). We thus will not overturn the district court’s judgment absent convincing evidence that the undisclosed information would have affected the outcome of the trial. After examining the Brady material, we find ample support for the district court’s ruling.
First, Jenrette contends that the government failed to disclose evidence indicating that he was “targeted” by the FBI. The undisclosed evidence includes: 1) statements by Weinberg and an FBI agent that the FBI wanted to “get” Jenrette; 2) statements indicating that Abscam operatives knew Jenrette was under investigation in South Carolina; 3) a May 8, 1979 teletype from the South Carolina FBI office advising Abscam operatives that Jenrette was a close associate of two Abscam subjects; and 4) a May 1979 teletype recommending a bonus in part for Weinberg’s discovery that Jenrette was in financial trouble and willing “to do favors.” Jenrette maintains that this evidence implies a lack of predisposition and thus supports his entrapment defense.
Evidence of Jenrette’s resistance to persistent FBI inducements to involve him in unlawful conduct prior to the December 4, 1979 bribery could bear on the question of Jenrette’s criminal predisposition. The cited undisclosed statements and teletypes, however, do not establish that the FBI offered any inducements prior to December 4, 1979 or that Jenrette resisted such offers. At most, the undisclosed information may indicate some FBI interest in Jenrette before November 1979 or that Weinberg had disclosed information designed to generate interest in Jenrette before that time. Because we do not believe the undisclosed evidence is relevant to the issue of Jenrette’s predisposition, we find no error in the district court’s determination that the nondisclosure of this evidence provided no basis for a new trial.
The second category of undisclosed evidence concerns Weinberg’s activities during the Abscam operation. Jenrette points to evidence that Weinberg was running a “double scam.” Jenrette asserts that Weinberg would help create phony certificates of deposit, induce people to circulate the certificates, and then collect a bonus from the FBI for removing the certificates from circulation. Jenrette asserts that the FBI failed to disclose documents indicating that it knew of this scam and a teletype stating that the purpose of his scam was to provide a method for introducing undercover agents to politicians.
This evidence pertains to the conduct of the Abscam investigation. The undisclosed documents are thus relevant to Jenrette’s claim that flagrant misconduct during the investigation violated his right to due process. Because the false certificate scheme does not amount to “physical or psychological coercion,” the undisclosed evidence regarding the scheme could not have established a due process violation. See United States v. Kelly, 707 F.2d at 1477. Since disclosure of this evidence could not have affected the outcome of Jenrette’s trial, we find no error in the district court’s determination that a new trial was not warranted.
The third category of undisclosed evidence concerns the Abscam operatives’ failure to record all telephone conversations with Jenrette and Stowe. Two Abscam prosecutors testified at the post-trial hearing that they discerned a pattern of unreported phone conversations notwithstanding instructions that all conversations were to be recorded. See, e.g., Transcript of Due Process Hearing of May 12, 1981 at 202. Again, this evidence concerns the fundamental fairness of the investigation and is thus relevant to Jenrette’s due process claim. This court has already ruled in the context of other Abscam cases that the failure to record some phone conversations does not violate principles of due process. United States v. Weisz, 718 F.2d 413, 435-37 (D.C.Cir.1983), cert. denied, — U.S. -,-, 104 S.Ct. 1285, 1305, 79 L.Ed.2d 688, 704 (1984); see also United States v. Kelly, 707 F.2d 1460, 1472-76 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983). Since this information could not have affected Jenrette’s conviction, its nondisclosure does not violate Brady.
Fourth, the defense claims that the government failed to disclose the previously noted May 9, 1979 teletype reporting that Jenrette was in financial difficulty and a November 20, 1979 teletype indicating that Jenrette was involved in an obstruction of justice charge. According to Jenrette, these two teletypes prove his stressful condition and are thus relevant to the duress defense. These teletypes, however, fail to establish a serious threat to Jenrette’s safety or that Jenrette had no legal alternative to accepting the bribe. This undisclosed evidence therefore could not support exoneration based on duress and thus does not warrant a new trial.
Finally, Jenrette argues that the government did not disclose certain evidence pertinent to Weinberg’s credibility. This evidence consists of payments from the Miami FBI office to Weinberg, evidence that Weinberg kept gifts solicited for his fictitious Arab clients, and Weinberg’s statement that if he didn’t “coach” persons accepting bribes, there would be no case. Although such evidence could impugn Weinberg’s character, his credibility could not be undermined more than it already had been by his sporadic memory, criminal background, and dubious motives. As the district court observed, “there seemed little to support the credibility of Weinberg____ [H]e had convenient lapses of memory, and he had a motive to lie. Moreover, his credibility was impeached by his background, a convicted con man, who stood to gain not only more money from Abscam depending upon how many government officials he could bring into the net, but some form of absolution from his probation requirements.” Jenrette, slip op. at 53-54, J.A. I at 72-73. The district court concluded, and we agree, that the voluminous evidence introduced at trial so completely undermined Weinberg’s credibility that any additional information concerning payoffs or solicited gifts could not have affected the outcome of the trial.
In sum, we agree with the district court’s conclusion that the undisclosed evidence would not have affected the outcome of the trial and thus does not meet the materiality requirement of Brady. We therefore see no basis to grant a new trial based on the government’s alleged failure to disclose this information.
III. Conclusion
For the foregoing reasons, Jenrette’s conviction and the district court’s denial of his motion for acquittal or new trial are
Affirmed.
. Weinberg was convicted of fraud in 1977. In return for his agreement to cooperate with the FBI in setting up the Abscam operation, Weinberg received a sentence of three years’ probation. The Abscam operation was similar to "sting" operations that Weinberg had run in the past. United States v. Jenrette, Cr. No. 80-289, slip op. at 2-3 (D.D.C. July 30, 1983), Joint Appendix (J.A.) volume I (I) at 19, 21-22. See also United States v. Myers, 692 F.2d 823, 829 (2d Cir.1982); United States v. Jannotti, 673 F.2d 578, 581 n. 2 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982).
. The evidence adduced at trial indicates that Stowe had numerous contacts with Weinberg for over a year before Jenrette became involved in the Abscam operation. Stowe was evidently interested in obtaining financing from Weinberg for various business deals. In a conversation with Weinberg in October 1978, Stowe mentioned that he had a friend who was a congressman and stated: “He’s a[s] big a crook as I am...Transcript of Telephone Call on or about 10/17/78, J.A. volume III (III) at 919. Thereafter, hoping to make contact with Jenrette, Weinberg pursued Stowe with promises that his Arab clients might be willing to invest in Stowe’s business.
. At the December 3 meeting, Stowe indicated that Jenrette was ready to handle the immigration problem but that Jenrette did not know the details of the arrangement. Trial Transcript (Tr.) (Amoroso), J.A. volume II (II) at 229. Amoroso told Stowe to explain the arrangement to Jenrette and find out whether Jenrette would agree to meet. Id. at 229-30. Stowe indicated that he understood Jenrette was to receive $50,-000 up front and $50,000 when the bill was introduced. Id. at 230. The following day Stowe called Weinberg to confirm the meeting. Transcript of Telephone Call of Dec. 4, 1979, J.A. III at 710-14.
. See Transcript of Telephone Call of Jan. 25, 1980, J.A. III at 983-84; Transcript of Telephone Call of Jan. 25, 1980, J.A. III at 989; Transcript of Telephone Call of Jan. 26, 1980, J.A. III at 993-94.
. The “threat" Jenrette refers to consists of a statement made by Weinberg to John Stowe, Jenrette’s co-defendant, during a phone conversation on December 4, 1979. The transcript reveals that Weinberg said: ”[Y]ou gotta remember one thing now Tony [Amoroso] is a tough guy. He’s [Jenrette] gotta... tell us he’s gonna do it." J.A. Ill at 712.
. A defendant must show some threat of imminent harm to establish duress. A threat of future harm, or a threat made before the commission of the illegal act generally is not sufficient. See 1 Wharton's Criminal Law § 51 at 242-43 (C. Torcia 14th ed. 1978); United States v. Atencio, 586 F.2d 744, 746 (9th Cir.1978) (immediacy is a crucial element of the duress defense). If the threat is not of immediate harm, there generally will be ample opportunity to avoid the illegal act. The only act or statement in the record that could even remotely be construed as a threat against Jenrette was made over the telephone before the December 4 meeting to a third person. See note 5 supra. Additionally, Jenrette testified that he received an unrecorded, threatening phone call sometime after Jan. 1, 1980 but before the Jan. 7, 1980 meeting. Trial Tr. (Jenrette) vol. XVI at 3415-17. Neither threat, however, was sufficiently immediate to justify the defense of duress.
. The district judge instructed the jury on both inducement and predisposition. The jury was instructed to consider first whether the evidence showed government conduct that could cause an undisposed person to commit a crime. If the jury found inducement, then it was instructed to determine whether Jenrette was in fact predisposed to take the bribe. Trial Tr. vol. XXII at 4748-50. By finding Jenrette guilty, the jury necessarily rejected the entrapment defense. We do not know, however, whether this defense was rejected because the jury did not find government inducement or because the jury concluded Jenrette was predisposed. The district judge, in his opinion denying Jenrette’s motion for acquittal or for a new trial, concluded that there was sufficient evidence to support a finding of inducement. Jenrette, slip op. at 26, J.A. I at 45. In addressing Jenrette’s entrapment argument, therefore, we will assume that inducement existed.
. After discussing the immigration problems and indicating that he would like to study the immigration laws before accepting the money, Jenrette stated: "I don’t know that I've taken a bribe and I [don’t know] that... you’ve offered me a bribe.” Transcript of Meeting of Dec. 4, 1979, J.A. III at 764. At one point during the meeting, Jenrette suggested that the money be paid to his lawyer. ”[I]f I take it I'm gonna... have a lawyer take it.... That’s why I guess I’m hedginfg] for a few hours. To get him here just to further cover [me]... that he’s takin[g] it as a legal fee____’’ Id. at 760-61.
. In rejecting Jenrette’s post-trial argument that the government's failure to reveal certain evidence prejudiced this entrapment defense, the district judge noted: "it seems unlikely that any jury can seriously consider the defense of entrapment when they actually see the crime committed.” Jenrette, slip op. at 54-55, J.A. I at 73-74. Jenrette argues that the district judge effectively concluded that video-tape evidence of a crime conclusively establishes predisposition. We do not, however, read the district court’s ruling so narrowly. Rather, we believe a fair reading of the district judge’s opinion reveals he concluded only that the specific undisclosed evidence Jenrette sought was not strong enough in this case to overcome the evidence of predisposition established by the taped meeting of December 4 and phone conversations of December 5 and 6.
. The government’s actions toward the defendant can be relevant evidence in determining whether the government met its burden of proving predisposition. United States v. Burkley, 591 F.2d at 915-16. Where, for example, the government employed substantial pressure, or threats, the defendant’s agreement to commit an illegal act may not be sufficient by itself to show predisposition. Id. at 916. Indeed, evidence of severe government coercion may be used by the defendant to rebut the government’s evidence of predisposition. Id.
. Jenrette testified at trial that in 1978 Stowe spoke to him about a scheme for importing certificates of deposit. Jenrette testified that he wanted nothing to do with the scheme. Trial Tr. (Jenrette) vol. XV at 3278. This single incident, however, cannot establish a pattern of attempted inducements by the government.
. In United States v. Kelly, 707 F.2d 1460 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983), the defendants claimed that the Abscam investigation was fundamentally unfair. Among the facts noted by this court concerning the manner in which the Kelly investigation was conducted were: 1) it was largely controlled by Weinberg, a convicted swindler; 2) inducements were offered to persons who were not suspected of previous wrongdoing; 3) decisions to offer inducements were based largely on the unverified word of various non-FBI middlemen; 4) there was little or no FBI supervision of the Abscam actors; 5) some of the conversations between Weinberg and the various defendants were unrecorded; and 6) bribes were offered more than once. Id. at 1471-73, 1474 & n.
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_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellee, v. Louis MARTIN, Appellant.
No. 77-1111.
United States Court of Appeals, Eighth Circuit.
Submitted June 13, 1977.
Decided Aug. 22, 1977.
Henry L. Jones, Little Rock, Ark., for appellant; Wiley A. Branton, Washington, D. C., on brief.
Samuel A. Perroni, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. Dilla-hunty, U. S. Atty., and Sandra W. Cherry, Asst. U. S. Atty., Little Rock, Ark., on brief.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
STEPHENSON, Circuit Judge.
Appellant Louis Martin was charged on November 4, 1975, in a two-count indictment in violation of 18 U.S.C. § 152. The first count charged Martin with making a false oath and account in relation to a bankruptcy proceeding, in that he filed a schedule representing that he and his wife had $50.00 on hand, wherein he fraudulently failed to disclose other assets of money and cash totalling $565.12. The second count charged Martin with fraudulently transferring and concealing assets in the amount of $2,060.12 in contemplation of bankruptcy. On May 4, 1976, Martin’s first trial was terminated when the district court, pursuant to Martin’s motion, declared a mistrial. On November 29,1976, Martin’s second trial began and on December 1, 1976, the jury returned a verdict of guilty on both counts. The district court sentenced Martin to 18 months’ imprisonment on the first count and 2 years’ supervised probation on the second count. In this appeal Martin alleges the following errors: (1) the district court erred in denying Martin’s motion to dismiss the indictment because (a) the Double Jeopardy Clause barred Martin’s retrial, (b) the government’s conduct before the grand jury required dismissal, and (c) the government’s conduct following the grand jury required dismissal; (2) the district court erred in failing to grant Martin’s motion in limine; (3) the district court prejudiced the jury by the manner in which it questioned Martin’s expert witness; (4) the district court erred in refusing to give one of Martin’s requested instructions and in giving one of the government’s requested instructions. We are persuaded that under the circumstances of this case, the Double Jeopardy Clause of the Fifth Amendment barred Martin’s retrial. Accordingly, we reverse.
Background
On December 16, 1974, Martin, a lawyer employed by Pulaski County, Arkansas, and his wife, employed by the state of Arkansas, filed their voluntary petition in bankruptcy in the Eastern District of Arkansas. The petition contained a schedule of debts which listed eight creditors and a total indebtedness of $19,447.62. Of the total indebtedness, $18,382.61 represented debts that Martin and his wife owed to six student loan creditors.
Before evidence was presented in his first trial, Martin filed a motion in limine requesting that the district court prohibit any mention or reference to student loans and exclude any documents referring to student loans or that reference to student loans be excised. Martin attached as exhibits to his motion in limine 22 Arkansas Gazette newspaper articles illustrating the publicity which accompanied his attempt to discharge the student loan debts. In addition to the newspaper articles, affidavits by Martin and his wife were filed attesting to obscene and racial remarks directed at the Martins as a result of their bankruptcy petition. Martin’s counsel stated to the court during the hearing on the motion that the defense would agree to stipulate “to the amount of money in certain accounts at a certain time, when that money went to the account and when it left the account.” The purpose of this stipulation was to avoid the mentioning of student loans.
Following a lengthy hearing, the district court granted Martin’s motion in limine. While ruling on the motion, the court stated to the government’s attorney:
You cannot use student loans. And I admonish you not to unduly use loans and lending institutions. * * * Talk about debts, or use other words, because the Court is sincere in believing that there has been an undue amount of publicity to the extent that Louis Martin will be prejudiced if student loans or an undue emphasis on loan and lending institutions is used to the extent that would infer indirectly what I am telling you not to do directly.
A short time later the district court clarified his ruling by stating to the government’s attorney:
I am going to back up at this time and clarify the ruling by saying that you cannot name the specific creditors. * * * I have got to rule that you cannot name the specific creditors.
* * * So, when I ruled, and to clarify my ruling further, I will say that you cannot go into it, name the creditors, and go beyond that into the making of the loans * * *.
In addition to his motion in limine, Martin asked the district court at this time to prohibit the government’s attorney from reading Martin’s grand jury testimony to the jury as substantive evidence. Appellant argued that most of the statements contained in Martin’s grand jury testimony were irrelevant and prejudicial. The government’s attorney, however, assured the court that the irrelevant statements contained in the grand jury testimony had been excluded. The district court denied Martin’s request but cautioned the government that the use of Martin’s grand jury testimony must not violate any of the court’s prior rulings. In addition, the court indicated that Martin’s objection to the use of the grand jury testimony would be treated as a continuing objection.
Early in the trial, after two witnesses had testified for the government, the government’s attorney read a substantial portion of Martin’s grand jury testimony to the jury. As a result the appellant subsequently moved for a mistrial. The district court, in granting the mistrial, stated:
I feel that error has been made and it will be reversed on appeal, if there is a conviction. And so the Court feels that there is no alternative other than to declare a mistrial at this point.
Between the first and second trials, Martin filed a motion to dismiss the indictment, contending in part that the United States Attorney had engaged in an ex parte conversation with Judge Shell on the day of the mistrial declaration. In anticipation of being called as a witness at the hearing on the motion, Judge Shell recused himself. The case was then assigned to Judge Williams.
In addition to alleging the ex parte conversation, Martin contended that the Double Jeopardy Clause barred a second trial and that the government’s conduct before the grand jury required a dismissal of the indictment. The appellant also renewed all motions filed in the first trial including the motion in limine. After a hearing was held, Judge Williams denied Martin’s motion to dismiss the indictment and the motion in limine.
The second trial began on November 29, 1976, and Martin again renewed his motion in limine. The district court denied the motion and allowed the evidence concerning student loans. Martin was subsequently found guilty by the jury on both counts of the indictment.
Martin raises numerous issues in this appeal. In light of the total circumstances of the case, we need only discuss his Double Jeopardy claim.
Double Jeopardy
The dispositive question on this appeal is whether the Double Jeopardy Clause was violated by a retrial of Martin after the first trial ended in a mistrial granted at Martin’s request.
The Fifth Amendment’s prohibition against placing a defendant “twice in jeopardy” represents a constitutional policy of finality for the defendant’s benefit in federal criminal proceedings. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970). The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
In analyzing the question of whether the Double Jeopardy Clause bars a retrial of a defendant after a mistrial declaration, the Supreme Court has distinguished cases where mistrials are declared sua sponte by the court and cases where mistrials are granted at the defendant’s request or with his consent. In the former, the defendant is precluded from deciding whether or not to take the case from the jury — a decision in which the defendant has a significant interest. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. Because of the defendant’s preclusion in this important decision, the Double Jeopardy inquiry focuses upon the “manifest necessity” for the mistrial. See United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. at 480-81, 91 S.Ct. 547; United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824).
Different considerations obtain when a mistrial is declared at the defendant’s request. United States v. Dinitz, supra, 424 U.S. at 607, 96 S.Ct. 1075. The Double Jeopardy Clause generally would not stand in the way of reprosecution where the defendant has requested a mistrial. Lee v. United States,-U.S.-,-, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. The Supreme Court has recognized, however, limited circumstances where a defendant’s mistrial request does not remove the Double Jeopardy bar. For example, the Double Jeopardy Clause protects a defendant against governmental actions intended to provoke mistrial requests. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. 1075. It bars retrials where the underlying error is “motivated by bad faith or undertaken to harass or prejudice” the defendant. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1082. Thus, where “prosecutorial overreaching” is present, United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547, the interests protected by the Double Jeopardy Clause outweigh society’s interest in conducting a second trial ending in acquittal or conviction. United States v. Kessler, 530 F.2d 1246, 1255-56 (5th Cir. 1976). See United States v. Wilson, 534 F.2d 76, 80 (6th Cir. 1976).
Our inquiry, therefore, must center upon the prosecutor’s conduct prior to the mistrial in order to determine if there was prosecutorial overreaching. Although mere negligence by the prosecutor is not the type of overreaching contemplated by Dinitz, if the prosecutorial error is motivated by bad faith or undertaken to harass or prejudice the defendant, then prosecutorial overreaching will be found. Lee v. United States, supra, - U.S. at-, 97 S.Ct. 2141. See United States v. DiSilvio, 520 F.2d 247, 249-50 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975).
Appellant’s major contention of prosecutorial overreaching is found in the reading of Martin’s grand jury testimony to the jury. Although Martin does not contend the government read the grand jury testimony to intentionally provoke a mistrial request, he does allege that the government was grossly negligent in so doing.
Our review of the record convinces us that the prosecutor’s conduct in reading the grand jury transcript was more than mere prosecutorial negligence. The following excerpts are illustrative of the irrelevant and highly prejudicial material which was read to the trial jury by the government’s attorney:
Q. [prosecutor] Well, I am not going to give your attorney a dissertation of the federal laws. You can simply advise your attorney the Grand Jury is charged with an investigation of all the federal laws of the United States of America. I don’t know what the Grand Jury might determine after hearing your statement, but to tell us to pinpoint this or that I am not at liberty to do so.
When they are empaneled, the Court hands to them the entire federal law, the Penal Code.
******
Q. You say this is similar to Watergate mentality?
******
Q. Well, if it turns out to be, Mr. Martin, you engaged in activities similar to Watergate activities, would it not be proper for the Grand Jury to say you should be charged like anybody else?
******
Q. Some people feel that Watergate investigations are good.
******
Q. Mr. Martin, anything wrong with answering?
******
Q. [grand juror] You are saying you could have lied on the petition?
******
Q. [prosecutor] You only took five hundred but had a thousand coming? You have filed a lot of bankruptcy petitions?
******
Q. [grand juror] If you filled it out, it looks like you would find out how much money you had. You would check at Worthen Bank, look in your billfold and find out how much you had. You wouldn’t happen to overlook five hundred dollars.
Q. [prosecutor] We are not talking about fifty cents; seventy-five cents. ******
[grand juror] I don’t know why he has to hesitate.
[grand juror] You know whether you lied on the form or not.
******
Q. [grand juror] Wait a minute. You are not going to tell us you had a thousand dollars cash and you don’t know what you did with it?
******
Q. This five hundred dollars, you are not going to tell me you cashed a check for five hundred dollars and you don’t know what you did with it? Don’t tell us that.
******
Q. You come up with an answer for that because I am really mad at you, telling us you had cashed a check for five hundred dollars and you don’t know what you did with it.
******
Q. [prosecutor] You do know how to do one of these things?
A. Just in doing that one. I haven’t done any since or before.
Q. [prosecutor] You did such a good job on this one.
******
Q. [grand juror] The problem is getting a thousand dollars within a two-week period before declaring bankruptcy and cashing checks, is kind of inconceivable you would put down fifty dollars on the bankruptcy petition.
******
Q. [grand juror] What was the date on that?
[prosecutor] November 14, 1974.
Q. [grand juror] Four weeks before filing for bankruptcy?
******
Q. [grand juror] The people you owe were at your mercy to get their money back until like your bankruptcy petition discharged them, but you don’t want to say—
A. Legally discharged, but normally what happens we would renegotiate a note.
Q. [prosecutor] They may or may not be discharged, Mr. Martin. You want to think about that a day or two?
It is readily apparent that improper and prejudicial remarks made by grand jurors were read to the trial jury. In addition improper and prejudicial remarks made by the prosecutors were read to the jury. The record is replete with instances where the defendant was interrupted in his answers or was not given an opportunity to answer. In addition, at one point the prosecutor in effect testified by answering a question posed by a grand juror. If the government’s actions in reading this irrelevant and highly prejudicial testimony to the jury were not intentionally designed to provoke a mistrial request, at a minimum they constitute gross negligence. It can best be described as prosecutorial error undertaken to harass or prejudice the defendant — pros-ecutorial overreaching.
Martin has shown the presence of anxiety, embarrassment and expense caused by his retrial. Under these circumstances we hold that the district court erred in denying Martin’s motion to dismiss the indictment. Prosecutorial overreaching in the reading of the grand jury testimony to the trial jury gave appellant no choice except to move for mistrial and subject himself to the ordeal of another trial. We conclude Martin’s constitutional right not to be twice put in jeopardy has been violated. Accordingly, we reverse appellant’s conviction and direct that the indictment be dismissed.
Reversed.
. The Honorable Terry L. Shell, United States District Judge for the Eastern District of Arkansas.
. The Honorable Paul X Williams, United States District Judge for the Western District of Arkansas, sitting by designation.
. United States Constitution, Amendment V, provides: “No person * * * shall * * * be subject for the same offence to be twice put in jeopardy of life or limb.”
. The trial court, in denying Martin’s Double Jeopardy claim, stated the following: “[W]e find that the government’s errors which led to a mistrial did not amount to intentional misconduct or gross negligence.” The court noted that both of the Assistant United States Attorneys who tried the case for the government submitted affidavits in which they swore that their actions were not intended to abort the trial and that they considered the grand jury testimony admissible evidence relevant to Martin’s intent.
. A persuasive argument can also be made that the following excerpts read to the jury indirectly violated the district court’s ruling on the defendant’s motion in limine:
Q. [prosecutor] See if we can get this straight, Mr. Martin. You are an attorney. You have been to school for many, many years now.
******
Q. You got rid of nineteen thousand dollars — why did you take bankruptcy? ******
Q. If I told you you made deposits of four thousand three hundred and seventeen dollars to your savings account at Iowa State in 73, that wouldn’t hardly jive with your income, would it?
A. No, it wouldn’t.
Q. And the thousand dollars you deposited in the Friendship Savings and Loan in August, 73, that added with the five thousand you placed in the bank in 73.
Q. Where did you get the money?
Q. [grand juror] Is that a checking or savings?
A. We must have got more than that— ******
Q. [prosecutor] You fully Intended to pay back but thought you would wash them off anyway?
A. At that particular time, talking about gross, talking about that, what I was, I was going to have to take care of the family on seven hundred and seventy dollars and pay back that amount of loan.
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Felix WALLS, Defendant-Appellant.
No. 20771.
United States Court of Appeals, Sixth Circuit.
June 14, 1971.
Wilfred C. Rice, Detroit, Mich., for appellant.
Marilu Marshall, U. S. Department of Justice, Detroit, Mich., Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on the brief; Laurence Leff, Sp. Atty., U. S. Department of Justice, Detroit, Mich., of counsel, for appellee.
Before PHILLIPS, Chief Judge, and CELEBREZZE, and McCREE, Circuit Judges.
McCREE, Circuit Judge.
Appellant was convicted on June 15, 1970 on both counts of an indictment charging violations of narcotics laws of the United States, and was sentenced to serve concurrently ten years imprisonment imposed on each count. In this appeal, he asserts that the District Court, sitting without a jury, committed several errors which require reversal of his conviction. We hold that it was reversible error for the Trial Judge to view the scene of the alleged offense without permitting appellant or his attorney to attend and to preclude summation and closing argument by defense counsel.
Walls was arrested in Detroit, Michigan, during the early morning hours of April 9, 1969, as he emerged from a house which was under the surveillance of federal agents. Arrested with him were James Riley, Jr., who proved to be a police informer, and Sylvia Laster, who occupied an upstairs flat in the house. At the time of the arrest, Riley held a paper bag containing heroin. The cocaine specified in the indictment was subsequently found during a search of the upstairs flat where Laster was arrested.
The surveilling agents testified that they saw Walls hand the heroin bag to Riley as the two men emerged from the house. This testimony was crucial to the Government’s case because Riley, who presumably would have supplied this evidence, was unavailable for trial. The arresting agents apparently relied upon that transfer, because it corroborated Riley’s earlier information that Walls and Laster illegally possessed narcotics, and provided a basis for arresting Walls and Laster without a warrant, and for conducting the search incident to those arrests. Appellant vigorously contended that it would have been impossible for the agents to have seen a transfer on the porch because of darkness, trees, and other impediments.
At trial, on June 10, 1970, defense counsel moved that the judge, in the company of counsel, view the scene to see whether it would have been possible for the agents to have seen the porch from their vantage point. The prosecutor objected, and pointed out that there had been no showing that the premises were in the same condition at the time of trial as they had been on April 9, 1969. The court denied the motion. However, on June 11, after having heard the testimony of the principle defense witness on June 10, the court stated:
The only issue that I can see and I think it’s the one the Court of Appeals would want to know about, and that is the issue that you have raised now that no witness would be able to see that doorway or anyone coming out of that doorway by reason of obstructions that exist at the place.
On June 12, defense counsel renewed his request that the court view the premises. In reply the court stated:
Well, I would suspect that now that we have got some time that probably the Court will inspect the premises. I will advise you when I have. I am going to do it alone, not with anyone else and in my own manner. I am not going to testify as to What I see. It will be involved in my findings of facts. \
Thereafter, a defense witness testified that he was familiar with the\house in question and its surroundings, ahd that the agents would have been unable to see the porch, in part, because of a large tree which stood in front of the house and had been removed after the event and prior to trial. On Monday, June 15, the next day of trial, the court informed the parties that he had viewed the scene.
Friday afternoon, with my Bailiff, I drove out to the residence * * * and there viewed the * * * scene and placed myself in the position where I would judge the driver, from the evidence, sat at the time of the surveillance and made observation and noted, too, that there was a street light directly opposite the flat here involved, * * *.
Shortly thereafter, Walls completed his testimony as the final defense witness and, after both sides rested, the court stated:
The Court having heretofore viewed the scene, as I indicated, together with my Bailiff and the testimony that I wish to make a written finding of fact to, * * *.
It is the finding of the Court, as the finder of the fact, that the Defendant is guilty beyond a reasonable doubt.
******
We stand adjourned.
A majority of the state courts which have decided the issue have held that a jury view is a stage of the trial at which the accused has a right to be present. Annot., 90 A.L.R. 597 (1934); Annot., 30 A.L.R. 1357 (1924). The courts of three states in this circuit which have considered the issue have so held, Lee v. Commonwealth, 262 Ky. 15, 89 S.W.2d 316 (1936); People v. Connor, 295 Mich. 1, 294 N.W. 74 (1940); Colletti v. State, 12 Ohio App. 104, 31 Ohio C.C.R. (n.s.) 81 (1919); and one of those states has established by statute the right of the accused to attend the view. Ohio Rev.Code § 2945.16.
The principles applicable to a view by a judge sitting without a jury are not substantially different. The weight of authority is that it is reversible error for a trial judge sitting without a jury to base his findings or decision in whole or in part upon his personal observations or inspection. Annot., 97 A.L.R. 335 (1935). And it has been held that where a statute makes provision for a jury view, but not for a view by a judge sitting without a jury, it is reversible error for a trial judge sitting without a jury to view the premises without the consent of the parties. Annot., 124 A. L.R. 841, § lid (1940).
Some courts have characterized information derived from a view of the scene as evidence. Others have treated a view merely as a procedure whereby the fact-finder is enabled to better understand the evidence adduced at trial. This division of authority persists despite the statements of eminent scholars that a view constitutes the taking of evidence. 4 J. Wigmore, Evidence, §§ 1150-1151, 1163-69 (3d ed. 1940); C. McCormick,
Evidence, § 183 (1954). However, it can at least be stated that, however a view is characterized, “its inevitable effect is that of evidence. * * * ” Snyder v. Massachusetts, 291 U.S. 97, 121, 54 S.Ct. 330, 78 L.Ed. 674 (1934). Accordingly, it was reversible error for the court to deny appellant and his attorney the opportunity to attend the view to insure against the intrusion of prejudicial error.
We also hold that the court erroneously denied defense counsel an opportunity to argue his case at the close of proofs. Immediately following the conclusion of the case for the defense, the court stated his finding of guilt, and court was adjourned. Defense counsel thereafter called the omission of argument to the court’s attention, and the record was reopened. However, the court correctly stated that argument then would be futile because he had made up his mind. Preclusion of closing argument denied appellant the effective assistance of counsel. Thomas v. District of Columbia, 67 App.D.C. 179, 90 F.2d 424, 428 (1937); United States ex rel. Wilcox v. Com. of Pennsylvania, 273 F.Supp. 923, 925-926 (E.D.Pa.1967). This principle has also been widely recognized by state courts which have considered it. See, e. g., Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962); Decker v. State, 113 Ohio St. 512, 150 N.E. 74 (1925); Annot., 38 A.L.R.2d 1396, § 2[b] (1954). See generally Annot., 6 A.L.R.3d 604 (1966).
We find it unnecessary to consider appellant’s other assignments of error. The judgment is reversed and the case is remanded for a new trial.
Reversed and remanded.
. THE GRAND JURY CHARGES IN COUNT ONE:
That on or about April 9, 1969 * * * JAMES RILEY, JR., FELIX WALLS and SYLVIA LASTER, defendants herein, did unlawfully and knowingly purchase a quantity of narcotic drugs, to wit: approximately 3,092 grams of heroin and 23.58 grams of cocaine, not in or from the original stamped package and not having on it the appropriate tax-paid United States Internal Revenue stamps, as required by law; in violation of Section 4704(a), Title 26, United States Code.
THE GRAND JURY FURTHER CHARGES IN COUNT TWO:
That on or about April 9, 1969 * * * JAMES RILEY, JR., FELIX WALLS and SYLVIA LASTER, defendants herein, did unlawfully acquire, conceal and have in their possession, after being imported and brought into the United States a quantity of narcotic drugs, to wit: approximately 3,092 grams of heroin well knowing the aforesaid heroin to have been unlawfully imported and brought into the United States in violation of the provisions of the Act of Congress, approved February 9, 1909, as amended, and not under any regulations prescribed by the Commissioner of Narcotics; in violation of Section 174, Title 21, United States Code.
. Similar principles apply to views by administrative tribunals, Annot., 18 A.L.R. 2d 552, § 7 (1951), and to views by arbitrators. Annot., 27 A.L.R.2d 1160 (1953).
. The Supreme Court’s decision in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), does not indicate a contrary result. There the Court considered the contention that the Constitution of the United States mandated the presence of an accused at a view during a state prosecution. Counsel for the parties attended the jury view as showers and a transcript was made of the proceedings at the view. In a 5 — 4 decision, the Court held that due process had not been violated. In dissent, Mr. Justice Roberts stated:
Many decisions hold that [the] accused may waive the privilege [of being present at a jury view]; but an examination of the cases discloses none (with a single possible exception) where a denial of his request to accompany the jury on the view has not been held reversible error. And the statements that a view is not a part of the
trial or that it is not the taking oí evidence, and denying, on that ground, the defendant’s right to be present, are invariably found in eases where the defendant requested the view and did not ask to accompany the jury, or waived either expressly or by conduct his right so to do. 291 U.S. at 134-135, 54 S.Ct. at 343 (footnote omitted).
Here we exercise our supervisory authority over the administration of criminal justice in the District Courts of this Circuit, see McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and we do not reach the Constitutional issue presented in Snyder. Accordingly, we need not decide whether evolving Constitutional principles have eroded the basis for the majority’s position in Snyder, or whether the Court in that case would have found error of Constitutional dimensions if Snyder’s counsel had not attended the view. See, e. g., United States v. Wade, 388 U.S. 218, 223-227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).
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_state | 02 | 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".
Thomas S. JONES, Plaintiff-Appellant, Cross-Appellee, v. CENTRAL SOYA COMPANY, INC., Defendant-Appellee, Cross-Appellant.
No. 83-7468.
United States Court of Appeals, Eleventh Circuit.
Dec. 10, 1984.
Champ Lyons, Jr., Mobile, Ala., for plaintiff-appellant, cross-appellee.
William C. Tidwell, III, Kathryn Anne Eckerlein, Mobile, Ala., for defendant-ap-pellee, cross-appellant.
Before HILL and HENDERSON, Circuit Judges, and WISDOM , Senior Circuit Judge.
Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
ALBERT J. HENDERSON, Circuit Judge:
Thomas S. Jones and Central Soya Company, Inc. (“Central”) both challenge the reasonableness of the amount of attorney’s fees awarded to Jones by the United States District Court for the Southern District of Alabama in a successful action against Central alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). The jury found Central’s conduct to be willful and awarded Jones double damages in the amount of $41,666.42. The district court later granted Jones an additional interim amount of $18,796.00 as well as reinstatement with full pension benefits.
Pursuant to a provision in 29 U.S.C. § 216(b) authorizing reasonable attorney’s fees to the prevailing plaintiff in an ADEA action, the district court awarded Jones approximately $24,000.00 allocable to counsel fees. On appeal, Jones alleges that the amount was insufficient because of 1) the exceptional result obtained in the litigation, 2) the purported contingency fee arrangement between Jones and his counsel, and 3) the delay in payment of the attorney’s fees. Central cross appeals, contending that the district court improperly awarded Jones attorney’s fees for the time billed for the work of an unnecessary second trial lawyer.
Awards of attorney’s fees in age discrimination actions are governed by 29 U.S.C. § 216(b) which provides: “[t]he court ... shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant ....” See 29 U.S.C. § 626(b) (rendering section 216(b) applicable to ADEA actions). A number of factors are relevant to the determination whether such an award is reasonable, the most familiar of which were discussed at length in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974).
In this case, the district court based its award on a “lodestar” figure consisting of the product of the time invested by Jones’ counsel and an hourly rate. Record, vol. 1, pp. 381-84. In doing so, the district court addressed each of the factors listed in Johnson and concluded that no adjustment of the lodestar amount was necessary. See id. at 381-86. We may overturn this award only for “clear abuse of discretion.” Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir.1983).
Jones first contends that the lodestar figure should have been increased because of the results obtained in the ADEA action. The district court reasoned that although counsel “achieved substantial relief for the plaintiff in this case, the court does not feel that counsel is entitled to an enhancement bonus on this factor.” Record, vol. 1, p. 385.
The Supreme Court of the United States has instructed that “[bjecause acknowledgment of the ‘results obtained’ generally will be subsumed within other factors used to calculate a reasonable fee it normally should not provide an independent basis for increasing the fee award.” Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891, 903 (1984). However, “in some eases of exceptional success an enhanced award may be justified.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40, 52 (1983); see Blum, — U.S. at —, 104 S.Ct. at 1550, 79 L.Ed.2d at 903 (quoting Hensley). We are confronted here with the question whether the result in this ease constitutes “exceptional success.”
Although the Supreme Court has not yet addressed in detail the-circumstances under which an award of attorney’s fees should be enhanced because of the result obtained, the Court noted in Blum that “where the experience and special skill of the attorney ... require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue” an increase may be warranted. Blum, — U.S. at —, 104 S.Ct. at 1549, 79 L.Ed.2d at 902. See also Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir.1983) (“exceptional success” may be based upon extraordinary economies of time given the complexity of the task).
Other courts have articulated additional factors that may justify an enhanced attorney’s fee award such as the development of new law furthering important congressional policies, see Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1530-31 (11th Cir.1983); Johnson, 488 F.2d at 718; accord Ramos, 713 F.2d at 557, success achieved under unusually difficult circumstances, see White v. City of Richmond, 713 F.2d 458, 462 (9th Cir.1983) (near complete success achieved in face of highly unfavorable law); Ramos, 713 F.2d at 557 (“unusually difficult circumstances”), and the size of the award. See Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1533 (11th Cir.1983); Wolf v. Frank, 555 F.2d 1213, 1218 (5th Cir.1977); Johnson, 488 F.2d at 718.
None of these grounds is sufficiently present in this case to compel the conclusion that the district court abused its discretion. There is no indication that the success of Jones’ attorneys was achieved with any special economics of time or under unusually difficult circumstances. Moreover, the case did not establish significant new law furthering an important congressional goal, and the $60,462.42 recovered is not such a substantial amount as to require enhancement.
In Ramos the Court of Appeals for the Tenth Circuit observed that “total victory” may constitute “exceptional success.” Ramos, 713 F.2d at 557. The main thrust of Jones’ argument appears to be based precisely on this point. According to Jones, because he prevailed on all his claims he is entitled to an enhanced award of attorney’s fees.
We decline, however, to equate “total success” with “exceptional success.” Although the Supreme Court in Hensley observed that “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees,” Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 54, the Court has never suggested that complete victory alone requires an enhanced award. Indeed, the Court specifically distinguished “excellent” results from “exceptional” results and instructed that only the latter could justify an increased grant of attorney’s fees. Id., 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Winning on all claims does not seem to us to be so unusual that it must be deemed “exceptional.”
Furthermore, the Court in Hensley held that, given the vast range of success possible in a civil rights action, a decrease in the lodestar amount is not required simply because the plaintiff failed to win every contention raised in his lawsuit. Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 55. We believe the converse follows — just as losing on some claims does not necessarily mandate a decrease in the lodestar figure, neither does winning on all claims demand an increased amount. The central inquiry remains whether the expenditure of counsel’s time was reasonable in light of the overall success achieved. See id., 461 U.S. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d at 52.
A contrary boilerplate rule that total victory mandates a larger award of attorney’s fees would mean that lawyers fortunate enough to attract clients with highly meritorious claims would always be entitled to increased attorney’s fees. Statutory entitlements to attorney’s fees were not designed to provide windfalls to lawyers. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act).
This is not to say that the totality of the success is never a relevant factor in determining whether a result is “exceptional.” We simply hold that the mere fact that a plaintiff recovered everything he sued for in the underlying litigation does not, by itself, mandate an enhanced award. In an appropriate case, the completeness of the success might be weighed along with the legal and factual hurdles, the economies of time and skill involved, the monetary award and the law created in evaluating whether a result is “exceptional.” Because the other influences are not present in this case, we conclude that the district court did not abuse its discretion in declining to enlarge the fee notwithstanding the fact that Jones recovered on all claims.
Jones next asserts that the district court erred by not considering the contingency fee arrangement he allegedly had with his counsel. The Supreme Court recently deferred a ruling on whether an upward adjustment of the attorney’s fees is authorized because of the risk of nonrecovery. See Blum, — U.S. at —, 104 S.Ct. at 1550 n. 17, 79 L.Ed.2d at 903 n. 17. It is well established in this circuit, however, that a contingency fee arrangement may justify an increase in an award of attorney’s fees. See, e.g., Hall v. Board of School Commissioners, 707 F.2d 464 (11th Cir.1983) (per curiam); Marion v. Barrier, 694 F.2d 229, 231-32 (11th Cir. 1982) (per euriam); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981).
To decide the issue in this case we must distinguish between two types of risks an attorney may assume in making a fee arrangement. First, an attorney may risk all entitlement to fees by entering into a conventional contingency agreement with his client. Second, although not making his entitlement to fees dependent upon the verdict or judgment, an attorney always assumes the risk that he will not be paid by his client because of indigency. If an attorney is aware, when finalizing his agreement, that his client will be unable to pay, and that the only recourse for collecting his compensation is a statute providing for fee-shifting, then for practical purposes, the attorney would have assumed the risk of nonrecovery if his client does not prevail.
The district court recognized this distinction in reasoning that “[ajlthough adequate compensation was, as a practical matter, probably contingent upon a successful result, the case was not taken on a contingent fee basis . . . . [Cjounsel is not entitled to an enhancement bonus on this factor.” Record, vol. 1, at 385. This quotation is a finding of fact that there was no contingency fee agreement between Jones and his counsel. In addition, the court evidently reasoned that, although there was a “practical risk” of nonpayment because of Jones’ indigency, this risk did not justify a fee enhancement.
We may overturn the district court’s finding of fact only if it is “clearly erroneous.” Fed.R.Civ.P. 52(a). The facts in the record reflect considerable doubt about the fee arrangement between Jones and his attorney. At an initial meeting between Jones and his attorney in February, 1981, the fee was not discussed. Record, vol. 2, p. 393-7. Later, an hourly bill was sent to Jones. When Jones expressed his inability to pay it, his attorney told him they would “cross that bridge later.” Id. at 393-9. Several months then passed during which there was no further mention of the fee. Id. at 393-9 to 393-10. Jones later authorized his lawyer to settle the case for up to $40,000.00 of which a third would be retained as attorney’s fees. Id. at 393-12. However, no settlement ever materialized. After Jones prevailed at the jury trial, he agreed that his counsel would “look exclusively to the Court for the fixing of a reasonable fee” without disturbing the jury award. Id. at 393-13.
At no point was it apparent that Jones’ counsel agreed to forego compensation for his efforts in the event the action was unsuccessful. Accordingly, we are not left with the requisite “definite and firm conviction” that the district court made a mistake in finding there was no contingency fee arrangement between Jones and his attorney.
Moreover, the district court was correct in reasoning that the “practical risk” assumed by Jones’ counsel is not a basis for enhancing a fee award. Jones argues that one purpose of fee-shifting statutes is to attract competent counsel and that compensating for the “practical risk” would encourage lawyers to take civil rights cases involving indigent clients. According to Jones, refusing to provide this compensation would have a “chilling effect” on the willingness of attorneys to take such cases.
It is true that in passing statutes supporting the entitlement to attorney’s fees, Congress intended to encourage competent counsel to take on possibly undesirable cases by providing for adequate compensation for their successful efforts. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S. CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act). This court has recognized that enhancement on the basis of a conventional contingency arrangement furthers this congressional purpose. See, e.g., Yates, 719 F.2d at 1534.
We do not believe, however, that Congress intended that such advocates be paid for the financial risks they assume to a greater degree than other lawyers. As we stated in Jones, compensation for risk “is neither less nor more appropriate in civil rights litigation than in personal injury cases.” Jones, 636 F.2d at 1382.
In this case, counsel for Jones seek an amount compensating them for the risk of nonpayment by a client liable for fees, a risk that is assumed without special compensation by all attorneys in all cases. A lawyer may not preserve a right of recourse against his client for fees and still expect to be compensated as if he had sacrificed completely his right to payment in the event of an unsuccessful outcome. To justify a risk premium a lawyer must agree to hold his client unaccountable for his fees if he loses the case. Because the district court found that no such agreement existed, the court did not abuse its discretion in refusing to enhance the fee award on the basis of contingency.
Jones’ last argument is that the district court abused its discretion by not awarding additional attorney’s fees to compensate for delay in payment. This court has recognized that if the hourly rate for attorney’s fees is based on historical rates, thus reflecting the reasonable attorney’s fee at the time the work was performed, an adjustment may be necessary to compensate for inflation and interest. See Johnson v. University College of the University of Alabama, 706 F.2d 1205, 1210-11 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983); Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1193-94 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The district court did not discuss delay, and did not state whether the hourly rate it used to compute Jones’ award was current or historical. The evidence the court could have considered in arriving at the applied rate of $85.00 per hour contains information about both current and historical rates. Under these circumstances we cannot determine whether the district court abused its discretion by failing to increase the award to account for delay.
We decline, however, to remand this case for clarification or reconsideration because we hold that Jones waived the right to seek an enhancement of attorney’s fees on the basis of delay. He failed both at the district court hearing on attorney’s fees and in his “Application for Award of Attorney’s Fees,” Record, vol. 1, pp. 291-306, to raise the issue of enhancement for delay. In reaching our conclusion we are mindful of the general rule that the “burden rests on the party seeking an attorney’s fee award to file a fee application and proffer proof going to the Johnson guidelines before the trial court.” Carr v. Blazer Financial Services, Inc., 598 F.2d 1368, 1371 (5th Cir.1979). Because Jones did not advance any argument for delay until after the district court’s order granting attorney’s fees, we decline to consider it as a basis for overturning the award. See Gates v. Collier, 616 F.2d 1268, 1278 n. 16 (5th Cir.1980) (suggesting waiver of claim for interest on award of attorney’s fees when issue not raised until after the district court made the award), modified on rehearing, 636 F.2d 942 (5th Cir.1981) (per curiam).
Finally, Central, as cross-appellant, urges that the district court abused its discretion by not reducing the award by the amount allocated for the allegedly duplica-tive work performed at trial by a second attorney for Jones. The district court considered the issue and concluded that it was not “unreasonable for the plaintiff to have been represented at trial by two experienced attorneys. The defendant was represented at the trial by house counsel and trial counsel, although house counsel did not participate actively in the litigation.” Record, vol. 1, p. 382.
A reduction in a fee “is warranted only if the attorneys are unreasonably doing the same work. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.” Johnson, 706 F.2d at 1208 (emphasis in original); see Ward v. Kelly, 515 F.2d 908, 912 n. 11 (5th Cir.1975); Johnson, 488 F.2d at 717.
Except for the fact that both were present at trial, there is no evidence in the record suggesting that Jones’ attorneys were doing identical work. Also, there is no indication in the record, aside from the fact that only one lawyer actively participated in the trial for Central, that it was unreasonable for Jones to retain two trial attorneys. Indeed, the record reflects that the lack of opportunity for pretrial preparation by Jones’ attorney may have necessitated additional trial counsel. See Record, vol. 2, p. 393-5. At any rate, in the absence of any evidence to the contrary, we cannot conclude that the trial judge, who was in the best position to evaluate the reasonableness of the use of two trial at-in torneys by Jones, abused his discretion declining to reduce the fee.
The judgment of the district court AFFIRMED. is
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981.
The Johnson court cited the following considerations as being relevant to the determination of the reasonableness of the award:
1) the time and labor required;
2) the novelty and difficulty of the questions;
3) the skill requisite to perform the legal service properly;
4) the preclusion of other employment by the attorney due to the acceptance of the case;
5) the customary fee;
6) whether the fee is fixed or contingent;
7) time limitations imposed by the client or the circumstances;
8) the amount involved and the results obtained;
9) the experience, reputation and ability of the attorneys;
10) the "undesirability” of the case;
11) the nature and length of the professional relationship with the client; and
12) awards in similar cases.
Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974).
Johnson dealt with 42 U.S.C. § 2000e-5(k), which permits attorney’s fees for the prevailing party in certain Title VII actions. Its reasoning, however, has been applied to awards of attorney’s fees under 29 U.S.C. § 216(b). See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184 (11th Cir.1983) (violation of Equal Pay Act, 29 U.S.C. § 206(d), to which section 216(b) also applies), cert. denied, -U.S.-, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The Johnson criteria were also approved by Congress when it passed the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. See S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913. In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40, 50 n. 7 (1983), a case addressing the reasonableness of an award of attorney’s fees under section 1988, the Supreme Court stated that the "standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of [attorney’s] fees to a ‘prevailing party.’” Accordingly, our inquiry extends beyond just those cases dealing with section 216(b).
. Neither the number of hours nor the hourly rate applied is at issue in this appeal.
. Computing a "lodestar” figure first and then adjusting it in light of other considerations is a widely accepted practice. See, e.g., Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1543-44, 79 L.Ed.2d 891, 895-96 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-435, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40, 50-51 (1983); Ursic v. Bethlehem Mines, 719 F.2d 670, 676-77 (3d Cir.1983); White v. City of Richmond, 713 F.2d 458, 460-61 (9th Cir.1983); Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir.1983); Copeland v. Marshall, 641 F.2d 880, 890-91 (D.C.Cir.1980) (en banc).
. “Although the Court should consider the amount of damages, or back pay awarded, that consideration should not obviate court scrutiny of the decision’s effect on the law.” Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). The Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, not only ”make[s] it possible for non-affluent litigants to obtain legal representation, but to reward attorneys whose service has benefited the public interest.” Dowdell v. City of Apopka, 698 F.2d 1181, 1191 (11th Cir.1983) (emphasis in original). The cost-shifting contemplated by section 1988 is "designed to induce and encourage litigation on the theory that litigants acting as ‘private attorneys general' may help to enforce important congressional policies . . . .” Id. at 1189 n. 12.
. See also Elser v. I.A.M. National Pension Fund, 579 F.Supp. 1375, 1381 (C.D.Cal.1984) (No enhancement under 29 U.S.C. § 1132(g) when the "relief obtained by [the] plaintiffs was that due them---- In order to be considered an exceptional result, it would have to be one not thought likely to be achieved.”).
. The fact that a class was benefited, rather than an individual, has been a consideration in the past in calculating an award of attorney’s fees. See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1194 (11th Cir.1983) (not abuse of discretion for district court to determine that the case was less difficult because the plaintiff was an individual rather than a class), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984); Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). This notion however, appears to have been laid to rest by the Supreme Court of the United States. See Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549 n. 16, 79 L.Ed.2d 891, 903 n. 16 (1984).
. For example, the White court increased an award of attorney’s fees for exceptional success when the plaintiff obtained injunctive relief in spite of its restricted availability under Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The legal obstacles overcome in this case do not compare with those in White.
. Jones contends that the recovery in the ADEA litigation was actually worth over $330,000.00 because of the present value of the pension benefits and reinstatement. We recognize that “fees awarded ... [should] not be reduced because the rights involved may be nonpecuniary in nature,” S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS, 5908, 5913. Nonetheless, even accepting this figure, we cannot say that the district court abused its discretion by declining to enhance the award of attorney's fees.
. We express no opinion concerning the relative weight of these factors for determining "exceptional success” nor the degree to which any or all of them must be present to justify the enhancement of an attorney's fee award on the basis of the results obtained. In addition, we express no opinion about the extent, if any, to which these factors are necessarily indistinguishable from the existing Johnson criteria. We merely hold that, even if all these factors are valid considerations, the district court did not abuse its discretion in denying an enhanced attorney’s fee award on the basis of "exceptional success.”
Our opinion does not necessarily foreclose the possibility that in future cases in this circuit an increase in an award of attorney’s fees may be justified on the basis of “exceptional success” even when all claims asserted are not successful. See White v. City of Richmond, 713 F.2d 458, 461-62 (9th Cir.1983) (enhancement upheld despite minor concessions by plaintiff during settlement negotiations).
. Justice Brennan wrote separately in Blum, however, "to reaffirm ... that Congress has clearly indicated that the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee.” Blum v. Stenson, — U.S. — , —, 104 S.Ct. 1541, 1550, 79 L.Ed.2d 891, 904 (1984) (Brennan, J., concurring).
. Counsel for the appellant admitted at this point that the fee situation was "vague.” Record, vol. 2, p. 393-12.
. In addition, we note that in an effort to justify the employment of two trial attorneys, Jones' counsel stated that two lawyers were necessary in light of the fact that Jones could not afford pretrial deposition discovery. Record, vol. 2, p. 393-5. The district court may have taken this to mean that Jones' ability to pay was so significant an issue before trial that cost-cutting measures were necessary. Such concern over Jones’ ability to pay suggests that the parties expected, at least at that point, that Jones would ultimately be liable for his counsel's fees. This liability is inconsistent with a contingency fee arrangement.
. Vindication of the policy of the law depends to a significant degree on the willingness of highly skilled attorneys, such as those now before the court, to accept employment in discrimination cases on a wholly contingent basis. They will hardly be willing to do so if their potential compensation is limited to the hourly rate to which they would be entitled in noncontingent employment. Busy and successful attorneys simply could not afford to accept contingent employment if those were the rules that were applied. The enforcement of our civil rights acts would then be entrusted largely to less capable and less successful lawyers who lack sufficient employment. Such an arrangement would ill serve policies of enormous national importance.
Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1534 (11th Cir.1983).
. The relevant period of delay generally runs from the time payment for legal services rendered would normally be due to the time of the receipt of the payment. In this case, however, the relevant period may be somewhat shorter because the district court awarded interest from the date of its order granting attorney’s fees to Jones. Record, vol. 1, p. 387.
. The district court’s order stated that "$85.00 per hour for time expended on the merits of the case is a reasonable fee for [Jones] in accordance with the customary hourly fee charged for this type of litigation.” Record, vol. 1, p. 384.
. The district court stated that it based its hourly rate figure on 1) the affidavit of Champs Lyons, Jr., one of Jones’ attorneys, 2) the testimony at the hearing for the application of the award of attorney’s fees, and 3) the Defendant’s Response to Post-Judgment Interrogatories. Record, vol. 1, pp. 383-84.
The affidavit was dated February 8, 1983, Record, vol. 1, p. 306, and stated that "when I handle litigated matters on a strictly hourly basis, my regular rate is $95.00 an hour . . . .” Id. at 298. The use of the present tense suggests that the rate was current.
The hearing testimony revealed that an initial bill was sent to Jones in June, 1981, reflecting a rate of $80/hour. Record, vol. 2, p. 393-8. This would represent a historical rate, applicable two years before the district court’s August 2, 1983, order granting attorney’s fees. In addition, two witnesses were asked to state their opinion on the "customary range for hourly fees charged in Mobile in Federal court litigation.” Id. at 393-41 to 393-44. The answers, apparently indicating current fee ranges, were $60.00-100.00 per hour, and $75.00-100.00 per hour. Id. at 393-42, 393-44; see also id. at 393-38 ($75.00-$100.00 per hour).
Finally, the Defendant’s Response to Post-Judgment Interrogatories replied to a question concerning “the then current hourly rate,” Record, vol. 1, p. 284, and a question asking for "the customary hourly rate,” id. at 286, by giving the same answer of $85.00 per hour. Id. at 351-52. These last answers suggest that the historical and current rates may be the same.
. In an affidavit accompanying his request for attorney’s fees, counsel for Jones reviewed the Johnson factor involving awards in other cases and stated that "reported cases, particularly older ones, should be viewed with circumspection, not only because of the impact of inflation since the date of the services, but also because they typically involve special circumstancefs] unique to the facts of the case." Record, vol. 1, p. 306. Despite the reference to inflation, this statement is insufficient to raise the delay issue.
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_appel2_8_3 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. 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.
MINNEAPOLIS NAT. BANK OF MINNEAPOLIS, KAN., et al. v. LIBERTY NAT. BANK OF KANSAS CITY.
No. 1028.
Circuit Court of Appeals, Tenth Circuit.
Aug. 7, 1934.
La Rue Royee, of Salina, Kan. (C. W. Burch and B. I. Litowieh, both of Salina, Kan., on the brief), for appellants.
Wallace Sutherland, of Kansas City, Mo. (A. L. Cooper, E. A. Neel, and William E. Kemp, all of Kansas City, Mo., on the brief), for appellee.
Before PHILLIPS, MeDERMOTT, and BRATTON, Circuit Judges.
BRATTON, Circuit Judge.
This is a suit instituted by Liberty National Bank, of Kansas City, Mo., against Minneapolis National Bank, of Minneapolis, Ottawa County, Kan., a failed national bank -in process of liquidation, and J. G. Hammond, its receiver to establish a trust against the assets of the bank and to compel its payment as a preferred claim, or in the alternative as a common claim.
Goldie C. Morton was engaged in the business of raising, buying, feeding, and fattening cattle in Ottawa county for sale on the market. For many years prior to the events giving rise to this litigation, he had been a customer of Minneapolis Bank of which Roy C. Gafford was president. and directing officer. Morton and Gafford were intimate personal friends, and for about fifteen years Gafford bad arranged credit for Morton with which to conduct his business. Gafford frequently charged Morton’s notes to his account in the bank as they matured, paying them in that manner. The financial needs of cattle growers in that part of the state were beyond the ability of the local banks to serve. As a result, the officers of the hanks located in Ottawa eounty organized the Central Kansas Cattle Loan Company which made loans to stockmen and rediscounted the notes with outside banks. The Guaranteed Finance Investment Company was organized later for a similar1 purpose. Gafford was elected president of both companies. Morton secured loans through one and perhaps both of those sources, and plaintiff rediscounted notes and mortgages executed by other stockmen in that manner. But in October, 1928, plaintiff discontinued that practice and determined to take future notes and mortgages direct from the stoekgrower to itself, using its own forms for that purpose. It made Morton a loan of $17,000 in .December, 1928, taking therefor a note due ninety-one days thereafter secured by a chattel morí gage on two hundred and sixty head of cattle then being fed for the market, one hundred and fifty hogs, and five thousand bushels of corn. Gafford arranged with plaintiff to make the loan. The, proceeds, less a discount charge thereon, were credited to the Minneapolis bank on the hooks of plaintiff. The Minneapolis bank then credited Morton’s account with a corresponding sum. The mortgage was filed for record in Ottawa county four days after its execution and it forbade the sale or removal of the chattels from their then location without the written consent of the mortgagee.
In January, 1929, less than a month after the noto and mortgage were executed and without plaintiff’s knowledge or consent, Morton shipped one hundred and forty head of the cattle to Kansas City and'sold them on the market, the sales being made by commission companies. The commission companies, proceeding through regular clearing house channels and in compliance with general directions theretofore received from the Minneapolis bank, deposited the proceeds, aggregating $13,806.32, in Fidelity National Bank and that hank planed them to the credit of the Minneapolis bank. The credit slips relating thereto merely stated that such deposits had been made by direction of Morton. The Minneapolis bank thereupon credited Morton’s checking account with that sum. It was subsequently checked out, the account being overdrawn on January 22d, 23d, and 26th. The Minneapolis hank closed February 9th. At that time the balance in Morton’s account was $6,963.26, but he owed the bank about $21,000, and the receiver thereafter credited the note with the balance on deposit. Plaintiff was a depositary of the Minneapolis bank, and at the time the latter closed its balance on deposit with the former was $2,2,67.17.
After learning all the facts, plaintiff instituted suits in Missouri to recover from the commission companies and certain packing companies the value of the cattle sold by the-former and purchased by the latter. A settlement was effected through which the commission companies paid plaintiff $3,600, of which $600 was applied to attorneys’ fees and expenses and $3,000 to the Morton, note. Plaintiff also applied the balance on its books to the credit of the Minneapolis bank on the note in the nature of a set-off. These credits, together with others not involved here, reduced the note to $5,686.03. Plaintiff sought recovery in that amount and its establishment as a preferred claim, contending that at the time the Minneapolis hank received the deposits made to its credit in the Fidelity National Bank, at the time it placed the sum to Morton’s credit, and at the time it was subsequently withdrawn and expended, it knew that the money represented proceeds of sales of cattle covered by plaintiff’s mortgage and that its acts constituted a wrongful misappropriation, misapplication, and retention of such money.
Defendants denied knowledge of the source of the money in question and specifically contended, among other things, that by the institution of the suits against the commission companies and the packing companies, with knowledge of all the facts, plaintiff barred and estopped itself to maintain this action. A cross-petition was interposed, in which it was alleged that plaintiff wrongfully applied the $3,267.17 on the Morton note as a set-off, and recovery for that sum was prayed.
The court rendered judgment for plaintiff for the full amount sought, established and allowed it as a preferred claim, directed the receiver to pay it as such, and denied recovery on the cross-petition. The ease is here on appeal.
It is urged at the outset that plaintiff erroneously instituted this action at law. The relief sought is equitable in nature, that is io impress a trust upon the assets of the bank now in the custody of the receiver, but the parties treated the suit as one at law. No request was made that it be transferred to the equity side of the docket and the question now raised was not otherwise presented to the trial court. Trial by jury was waived in writing.' All issues were tried fully and defendants were not prejudiced by the procedure followed. Arkansas Anthracite Coal & Land Co. v. Stokes (C. C. A.) 277 F. 625. In these circumstances, we treat the case as one in equity and review the record accordingly. Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 43 S. Ct. 118, 67 L. Ed. 232.
The effect of the institution of the suits against the commission companies and the packing companies in Missouri, followed by-settlement and payment of a substantial sum, is the next question engaging our attention. The suits were plainly for conversion of mortgaged property with recovery of the price paid or the market value of the chattels as the remedy. The doctrine of election of remedies is a harsh one disfavored in equity, and should not be unduly extended. Friedrichsen v. Renard, 247 U. S. 207, 38 S. Ct. 450, 62 L. Ed. 1075; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 130 N. E. 295, 14 A. L. R. 658. But if two inconsistent remedies are' available, the exercise of one by any decisive act such as the institution of a suit with full knowledge of the facts, precludes the subsequent exercise of the other. Upon learning all the facts plaintiff was entitled either to disaffirm the voidable transaction and sue for recovery of the converted chattels and if recovery in specie could not be had, then for their market value, or to affirm the sale and pursue the proceeds thereof into the hands of the Minneapolis bank if it had knowledge of the facts relating to the source of the fund. Both remedies were appropriate, but they were inconsistent because the former rested upon a disaffirmance of the transaction and the latter upon ratification of it. The institution of the suits in Missouri, followed by settlement and acceptance of the money paid in discharge of the claim there asserted, constituted an election to repudiate the transaction in toto and to claim the cattle or their value. After thus exercising its election of remedy, plaintiff cannot now affirm the sale, pursue the proceeds thereof and assert that the Minneapolis bank received them impressed with a trust in its favor. Those positions are inconsistent. Taking one constitutes an estoppel against assuming the other. United States v. Oregon Lumber Co., 260 U. S. 290, 43 S. Ct. 100, 67 L. Ed. 261; Midland Savings & Loan Co. v. Trademen’s Nat. Bank (C. C. A.) 57 F.(2d) 686.
In an effort to avoid that barrier, plaintiff relies upon a provision contained in the written stipulation through which the suits in Missouri were settled, in which it was recited that the parties thereto should not be prejudiced in their right to file claims, suits or actions against the Minneapolis bank or its receiver. That does not change the situation. Neither the Minneapolis bank nor its receiver was a party to the agreement and hence they are not foreclosed from effectively urging the institution of the suits and their settlement in the manner indicated as an estoppel against plaintiff now asserting an inconsistent remedy here.
Coming to the cross-petition, the doctrine of set-off or counterclaim usually implies and rests upon the existence of reciprocal demands, mutual and subsisting between the same parties. It cannot be invoked if there is lack of mutuality in obligation. For the reasons previously discussed, the Minneapolis bank was not indebted to plaintiff in any sum. It follows that plaintiff wrongfully applied the deposit because there was no obligation to off-set, nor any debt against which it could be charged as a counterclaim. Libby v. Hopkins, 104 U. S. 303, 26 L. Ed. 769. The receiver, therefore, was entitled to judgment against plaintiff on the cross-petition.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
Question: This question concerns the second listed appellant. 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_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.
BUDER et al. v. FRANZ et al., and three other cases.
Circuit Court of Appeals, Eighth Circuit.
May 16, 1928.
Nos. 7903, 7904, 7906, 7911.
1. Action <@=>62 — Suit by remaindermen against trustees of life tenant before life tenant’s death, for accounting as to securities, held not premature, where trustees denied interest of remaindermen.
Where life tenant placed securities in trust under agreement that all of the life tenant’s property should be held by the trustees to be administered as part of life tenant’s estate, and trustees’ bond was fixed at an amount far below the worth of the securities, and trustees’ power extended to sale and transfer thereof, remaindermen had right to sue the trustees for an accounting before death of life tenant; trustees having refused accounting and denied remaindermen’s interest.
2. Judgment <©=>736 — Decree that life tenant was entitled to usufruct, benefit, income, profits, and earnings of property held not res judicata of right of remaindermen to have increases in corporate securities added to corpus of estate.
In suit brought by remaindermen in state court to determine nature and extent of their interests under devise, adjudication that testator’s widow became “entitled to all of the usufruct and benefit of all of the property of the said deceased, and to all the income, profits, and earnings thereof,” as life tenant, held not res judicata of right of remaindermen to have stock dividends and other increases in corporate securities decreed a part of the corpus of the estate, as distinguished from the property of the life tenant.
3. Judgment <©=>736 — Amount of bond required of trustees in suit by remaindermen held not res judicata of value of remaindermen’s in-'terest.
Requirement by court, in remaindermen’s suit for determination of their interests under will, that trustees give bond in specified amount, held not res judicata of issue of value of remaindermen’s estate, where court made no finding that the amount of the bond was the amount of the value of the remainder of the estate or of the entire estate, and bond was given partly to protect the life tenant.
4. Estoppel <@=>78( I) — Remaindermen held not estopped to claim interest in property and securities held by life tenant’s trustees, by agreement for exercise of rights to purchase additional stock.
Agreement between trustees of life tenant, life tenant, and remaindermen for exercise of certain rights given by corporation, in which estate held stock, to take additional stock, and agreement to save trustees harmless in making advancements for purpose of exercising such rights, held not to estop remaindermen from asserting claims to remainder interest under will in property held by the trustees, since the right to subscribe for additional stock was that of the remaindermen, and not of the life tenant.
5. Trusts <©=>272(3) — Life tenant and her trus- ■ tee had no right to additional stock purchased pursuant to stock rights attached to stock constituting part of corpus of trust.
Rights given estate as stockholder to purchase additional stock in corporation constituted part of corpus of estate belonging to remainder-men, and only interest of life tenant therein was to the income from the stock purchased under such rights, if such purchase was by funds from the corpus of the trust, and life tenant and her trustees could not appropriate these rights through exercise thereof with the life tenant’s money.
6. Estoppel <©=>78(1) — Remaindermen held not estopped to assert interest in securities by agreement of life tenant, or by assumption of life tenant’s trustees, relative to exercise of rights to take additional stock.
Remaindermen held not estopped to assert interest in securities held by trustees of life tenant on account of agreement of life tenant that the stock distributed under exercise of rights to take additional stock might be treated as a partial distribution of her estate, or by assumption indulged in by trustees at time of agreement for exercise of right to take additional stock.
7. Trusts <©=>272(3) — Dividends on stock in trust estate are part of corpus of estate.
Stock dividends on stock held in trust estate are part of corpus, and not income from the estate.
8. Wills <@=>684(3) — Increase in stock in residuary estate through exchange and stock dividends held part of corpus, not passing to life tenant as income.
Under will whereby testator gave widow residue of estate during period of her natural life, and devised remainder in equal shares to his children after her death, shares of stock reeeived in exchange for shares constituting part of residuary estate, increase resulting in the exchange, and increase in amount of stock in form of stock dividends constituted part of corpus of estate, to be held for remaindermen, and did not pass to life tenant as income.
9. Wills <@=>684(3) — In absence of contrary direction, testator is' presumed to have bequeathed stock subject to regular action of corporation as regards determination of principal and income on stock.
Owner of stock may make such disposition thereof as he sees fit, but, where he has given no special direction on the question of what shall be considered principal and what income, it is presumed that he intended question should depend on the regular action of the corporation with regard to its shares.
10. Life estates <@=>5 — Life tenant is in a sense trustee for remaindermen, and is liable for waste.
Life tenant is, in a sense, a trustee for the remaindermen, with right to possess the property and enjoy income during lifetime, and with liability for waste to the corpus of the estate.
11. Executors and administrators <@=>3(I)— Remainderman, on life tenant’s death, takes directly without administration.
Remainderman, on death of life tenant, is entitled to receive directly property as to which tenant had only life estate and no administration can be had.
12. Trusts <@=>225 — Determination as to who shall bear expense of trustees’ bonds rests largely in sound discretion of chancellor!
Determination as to who shall pay expense of procuring bonds for trustees is matter resting largely in sound discretion of chancellor, expense being usually placed on trust estate.
13. Trusts <@=>225 — Court properly required remaindermen specifically protected by additional bond from life tenant’s trustees to bear expense of bond.
Where trustees appointed by life tenant to care for property of estate were required to give additional bond solely for protection of interests of specified remaindermen, requirement that the remaindermen so protected bear the expense of the bond was proper.
14. Trusts <@=>161 — Decree that life tenant’s trustees give joint bond for protection of remaindermen’s interests should be modified, by providing bond separate as to each interest at election of owners of such interests.
Where trial court in suit by remaindermen against life-tenant’s trustees for accounting required joint bond iu sum considerably below the value of the remaindermen’s interests, decree should be modified by giving remaindermen opportunity to require separate bonds in sums not exceeding that of the joint bond.
15. Trusts <@=>227 — Life tenant’s trustees, denying right of remaindermen, held chargeable individually with costs in accounting suit by remaindermen.
In suit by remaindermen against life tenant’s trustees for an accounting as to remaindermen’s interest, which the trustees and life tenant denied, trustees, whose course of conduct compelled litigation, were properly chargeable with costs in their individual capacity, on re- • maindermen’s.recovery.
Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.
Suit by Ehrhardt W. Franz against Gustavus A. Buder, the Mississippi Valley Trust Company, as administrator of the estate of Walter G. Franz, deceased, Earl F. Nelson, as guardian ad litem, and others, in which -the two defendants last named and others joined in the plaintiff’s prayer for relief. From the decree, the defendant first named and others appeal, and plaintiff and the two last-named defendants and others cross-appeal.
Modified and affirmed.
Osear E. Buder and G. A. Buder, Jr., both of St. Louis, Mo. (A. W. Wenger and E. E. Schowengerdt, both of St. Louis, Mo., on the brief), for Gustavus A. Buder and others.
S. Mayner Wallace, of St. Louis, Mo. (Allen MeReynolds, of Carthage, Mo., on the brief), for Ehrhardt W. Franz.
T. M. Pierce, of St. Louis, Mo. (Samuel H. Liberman, of St. Louis, Mo., John B. Hollister, of Cincinnati, Ohio-, and A. Holt Roudebush, of St. Louis, Mo., on the brief), for Mississippi Valley Trust Co.
Earl F. Nelson, of St. Louis, Mo. (Wilfley, Williams, McIntyre & Nelson, of St. Louis, Mo., on the brief), for Earl F. Nelson.
Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.
STONE, Circuit Judge.
This litigation has been before this court three times — once, on questions of jurisdiction and parties (11 F. [2d] 854); once, on questions of practice and procedure, involving the modification of the order of this court on the above appeal (11 F.[2d] 854, 858); once, on an ancillary bill to protect and preserve the jurisdiction of the trial court (15 F.[2d] 797). The first trial was upon the merits but, as the decree thereon was a dismissal of the bill for lack of necessary and indispensable parties, there was no determination of the merits. On that appeal [our No. 7019,11 F.(2d) 854], counsel argued various points on the merits but, as this court, thought that necessary and indispensable parties were lacking, it did not examine the merits except so far as to answer the questions as to parties and jurisdiction. On the return to the trial court, the bill was amended bringing in all interested parties.and the second trial and decree were upon the merits. Generally speaking, the result of that decree was to grant the relief sought in the bill and by the interveners. From that result, the main appeal herein is taken. There are cross-appeals on costs and concerning the bonds required to be given under the decree. •
I. The Main Appeal.
These appellants argue their assignments under five headings. There is no material conflict in the evidence. The issues are as to the legal effect of the evidence. For an understanding of these issues an outline will be given of the material evidence with such further detailed statement, in connection with each issue, as may be necessary to develop the situation.
Prior to February 11, 1898, Ehrhardt D. Franz died testate in St. Louis, Mo., leaving an estate consisting (besides household goods and a small amount of cash) of (1) an undetermined interest in bonds, inventoried at $2,543.50; (2) bonds, inventoried at $24,-750; (3) shares in various corporations, valued at $55,185; (4) notes, inventoried at $14,307.50; (5) insurance, inventoried at $1,000; (6) thirteen pieces of real estate. The residuary portion of his will was as follows :
“The rest, residue and remainder of my estate, whether real, personal or mixed property, I give, bequeath and devise unto my beloved wife Sophie Franz, for and during the period of her natural life.
“After the termination of the life estate of my wife, I give, bequeath and devise the remainder in equal shares, share and share alike, unto my children, Minna, Johanna, Ehrhardt, Ernest, Amanda, Gustav, Walter, Otto, Henrietta and Adelheide, and unto their heirs and assigns forever.”
The estate was administered; the executrix discharged on March 10, 1900; and the residuary assets turned over to the wife (Sophie Franz) who was then 59 years old.
Among the assets of the estate turned over to Sophie Franz (in 1898) were 210 shares of the American Arithmometer Company. Thereafter, that company declared stock dividends of a like amount and, still later, the Burroughs Adding Machine Company acquired the assets and business of the Arithmometer Company and exchanged 4,-200 of its shares for the above 420 shares in the Arithmometer Company. All of this took place by 1905.
January 30, 1909, Sophie Franz executed a trust agreement with G. A. Franz (one of the sons) and G. A. Buder (who had been counsel for the deceased, the estate, and later, of Mrs. Franz).. This instrument conveyed from her to Franz and Buder, as trustees:
“All her right, title and interest of every kind and nature of, in and to the following described stocks, bonds, notes, mortgages, deeds of trust, obligations, securities, and assets now held, owned and controlled by her in her own right as her absolute property, or as life tenant under the last will and testament of E. D. Franz, deceased, to which reference is hereby made, or whether held, owned or controlled in either one or both of said capacities and more particularly described as follows, to wit: * *
“3. Forty-two hundred (4200) shares of the capital stock of the Burroughs Adding Machine Company, evidenced by certificate No.-, issued to Sophie Franz, said certificate including and embracing two hundred ten (210) shares of the capital stock of the American Arithmometer Company of St. Louis, Missouri, of the par value of one hundred dollars ($100.00), per share, inventoried as part of the estate of E. D. Franz, deceased; the said American Arithmometer Company having changed its name to Burroughs Adding Machine Company, and being now located in the city of Detroit, Michigan, reference being hereby made to the inventory of the estate of the said E. D. Franz, deceased. * * *
“7. Any and all other assets, securities, bonds, stocks, notes) mortgages, deeds of trust, collaterals, commercial paper, or other obligations received, acquired, held or owned by the undersigned, under and by virtue of the last will and testament of Ehrhardt D. Franz, deceased, dated August 9th, 1897, and duly filed and admitted to probate in the probate court of the eity of St. Louis, Missouri, said court having jurisdiction of said estate, said will appearing of record in the recorder’s office, of said city of St. Louis, Missouri, in Book No. 1441, page 443, to which said last will and testament reference is hereby made, and the same by such reference for all necessary purposes made part thereof.”
The powers of the trustees were to collect and recover:
“All profits, and income, dividends, interest, earnings, and principal of the said stocks * * * or other assets, * * * and shall have and are hereby given. and granted full power and authority, so far as is possible under the will and testament of said Ehrhardt D. Franz, deceased, to sell, assign, exchange, transfer, convey, mortgage, pledge, incumber, or otherwise dispose of any or all of the said stocks, bonds, notes, obligations, mortgages, deeds of trust, collaterals, and securities, and the principal and proceeds thereof to them hereby transferred, assigned, conveyed and delivered, whenever in their judgment they deem it proper to do so,-upon such terms, conditions, and provisions as they may deem best and for the best interests of the trust estate of the undersigned hereby created.
“In ease of such conveyance, transfer, assignment, exchange, or other disposal of any of the assets, or any part of the assets, to them hereby conveyed, assigned, transferred, and delivered, they shall have and are hereby granted full power, right, and authority, and are hereby empowered, directed and authorized to invest and reinvest the proceeds of any such sale, transfer, or exchange, including principal, in such manner and in such form and securities as they may deem proper and for the best interests of said party of the first part and the trust estate hereby created.”
Also they were empowered:
“To expend, disburse, retain, and pay out of said trust estate and funds, any and all assessments, charges and taxes, ■whether general or special, attorneys’ fees, outlays, compensation, charges and costs of administration, necessary, incident or essential to and for the care, protection, preservation, administration, management and distribution of the assets hereby conveyed or hereafter acquired and are authorized and empowered to make, create, and pay all necessary debts, expenses and outlays for repairs, betterments, or improvements, which they may deem necessary or proper for the protection, preservation, improvement, sale or transfer of any and all real estate of which they may become owners as such trustees, whether acquired by foreclosure or otherwise, and are authorized and empowered to make any and all such other payments, outlays, and expenditures as they may deem necessary, expedient or proper for the protection of such real estate and the assets of such trust estate.”
Certain disbursements to Mrs. Franz and to the children (or their heirs) were provided for as follows: $4,000 annually “shall” be paid to Mrs. Franz “providing the income, rents, earnings, and profits of the estate which they may hold and securities hereby conveyed, admit of such payments being made,” with the power, in named emergencies, to “in their discretion increase said quarterly payment to her to such an amount, and for such time and upon such terms and conditions as they may deem best and proper”; after these payments to Mrs. Franz, the trustees “may pay” $625.00 quarterly to each of the ten children (or the heirs thereof) but:
“In the event the earnings, income, rents, receipts and profits received by said trustees are not sufficient to admit of such payment quarterly to each of the distributees above named and cannot be conveniently made, then the said trustees, after so making payment to said Sophie Franz, of one thousand dollars ($1,000.00) quarterly, or such other sum as they may deem necessary as aforesaid may pay to each of the said distributees such sum as they may deem proper, but in no event and under no circumstances shall the said payment encroach upon or impair the principal and assets of the trust estate hereby created.”
The instrument provided, also, that semiannual statements of the condition of the trust estate should be made to Mrs. Franz and:
“If it appears from the statement of said trustees that there remains on hand any earnings, income, rents, receipts and profits from the said trust estate, which have not been drawn by or set aside, or paid out for account of said Sophie Franz, or to the distributees above mentioned or otherwise expended as herein provided, such sums shall be invested and become and remain as part principal of said trust estate hereby created.”
The payments were to be made to Mrs. Franz during her life:
“And upon her death all these stocks, bonds, notes, collaterals, commercial paper, mortgages, deeds of trust, securities or other assets to them hereby conveyed or hereafter acquired or by them held, owned or controlled as such trustees, and any and all real estate by them acquired as such trustees, shall be held by them for account of the estate of said Sophie Franz, to be administered by the probate court of the city of St. Louis, Missouri, in accordance with the last will and testament of said Sophie Franz, and in accordance with the laws of the state of Missouri in such ease made and provided.”
The trustees were required to employ “Buder & Buder as their counsel and attorneys in the management and administration of said estate” and to appoint Oscar E. Buder (member of Buder & Buder) as the successor of either trustee. The certificates of stock in the Burroughs Company (and in two other companies — 30 shares of the Germania Savings Institution and 50 shares of the Third National Bank of St. Louis, Mo.) were to remain in a designated safety deposit box which could not be opened unless Mrs. Franz and both trustees were present-^he to have no power to remove any of such stock without “the consent and in the presence of both of said trustees.” What was to be done with other securities or valuable papers is not designated although 300 shares in two other companies and 20 bonds ($1,000 each) are described therein. Also an irrevocable power of attorney given the trustees to vote the Burroughs, Germania and Third National stock at all stockholders’ meetings and for all purposes — nothing said as to the stock in other companies. There was no requirement that any bond be given by the trustees.
About sixty days after this trust deed was executed, Ehrhardt W. Franz (one of the sons) brought an action in the state court, at St. Louis, Missouri, attacking the validity of the trust agreement, seeking to have it set aside, a receiver appointed and for other relief. The decree therein sustained and construed the trust agreement and required the trustees to give a bond of $100,000 “for the use and benefit of any and all parties interested in said trust estate” and to charge the cost and expense thereof to the trust estate.
Thereafter, dissention arose between Ehrhardt W. Franz (one of the sons) and the trustees which resulted in this suit. The parties defendant were Mrs. Franz, the trustees, the six children then living and the heirs, guardians of heirs and administrators (or executors) of three children who had died after the father, Ehrhardt D. Franz. The amended bill sets forth that the trust estate, coming from the estate of the father, exceeds three million dollars in value and includes 31,-500 non-par shares and 7,875 preferred shares in the Burroughs Adding Machine Company besides other stocks, bonds and securities; that the bond of $100,000 is “wholly inadequate in amount”; that the trustees refuse to give plaintiff “any information or account” concerning the “present nature, condition, extent and value of the various properties taken by them as aforesaid from the life tenant”; that the trustees are asserting and contending that “plaintiff no longer has or owns his said remainder interest in said properties.” The prayer is for disclosure and accounting, for restraint in disposing of the Burroughs stock, for a bond to plaintiff to protect his remainder interest, for an adjudication of the vested interest of plaintiff, and for general relief.
The administrator of the estates of Ernest H. Franz and of Walter G. Franz (two deceased sons) and the guardians ad litem of several grandchildren (heirs of deceased children of Ehrhardt D. Franz) answered, praying substantially the same relief as sought in the amended bill.
Answers were filed by G. A. Buder (one of the trustees), jointly by Mrs. Franz and the trustees, G. A. Franz and G. A. Buder, by the other defendants jointly. In so far as the issues presented on this main appeal are involved, those answers were as follows: First, that the action was premature because the parties seeking relief have, until the death of Mrs. Franz, “no right to the possession or enjoyment of any remainder interest, if any he has, and no right to have the amount or value of such interest, if any, determined or ascertained.” Second, denies the right of such parties to “demand any security.” Third, denies any duty to furnish any information or account. Fourth, estoppel to assail trust agreement and bound thereby because of receipt of payments thereunder. Fifth, that the decree in the state court suit found that “any and all stock dividends were part of the earnings, usufruct, profits and income of said estate to which the life-tenant was entitled in her own right,” which made the interest of the children res adjudieata. Sixth, estoppel because of agreements made January 7 and 30,1920. Seventh, the parties seeking relief have “no interest, remainder or otherwise, under the will of * * * Ehrhardt D. Franz” because of certain advancements and payments in excess of the value of their shares in the estate of Ehrhardt D. Franz, deceased.
The decree herein determined that the increase of Burroughs stock (as well as certain other property) belonged to the corpus of the residuary estate of Ehrhardt D. Franz, deceased; that the plaintiff had a one-tenth vested right, as remainderman under the will (the complaining defendants having similar rights); that such remaindermen will be entitled to possession thereof upon the death of Mrs. Franz, the life tenant; that the trustees file, within 30 days, a complete statement, under oath, of the property coming to their hands and their administration thereof, and, thereafter, render semiannual statements to the parties here asking relief; that the trustees, within 30 days, give bond for $500,000 for the “joint and several” protection of the parties here asking relief, said bond to be additional to the existing bond for $100,000 and the cost thereof to be paid by or charged to such parties. Jurisdiction was expressly retained to order an accounting and for other necessary orders and decrees. The costs of this proceeding to be paid by the trustees and charged “to the trust estate.”
Issues on Main Appeal.
Appellants argue here five matters. One is a matter of procedure — that this aetion is prematurely brought. Two are urged as a bar to recovery — res adjudieata and estoppel. Two have to do with the merits of the aetion on the main facts — the increase of Burroughs Company stock is income and, therefore, the property of the life tenant and the intent of the testator, Ehrhardt D. Franz.
Premature Aetion.
This contention is that while the life tenant survives, there can be no aetion to adjudicate title of the remaindermen or to protect the remainder estate. The present aetion does not involve nor seek to affect the enjoyment of possession or other rights of the life tenant. Its sole purpose is to protect from spoliation and loss property which is in possession of the life tenant, but alleged to belong to the estate coming to the remainder-men (with absolute right of possession upon death of the life tenant), and, as to which, the life tenant is entitled only to the income therefrom. Therefore, the legal issue is whether a remainderman is entitled to equitable relief to have protected property belonging to him in the rightful possession of the life tenant who is entitled to the income, for life,- therefrom. As a necessary incident to sueh relief (if allowable), the remainder-man must prove that he is such as to the property involved but this is not, a proceeding where the only or main purpose is to have the title of the remainderman adjudicated — it is a bona fide action to protect a remainder estate alleged to exist.
Appellants rely upon several state cases and the following eases in the Supreme Court or in inferior federal courts: Williams v. Hagood, 98 U. S. 72, 25 L. Ed. 51; Marye v. Parsons, 114 U. S. 325, 5 S. Ct. 932, 962, 29 L. Ed. 205; Singer Mfg. Co. v. Wright, 141 U. S. 696, 12 S. Ct. 103, 35 L. Ed. 906; United States v. Evans, 213 U. S. 297, 29 S. Ct. 507, 53 L. Ed. 803; Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246; Arnold v. Garth (C. C.) 106 F. 13; Pluche v. Jones (C. C. A.) 54 F. 860; Preston v. Smith (C. C.) 26 F. 884. The Williams and Marye Cases involved the validity of state statutes relating to securities issued by the state and in each the court said that no existing or threatening injury was alleged and, therefore, the issue presented was purely abstract and courts would act only- upon legal rights actually in controversy. The Singer and Evans Cases were refused determination because the issues therein were purely moot. The Muskrat Case refused decision because the issue was not a justiciable controversy. The Arnold and Pluche Cases held merely that a statute of limitations did not begin to run against a remainderman until his right to possession accrued. The Preston Case (being, a ruling on demurrer to a bill) held the aetion was “more like an effort to establish a doubtful title than a proceeding to protect from serious wrong a clear or adjudicated title” (page 889), and that “only upon an adjudicated or a clear title will a court of equity issue an injunction to restrain waste” by the life tenant. Thus, it appears that none of the above eases are applicable here nor are any statements in the opinions therein except those above quoted from Judge Brewer in the Preston Case. Those expressions clearly imply that, at least under certain circumstances, sueh right of aetion would exist during^the life estate.
However, the matter is not in doubt. In Cross v. Del Valle, 1 Wall. 5, at page 15,17 L. Ed. 515, the court said:
“A remainderman may have a decree to protect the estate from waste, and have it so secured by the trustee as to protect his estate in expectancy. The court will interfere under all needful circumstances to protect his rights, but sueh eases do not come within the category of mere declaratory decrees as to future rights.”
Undoubtedly, the same rule prevails in the state courts. See 23 E. C. L. 5791, where it is said:
“One who has a vested remainder in land has a right to protect the estate, so that he may receive the same when it ought to come to him by the terms of the limitation, and may maintain a proper action for any injury to the inheritance, committed or threatened, whether by the tenant in possession on by a stranger.”
Also, at page 580, it is said:
“While a court of equity will not maintain a bill merely to declare future rights, it will interfere in all needful cases to protect the rights qf remaindermen.”
Again, at page 581, the right of the remainderman to require security bond and accounting (the relief here sought and accorded by the trial court) is stated as follows:
“Formerly it was the practice to exact from the tenant for life security that the property should be forthcoming on the happening of the contemplated event. This seeurity is still required in exceptional eases. But, before security for the forthcoming of the property at the termination of the life estate will be required, the remainder-man must have reasonable grounds to apprehend the loss or removal of the property, or that his rights are in danger.
“139. Filing of Inventory. Unless the remainderman can show some necessity for exacting security, the only remedy which he now has is to require the tenant to make an inventory which shall show the property which he received, and to which the remainderman will become entitled upon the termination of the particular estate. And, though an inventory has been filed, the tenant, upon a proper showing of real danger, may be called on to account and be required to give bond.
“140. Seizure and Impounding of Property. The property may also be seized and impounded for the protection of the remainderman. Should the tenant attempt to sell, or in any other mode waste or misuse the property, so as to threaten its destruction, the court may impound it, that is, take it into the hands of the court, by its officer,- and give the first taker the profits. The practice is to require, security for the lawful use of the property during the life estate, and if this is not given, then pursue the mode of seizing upon the property.”
Also in 21 C. J. at page 996, § 153, it is said:
“Since a remainderman has only an estate to vest in possession in futuro, he is entitled neither to actual nor to constructive possession of the property until the termination of the particular estate. He may however bring an action in equity during the lifetime of the life tenant to preserve the property, and, without taking actual possession to complete his title, he is entitled to all the remedies which may be necessary to protect and enforce his right at law.”
Again, at page 1013, § 172, it is said:
“Where the property is in the hands of a trustee any breach of trust or improper conduct on the part of the trustee is a ground for equitable relief, and where a trust deed has been set aside under a decree fraudulently obtained, the remainderman may maintain a bill to have the property restored to the original trust. If the trustee is already under a valid and'sufficient bond to protect the remainder interest, the remainderman is not entitled to any other relief; and the remainderman cannot, during the continuance of the" life estate, sue on the trustee’s bond to recover any part of the amount wasted, although he could proceed in equity to compel the trustee to bring the money into court to be invested. The remainderman may maintain a suit for the appointment of a new trustee and for an accounting.”
Also at page 967, § 105, it is said:
“Bight to Equitable Belief in General A remainderman or reversioner unless barred by laches, is entitled to come into equity by a bill quia timet for the protection of his interest when the property in the hands of a life tenant is in danger of loss, deterioration or injury, or when the life tenant is claiming a right to the property adverse to that of the remainderman.”
Also, at page 967, section 106 states that, under certain circumstances, injunction may be employed to protect the remainder estate; page 968, section 107, that accounting may be had; page 968, sections 108 and 109, that sequestration and a receiver are sometimes proper. The above statements in Ruling Case Law and in Corpus Juris are based upon abundant citations from various state courts — to which may be added later citations as follows: Abbott v. Wagner, 108 Neb. 359, 188 N. W. 113, 121; Ivey v. Lewis, 133 Va. 122, 112 S. E. 712, 716; Newport v. Hatton, 195 Cal. 132, 231 P. 987,
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_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.
Orie DUNN v. UNITED STATES (two cases).
Circuit Court of Appeals, Sixth Circuit.
June 14, 1928.
Nos. 5192, 5193.
Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.
John T. Murphy, of Covington, Ky., for appellant.
Sawyer A. Smith, U. S. Atty., of Covington, Ky.
PER CURIAM.
Dismissed pursuant to motion of counsel for appellant.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer: |
songer_respond1_1_3 | J | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
NATIONAL LABOR RELATIONS BOARD, Petitioner v. PRINTERS SERVICE, INC., Photo-Composition Service, Inc., Respondent.
No. 20376.
United States Court of Appeals, Sixth Circuit.
Dec. 14, 1970.
Alice Andrews, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Nancy M. Sherman, Attys., N. L. R. B., Washington, D. C., on the brief, for petitioner.
John H. Doesburg, Chicago, 111., for respondents.
Before WEICK, McCREE, and MILLER, Circuit Judges.
ORDER.
This case is before the court upon the application of the National Labor Relations Board for enforcement of its order issued April 30, 1969, and reported at 175 N.L.R.B. No. 120. Reference is made to the Decision and Order of the Board and to the adopted findings and conclusions of the Trial Examiner for a statement of facts.
Upon consideration of the briefs, oral arguments, and the entire record, the court concludes that the order of the Board is supported by substantial evidence on the record considered as a whole.
It is ordered that the order of the Board be, and it hereby is, enforced.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_district | G | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Patricia Ann KEELER and William Joseph Keeler, Plaintiffs-Appellees, v. RICHARDS MANUFACTURING CO., INC., et al., Defendants-Appellants.
No. 86-1201.
United States Court of Appeals, Fifth Circuit.
June 1, 1987.
E. Earl Harcrow, Tim G. Sralla, Shannon, Gracey, Ratliff & Miller, Fort Worth, Tex., for defendants-appellants.
Roger Turner, T. Ray Guy, Jennifer A. Youpa, Dallas, Tex., for plaintiffs-appellees.
Before GARZA, WILLIAMS and GARWOOD, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Defendants Richards Manufacturing Company and Richards Medical Company (collectively Richards) are appealing the judgment entered in favor of plaintiffs Patricia Keeler and her husband, William Keeler. The jury found that Richards had defectively manufactured a compression hip screw which broke after being implanted in Mrs. Keeler’s hip. The Keelers were awarded over five hundred thousand dollars in damages after 32% of the total award was deducted as that part of the damages caused by the fault of Mrs. Keel-er. Richards claims that the evidence is insufficient to support the verdict.
I. Facts
Patricia Keeler broke her hip on the evening of July 18, 1982, when she accidentally slipped and fell in a friend’s kitchen. She was taken to Plano General Hospital in Plano, Texas. Dr. Neal C. Small, an orthopedic surgeon at the hospital, decided to implant a compression hip screw into Mrs. Keeler’s broken hip in order to assist in the healing process. After the operation, Mrs. Keeler’s hip appeared to be mending normally, and she did not experience any unusual complications as a result of the surgery.
On November 27, 1982, Mrs. Keeler entered Gaston Episcopal Hospital for additional surgery unrelated to her hip injury. A few days prior to her admission to the hospital, Mrs. Keeler reported experiencing a great deal of pain in her hip. Dr. William C. Head, Mrs. Keeler’s regular orthopedic surgeon, examined her and discovered that the compression hip screw had broken. The broken screw was replaced with a hip prosthesis. This surgical implant eventually proved to be unsuccessful, and a second hip prosthesis had to be installed in August 1984.
Mr. and Mrs. Keeler filed this diversity action against Richards, the manufacturer and distributor of the broken hip screw, in the United States District Court. The Keelers alleged that the break in the compression hip screw was the result of a manufacturing or design defect, while Richards claimed that Mrs. Keeler had misused the screw by putting more than the recommended amount of weight on her hip. The jury determined that the screw had been defectively manufactured and that the defect was a producing cause of appellees’ damages. The jury also found that appellants’ defective manufacture of the compression hip screw breached an express warranty and an implied warranty of merchantability.
The jury did not make a finding that the breach of warranty was committed knowingly or that the compression hip screw was defectively designed. Additionally, Mrs. Keeler was determined to have been misusing the screw at the time the screw apparently broke because she put excess pressure on it by lifting a portable television set. The jury found her thirty-two percent at fault for the damages she sustained.
The jury awarded Mrs. Keeler the following amounts of damages:
' A. Past Physical Pain and Mental Anguish $100,000.00
B. Future Physical Pain and Mental Anguish $100,000.00
C. Past Physical Impairment $100,000.00
D. Future Physical Impairment $150,000.00
E. Past Medical Expenses $ 39,400.00
F. Future Medical Expenses $150,000.00
G. Past Disfigurement $ 50,000.00
H. Future Disfigurement $100,000.00
Mr. Keeler was compensated for his losses as follows:
A. Past Lost Consortium $ 20,000.00
B. Future Lost Consortium $ 20,000.00
Appellants moved for a directed verdict before submission of the case to the jury and for judgment notwithstanding the verdict. They further requested a remittitur of the damages portion of the jury award or a new trial. The district court denied all of appellants’ motions and, on February 26, 1986, entered judgment agaiiist appellants in the amounts of $536,790 plus prejudgment interest for Mrs. Keeler, $27,200 plus prejudgment interest for Mr. Keeler, and $22,000 for attorneys’ fees. There was timely notice of appeal.
II. Defective Manufacture of the Compression Hip Screw
Appellants claim that the district court erred in denying their motion for directed verdict, motion for judgment notwithstanding the verdict, and alternatively, motion for new trial on the ground that the evidence presented at trial did not support the jury’s finding that the compression hip screw was defectively manufactured. A jury verdict, however, may be reversed and a new trial ordered only if the verdict is against the great weight of the evidence. Smith v. Transworld Drilling Co., 773 F.2d 610, 612 (5th Cir.1985). “The decision to grant or deny a motion for new trial generally is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of thát discretion or misapprehension of the law.” Dixon v. International Harvester Co., 754 F.2d 573, 586 (5th Cir.1985).
The standard for granting a motion for directed verdict or motion for judgment notwithstanding the verdict is even more stringent:
[T]he Court should consider all of the evidence ... but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusion's, the motions should be denied____ [I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). After reviewing the record, we find that there is ample evidence to support the jury’s verdict and that the district court did not err in refusing to grant appellants’ motions.
Two of appellees’ expert witnesses, John Harcourt and Dr. Gary Hansen, testified that the lag screw component of the compression hip screw contained at least four irregularities which they considered to be manufacturing defects. They also concluded that any one of the identified defects could have been a producing causé of Mrs. Keeler’s injuries. The first manufacturing defect they found concerned the length of the lag screw’s internal threads. Appellants’ design specifications required the lag screw's internal threads to be not more than 1.125 inches in length. John Harcourt testified that he measured the subject lag screw and found it to be 1.1875 inches in length. Dr. Hansen also examined the subject lag screw and confirmed that, in his opinion, the internal threads were “not in conformance with blueprint specifications.”
Mr. Harcourt and Dr. Hansen testified that the presence of excess internal threads would weaken the lag screw by creating an area of unintentional stress concentration. They stated that, as a result of this defect, the lag screw’s resistence to fatigue failure was decreased, which eventually caused the screw to break.
The second defect was evidenced by testimony that an unacceptable amount of metal debris was present in the lag screw at the time it was inserted into Mrs. Keel-er’s hip. John Harcourt testified that this debris would interfere with the surgeon’s ability to compress the screw properly, thereby allowing the bones greater than normal movement. In turn, this failure to tighten properly would place a higher level of stress on the screw. Mr. Harcourt considered the resultant stress to be a producing cause of the screw’s failure.
The claim of a third defect was based upon evidence that the subject screw’s radius was slightly less than that of an exemplar hip screw furnished by Richards. John Harcourt testified that the smaller radius would result in greater stress concentration and that the subject screw was not as strong as it otherwise should have been. Finally, as a fourth defect, there was also some testimony that the hip screw failed to comply with the American Society of Testing Materials’ (A.S.T.M.’s) standard of 35% ductility.
Appellants undertook to discredit the value and accuracy of the evidence concerning the alleged manufacturing defects. In effect, they are only relitigating the issues that already have been decided by the jury. They claim, for example, that appellees’ experts were incorrect in their measurements of the lag screw and that the internal threads were less than 1.125 inches in length. They also contend that any debris which may have been present in the lag screw could not have been a producing cause of Mrs. Keeler’s injuries because x-rays revealed that the hip screw had functioned properly in pulling Mrs. Keeler’s bones together and that the hip appeared to be healing satisfactorily. The jury, however, heard these contentions and chose to believe appellees’ witnesses rather than those of appellants. There is sufficient evidence to support the jury’s finding that Richards defectively manufactured the subject compression hip screw, and the district court correctly decided not to “second-guess” the jury’s verdict by granting any of appellants’ motions.
III. Damage Award
A. Disfigurement
Appellants claim that there is insufficient evidence to support the jury’s award of $150,000 to Mrs. Keeler for past and future disfigurement because there is nothing in the record to indicate that Mrs. Keeler suffered any serious scarring or other physical deformity as a result of the broken hip screw or the subsequent surgeries needed to repair the hip. They contend that, in contrast to physical impairment, disfigurement damages are awarded only in cases involving a physical blemish which visibly detracts from a person’s appearance or which otherwise injures or impairs a person’s beauty or symmetry. The Texas cases recognize as an element in establishing damages in disfigurement the subjective feelings of embarrassment or depression created by the disfigurement. See Goldston Corp. v. Hernandez, 714 S.W.2d 350, 353 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.) (disfigurement damages awarded to a man who was depressed and embarrassed about his scarred foot and amputated toe); Northwest Mall Inc. v. Lubri-Lon International, 681 S.W.2d 797, 804 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (disfigurement damages awarded to a woman with three hip surgeries prior to trial and three more anticipated who considered herself deformed because of the resultant scarring); Armellini Express Lines v. Ansley, 605 S.W.2d 297, 312 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.) (disfigurement damages awarded to a thirty-two-year-old woman who suffered substantial injury to her body and face such that she considered herself an “ugly old hag”); Texas Farm Products Co. v. Leva, 535 S.W.2d 953, 959 (Tex.Civ.App.—Tyler 1976) (disfigurement damages awarded to a young man with an amputated little finger and a hand with areas of exposed tissues who was embarrassed to shake hands with anyone).
Appellees claim in their brief that Mrs. Keeler sustained extensive permanent scarring as a result of the two hip replacement operations. There is, however, a total lack of evidence in the record to support that contention. The record also does not contain any testimony to the effect that Mrs. Keeler considered herself to be disfigured in any way. The mere fact that Mrs. Keeler is required to use crutches or a cane is not evidence of disfigurement; it is evidence of disability. In short, the record is devoid of any evidence of disfigurement as opposed to physical impairment.
It is well-established that “a mere scintilla of evidence is not sufficient to sustain a jury determination.” Tarlton v. Exxon, 688 F.2d 973, 976 (5th Cir.1982). In this case, there was not even a scintilla of evidence of Mrs. Keeler’s disfigurement, and the jury should not have been given the opportunity to consider the matter. We determine that the district court erred in failing to grant appellants’ motion for judgment notwithstanding the verdict on the issue of disfigurement and reverse the damage award of $150,000.
B. Future Medical Expenses
Under Texas law, “[rjecovery for future medical expenses requires a showing that there is a reasonable probability that such medical expenses will be incurred in the future.” City of Rosenberg v. Renken, 616 S.W.2d 292, 293 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). “No recovery can be allowed based upon pure speculation.” Roth v. Law, 579 S.W.2d 949, 956 (Tex.Civ.App.—Corpus Christi 1979, no writ). Appellants claim that the jury award of $150,000 to Mrs. Keeler for future medical expenses is not supported by the evidence. We agree.
The record indicates that only Dr. Vetter Frank Cody and Dr. William C. Head testified concerning Mrs. Keeler’s future medical expenses. When asked what the future would hold for Mrs. Keeler, Dr. Cody, a psychiatrist, stated that “there’s a lot of uncertainty. No one really knows just what’s going to happen in situations like is [sic].” Dr. Head testified that Mrs. Keel-er’s medical expenses could vary a great deal. He also stated that “this is one of those situations that if it were simply routine follow up checks in the office and periodic x-rays could probably be 2 or $300 a year. Whereas, if she ended up having to have more surgery you could be facing thousands of dollars____” No other evidence was presented.
“In reviewing a jury award of damages on appeal, the court is actually reviewing the district court’s denial of a motion for a new trial. The standard of review of the denial of such a motion is whether the district court abused its discretion.” Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 539, 541 (5th Cir.1985) (citations omitted). If the jury awards an unreasonable amount in light of the evidence, a new trial may be ordered, or the award may be reduced by suggesting a remittitur to the maximum amount the jury could have awarded. Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.1983).
Since the district court erred in allowing a damage award which included an excessive amount of future medical expenses to stand, we reverse for a new trial on the issue of damages unless appellees are willing to accept a remittitur for the amount of the excessive future medical expenses. The new trial on the issue of damages will encompass physical pain and mental anguish and physical impairment as well as medical expenses. This is so because the question of future medical expenses is not so distinct and separate from the other damage issues “that a trial of it alone may be without injustice.” Westbrook, 754 F.2d 1233, 1242 (5th Cir.1985) (quoting Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931)). It will not include retrial of the issue of disfigurement since there was a complete absence of evidence on the issue and the district court should have directed a verdict or granted judgment notwithstanding the verdict. The maximum non-speculative amount Mrs. Keeler could have received for future medical expenses was $6,000. Cf. Roth v. Law, 579 S.W.2d at 956 (jury award of $20,000 was excessive where the only testimony of future medical expenses was physician’s “conservative” estimate of $10,000). Appellants, therefore, are entitled to a new trial on damages unless appellees consent to a remittitur of $97,920.
IV. Conclusion
We determine that the evidence is more than sufficient to support the jury’s finding on the issue of Richards’ defective manufacture of the compression hip screw. We find, however, that the district court erred in failing to grant appellants’ motion for judgment notwithstanding the verdict on the issue of disfigurement. We reverse and render on this issue. Additionally, the damage award is excessive, and the district court erred in denying appellants’ motion for new trial. We, therefore, order a new trial on the issue of damages unless appellees accept a remittitur of $97,920.
The judgment of the district court is
AFFIRMED ON THE MERITS. REVERSED AND RENDERED IN PART, AND REMANDED FOR A NEW TRIAL IN PART ON DAMAGES.
. The compression hip screw is a device specially designed for fixation of broken hips. It consists of three different parts, the hip screw plate, the lag screw, and the compression screw. The hip screw plate is attached to the femur with screws. On the top end of the plate is a barrel. The lag screw is screwed into the femoral neck and head and fits into one end of the barrel of the hip screw plate. The broken pieces of bone are then drawn together by inserting the third piece, the compression screw, into the other side of the barrel. The compression screw and the lag screw have mating threads, and by turning the compression screw, the surgeon can draw together the lag screw and the plate, thereby also drawing together the fractured bones. The Richards’ compression hip screw has a key-way, which is a slot in the lag screw with a mating key in the barrel. This prevents the femoral head from rotating relative to the femur, and further assists in fixating the broken bones to assist in healing.
. The compression hip screw is designed as a partial weight bearing device. Mrs. Keeler, however, testified that she had moved a small, portable television set from the floor to a tabletop the evening before her hip began causing her pain.
. The jury also found that the alleged defective manufacture of the hip screw breached an express warranty and an implied warranty of merchantability. Because we find that the jury’s verdict on the defect claim is supported by the evidence, we need not consider appellants’ contention that there was insufficient evidence to support this allegation.
. Appellees claim that Atchison, Topeka & Santa Fe Railroad Co. v. McCartney, 549 S.W.2d 228 (Tex.Civ.App.—Beaumont 1977, writ ref'd n.r.e.) supports their contention that crutches alone Eire disfiguring. This reliance is misplaced. While the court found that McCartney was disfigured to some extent because he was required to wear a special "boot" in order to wEtlk, he also was disfigured because he had lost all of his toes and a portion of the ball of his foot. Id. at 231.
. "A new trial on the issue of damages, once liability is established, is proper." Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1242 (5th Cir.1985).
. Dr. Head testified that Mrs. Keeler had a life expectancy of twenty years. The amount of the award for future medical expenses, therefore, should be equal to $300, the maximum estimate of non-speculative yearly expenses, multiplied by the twenty year life expectancy, or $6,000.
. In determining the amount of the remittitur, we take into account Mrs. Keeler’s thirty-two percent liability. The remittitur, therefore, is equal to sixty-eight percent of the total excess future medical expenses, $97,920.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_r_nonp | 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 "groups and associations". 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.
Phyllis CHAMBERS, Plaintiff-Appellant, v. PARCO FOODS, INCORPORATED, Defendant-Appellee.
No. 90-1419.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 10, 1990.
Decided June 20, 1991.
Aladean M. DeRose, South Bend, Ind., for plaintiff-appellant.
Katharine B. Devoid, Richard L. Marcus, Sonnenschein, Nath & Rosenthal, Chicago, Ill., Donald W. Pagos, Sweeney, Dabagia, Donaghue & Thorne, Michigan City, Ind., for defendant-appellee.
Gwendolyn Young Reams, Vella M. Fink, Paul Bogas, Donald R. Livingston, E.E. O.C., Washington, D.C., for E.E.O.C. ami-cus curiae.
Before CUDAHY, FLAUM and MANION, Circuit Judges.
MANION, Circuit Judge.
Phyllis Chambers sued Parco Foods, Inc. for violating Title VII through its collectively bargained promotion and transfer policies. The district court granted summary judgment for Parco, holding that Chambers’ claim was time-barred. We affirm.
I.
The facts of this case are not in dispute. Parco makes holiday cookies at its plants in Michigan City, Indiana and Blue Island, Illinois. Both plants have six departments: packing, mixing, maintenance, warehouse, traffic and sanitation. As of November 1, 1988, the packing departments of both plants were primarily female, and the mixing departments were primarily male. At all relevant times, the lowest-paying job in the mixing department paid more than the highest-paying job in the packing department.
As one might imagine for a company that makes holiday cookies, the work is seasonal, requiring the greatest output and the most workers during the Christmas holiday season from October to January. Partly for that reason, Parco and the union in 1979 bargained for a departmental seniority system where employees in one department are not allowed to bid for jobs in another department. The specific provision is contained in Article VII, Section 3(C):
C. Bidding
Section 1. Seniority shall be the determining factor in matters affecting promotions, demotions and transfers within classifications, only if other factors of fitness and ability are equal.
(a) When an employee’s job is eliminated, such employee shall have the right to exercise his seniority within the employee’s department.
Section 2. When a vacancy occurs, or a newly created job, the company will post the job for three (3) days, and will then have one week to fill the new job. Employees within the department desiring to apply for this job will write their names and seniority status on the posted notice. The successful applicant will be chosen by the Employer on the basis of seniority, provided ability and fitness of the senior employee is equal to that of the other applicants.
Parco maintains this system of departmental seniority so that an experienced work force is guaranteed in each department, even during periods of fluctuating production demands and dramatic changes in number of employees. Stability appears to be the key. Without this provision, Par-co would find itself with few experienced workers during both the slow season and the time of heavy production during the holiday season. In the off-season, reductions in force might knock out most of the experienced workers within a department, replacing them with workers from other departments who have greater plant-wide seniority. And during the busy season, Parco would have to train new workers to take the place of those who transferred to another department, and would also have to train the transferred employees to do their new jobs, during a time with heavy production demands.
Phyllis Chambers, employed by Parco in the packing department since 1977, was a member of the union negotiating team that in 1979 agreed to Article VII, Section 3(C). While Chambers claims to have believed that section meant only that employer discretion would be eliminated in transferring employees within departments, since its enactment in 1979 Pareo and the union have interpreted the provision as disallowing bids for transfers. The bidding provision has been reenacted verbatim in subsequent collective bargaining agreements signed in 1984 and 1988, and the union has never attempted to negotiate a change in its terms.
On July 6, 1987, while working in the packing department, Chambers bid for a job in the mixing department. She was told she could not bid on jobs outside her department, and her application was not considered. Charles Glenn Tombs, a male employee with about one year’s experience in the mixing department, but with far less plantwide seniority than Chambers, was hired. On July 31, 1987, Chambers filed a complaint with the Michigan City Human Rights Department alleging sex discrimination because Parco refused to let her bid on the position in the mixing department. The Human Rights Department made an initial finding of probable cause, but Chambers withdrew her complaint. On July 29, 1988, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Right to Sue. Chambers sued in federal district court on September 14, 1988. The district court granted summary judgment for Par-co on January 23, 1990, and Chambers timely appealed.
II.
Parco made two arguments in support of its motion for summary judgment. First, Parco argued that Chambers’ claim was untimely. Second, on the merits, Parco claimed that its policy is a bona fide seniority system. While Title VII prohibits sex discrimination in the terms and conditions of employment, Congress has created an exception where employment 'action occurs pursuant to a bona fide seniority system. See Title VII, 42 U.S.C. § 2000e-2(h). Even if Parco’s plan is a seniority system, challenges still can be brought if discriminatory intent or purpose is shown.
The district court agreed with the preliminary argument that Chambers’ claim was time-barred, and therefore did not reach the merits. The court concluded that Chambers’ claim was untimely under 42 U.S.C. § 2000e-5(e), which allows 180 days to challenge unlawful employment practices relating to seniority systems, or 300 days if administrative proceedings are pursued first. The allegedly discriminatory provision of the collective bargaining agreement went into effect in 1979, so under the 300-day provision Chambers’ 1988 challenge was about eight years late. The court relied on Lorance v. AT & T Technologies, 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989), in which the Supreme Court held that the statutory limitations period begins to run when the allegedly discriminatory seniority system is adopted. The Court specifically rejected the argument that the statute was triggered each time the system was applied in a discriminatory fashion. 109 S.Ct. at 2269.
Chambers advances two bases for reversal. Chambers first argues that Par-co’s prohibition of inter-departmental bidding is merely a no-transfer rule, rather than a “seniority system,” and that the statute of limitations therefore does not apply. Parco argues that its bidding policy is an integral part of its seniority system. We agree with the district court that Par-co’s no inter-departmental bidding rule is part of its seniority system.
Lorance considered a seniority system legitimate even though seniority was determined by length of time spent in a particular position, instead of length of time with the company. 109 S.Ct. at 2265. The situation in Lorance is analytically no different than at Parco Foods; here, seniority is determined by length of time in one department, instead of length of time with the company. Pareo, and the defendant in Lorance, justify their seniority systems as reasonable attempts to encourage workers to remain in and improve on the jobs they are doing, rather than to transfer within the company and require training for a new job. In this case, Tombs had one year in the mixing department; Chambers had none. To Parco, Tombs was the more qualified applicant with greater relevant seniority. That Chambers does not like the manner in which Parco’s seniority system operates does not mean it is not a seniority system.
The EEOC’s argument as amicus curiae suffers from this same defect. The EEOC does not like the fact that Chambers is treated as an entry-level applicant, the same as an outsider applying for a job in the mixing department. But the EEOC’s concerns are properly the subject of future collective bargaining negotiations; they do not show that Parco’s plan is not a seniority system. As the Supreme Court said in California Brewers Association ¶. Bryant, 444 U.S. 598, 606, 100 S.Ct. 814, 819, 63 L.Ed.2d 55 (1980), the “principal feature of any and every ‘seniority plan’ is that preferential treatment is dispensed on the basis of some measure of time served in employment.” The key words, which the EEOC chooses not to emphasize, are “some measure of time.” Parco’s measure of time is based on experience within a particular department, for which Chambers will receive preferential treatment. Par-co’s measure of time is sufficient to show that its no inter-departmental bidding rule is indeed part of a seniority system.
Chambers’ second argument for escaping the statutory limitations period presents a question of first impression. She argues that each subsequent reenactment of an allegedly discriminatory seniority system re-triggers the limitations period. Therefore, she argues, the reenactment of Article VII in 1988 was a new discriminatory event that made her 1988 lawsuit timely. The district court rejected this reasoning on the basis of Lorance, but we do not believe Lorance provides us such a clear answer.
Several factors support the district court’s analysis. Although Lorance did not involve a collective bargaining agreement that was subsequently reenacted, the Court seemed to focus on the moment when a system changes from nondiscriminatory to discriminatory — a “diminution in employment status” — as the moment triggering the limitations period. In Lorance, the Court described this crucial moment in a manner that discounts the importance of prior or future verbatim reenactments of the same provision:
Under the collective bargaining agreements in effect prior to 1979, each petitioner had earned the right to receive a favorable position in the hierarchy of seniority among testers ..., and respondents eliminated those rights for reasons alleged to be discriminatory. Because this diminution in employment status occurred in 1979 ... the Seventh Circuit was correct to find petitioner’s claims time-barred_
Lorance, 109 S.Ct. at 2265. The Court did not refer to the most recent reenactment of the collective bargaining agreement, but noted that previous “agreements” preserved certain rights for the workers. Then the Court focused on the point when those rights were allegedly diminished by a change in the collective bargaining agreement.
In our case, there was no “diminution in employment status” during subsequent verbatim reenactments of the allegedly discriminatory Article VII; that “diminution” occurred in 1979 when the agreement’s terms were changed from previous agreements. The district court concluded that allowing each subsequent verbatim reenactment of a collective bargaining agreement to start the limitations clock running again would defeat the workers’ valid reliance interests the Supreme Court sought to protect in Lorance: “[Allowing a facially neutral system to be challenged, and entitlements under it to be altered, many years after its adoption would disrupt those valid reliance interests [that the limitations period] was meant to protect,” and upset the “balance between the interests of those protected against discrimination by Title VII and those who work — perhaps for many years — in reliance upon the validity of a facially lawful seniority system.” 109 S.Ct. at 2269.
However, the Lorance Court generally refers to a seniority system’s point of “adoption” as the point at which the statute of limitations begins to run. 109 S.Ct. at 2269. In rejecting the plaintiffs’ argument that the statute should be triggered when the effect of the decision to adopt the seniority provision was felt, the Court explained that “[bjecause the claimed invalidity of the facially nondiscriminatory and neutrally applied ... seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitation period.” 109 S.Ct. at 2268 (emphasis added). The Court pointed out that in a facially neutral system “the discriminatory act occurs only at the time of adoption,” 109 S.Ct. at 2269 n. 5 (emphasis in original).
So, under Lorance, the time of adoption is the discriminatory act, and the discriminatory act triggers the statute of limitations. Can maintaining an allegedly discriminatory provision be considered a discriminatory act? We believe that it can, provided that the plaintiff can point to evidence of a discriminatory act or discriminatory intent in the provision’s reenactment. Established caselaw interpreting § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), indicates that maintenance of an allegedly discriminatory seniority system can be considered a discriminatory act. In Pullman-Standard v. Swint, 456 U.S. 273, 281, 102 S.Ct. 1781, 1786, 72 L.Ed.2d 66 (1982) (citations omitted), the Supreme Court inquired whether a seniority system “was negotiated and has been maintained free from any illegal purpose,” and observed that the district court had “carefully considered the detailed record of negotiating sessions and contracts which span a period of some thirty-five years.” The court made this inquiry even though the relevant seniority provision had remained unchanged over the years through many renegotiations. The implication is that if the parties have discriminatory reasons for reenacting seniority provisions, even when they do not change the system, the reenactment can be considered discriminatory for purposes of § 703(h). See also Teamsters v. United States, 431 U.S. 324, 355-56, 97 S.Ct. 1843, 1864-65, 52 L.Ed.2d 396 (1977); Wattleton v. Intl. Brotherhood of Boiler Makers, 686 F.2d 586, 590, 592 (7th Cir.1982).
Thus, if a plaintiff can point to evidence of discriminatory motive in the renegotiation or “maintenance” of a seniority system, then that date provides the time at which the statute of limitations begins to run, for it is at that point that the “discriminatory act” took place.
All of this is no help to Chambers, however. The record in our case is uncontro-verted that not only was Article VII reenacted verbatim, but the provision was never even a matter of discussion between Parco and the union. The union never sought to renegotiate the terms of the allegedly discriminatory provision, so there is nothing Chambers can possibly point to that would show Parco’s discriminatory intent. Without an act or statement in the renegotiation process that would be probative of discriminatory intent, the renegotiation date cannot be the starting point for the statute of limitations. Therefore, the judgment of the district court dismissing Chambers’ claim as untimely is
Affirmed.
. As the district court noted, "From the union's position, the system fostered employees’ opportunities to be promoted and rewarded for their work record within their department, notwithstanding bids from more senior employees in other departments. From Parco Foods’ standpoint, the system furthered continuity of the work force by encouraging employees to departmentalize their skills and work up the ladder within one section of the plant." Memorandum and Order, Jan. 23, 1990, at 3, 1990 WL 71511.
. Pursuant to General Rule 11 of the Northern District of Indiana, Parco filed in conjunction with its motion for summary judgment a "Statement of Material Facts As To Which There Is No Genuine Issue.” Paragraph 22 stated: “At no time since 1979 has the Union requested a change in the no inter-departmental transfer rule. The collective bargaining agreement was renegotiated and a new collective bargaining agreement was signed on April 1, 1988, without any request by the Union to change the no inter-departmental transfer rule.” Chambers has never attempted to contest this statement, either in her own statement of material facts to the district court, or in her briefs on appeal. Under General Rule 11, the district court was required to "assume that the facts as claimed by the moving party are admitted to exist without controversy....”.
. The dissent sidesteps the precedential force of Lorance by suggesting a different resolution is mandated by simple rules of contract. The dissent fails to point out that, even under its approach, Chambers’ claim here is barred. Chambers’ 1987 job bid and subsequent complaint to the Michigan City Human Rights Commission were untimely attacks on the April 1984 agreement then in effect. Her September 1988 lawsuit was not only untimely but also moot because it was a continuing challenge to the 1984 agreement which had been replaced by a new agreement enacted in April of 1988. And her lawsuit could not be construed as an attack on the April 1988 agreement because, first, she never bid on a job under that agreement, and second, she never went before the Human Rights Commission or the EEOC with a discrimination claim based on the April 1988 reenactment. If we are to apply a "simple contract rule that a new agreement gives rise to new cause of action" the old cause of action Chambers still pursues is moot.
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer: |
songer_genresp2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
HARTFORD-EMPIRE CO. v. OBEAR-NES-TER GLASS CO. OBEAR-NESTER GLASS CO. v. HARTFORD-EMPIRE CO.
Nos. 8658, 8659.
Circuit Court of Appeals, Eighth Circuit.
Feb. 24, 1930.
W. J. Belknap, of Detroit, Mich., and A. C. Paul, of Minneapolis, Minn. (John H. Bruninga, of St. Louis, Mo., C. P. Byrnes, of Pittsburgh, Pa., V. if. Dorsey, of Washington, D. C., and B. D. Brown, of Pittsburgh, Pa., on the brief), for Hartford-Empire Company.
E. W. McCallister, of Pittsburgh, Pa. (Green & McCallister, of Pittsburgh, Pa., and Bippey & Kingsland, and Edward E. Longan, all of St. Louis, Mo., on the brief), for Obear-Nester Glass Company.
Before STONE and GARDNER, Circuit Judges, and MILLER, District Judge.
GARDNER, Circuit Judge.
This action, brought by the Hartford-Empire Company, as plaintiff, against the Obear-Nester Glass Company, involves charges of infringement by the defendant of two patents issued to, or owned by, the plaintiff, known in this record as the Steimer patent No. 1,564,909, granted December 8, 1925, and the Peiler patent No. 1,573,742, granted February 16, 1926. The answer put in issue the validity of the patents and denied infringement, pleaded certain prior art patents, and pleaded delay and laches in the prosecution of the patent proceedings in the patent office. Both of the patents declared on in the bill of complaint relate to the automatic feeding of molten glass to a series of forming molds in which the glass charges are shaped to final form. Generally speaking, this apparatus may be described as comprising a receptacle for molten glass having an outlet from which molten glass is delivered in a stream; a device for severing this stream of molten glass and fixing the predetermined intervals, thereby separating the severed glass from the source of supply, and also into a series of molten charges; and mechanical devices for controlling this flow of molten glass. This very general description of a feeding apparatus applies to the various feeders here involved. The actual feeding of the molten glass to the molds, and the mechanical devices employed thex*efor, are the only things involved in this ease. The question as to what happens to the glass after its delivery by and fx’om the feeder is in no way involved in the present controversy.
The lower court held that claims 1 to 10, both inclusive, of the Peiler patent were invalid; that claims 17, 20, 24, 25, and 34 were not infringed; that claims 15, 16, 18, 19, 21, 22, 23, 26, 27, 28, 29, 33, and 36 of the Peiler patent wex’e valid and infringed by the devices made and used by the defendants; that all claims of the Steimer patent wex'e valid and infringed by the devices made and used by the defendant. From this decision both pariies have appealed, the plaintiff appealing from the holdings of invalidity, and noninfringement, and the defendant appealing from the holdings of validity and infringement.
The lower eoux’t prepared and filed a carefully written opinion, which fairly indicates the issues of law and fact involved and presents reasons and authorities in support of its decision which are so satisfactory that we approve and adopt the applicable portions thereof as follows:
“The accused device of defendant, in terms of its simplest description, comprised a furnace for melting the chemical components of glass, oi’, as it is called, a fining furnace, having a main part for melting and a forehearth, all old in the art; a plunger positioned in this forehearth and operable by an arm earned on an air-moved piston, so as to rise and fall in a vertical movement. This plunger may seat or not seat in the outlet for the glass, provided in the bottom of the forehearth. There is a nut on the piston-rod by which the position of this plunger may be regulated in its up and down movements, even while in operation. The compressed air is pumped through a valve, or valves, both above and below the piston, reciprocally. This pump for compressed air is operated by a chain drive moved by an electric motor.
“Below the glass outlet of the fore-hearth and out of contact, and, therefore, out of smearing relation with such outlet, or orifice, there is a pair of shear-blades, which in a time relation to the plunger movement is mechanically protracted and opened. These shear-blades, embrace the discharged gob of glass, as it hangs suspended, close and sever the attenuated connecting thread, and the gob falls. The shear-blades are controlled by a valve geared to a cam, on a cam-shaft by which the shear-blades may be operated in timed relation to the plunger, and thus the shear and plunger operations occur regularly and synchronously, or in a definite timed relation.
“It is possible with these valve adjustments to either advance or retard operations of the plunger relative to the operas tions of the shears, by moving the plunger operations ahead or back, or the identical result may be obtained by making the change with the shear valve, so as to advance or retard the shear operation relative to the plunger operation.
“In passing, I may observe, that some considerable confusion is found in the record, which arises from the fact that counsel, to some extent on both sides, persistently insisted on comparing defendant’s accused device with plaintiff’s commercial device, instead of comparing the accused device with the teaching of the patents'in suit, as disclosed by the specifications and elaims, or by the elaims as read in the light of the specifications. Obviously, such a comparison is worthless, and is not the test of infringement. It is true, aid in understanding the language of the claims may be afforded by a physical exhibit of a commercial device, but such a device affords no help, either in fact or law, until it has been shown that the physical exhibit of the commercial device has been made in every substantial compliance with the teachings and claims of the patent alleged to be infringed. Experience often discloses that commercial devices, alleged to be protected by q patent, or patents, depart substantially from the patent, or patents, themselves. So, commercial devices are not to be compared with commercial devices, but the accused commercial device is to be compared with the elaims of the patent in dispute.
“The a Steimer patent, in its simplest terms, has a furnace for melting the chemical constituents of glass, which, generieally, is, of course, old in the art, but which concretely is of peculiar construction here, for that it is wedge-shaped and may be tilted so as to pour out its contents constantly, in a fixed volume, and from a fixed head, until the furnace is empty. This fixed head is brought about by a mechanical tilting mechanism working rhythmically with the other mechanisms, but as this part of this furnace is not at all in question here, no further mention need be made of it.
“The molten glass is poured in a constant stream from the tilting lip of the furnace into a chamber, or bowl, equivalent to the forehearth of defendant’s accused device. In this chamber there is mounted a plunger, which is raised up by a reciprocating frame, to which, however, the plunger is not rigidly attached. This reciprocating mechanism, or frame, is operated by a cam moving counterclockwise, which slides under the bar of the frame, lifts the frame to the highest points of its adjustment, which point may be changed as desired by the operator, and then by cam movement slides from under the frame and permits it to fall by gravity, carrying down with it the plunger, which, as said, is not rigidly attached to the frame, but is mounted in a circular opening therein, and is kept partly rigid by a spring which presses on the head, or upper end, of the plunger. The plunger must move up with the frame, but it does not necessarily fall with the frame except in so far as it is thrust down by the spring, and its own weight. In operation, however, it ultimately seats, if desired, in the glass outlet in the bottom of the bowl, thus cutting off wholly, or partially, the flow of glass from this opening. Such connecting threads of glass as are left, after the closure of the outlet by seating, or partially seating, the plunger therein, are cut off near the exit of the orifice by jets of flame. There are no shears used by Steimer.
“There is suitable mechanism to vary the time of the xise and fall of the plunger, as compared to the period of flow of the glass through the glass outlet in the bottom of the bowl. This variance of intervals brings .about a variance in the form and mass of the gob. These gobs when severed fall into a reciprocating funnel, which, moving around an orbit below, retains the upper opening of the funnel in a fairly constant vertical plane; perhaps in a wholly constant vertical plane, but that is not important, and thus delivers these gobs into any number of parison molds on a revolving table. But, again, this manner of delivery is not in issue here.
“As said, all of the six claims of the Steimer patent, are in issue. These claims are so similar in meaning as that one of them may serve as a type of all. In fact, casually, they seem to present an identical single claim merely in varying language, except that claim 6 adds the element of a submerged outlet and an adjusting means, workable during operation, of limiting the movement of the plunger toward the outlet, with a change in the range of movement away from the outlet, but even this thought is expx-essed in other elaims.
“Claim 1, taken as typical, reads thus:
“ ‘Apparatus for separating molten glass into mold charges, including a container for the glass having an outlet, an implement projecting into the glass toward the outlet and mounted for movement towards and from the outlet, means for periodically moving said implement toward and from the outlet and means for adjusting the nearest position of said implement to the outlet without changing its position remote from such outlet.’
“The so-called needle, or plunger form of the plaintiff’s Peiler patent, is illustrated in Pigs. 12,13,14, and 42 of the Peiler patent in suit.” These drawings are as follows:
“In the view I take of the issues, evidence and pleadings here, I need consider but this particular form.
“These above figures were first shown in one of the alleged divisional applications filed May 5, 1919, and appear therein as Figs. 2, 6 and 7, respectively. Fig. 42 of the patent in suit does not appear in the above application of May 5,1919, though in view of the disclosures of the three other figures, this is perhaps not vitally important.
“The construction and manner of operation of this needle or plunger form of Peiler is about as follows: There is a plunger, similar to the plunger of the accused device and that of Steimer; there is a forehearth similar or equivalent to the bowl of Steimer and the forehearth of the accused device having an outlet at the bottom. This plunger works vertically, or up and down, and may by adjustment be seated, or not seated, in the glass outlet. By this reciprocating movement it alternately opens and closes the glass outlet, or, at least, closes it to the desired approximation of the operator; thereby assists in forcing a gob of glass through the outlet, and then closing, or partially closing, the same, so that no more glass, except a connecting neck or thread, escapes. This neck, while the gob is wholly in suspension, that is, not supported from below or laterally, is then severed by mechanical shears, spaced out of contact and, therefore, out of smearing relation, with the bottom edge, or lip, of the glass outlet. These shears are protracted, opened, operated to sever, and retracted by mechanical means. It is conceded, I take it, because defendant’s witness, Wadsworth, conceded it, that the shears mechanism, the problem being stated and before him, could be reproduced in one operable form or another, by any ordinarily skilled mechanic. This concession, in passing, is also made' as to the mechanisms of the reciprocal adjustments below mentioned, which produce synchronous operation of the plunger, and the severing apparatus; for, as indicated, the vertical movement of the plunger in relation to the severing operation, may be slowed or quickened, advanced or retarded at will by the operator while the machine is working. So, that gobs of glass differing in mass and shape may be delivered.
“In the Peiler patent, these severed gobs fall on a moistened chute, instead of into a funnel, or into a parison mold, as is, respectively, taught by Steimer and by defendant’s accused device. In Steimer, of course, as already stated, these gobs first fall inte a funnel, which seems to direct them into the parison mold. But this function is not involved in this controversy, as already forecast.
“In this situation, and upon the above facts of operation, respectively, plaintiff bases its contention of infringement. As seen, many claims are involved in the Peiler patent. Some of these are the alleged method claims, and some are the apparatus claims.. For reasons, which I shall later set out, I need not now consider the method claims. A typical apparatus claim, as plaintiff’s counsel urge, is found in claim 36 of the Peiler patent, which reads thus:
“ ‘Apparatus for feeding molten glass in a regular succession of freely dropping charges appropriate to the molds to be fed, comprising an impulsion chamber in- communication with the tank of a glass melting furnace and having an outlet orifice submerged under a head of the molten glass, a plunger working in the glass above the orifice and serving in conjunction with the surrounding walls of the impulsion chamber to exert impulses tending alternately to expel the glass through the orifice and to retard its outflow, shear blades movable toward and from each other and eoacting below and in line with but independently of the outlet orifice to sever the suspended end of the issuing column of glass in timed relation to the plunger movements, and means for adjust-ably varying the movements of the shears and plunger with respect to each other to regulate the freely dropping mold charges severed by the shears, and to keep- them uniform after the desired regulation is obtained.’
“I think it is clear, from the above statement of construction and operation of the accused device, when compared with the six claims of the Steimer patent, and claims 15, 16, 21, 18, 19, 22, 23, 26, 27, 28, 29, 33 and 36 of the Peiler patent in suit that defendant’s accused device reads on -the above claims, and infringes each and all of them, that is to say, of the six claims of the Steimer patent and of the above mentioned claims of the Peiler patent, provided such patents and the above claims are valid.
“I conclude, for reasons I would as well now state, that claims 1 to 10, both inclusive, of the Peiler patent (the so-called method claims) are invalid, and so I need not consider whether or not they are infringed.
“Claims 1 to 10, supra, are, as forecast, so-called method claims, and involve the notion of patenting the concept of ‘phase-changing,’ as plaintiff denominates it, I am not able to see that the phase-changing here contended for by plaintiff is anything more than a function. In short, it involves the problem to be solved, and not the mechanical method of solving such problem. It is fundamental, that a mere function ordinarily cannot he patented in a mechanical patent. Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 48 S. Ct. 474, 72 L. Ed. 868.
“Phase-changing which occurs here is the mere mechanical means of varying, and governing, the interval which intervenes between the emergence of the gob of glass and its being severed by the shears. This gob hangs suspended, for an interval regulable by the machine, or by the operator who operates the machine. It is, while suspended, subjected to well-known physical laws, which change its length and diameter, and then at an interval for which the machine is adjusted, or may be adjusted, it is severed and falls. This same sort of phase-changing occurred whenever the ancient hand-gatherer and his assistant, who wielded the shears, were called upon to mold either a larger or smaller vessel than they had before been making.
“The problem of measuring the interval between the separation of the gob from the punty and the severing of the latter, which interval, in the old hand art, of course, included the period in which the gob was subjected to physical laws, which shaped it, was not invented by plaintiff, or by either Peiler or Steimer. It has always existed. The problem, to state it in a slightly different way, was to precisely synchronize this interval by a machine, and to maintain this synchronism at will, but at the same time, in the same machine, to he able to change the interval of suspension at will, and while the machine was in operation, and thus permit physical laws to do the rest.
“To my mind, then, it is too obvious for exposition, that this same soil; of phase-changing was inevitably present by reason of human error, as well as by reason of human intention, when the ancient hand-gatherer took a gob of melted glass from the furnace with his hand punty and held it over a mold until a part of it sagged down from the punty and separated therefrom, except by the connecting neck, which neck, at an interval measured by the eye and mind of the shear wielder, was then severed by the latter. The difficulty (now solved, as it is urged, by plaintiff’s patents) was that the intervals of manipulations of the punty, of the flow of glass therefrom toward the mold, and of the severing of this gob by an assistant, could not, on account of human error, be made always and uniformily precise. Inevitably, there was almost always a lack, of uniformity among each of these intervals. Hence, inequalities in mass, weight and shape were present. So, the one problem was to mechanically provide precise and regulable uniformity in these intervals, through a machine, which would sever the suspended gob at fixed intervals, and the other problem was to be able to vary this interval and, therefore, the mass and shape of the gob, at will and without stopping the machine.
“If, then, plaintiff, by its method claims, contends, as I understand it does, that for the life of this Peiler patent no one, by whatever mechanical means, may eject from a furnace a gob of melted glass, suspend the same unsupported, either from below or laterally, for a regulable period, and then at a predetermined interval, changeable while operating and at will, sever the gob, I am of opinion, for the reasons above given, that it may not patent this notion. Besides, I think there are other reasons bottomed on the fact that many other patents in the prior art disclose the notion of phase-changing, although they did not appropriate the designation, or attempt to do so. I have no doubt, however, that Peiler improved upon all such.
“So, I think both patents in suit are combination patents. Protracting and retracting mechanical shears^ the plunger to force a definite mass of glass out of a vertical outlet, and synchronous eoaction between the shears’ action, and the plunger movement, are found, crudely, at least, present, or plainly forecast, in many patents of the prior art. But I think it is clear from this record, that Steimer largely improved upon all of them, and that Peiler improved upon Steimer. If, then, the Steimer and Peiler patents are not invalid because of the delays in prosecuting to a grant their original and divisional applications, judgment of validity-may well go for them.
“As said, Steimer filed his original application on the twelfth day of February, 1910, and his patent was not issued until December 8, 1925. After a most careful and pains-taking examination of his original application, I am of the Opinion that it, as originally filed, disclosed in the specifications and drawings, 'especially the latter, ample basis for each of the six claims finally allowed. Peiler, in his original application did not disclose the specific form here found to be infringed by the accused device, until he made his divisional application on May 5, 1919. In the latter application, or in one of them (for he made two on the same date), Peiler first showed that form which defendant has infringed. Upon plaintiff’s contention, he did show his generic invention, in his original application of August 3, 1912.
“From October 24, 1916, to September 27, 1924, almost up to the date of issue of the patent, Steimer was engaged in combat-ting interferences almost too numerous to mention. Likewise, from January 18, 1916, to August 17, 1925, or shortly before the patent was issued to his assignees, Peiler was enmeshed in interferences.
“I do not think delay, laches or estoppel can, therefore, be imputed to either Peiler or Steimer for the period subsequent to 1916, and until their respective patents issued. I am not saying that estoppel, delays and laches could never, or under any state of facts, be imputed to an applicant for delay caused by the pendency of an interference proceeding, but am saying that here no facts exist upon which to bottom invalidity arising from laches, delays or estoppel, after 1916. An applicant might, perhaps, be guilty of laches in the matter of prosecuting or defending an interference. But no proof of such delay so occurring appears in this record; that is to say, of unnecessary and illegal delays .in prosecuting or defending interference proceedings.
“But it is insisted that Peiler (and Steimer, as well, but I deal with Peiler, because the facts contended for by defendant are, in his ease, the most flagrant) made, after his original and so-called generic form of device, four divisional applications and amendments for as many specific - forms. (There are five, in fact, but the last one, dealing with Peiler’s bowl-spout-paddle-needle form, is not, in my opinion, involved in the infringement.) And that, since more than two years elapsed after the original application was filed until the filing of the first divisional application and thereafter more than two years elapsed between subsequent divisional applications, he is ipso facto barred from tying any of his specific divisional applications to his original generic application, or from tying a divisional application to a preceding divisional application, and so Ms patent is invalid. In other words, that there exists in the law of patents a fatal two-year rule of limitations, which precludes the filing of a divisional application, or an amendment of the original application, after the lapse of two years. Here, in one ease only, was an amendment made, or a divisional application filed, in less than a year after the last preceding divisional application. This was the application for the so-called paddle form of Peiler, which was filed March 28,1917. The last preceding divisional application had been filed on March 7, 1916, less, of course, than two years. But clearly, tMs will not save Peiler from invalidity if the rule contended for by plaintiff is the law.
“The point is one with which, and with its variables upon varying facts, the courts have had much trouble. The law is yet seemingly in the process of crystallization as to what shall be the final rule. It has been up for judgment in a number of cases in the Supreme Court of the United States, among which the leading cases are Chapman v. Wintroath, 252 U. S. 126, 40 S. Ct. 234, 64 L. Ed. 491; Webster Electric Co. v. Splitdorf Electric Co., 264 U. S. 463, 44 S. Ct, 342, 68 L. Ed. 792; Overland Motor Co. v. Packard Motor Co., 274 U. S. 417, 47 S. Ct. 672, 71 L. Ed. 1131; Milburn Co. v. Davis, etc., Co., 270 U. S. 390, 46 S. Ct. 324, 70 L. Ed. 651, as, also, in the very late ease of Wagenhorst v. Hydraulic Steel Co., 27 F.(2d) 27, from the Sixth Circuit Court of Appeals.
“From the above eases, I am of opinion, that no hard and fast rule exists whereby the lapse of more than two years between, the date of the original application and a divisional application, or between divisional applications, creates an absolute bar to validity, ipso facto. It is not safe to attempt to lay down a thorough-going rule, or to pass upon all possible phases of this question, until they shall be met face to face in a concrete case, and the Supreme Court has wisely refrained from doing so. * . * *'
“However all this may be, the rules, so far as they seem to be made rules by stare decisis, and so far as the eases have gone, I construe thus:
“(a) If, in an application for a patent, functions are present and disclosed, but not claimed, the filing date of the original application will be deemed the date of the reduction to practice of all functions and potential claims so present, but not claimed, and subsequent claims, will, ordinarily, relate back to such original filing date.
“(b) The applicant may, in the presence of such disclosure of functions unclaimed, pending prosecution, amend his claims, or file divisional applications on specific forms generically disclosed, in the original application, as, of course, at any time within two years after filing the original application.
“(e) The applicant may so amend or file divisional applications even where, within the two years, applications are filed by strangers claiming the functions existing and disclosed (but not claimed) in and' by the original application.
“(d) Absent estoppel in pais, through accrual of public or private rights, such amendments of claims, or the filing of such divisional applications, may be allowed more than two years after the original application is filed, or after the last preceding divisional application is made, (e) But if a patent, whieh makes claim to the subject-matter present and disclosed in the application of the original applicant, but not claimed by the latter, shall have been issued to a stranger more than two years after the original applicant files his original application, the latter can thereafter neither amend his original claims (so as to broaden, them) nor file a divisional application, embracing claims, so after two years patented to a stranger.
“I deduce these rules from the cases I cite above, from the Supreme Court, both as I construe these eases, and as they are construed in the late and most excellent opinion of Judge Denison, in the case of Wagenhorst v. Hydraulic Steel Co., supra.
“Applying these rules to the facts here, I am of the opinion that the patents in suit are not invalid because of delays, estoppel or laches. * * *
“I am also of the opinion that the claims of these paténts in suit are not anticipated by the prior art patents in evidence. Those largely relied on by defendant, as anticipatory, aré: Brookfield, No. 883,779; Cleveland, No. 90Í,881; Hitchcock, No. 805,067 and No. 805,068; Mansfield, No. 854,511; Morrison, No. 810,167; Proeger, No. 1,-059,634; Schulze-Berge, No. 421,620; Severin, No. 892,013, and the French patent to Wilzin, No. 439,150.
“I have very carefully considered the construction, operation and outstanding features of each of the patents mentioned.
“Brookfield, issued in 1903, had a valve, so-called, similar to the Steimer and Peiler plunger, but no suspended charge, or severing shears, or means out of smearing relation, and no means to ehange the operating phase while in operation.
“Cleveland, issued in 1908, is practically similar to Brookfield. What is said as to Brookfield may be said, generally, as to Cleveland, and it is difficult to understand why a patent was issued to him, in the light of the prior art as shown by Brookfield.
“Hitchcock, issued in 1905, used compressed air to force glass from the fore-hearth, but he did not sever suspended charges out of smearing relation with the lip of the outlet.
“Also, Brookfield, by creating a partial vacuum, retracted glass above the plane of severance.
“The other patent of Hitchcock, issued also in 1905, and above mentioned, differed but little, so far as concerns operation, from the first-mentioned Hitchcock patent. There are to be found little differedces as to the mechanics of operation. The essential elements seem very similar, and, again, cause a question to arise as to why he was able to obtain the latter patent, over his former disclosure.
“Mansfield, issued in 1906, uses rolls to force or roll out glass from the furnace, or melting hearth, and he cuts the gob, so rolled out, while it is supported on a cooled plate. This cut is made in smearing relation to a horizontal outlet.
“Morrison issued in 1906, employs a plunger, whieh reciprocates, but which cannot be changed as to time and length of stroke while in operation. The gob of glass severed falls directly into parison molds set in a revolving table, and the gob is cut off right at the exit, by shearing action of the-mold cup edges when the latter are revolved against the lower edge of the exit.
“Proeger, issued in 1913, employs a vacuum chamber, which alternately forces out a gob of glass, which is cut off by an electric spark. He uses no plunger, such as is disclosed, at least, by the patents in suit.
“Schulze-Berge, issued in 1890, employs a vacuum chamber into which compressed air is introduced, which produces a varying intermittent flow, from an exit which stands at an angle of about forty-five degrees. There is supposed to occur a pulsating discharge. No means, except gravity acting on the size of gob ejected, are shown to sever the gob. It is either severed, or may be severed, by shears manually operated by a worker, or by some of the mechanisms of the prior art, but no method of severance is shown.
“Severin, issued in 1908, employs a plunger, which works practically or wholly hermetically, in, I believe, a measuring chamber in the bottom of the forehearth. There is a pulsating discharge of the glass, which vertically flows from a spout. No cut-off means are shown, except gravity, or the assumption of hand-operated shears.
“The French patent of Wilzin, No. 439,-150, disclosed a stream-feeder, actuated by a plunger, but it did not suspend the charge; hence, no means to vary the lengths exist, and it did not sever the gob out of smearing relation with the exit.
“Some other patents in the prior art, among the one hundred and forty-two pleaded here, may have some relevancy. I have examined all of them which were referred to by the witnesses as being the' closest. Those I have referred to, and briefly explained above, seem to me, as they seemed to the experts, to be the most nearly relevant. It may be conceded, that some of them, in every case very crudely, show ode element of the patent in suit, and some of them another, but none of them discloses the combinations, in their entireties, and then, as said, but crudely.
“Steimer and Peiler made great improvements, which of themselves show invention. Devices made under their patents became almost at once popular, and have all but occupied the whole field. The fact of the grants and the great public acclaim, are to be considered as creating presumptions of validity, when validity is in doubt.
“As to the validity of some of the claims of Peiler, I am in doubt,- greatly in doubt, but I resolve these doubts in favor of such claims, by consideration of the presumption of validity arising from the fact of grant, and from the fact of great commercial acclaim. The ten long years of contests and interferences in the Patent Office would seem to create the inference that the claims of Peiler and Steimer were subjected there to the very greatest and most careful scrutiny.
“I conclude that claims 1 to 6, both inclusive, of the Steimer patent in suit, are valid, and are infringed by the defendant’s accused device; that claims 15, 16, 18, 19, 21, 22, 23, 26, 27, 28, 29, 33, and 36, of the Peiler patent are valid and infringed by the defendant’s accused device; that claims 1 to 10, both inclusive, of the Peiler patent are invalid, and that claims 17, 20, 24, 25 and 34 of the Peiler patent in suit are not infringed by defendant; hence, I do not pass on their validity. The other claims, not mentioned above, are not declared on in the bill of complaint; hence, they are not in issue.”
For the reasons stated herein, the judgment of the lower court should be, and is, affirmed.
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_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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MASTER SLACK AND/OR MASTER TROUSERS CORP., Hardeman Garment Corp., Morehouse Garment Corp., Lauderdale Garment Corp., and Lobel-ville Garment Corp., Respondents.
No. 84-5387.
United States Court of Appeals, Sixth Circuit.
Argued April 4, 1985.
Decided Sept. 17, 1985.
Elliott Moore, W. Christian Schumann, Michael David Fox, Deputy Associate Gen. Counsel, N.L.R.B., National Labor Relations Board, Margaret Bezou, argued, Washington, D.C., for petitioner.
Thomas J. Hughes, Jr. (argued), Jackson, Lewis, Schnitzler & Krupman, Ann Bach-man Hale, Atlanta, Ga., for respondents.
Before KEITH and KRUPANSKY, Circuit Judges, and COHN, District Judge.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
COHN, District Judge.
The National Labor Relations Board (the Board) petitions to enforce a supplemental back pay order directing respondents to make whole 28 discriminatees who were wrongfully discharged by Hardeman Garment Corp. (Hardeman), a subsidiary of Master Slack and/or Master Trousers Corp. Respondents challenge the Board order only as it relates to 11 discrimina-tees, and do not dispute the back pay awards ordered for the other 17. Their primary contention is that the Board erred in holding that certain findings made in the underlying unfair labor practices proceeding precluded respondents from contending in the back pay proceeding that a plant shutdown should cut off the back pay awards. Respondents also contend the Board’s back pay awards to two discrimina-tees are not supported by substantial evidence.
For the reasons stated below, we enforce the order only in part.
I. HISTORY
On July 20, 1973, the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the Union), won an election among Hardeman’s production and maintenance employees at a plant located in Bolivar, Tennessee. The Union was certified by the Board on January 4, 1974.
Hardeman opposed the Union’s certification and continued to operate on the whole as if the Union didn’t exist. The Union filed several unfair labor practice charges from 1973 through 1974 over various company practices. The charges were consolidated and a single hearing was held before administrative law judge Thomas A. Ricci. As relevant here Judge Ricci found that Hardeman had violated Section 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(3), in terminating the night shift at the Bolivar plant, which resulted in the lay off of 20 workers, 3 days before the union election.
The Board, after exceptions were filed by both sides to Judge Ricci’s order, affirmed this ruling and determined that Hardeman had also violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), in laying off 8 more employees due to stricter enforcement of absenteeism and tardiness rules after the Union won the election. The Board further found Hardeman had violated Sections 8(a)(1) and (5) in failing to notify and bargain with the Union prior to the layoff of all employees (about 400) when the Bolivar plant was shut down in the fall of 1974 and also in failing to notify and bargain with the Union when the plant was reopened in 1975 and 80 employees were recalled. This court enforced the Board’s order. See NLRB v. Master Slack, 618 F.2d 6 (6th Cir.1980).
Judge Ricci, in discussing the appropriate remedy in the unfair labor practices proceeding, found that back pay awards in many cases should continue past the plant shutdown in 1974, even though he had earlier stated, “[tjhere is no contention by the General Counsel that the 1974 closing was occasioned by anything other than purely economic factors.” In their orders neither Judge Ricci nor the Board stated that back pay awards should run for any particular period; the orders merely stated that wrongfully discharged employees should be made whole “for any loss of pay or any benefits they may have suffered by reason of Respondent's discrimination against all of them.” Respondents did not object to Judge Ricci’s specific findings made about the length of the back pay periods in either their exceptions to the Board or in the enforcement proceeding before this court.
When the parties were unable to agree on compliance a supplemental hearing was held on June 23 and 24, 1981 before administrative law judge Philip P. McLeod. Judge McLeod rejected the company’s argument that the plant shutdown in 1974 should cut off back pay awards for all discriminatees. He concluded the doctrine of res judicata barred respondents from relitigating that issue since Judge Ricci had found that back pay awards in several instances continued past the shutdown. He further concluded that since respondents had acted unlawfully in shutting down and reopening the plant by failing to bargain with the Union the back pay awards should continue past that point.
In this proceeding for enforcement of the Board’s back pay order respondents contend Judge Ricci’s findings should not preclude relitigation on the effect of the plant shutdown on back pay awards. Respondents also contend there is not substantial evidence in the record to support the back pay awards to Willie Spencer and Margie Wilson.
II. ISSUE PRECLUSION
We must first determine whether Judge Ricci’s general finding that many back pay periods were to continue past the point of the plant shutdown precluded relitigation in the back pay proceeding on the effect of the plant shutdown on back pay awards. Generally, a factual finding which was necessary to support the judgment in a prior proceeding will bar relitigation on that issue in a subsequent proceeding involving the same parties. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 and n. 5, 99 S.Ct. 645, 649 and n. 5, 58 L.Ed.2d 552 (1979); Marlene Industries Corp. v. National Labor Relations Board, 712 F.2d 1011, 1015-16 (6th Cir.1983); United States v. Stauffer Chemical Co., 684 F.2d 1174, 1180 (6th Cir.1982), aff'd 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984). The policies underlying this rule include the preservation of judicial resources and the protection of litigants. Montana, supra, 440 U.S. at 153-54, 99 S.Ct. at 973-74. The findings of agencies made in the course of proceedings which are judicial in nature should be given the same preclusive effect as findings made by a court. United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966).
Issue preclusion should only be applied where the identical issue sought to be relitigated was actually determined and necessarily decided in a prior proceeding in which the litigant against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. See Montana, supra, 440 U.S. at 153, 99 S.Ct. at 973; Parklane Hosiery, supra, at 326 n. 5; Marlene Industries, supra, at 1015-16. A factual issue is “necessarily decided” if its determination was necessary to support the judgment entered in the prior proceeding. See 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4421, p. 192; Marlene Industries, supra, at 1015-16.
While the effect of the 1974 shutdown and 1975 reopening of the plant was actually litigated in the underlying unfair labor practices proceeding it was not necessary to the Board’s order. Accordingly Judge Ricci’s findings cannot preclude relitigation on that issue in the supplemental backpay proceeding.
“ Tt is basic to the law of [issue preclusion] that a finding in one proceeding cannot bind tribunals in subsequent cases unless the finding acted as a basis for final judgment in the first.’ ‘The determination of an issue in an earlier proceeding must be essential to the judgment; it cannot be dicta.’ ” (citations omitted)
Marlene Industries, supra, at 1015-16. See also Block v. Bourbon County Commissioners, 99 U.S. (4 Otto) 686, 693, 25 L.Ed. 491 (1878); Segal v. American Telephone & Telegraph Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.1979); Evans v. Wilkerson, 605 F.2d 369, 372 (7th Cir.1979).
Judge Ricci’s finding that back pay periods should continue past the point of the plant shutdown was not essential to either his order or the Board’s order; it was mere dicta. The Board’s order, like Judge Ric-ci’s order, simply states that respondents “shall ... [m]ake all ... [wrongfully discharged] employees whole for any loss of pay or any other benefits they may have suffered by reason of the respondent’s discrimination against all of them.” This is typical of orders in unfair labor practices proceedings where the Board simply determines if unfair labor practices have occurred and what remedies would effectuate the purposes of the Act. See NLRB v. Deena Artware, Inc., 361 U.S. 398, 411, 80 S.Ct. 441, 447, 4 L.Ed.2d 400 (1960) (Frankfurter, J., concurring); 29 C.F.R. § 102.45. The exact amount of back pay owing is not stated and is left to be determined in a subsequent back pay proceeding if the parties cannot resolve the amounts owing informally. See Deena Artware, supra; 29 C.F.R. § 102.52. Drawing an analogy from court cases, the unfair labor practices proceeding determines liability; a subsequent back pay proceeding, if necessary, determines damages.
The only factual determinations necessarily decided to enter an order that discharged employees be made whole are (1) that the respondent violated the Act in discharging employees, and, (2) that back pay is an appropriate remedy. See Section 10(c) of the Act, 29 U.S.C. § 160(c). It is not necessary to determine the exact amount of back pay owing nor whether subsequent events would have resulted in layoffs of discharged employees totally apart from the wrongful conduct.
“[Questions relating to the exact amount of back pay owing (including whether ... at some reasonably determinable date employment with [the company] would not have been available because [company] operations would have ceased for independent, nondiscriminatory reasons) are prematurely raised in [an] enforcement petition. Those issues may be explored in a compliance proceeding.”
Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 255-56 (9th Cir.1978). See also, NLRB v. Dazzo Products, Inc., 358 F.2d 136, 138 (2nd Cir.1966).
In sum, Judge Ricci’s finding that back pay awards should continue past the point of the 1974 plant shutdown was not necessary to support his order or the Board’s order and therefore his finding does not bar relitigation on that issue. To the contrary, the determination of whether the shutdown should cut off back pay awards belonged in the back pay proceeding.
III. SECTION 8(a)(5) VIOLATIONS
This does not settle the matter since Judge McLeod did not solely rely on the doctrine of issue preclusion in ruling that the plant shutdown would not terminate back pay awards. He alternatively ruled against respondents because Hardeman violated § 8(a)(5) in failing to bargain with the Union when the plant was shut down in 1974 and reopened in 1975. He reasoned:
“Respondent’s argument [that the plant shutdown should terminate all backpay awards] overlooks the fact that the Board, with Circuit Court agreement, found the method in which Respondent effected both the layoff and recall to be unlawful in violation of Section 8(a)(5) of the Act. In order to find merit to this asserted defense of Respondent, one would have to invoke a presumption that if Respondent had acted lawfully and fulfilled its obligation to bargain with the Union in good faith, the exact same result would have occurred as did occur. Since it is impossible to determine what would have occurred if Respondent had fulfilled its lawful obligation to bargain with the Union, Respondent’s unlawful conduct could not serve to terminate backpay.”
Judge McLeod’s ruling, however, does not have factual support in the record and the remedy of back pay past the plant shutdown goes beyond the scope of proper remedies under the Act.
Section 10(c) of the Act, 29 U.S.C. § 160(c), charges the Board with “taking such affirmative action including reinstatement of an employée with or without back pay as will effectuate the policies of [the Act].” The Board’s discretion to fashion appropriate remedies for violations of the Act is quite broad and its choice of remedies should be set aside only if “it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969) (citation omitted).
Back pay awards are intended to “mak[e] employees whole for losses suffered on account of an unfair labor practice.” Id. (citation omitted). The purpose is to “restor[e] the economic status quo that would have obtained but for the company’s wrongful [act].” Id. It is improper, however, to award back pay if an employer can show that even if employees had been treated with total fairness they would have been discharged at a later date. See NLRB v. J.S. Alberici Construction Co., Inc., 591 F.2d 463, 470 n. 8 (8th Cir.1979); NLRB v. Amoco Chemicals Corp., 529 F.2d 427 (5th Cir.1976).
The Board ordered that backpay awards of employees discharged in 1973 continue past the shutdown of the Hardeman plant in the fall of 1974 solely because Hardeman failed to bargain with the Union over the effects of the shutdown and subsequent reopening of the plant. There was no finding, and no evidence, that the shutdown of the plant was motivated by any anti-union animus in violation of § 8(a)(3).
Backpay can be an appropriate remedy for a § 8(a)(5) violation. See Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F.2d 254 (8th Cir.1970); Avila Group, Inc., 218 NLRB 633, 89 LRRM 1364 (1975); see also The Developing Labor Law, pp. 1676-1678 (Morris ed. 2d ed. 1985). It is a proper remedy where it serves to make whole employees for losses suffered due to an employer’s failure to bargain, and also where it creates an incentive for the employer to bargain in good faith with the union representing the employees. See Avila Group, supra. The backpay award in a failure to bargain case runs from the date of termination only until the parties reach agreement or a good faith impasse in bargaining, see The Developing Labor Law, supra, at 1677, and in any event is cut off if the union fails to request bargaining. Morrison Cafeterias, supra, at 254.
In this case the decision that back-pay awards for employees who had been wrongfully discharged over a year before the plant shutdown continue past the shutdown does not appear to serve any proper remedial purpose under the Act. All employees suffered equally due to Hardeman’s failure to bargain with the Union. The 11 employees listed in footnote 3 have no right under the Act, absent special facts, to preferential treatment over other employees. Seven of the 11 had been recalled to work before the plant shutdown. Backpay awards dating from the time each employee was wrongfully terminated until they were recalled or until the plant shutdown fully reestablishes the status quo and puts those individuals on an equal economic footing with all other plant employees. Any backpay awarded to remedy Hardeman’s failure to bargain, if appropriate at all, should be awarded equally to all employees affected by the plant shutdown, since all were equally injured by Harde-man’s failure to bargain, and not just to the 11 employees listed in footnote 3. The backpay awards for these 11 employees, insofar as they extend past the plant shutdown, appear to be punitive rather than remedial.
The Board’s order, awarding backpay past the plant shutdown only to certain employees, can be enforced only if there is evidence in the record to support the distinction made between employees who had been illegally terminated at an earlier date and all other employees. This requires a finding that had Hardeman bargained in good faith over the effects of the plant shutdown and the subsequent reopening the 11 employees listed in footnote 3 would have been given preferential hiring rights over all other employees.
Had Hardeman bargained in good faith with the Union several things could have happened. Hardeman and the Union could have reached an agreement to keep the plant totally or partially opened. However, even after bargaining in good faith, Harde-man could still have elected to shut down the plant for purely economic reasons. Hardeman was not required to bargain over the actual decision to shut down the plant but only over the effect of that decision on its employees. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981); NLRB v. Gibraltar Industries, Inc., 653 F.2d 1091 (6th Cir.1981). On the sparse record before us it is wholly speculative to state what would have happened had Hardeman bargained with the Union concerning the effects of the shutdown and reopening of its plant. It stretches credulity to suggest that the Union, charged with representing all plant employees, would have insisted that the 11 discriminatees listed in footnote 3 be given preferential hiring, disregarding their length of service in relation to other employees.
Backpay awards to the 11 employees listed in footnote 3 which extend past the plant shutdowns do not further any policy under the Act and will not be enforced.
IV. WILLIE SPENCER AND MARGIE WILSON
Respondents specifically challenge the Board's award of back pay to two discrimi-natees as not supported by substantial evidence in the record. Respondents argue Willie Spencer never looked for replacement work after being discharged from Hardeman and is therefore not entitled to back pay. Respondents also contend Margie Wilson failed to engage in a diligent search for interim employment after the second quarter of 1974.
When an employee is discharged due to anti-union animus there is a presumption that some back pay is owing. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2nd Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). The respondent has the burden of proving that a back pay award should be reduced due to a willful failure to seek interim employment. McCann Steel v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir.1978). This court recently summarized the law concerning the failure of discharged employees to mitigate damages in NLRB v. The Westin Hotel, 758 F.2d 1126 (6th Cir.1985):
“[A] wrongfully discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the plaintiff be successful in mitigating the damage.
Finally, it must be remembered that the Board’s conclusion as to whether an employer’s asserted defenses against liability have been successfully established will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board’s findings.”
Id. at 1130 (citations omitted).
A. Willie Spencer
Willie Spencer already had a day job when he was laid off by Hardeman. He did not look for other work until he was laid off from his day job. Respondents contend this demonstrates Spencer’s night job at Hardeman was only “supplemental”. Judge McLeod found that it was impossible to determine which job was “primary” and which “supplemental”, and that it was just as plausible to assume that had Spencer lost his day job he would have been content to work at only his night job at Hardeman. Judge McLeod’s determination is reasonable on the record before us; there is therefore substantial evidence to support the Board’s decision that Spencer was entitled to back pay, with the computation being tolled during the period he worked at his day job. After he was laid off from his day job, Spencer diligently looked for other employment. The Board’s order for back pay to Spencer is enforced, with the limitation set forth in Section III of this opinion.
B. Margie Wilson
Margie Wilson’s testimony was that she consistently applied for jobs from 1973 through 1980. Respondents contend her testimony showed that when she was employed during that period her efforts at working were half-hearted and that as a consequence she made herself unemployable.
Wilson explained the reasons she left each job where she was employed from 1973 through 1980. Judge McLeod credited her testimony, even though he found her answers were often “vague and indefinite.” He noted Wilson is rural and uneducated and that the vagueness in her testimony was probably caused by these factors coupled with the difficulty of remembering events spreading over 8 years prior to the hearing. There is substantial evidence in the record to support the Board’s order of back pay to Wilson; she made a “reasonable effort to mitigate damages.” Westin Hotel, supra, at 1130.
V. SUMMARY
The Board’s order of back pay for the 17 discriminatees listed in footnote 4 is enforced in full. Respondents do not challenge those awards. The Board order of back pay for the 11 discriminatees listed in footnote 3 is only enforced through the mid-third quarter of 1974, when the Harde-man plant shut down. Any backpay award to the employees listed in footnote 3 beyond that quarter is denied enforcement.
. These individuals are called discriminatees because their discharge was motivated by an anti-union discriminatory animus.
. Apart from Master Slack the other named respondents are all, like Hardeman, wholly owned subsidiaries of Master Slack. Master Slack and the other subsidiaries were joined as defendants solely for purposes of the back pay awards. See NLRB v. Master Stack, 618 F.2d 6 (6th Cir.1980).
. Earlie Cheairs, Ray Davis, Alma Jones, Nathaniel McClellan, Gladys McGowan, Doris McNeal, Wiley Murphy, Lurlene Pirtle, Willie Spencer, Ressie Ford Traylor, and Margie Wilson. Of these, Cheairs, Traylor, Pirtle, McNeal, McClellan, Jones, and Davis were rehired at various points in time from August, 1973 through May, 1974. However, they all lost their jobs when the Hardeman plant was shut down in the fall of 1974 and none of them were rehired when the plant reopened in 1975.
. Grace Beard, Mose Burkley, Peggy Peoples Harris, Freddie Jones, Mattie Jones, Earline Lake, Leroy Lake, Annie McKinnie, Percy McNeal, Donald Moss, Vera Norment, Juanita Phillips, Allan Lynn Russell, Johnny Russell, Leo Sain, Ernest Williams, and Patricia Williams.
. Willie Spencer and Margie Wilson, 2 of the 11 discriminatees listed in footnote 3, supra.
. This section states that it shall be an unfair labor practice for an employer to "discrimi-nat[e] in regard to hire or tenure of employment of any term or condition of employment to encourage or discourage membership in any labor organization.”
. Sec. 8(a)(1) states that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights [to organize and participate in labor organizations]”.
. In Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984), the United States Supreme Court discussed the confusing variance in terminology surrounding the concept of preclusion:
“The preclusive effects of former adjudications are discussed in varying and, at times, seemingly conflicting terminology____ These effects are referred to by most commentators as the doctrine of ‘res judicata’. Res judicata is often analyzed further to consist of two preclusion concepts: 'issue preclusion’ and ‘claim preclusion’. Issue preclusion refers to the effect of a judgment in foreclosing relit-igation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit____
This Court on more than one occasion has used the term 'res judicata’ in a narrow sense, so as to exclude issue preclusion or collateral estoppel. When using that formulation, ‘res judicata’ becomes virtually synonymous with ‘claim preclusion’. In order to avoid confusion resulting from the two uses of ‘res judica-ta’, this opinion utilizes the term ‘claim preclusion' to refer to the preclusive effect of a judgment in foreclosing relitigation of matters that should have been raised in an earlier suit.”
In this case the parties and the Board all referred generally to the doctrine of “res judica-ta” even though the problem here is one of issue preclusion rather than claim preclusion. For the sake of clarity this court will follow the lead of the Supreme Court. Accordingly, the term "issue preclusion” will be used throughout this opinion in discussing whether respondent is foreclosed from relitigating issues decided in the prior unfair labor practices proceeding.
. Had the Board found that anti-union animus in violation of § 8(a)(3) had been the cause of the plant shutdown it could have awarded back-pay extending past the plant shutdown not only to employees illegally discharged prior to the shutdown but to all the employees at the plant. See NLRB v. National Car Rental System, Inc., 672 F.2d 1182, 1191 (3d Cir.1982); Electrical Products Division of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir.1980), cert. den. 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980).
. The record does not contain the date when Spencer was laid off from his day job.
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_casetyp1_7-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Cleophas L. COX and Rose M. Cox, Petitioners-Appellants, v. Manuel CHACO, Director of Revenue and Taxation, and Government of Guam, Respondents-Appellees.
No. 78-2208.
United States Court of Appeals, Ninth Circuit.
Submitted June 11, 1980.
Decided Feb. 2, 1981.
As Amended on Denial of Rehearing and Rehearing En Banc June 22, 1981.
Gerald E. Stinson, Crain & Shoecraft, Agana, Guam, for petitioners-appellants.
Roger E. Willmeth, Agana, Guam, for respondents-appellees.
Before CHOY and NELSON, Circuit Judges, and SCHNACKE, District Judge.
The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California, sitting by designation.
CHOY, Circuit Judge: ,
Cleophas and Rose Cox, taxpayers, petition from a judgment of the district court denying their claim for a tax refund. We find that the district court correctly held that the taxpayers could not exclude certain rental payments from their gross income, and accordingly we affirm the judgment below.
I. FACTS
Mr. Cox was an employee of the Federal Aviation Administration (“FAA”) during the relevant tax year. He was assigned to the Guam region and he and his family lived in FAA housing there. Cox was the FAA Resident Director for Guam, and his responsibilities included air traffic control and crash investigations, as well as overseeing day-to-day housing matters. He received a standard FAA salary for such a position, and from that salary the Government deducted a portion for rental of Cox’s FAA quarters. Thus Cox never physically handed over his rent payments to the FAA and his take-home pay did not include the amount allocated to rent.
Cox’s home is eight-tenths of a mile from his office. Both the home and office are within the FAA complex. Cox testified that he would not be able to manage the FAA complex “long distance” and that his job required his physical presence in the complex at all hours. He received long distance business phone calls at night and on weekends because of date and time differences; other FAA employee-residents would come to Mr. Cox with housing complaints, although there was a housing director who had primary responsibility for housing matters. Cox’s superior testified that Cox was required to live in the FAA complex.
The district court found, inter alia, that the evidence was insufficient to show that Cox was required to live in the FAA complex as a condition of employment. The district court noted that answering phone calls and handling housing complaints were a minor part of Cox’s overall responsibilities.
There is no evidence in the record that non-government housing was not available, or that Cox’s salary would be reduced if he did not live in the FAA complex. Cox told a government auditor that he would not be fired if he chose to live elsewhere.
II. ISSUES
Cox’s unique living and working arrangement gives rise to the question here. Cox claims that under 26 U.S.C. § 119, he is entitled to exclude the amount of his salary allocated to rent from his gross income since he is required to live on FAA premises as a condition of employment. The Guam Director of Taxation, on the other hand, contends that § 119 does not apply in this case because Cox pays rent for his housing, rather than receiving housing in kind; and that even if § 119 does apply, Cox has failed to prove the elements of a § 119 exclusion.
III. DISCUSSION
Cox claims that the amount withheld from his salary for rent should be excluded from his gross income. Such exclusion would have the effect of taxing Cox as if he made less than other FAA directors, since the amounts withheld for rent would not be treated as income.
In order to receive this obviously advantageous tax treatment under § 119, the taxpayer must prove three elements:
(1) that such lodging be furnished for the convenience of the employer; (2) that it be located on the business premises of the employer; and (3) that the employee be required to accept such lodging as a condition of his employment.
Commissioner v. Anderson, 371 F.2d 59, 63 (9th Cir. 1966), cert. denied, 387 U.S. 906, 87 S.Ct. 1687, 18 L.Ed.2d 623 (1967).
In this case, the district court found to be lacking the third element which requires that lodging be furnished as a condition of employment. A review of the record reveals that Cox and his superior stated that Cox was required to reside in the FAA complex, but their statements were not supported by independent evidence or by a detailed explanation indicating why such residency was necessary. When pressed on cross-examination, Cox’s explanation was ambiguous. His statements were not uncontroverted. The trial judge observed the demeanor of the witnesses and could have discounted their testimony as self-serving and tax motivated. On the face of this record, the trial court was not clearly erroneous in its finding that Cox was not required to live in the FAA complex as a condition of employment. Compare Caratan v. Commissioner, 442 F.2d 606 (9th Cir. 1971), (“condition of employment” finding reversed where the court was “left with the definite and firm conviction” that a mistake had been committed and where the tax court erroneously relied on its own business judgment as to whether the taxpayer’s job required his presence at all times).
Because we find that Cox failed to prove an essential element of a § 119 exclusion, we need not reach the question of whether § 119 applies at all where the FAA housing was furnished but paid for by a salary deduction.
IV. CONCLUSION
The trial court’s finding that Cox was not required to accept government housing as a condition of employment was not clearly erroneous. The decision is
AFFIRMED.
. Treas.Reg. § 1.119 — 1(b) permits the exclusion for lodging to be claimed where the three stated tests are met “irrespective of whether a charge is made” for the lodging. The regulation follows Boykin v. Commissioner, 260 F.2d 246 (8th Cir. 1958). The Director suggests that the recent Supreme Court decision in Commissioner v. Kowalski, 434 U.S. 77, 98 S.Ct. 315, 54 L.Ed.2d 252 (1977), which disallowed § 119 exclusion for cash meal allowances paid to state troopers in lieu of meals, would likewise bar an exclusion for lodging where, as here, a rental payment is deducted from the taxpayer’s salary. We need not, however, reach this question here.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
songer_typeiss | C | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
WILLIAMS v. CONTINENTAL INS. CO. OF NEW YORK.
No. 11052.
Circuit Court of Appeals, Ninth Circuit.
Jan. 7, 1946.
George Penney, of Los Angeles, Cal. (Jean Wunderlich, of Los Angeles, Cal., of counsel), for appellant.
W. W. Hindman, E. Eugene Davis, Huntington P. Bledsoe, and Hindman & Davis, all of Los Angeles, Cal., for appel-lee.
Before GARRECHT, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
Appellee insured appellant Sydney M. Williams and his wife, Elizabeth, against loss by robbery of certain jewelry. Thereafter the insured persons, claiming that the jewelry had been taken from them in a holdup, presented proof of loss and were paid the amount claimed.
Subsequently appellee sued to recover on the ground that the claim of loss was false and fraudulent in that in fact no robbery had occurred. The wife, Elizabeth Williams, admitted the allegations of the complaint and on the trial testified for appellee. The trial resulted in a judgment against appellant in the amount paid on the claim.
Appellant contends that the suit is predicated on a charge of conspiracy, hence, he says, recovery can not properly be predicated on the uncorroborated testimony of the accomplice, namely, the wife. The contention has several answers, of which we shall mention but two. In the first place, the gravamen of the action is fraud, not conspiracy. Cf. 5 Cal.Jur. 530; Revert v. Hesse, 184 Cal. 295, 193 P. 943; Kittle Mfg. Co. v. Davis, 8 Cal.App.2d 504, 47 P.2d 1089; Andrews v. Young, 21 Cal. App.2d 523, 69 P.2d 891. Secondly, assuming for any reason that corroboration of the wife’s testimony was necessary, there was ample corroboration.
Affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_appel1_1_4 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". Your task is to determine what subcategory of business best describes this litigant.
ARROW DRILLING COMPANY, Appellant, v. Richard T. BROOKS and Bituminous Casualty Corporation, Appellee.
No. 19299.
United States Court of Appeals Fifth Circuit.
May 25, 1962.
Otto Atchley, Victor Hlavinka, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Tex., for appellant.
Franklin Jones, Sr., Marshall, Tex., L. L. Lockard, Shreveport, La., Larry Oubre, Dallas, Tex., Franklin Jones, Jr., Marshall, Tex. (Jones, Brian & Jones, Marshall, Tex., of counsel), for appellees.
Before TUTTLE, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges.
PER CURIAM.
This is an appeal from a verdict and judgment for plaintiff in a suit for personal injuries received in Texas by appellee, as the employee of Griggs Casing Crews Co., Inc., a sub-contractor of appellant, the drilling contractor.
The grounds of negligence alleged were: (1) furnishing unsafe equipment used in the work performed by the Griggs crew; (2) employing a method of work which was unsafe; and (3) arranging the derrick and its appurtenances so as to cause a condition of danger and hazard.
In addition to these specific allegations of negligence, there was a general claim of negligence based upon res ipsa loquitur.
The defendant denied generally and pleaded contributory negligence and voluntary assumption of risk. In addition to these defenses, the defendant relied below and relies here upon two affirmative defenses styled First Defense-A and First Defense-B. These defenses in effect were a plea of res judicata based upon a judgment for compensation obtained by appellee in Louisiana and under its laws against Griggs Casing Crews, Inc. and its compensation carrier in Louisiana, and the claim that under Louisiana Workmen’s Compensation laws it was a statutory employer of appellee, liable solidarily with Griggs Casing Crews, Inc. for injuries suffered by plaintiff; and the compensation judgment was a bar to this suit against defendant.
The district judge, on a full hearing, struck these defenses on the ground that there was no final judgment in the Louisiana case. The cause was submitted to the jury, a verdict for plaintiff resulting; and defendant is here attacking the submission of the cause to the jury and the verdict as unsupported by the evidence, and, in addition, insisting: that defendant’s defenses A and B should have been sustained, and a verdict for defendant should have been directed on the defense of voluntary assumption of risk.
Appellee vigorously contests defendant’s claim on its special defenses A & B on the ground (1) that the district judge correctly held that the judgment in Louisiana disposing of plaintiff’s workmen’s compensation insurance was not shown to be a final judgment; and (2) that in no event could the Louisiana judgment for workmen’s compensation insurance deprive appellee-plaintiff of his right to bring a third party action for damages in Texas under the express authority of its compensation act. Appellee further insists that there was ample testimony to sustain the jury’s finding in favor of plaintiff-appellee on the assumed risk issue and the defendant’s motion for directed verdict was therefore properly denied.
The special defenses aside, we think it clear that the case was one for a jury verdict and that the defendant’s insistence that a verdict for defendant should have been directed on the ground that plaintiff, as matter of law, assumed the risk of injury is without sound basis. The issue was submitted to the jury on evidence which made it a jury issue, and the jury found for plaintiff.
As to the special defenses, based on the compensation award in Louisiana, we agree with appellee and the district judge that when the plea of estoppel and res judicata was disposed of by the judge, there was no final judgment in the cause, and the district judge was, therefore, right in rejecting the special defenses. We, therefore, find it unnecessary to inquire into and determine whether, as urged by defendant, if there had been a final judgment in the compensation suit, it would have been a bar to the Texas action.
The judgment is
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant?
A. residential
B. commercial or industrial
C. other
D. unclear
Answer: |
songer_method | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
Harry and Amanda SCHROEDER, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 16439.
United States Court of Appeals Eighth Circuit.
June 23, 1961.
Bert B. Rand, Washington, D. C., Leland C. White, Harlan, Iowa, Hans A. Nathan, Laurence D. Pearl, of Trammell, Rand & Nathan, Washington, D. C., on brief, for petitioners.
Gilbert E. Andrews, Jr., Attorney, Department of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson and Robert N. Anderson, Attorneys, Department of Justice, Tax Division, Washington, D. C., were with Gilbert E. Andrews, Jr., Washington, D. C., on brief, for respondent.
Before VOGEL and BLACKMUN, Circuit Judges, and DAVIES, District Judge.
RONALD N. DAVIES, District Judge.
This case comes to us on petition of Harry and Amanda Schroeder for a review of the decision of the Tax Court of the United States, 16 TCM 707, Amending Order 17 TCM 836, which sustained a determination by the Commissioner of Internal Revenue of deficiencies in the income taxes of Harry Schroeder for 1944 and 1945 and of deficiencies in the income taxes of both petitioners for 1946 and 1947. Addition to tax was determined under § 291(a) for the year 1946 for failure to file a return as required by § 51(a) within the time prescribed, and further additions were determined for the years 1944 through 1946 under § 293(b) because of fraud with intent to evade tax.
The petitioners are residents of Tabor, Iowa, where Harry Schroeder has been engaged in cattle feeding a good share of his life. Although the petitioner dealt in other animals, most transactions herein concerned cattle which were purchased from livestock commission merchants, brokers and dealers. Normally, two and three year old grass fed cattle were selected, the number purchased at any one time ranging from a few dozen to more than two thousand head. These cattle were placed in feed lots for periods from thirty days to four or five months before being marketed. Immature cattle were grazed until ready for feed lots, and as many as twenty months could elapse between time of purchase and sale. The cattle were commingled in various feed lots irrespective of purchase date or price paid. Petitioner financed his cattle purchases with loans, and a part of approximately eighty per cent of his purchases was mortgaged.
Petitioner Harry Schroeder reported his annual income on a cash receipts and disbursements basis, deducting from gross receipts the computed cost of cattle sold in that year without regard to purchase date. Cost of the livestock sold was based upon an estimate prepared by petitioner and his accountant. In preparing the estimate a cutoff date was chosen, usually on or about September 15th, it being assumed that all cattle purchased after that time were on hand at the end of the year. The 1945 return indicated that the livestock carry-over from 1945 to 1946 was $680,010.70. On the 1946 return the livestock carry-over from 1945 was $496,281.05. The return for 1946 showed a livestock carry-over to 1947 in the amount of $605,300.58. The return for 1947 shows a livestock carryover from 1946 of $555,168.88.
No separate records or identification of the various herds were maintained although petitioner visited the feed lots almost every day and was familiar with the types and number of cattle there. No formal books were kept of feeding operations, the records consisting of bank statements, liability ledger sheets, canceled checks, bills of sale and purchase invoices. Most of the business was handled by telephone with no records or memoranda being made of the transactions. Not all of the proceeds from cattle sales were deposited in bank accounts, some being applied directly on notes payable to banks. The only actual head count of livestock taken was in September of 1947 when the petitioner formed the Harry Schroeder Cattle Co., Inc., and Harry Schroeder, Inc.
A thirty day extension of time in which to file an income tax return for 1946 was obtained by petitioner and a tentative individual return filed April 15, 1947, disclosing a net income of $51,500 and tax liability of $25,479. The return contained no computation of gross receipts, cost of livestock sold or gross profits, and no schedules showing computation of net income. On July 15, 1948, a joint return for 1946 was filed which did contain a schedule reflecting gross receipts, cost of livestock sold, gross profits, net income and which disclosed tax liability of $185,374.14.
The Commissioner computed petitioners’ taxable incomes for the years involved by alternate methods, net worth and by a statement of income and expense, both computations reaching the same total taxable incomes. The sources of both computations were basically the same, the principal disputed item being the cost of livestock on hand at the beginning of each taxable year. Since error in either computation will be reflected as well in the other, our discussion will be limited to that of the net worth method. Because of petitioner’s failure to make regular physical head counts, the Commissioner worked back-, ward from the actual head count taken in 1947 and, using petitioner’s records and memoranda, established a cost basis of livestock on hand December 31, 1946. To determine this for livestock on hand as of December 31, 1944 and 1945, re-' spectively, it was assumed that all livestock purchased in the last ninety days of each year were still on hand at the end of that year.
The Tax Court held that (1) the Commissioner was justified in adopting the net worth method of computing petitioners’ income, (2) the lack of proper record keeping compelled the use of the ninety day cutoff in determining the livestock carry-over, (3) a part of the deficiencies for each of the years 1944 through 1946 was due to fraud with an intent to evade tax and (4) petitioners were liable for additions to tax for failure to file a timely return for the year 1946 within the meaning of § 51(a), Internal Revenue Code of 1939, 26 U.S. C.A. § 51(a).
“[7] Decisions of the Tax Court are to be reviewed by the same standards as are applied to decisions of the district court in civil cases tried without a jury. Findings of fact by the Tax Court shall not be set aside unless they are clearly erroneous. Greenspon v. Commissioner, 8 Cir., 229 F.2d 947, 949; Omaha Nat. Bank v. Commissioner, 8 Cir., 183 F.2d 899, 902, 25 A.L.R.2d 628; Doll v. Commissioner, 8 Cir., 149 F.2d 239, 247.” Luehrmann’s Estate v. C. I. R., 8 Cir., 287 F.2d 10, 15.
“ * * * A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is 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.
It is unnecessary for the Commissioner to show that inadequate books and records have been kept by the taxpayer before resorting to the net worth method of computing taxable income for the years in question. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L. Ed. 150.
In Schultz v. C. I. R., 5 Cir., 278 F.2d 927, 929, the Court said:
“[1-3] The Taxpayer insists that under § 41 the net income is to be computed in accordance with the method of accounting regularly employed by a taxpayer. Consequently, where a taxpayer keeps books and records, the Commission has the burden of first establishing that the records are faulty or either negligently or fraudulently fail to reflect items of income or disbursements. But this is clearly not so. This Court, with many others, is conscious of the dangers in the use of the net worth method and will require that there be adequate evidence to support a determination that the true income is represented by the process of reconstruction. But once that is satisfied, neither the method nor the evidence undergoes an added scrutiny because the taxpayer’s books are to this extent disregarded. Indeed, the determination that the trier of fact had requisite basis for concluding that income was truly that shown by the reconstruction process is a simultaneous determination that no matter how neatly or diligently or consistently or conscientiously kept, the books and records were inadequate. * * *»
The Commissioner’s determination of a deficiency is prima facie correct, and the burden is upon the taxpayer to disprove that determination. Marcella v. C. I. R., 8 Cir., 222 F.2d 878; Lusk v. C. I. R., 7 Cir., 250 F.2d 591.
Because a physical head count of cattle was never made prior to September, 1947, that no books were kept of the cattle feeding operations and that even petitioner and his accountant estimated the livestock carry-over each year, resort to the net worth method was necessitated. The principal item here in dispute is the cost of livestock on hand at the beginning of each year for which the instant deficiencies were determined. The petitioner in this court, as in the Tax Court, vigorously attacks the Commissioner’s use of the ninety day cutoff to establish cost of cattle carried over into the succeeding year. The Tax Court held that the Commissioner was not only justified in adopting this method but that petitioner’s lack of records compelled it. We agree. The method used by the petitioner and his accountant in arriving at the year end cost of the cattle on hand was similar to that used by the Commissioner. In net worth cases the fact finder is warranted in bearing heavily against the contentions of the taxpayer whose inexactitude is of his own making, and where the findings are based upon the entire record, they cannot be said to be clearly erroneous. Gatling v. C. I. R., 4 Cir., 286 F.2d 139.
In holding that part of the deficiencies for each of the years 1944 through 1946 was due to fraud with intent to evade tax, the Tax Court recognized that the burden rested upon the Commissioner to prove fraud by clear and convincing evidence. § 1112, Internal Revenue Code of 1939, 26 U.S.C.A. § 1112. Fraud is a question of fact, and the Tax Court finding is binding if supported by substantial evidence. Helvering v. Kehoe, 309 U.S. 277, 60 S.Ct. 549, 84 L.Ed. 751; Bender v. C. I. R., 7 Cir., 256 F.2d 771.
In the case before us the Tax Court had this to say concerning the fraud is.sue:
“* * * The burden rests upon the respondent to prove fraud by clear and convincing evidence. Arlette Coat Co., 14 T.C. 751. There were consistent understatements of income of a substantial nature over the years before us. Petitioner reported income for the years 1944, 1945, 1946 and 1947 in the sums of $487, $11,840, $51,500 and $249,506, respectively. The completely unrealistic nature of his reported income is graphically demonstrated by the net worth computation and the profit and loss statement prepared by respondent, which computations we have, on the basis of the entire record, sustained, and which show unreported income for the years 1944, 1945, 1946 and 1947 in the amounts of $163,609, $148,379, $364,140 and $61,149, respectively. Such a pattern of repeated gross understatements of income without an adequate explanation is evidence of fraudulent intent. Schwarzkopf v. Commissioner, [3 Cir., 246] F.2d [731] (July 10, 1957), affirming a Memorandum Opinion of this court; Kilpatrick v. Commissioner, [5 Cir.) 227 F.2d 240, affirming 22 T. C. 446. We are persuaded from the impressive growth in the scope of petitioner’s operations and from the financial statements filed by petitioner with his bank over these years, that the petitioner was fully aware that his income was not accurately reported in his returns for those years. Our findings reveal a marked discrepancy between the small amounts of taxable income reported by petitioner in those years and the amounts as determined by the respondent in his net worth computation.
“Another strong indication of fraud on petitioner’s part is the matter of the altered checks. Approximately 20 checks were made out by petitioner for payment of real estate purchased by him in each of the years 1944, 1945 and 1946. After these checks were cashed, notations regarding real estate were erased and new notations were placed on the checks indicating that the amounts were payment for corn, fodder and other operating expenses. Petitioner, in 1946, purchased a Reo truck at a price of $2,638.49, which amount he paid by check. In the lower left hand corner of the check a notation was made that it was in payment for approximately 1,600 bushels of corn at $1.65. It is to be noted that, for the most part, the notations indicated that the full amount of the check was for these various operating expenditures. This reveals the weakness in petitioner’s attempt to explain such notations by saying that they resulted from an attempt to find out what portion of each real estate purchase represented non-real estate items. It fairly appears that petitioner deducted as an operating expense for the years involved the amounts indicated on the altered checks. Petitioner conducted large scale feeding operations during the years here involved, and he impressed us as an intelligent businessman. We hold, after an examination of the entire record, that a part of the deficiencies for each of the years 1944 through 1947 was due to fraud with intent to evade tax.” (Note: Only the years 1944 through 1946 are involved in this appeal).
We cannot say the Tax Court was in error. The holding that petitioner failed to file a return for the year 1946 as required by § 51(a), Internal Revenue Code of 1939, was based upon the finding that no computations or schedules were shown on the return which was blank except for a net income figure and the amount of tax due thereon. No evidence was offered to show that failure to file was due to reasonable cause and not willful neglect. We think the problem was well stated by the 9th Circuit in Ferrando v. United States, 245 F.2d 582, 588 when that Court said:
“* * the filing of an admittedly incomplete, inaccurate, and estimated return does not of itself relieve the tardy taxpayer of liability for a penalty. If such an excuse were accepted, it would put a premium upon belated and slipshod filing. A careless and neglectful taxpayer could wait until the last minute, present an amorphous return and escape the penalty. We do not believe that such is the genius and spirit of the Federal estate tax law. Congress did not intend that taxpayers should be permitted thus to play ducks and drakes with the collection of the Federal fisc.
“A similar situation confronted the Court of Appeals for the Tenth Circuit in Sanders [Sanders v. Commissioner], supra, 225 F.2d [629] at page 637. There it was said:
“ ‘The taxpayers filed tentative or skelton returns which contained no detailed information as to income or deductions. The completed returns were not filed until a number of years after the due date. The taxpayers’ books were not posted and an effective audit could not be made. The last payments from the United States were received by Sanders in 1949, and a return was not filed until September of 1952, after notice of deficiencies had been given and the liens had been filed. The record discloses sufficient evidence to sustain the decisions of the Tax Court in upholding the assessment of penalties and interest.’ [Emphasis supplied.]”
Petitioners here having failed to meet their burden of establishing that the failure to file a return was due to reasonable cause and because the defective return filed before the due date was not sufficient to protect the petitioners here from the addition, there is no reason for this court to disturb the decision of the Tax Court of the United States.
We have considered other questions raised herein but find none of such substance or merit as to require discussion. Finding no reversible error, the judgment of the Tax Court is
Affirmed.
“2. *§ 41. General rule
“‘The net income shall be computed opon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. * * * ’ 26 U.S.C.A. § 41 [1939 I.R.C.],
“Somewhat related is § 54 of the 1939 •Code, Records and Special returns:
“‘(a) By taxpayer. Every person liable to any tax imposed by this chapter or for the collection thereof, shall keep such records, render under oath such statements, make such returns, and comnly with such rules and regulations, as the Commissioner, with the approval of the Secretary, may from time to time prescribe.’” 26 U.S.C.A. § 54 [1939 I.R.C.],
"3. Bryan v. Commissioner, 5 Cir., 1954, 209 F.2d 822, 826; Polizzi v. Commissioner, 6 Cir., 1959, 265 F.2d 498, 502; Thomas v. Commissioner, 1 Cir., 1956, 232 F.2d 520, 525; Thomas v. Commissioner, 6 Cir., 1955, 223 F.2d 83. Both Thomas eases were approved and followed by this Court in Phillips’ Estate v. Commissioner, 5 Cir., 1957, 246 F.2d 209; see also the final action by the 6th Circuit in the latest appeal of the Thomas case, Thomas v. Commissioner, 6 Cir., 1959, 266 F.2d 297; Veino v. Fahs, 5 Cir., 1958, 257 F.2d 364; Gunn v. Commissioner, 8 Cir., 1957, 247 F.2d 359; Harp v. Commissioner, 6 Cir., 1959, 263 F.2d 139.”
“4. The standard for appeals from the Tax Court is the clearly erroneous concept under F.R.Civ.P. 52(a) for appeals from nonjury trials in the District Court. See 26 U.S.C.A. § 7482. Appeals from judgments entered in a jury trial are reviewed under the familiar substantial evidence rule. Marsh v. Illinois Central R. Co., 5 Cir., 1949, 175 F.2d 498.”
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer: |
songer_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).
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC COAST UTILITIES SERVICE, INC., Respondent, and Industrial, Technical & Professional Employees Division, National Maritime Union of America, AFL-CIO, Respondent.
No. 78-3677.
United States Court of Appeals, Ninth Circuit.
April 14, 1980.
Corinna L. Metcalf, NLRB, Washington, D. C., argued, for petitioner; Elliott Moore, Deputy Assoc. Gen. Counsel, NLRB, Washington, D. C., on brief.
Lawrence Drasin, San Francisco, Cal., for respondents; William A. Polkinghorn, Jr., Webster, Jeppson & Jones, Los Angeles, Cal., Gartland & Tilly, San Francisco, Cal., on brief.
Before BROWNING, KENNEDY and SKOPIL, Circuit Judges.
PER CURIAM:
There is substantial evidence in the record to support the finding of the Board that the company’s discharge of Barone was in violation of section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (3) (1976). Barone’s action as shop steward in advising the employees not to sign warning slips presented by the foreman of another company until Barone could discuss the matter with his supervisor was protected union activity. F. J. Buckner Corp. v. NLRB, 401 F.2d 910 (9th Cir. 1968), cert. denied, 393 U.S. 1084, 89 S.Ct. 868, 21 L.Ed.2d 777 (1969); NLRB v. Ferguson, 257 F.2d 88 (5th Cir. 1958). See also NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965).
There was substantial evidence as well to support the finding that the union violated section 8(b)(1)(A) of the Act. The record shows that the union failed to represent Barone in a fair and impartial manner because of his support of a rival union and his insistence that union dues not be paid until health insurance coverage was provided.
It was proper for the Board to rule that the employer and the union had joint and several liability to compensate the employee for any loss of back pay. Given the determination that discharge was wrongful, it follows that the failure of the union to represent the employee was damaging to him and a contributing factor to his loss of pay. See Newport News Shipbuilding & Dry Dock Co., 236 N.L.R.B. No. 197 (1978). The amount of back pay, if any, can be determined in further proceedings before the Board.
ENFORCEMENT GRANTED.
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_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".
BURKA et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6020.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 12, 1950.
Decided Jan. 28, 1950.
Bert B. Rand, Washington, D. C, for petitioners.
Francis W. Sams, Special Assistant to the Attorney General (Theron Lamar Caudle, Assistant Attorney General; Ellis N. Slack, Lee A. Jackson and Virginia H. Adams, Special Assistants to the Attorney General, on brief), for respondent.
Before SOPER and DOBIE, Circuit Judges, and WARLICK, District Judge.
SOPER, Circuit Judge.
The petitioning taxpayers were equal partners in a laundry business in Washington, D. C. during the taxable year 1944. They seek a review of a determination of deficiencies in income tax growing out of a finding that the distributable net income of the partnership for the year should be increased by the sum of $12,508.93.
During the year 1944, the business of the laundry grew rapidly and the books of the firm were not accurate or complete, but were in a state of great confusion. Accordingly, the firm employed a certified public accountant in the fall of the year and' turned over to him its available records which included bank books, cancelled checks and sales sheets. The accountant endeavored to reconstruct the income for the first ten months and introduced standard accounting practices for the balance of the year. In reconstructing the income for the period from January 1 to October 31, he assumed that the gross bank deposits represented sales and the gross bank disbursements represented expenses of the business which he endeavored to allocate to running expenses, drawing or capital items.
The trial balance of October 31, 1944, stated by the accountant, showed “unrecorded expense” of $12,463.93. This amount, plus $45 listed as contributions, makes up the deficiency. The larger bills during the year were paid by check but the smaller bills for supplies, gas, oil and lost laundry were paid in cash by one or another of the partners. Some of these items, but not all of them, were recorded 9n the reverse side of sales sheets which were prepared by six or seven different employees who were changed from time to time during a rapid turnover. These notations amounted to $6,368.12 during the five months prior to October 31. There were no such notations on the sales slips for the first five months of 1944. To meet this situation the accountant in his endeavor to show the true income of the firm set up an account which he designated “unrecorded expense.” He credited this account with the sum of $500 representing checks marked petty cash, but not broken down as to items, $595.81 representing checks marked supplies for rug department not used in 1944, and also the above sum of $6,368.12 making a total of $7,463.93. He also concluded that similar expenses must have been incurred, although not recorded, during the first five months, and he credited the additional sum of $5,000 to unrecorded expenses for this period. Accordingly the trial balance for October 31, 1944 showed the item of $12,463.93 for unrecorded expense; and since the accountant concluded that these expenditures were made from unrecorded cash receipts, it was necessary for him to increase the sales by a corresponding amount on the balance sheet.
When the accountant made his trial balance for December 31, 1944, he decided that he had been wrong in arbitrarily estimating the unrecorded expense as $5,-000 for the first five months since there were no supporting records and accordingly he eliminated the $5,000 item of unrecorded expense and the corresponding $5,000 credit to sales.
The Commissioner accepted the conclusions of the accountant that the income of the partnership should be increased by the sum of $12,463.93 since the evidence indicated that this amount had been expended and must have been derived from the un-deposited cash receipts of the business; but the Commissioner rejected the accountant’s conclusion that this sum represented deductible expenses of the business. He disallowed these deductions since they were not accurately recorded or supported by the evidence and could have included withdrawals by the partners as well as other non-deductible items.
The Tax Court refused to disturb the Commissioner’s determination. It pointed out that the taxpayers failed to produce their vouchers or even the accountant’s work sheets and that the conclusions of the accountant were based upon estimates rather than reliable records. For example, the accountant made journal entries on the books of the firm indicating that the unrecorded expense for the five months ending October 31, in the sum of $7,463.93 was made up of $1,000 for payment of claims, $2,000 auto expenses, and $4,463.93 for supplies; but, it was conceded, these sums were mere estimates on the part of the accountant and that there were no vouchers or listings of any kind to support the entries.
We are in accord with these conclusions. The Commissioner’s disallowance of the deductions was presumptively correct and the burden was on the taxpayers to overcome it. Their evidence, however, shows that they failed to keep an adequate account of their receipts and disbursements as contemplated by Section 54(a) of the Internal Revenue Code, 26 U.S.C.A. § 54 (a), and that in consequence their records were in extremely bad shape. Moreover, the taxpayers failed to produce such books and vouchers as they kept or even the accountant’s work sheets, and failed to give a satisfactory explanation of the absence of these records. The Commissioner was therefore at liberty to resort to the best procedure available under the circumstances in making his determinations, and to adopt the method used by the taxpayers’ accounting in arriving at the amount of the gross income; Kenney v. Commissioner, 5 Cir., 111 F.2d 374; but the Commissioner was not bound to adopt the accountant’s conclusion that the unrecorded expense represented deductible items. The amount of the unrecorded expense and its proper allocation were the result of the accountant’s estimates and neither the Commissioner nor the court was obliged to accept this estimate or to give credit to the testimony of the taxpayers which was likewise unsupported by detailed records. It is true that the Tax Court may not arbitrarily reject well substantiated testimony; but it is not bound to accept the estimates of interested witnesses under such circumstances as prevail in this case. Greenfield v. Commissioner, 4 Cir., 165 F.2d 318, 319.
The decision of the Tax Court is therefore
Affirmed.
Despite these disallowances, the petitioners were allowed deductions in the sum of $16,000 for supplies. $1,200 for auto expenses and $1,000 for the payment of claims.
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_genapel1 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Elliot SANDLER, Plaintiff, Appellee, v. EASTERN AIRLINES, INC., Defendant, Appellant.
No. 80-1771.
United States Court of Appeals, First Circuit.
Argued April 8, 1981.
Decided May 13, 1981.
Lloyd M. Starrett, Boston, Mass., with whom Marc D. Greenbaum, Kenneth T. Lopatka, and Foley, Hoag & Eliot, Boston, Mass., were on brief, for defendant, appellant.
Joseph R. Doktor, Randolph, Mass., with whom Abelson & Cohen, Randolph, Mass., was on brief, for plaintiff, appellee.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
PER CURIAM.
In December 1977, Elliot Sandler filed a complaint in federal district court against Eastern Airlines, appellant herein, alleging that,
11. The plaintiff on or about August 29, 1972, applied for the job of steward with the defendant. He was rejected for the job because, he was told, of the policy of the defendant not to hire married men, or to hire individuals with children.
12. The effect of the policies and practices of the defendant complained of in paragraph eleven (11) above, has been to deprive married men, married men with children or men with children of equal employment opportunities because of their sex and marital status.
13. As a further result of the defendant’s above stated actions, the plaintiff has been deprived of income in the form of wages and of protective retirement benefits, Social Security and other benefits due to him as a worker solely because of his sex and marital status, in a sum to be proven at trial.
Eastern responded to the complaint with a motion to dismiss on the ground, inter alia, that,
4. The allegations of the complaint fail to state a claim upon which relief can be granted in that, among other things, the said allegations show no discrimination in employment on the basis of race, color, religion, sex or national origin, and, as appears from the complaint, defendant’s alleged policy was applied equally to all applicants for employment as a flight attendant, regardless of sex.
The district court denied the motion, stating that,
because the plaintiff indicates he is proceeding on a facially-neutral disparate impact theory, and because the record is not clear as to exactly what the defendant’s policy was at the time, we cannot say on the record that the plaintiff can prove no set of facts which would entitle him to relief.
Eastern then moved for certification for immediate appellate review, under 28 U.S.C. § 1292(b), of,
the legality, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., of an employment practice precluding married individuals and/or parents from being considered for employment as flight attendants with Eastern.
The district court granted the motion, and we granted permission for interlocutory appeal.
Having reviewed the parties’ briefs and heard oral argument, we are no longer satisfied that the question certified “involves a controlling question of law” and that an immediate appeal “may materially advance the ultimate termination of the litigation,” as required by section 1292(b). We therefore dismiss the appeal without addressing the merits of the question certified.
Our conclusion that the section 1292(b) criteria are not met is based on four considerations. First, we think it remains questionable whether the present complaint states a cause of action. See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir. 1979); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979). While a plaintiff need not plead evidence, he must state facts which, if proven, would entitle him to relief. Sandler’s complaint does not explicitly allege that he was denied employment solely because of his sex, in violation of Title VII; nor do the facts pleaded add up to a claim that discrimination resulted because of a facially neutral policy, lacking business justification, which had an intentional or significantly disparate impact either on males or on females. In various proceedings since the filing of the complaint, Sandler has hinted at each of these possible theories; but the complaint itself fails to assert either of them and in argument before us Sandler remains equivocal as to the theory upon which he is proceeding. Since the question certified is the only question before us, we are not in a position to pass on the sufficiency of the complaint, but we are disinclined to address a certified question which may only be hypothetical.
Second, assuming the complaint states a claim, the issue certified to us would be controlling only if denial of employment in Sandler’s case were because of a policy against hiring married persons of both sexes. In this court, Sandler seems, if anything, to be denying that Eastern’s no-marriage policy was applied equally to females and males. Rather he seems to assert that any such purported policy was merely a pretext for Eastern’s actual refusal to hire male flight attendants, married or unmarried. If the complaint is held to sufficiently allege this claim, and if Sandler succeeds in proving that this is the case, the question certified will neither arise nor control.
Third, even assuming that Sandler’s claim is based upon a theory of disparate impact, further development of the facts will be required before a question of law, susceptible of appellate determination, emerges. Without data, it is unclear whether the purported disparate impact is on males or on females, or, indeed, whether the impact is disparate at all. It is unclear whether any such impact is sufficiently significant to fall within the purview of the statute. It is equally unclear how such an impact is alleged to occur — what social or biological characteristics of males and females are alleged to have interacted with Eastern’s former rule so as to produce an imbalanced effect. Eastern urges us to take judicial notice of census data so as to conclude that no disparate impact results; but unless Sandler clarifies the factual and theoretical basis for whatever theory of disparate impact he poses, it is impossible to tell which census data are relevant, or to evaluate the legal significance of the data. Moreover, assuming such data should become relevant, the assembling of it should be done in the district court rather than in this court.
Fourth, the certification of this case to the courts by the EEOC appears from the papers before us to have been based upon the theory that Eastern’s policies discriminated against women, not men. The question of whether the plaintiff can proceed on the basis of an “anti-male” theory may therefore arise but it has neither been argued nor decided below.
The appeal is dismissed.
. Most facially neutral rules, such as a rule requiring hiring from a certain geographical area, will bear somewhat more impact either on men or women, for rarely are the number of men and women in any large group exactly the same. Thus, a difference that is significant from the statute’s perspective must be shown before a cause of action is stated. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977).
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_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.
JEW TEN, also known as George K. Jue, also known as Jue Gar King, also known as Chow Ka King, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 17625.
United States Court of Appeals Ninth Circuit.
Sept. 8, 1962.
Joseph S. Hertogs and Fred Campag-noli, San Francisco, Cal., for petitioner.
Cecil F. Poole, U. S. Atty., and Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for respondent.
Before BARNES, and KOELSCH, Circuit Judges, and PLUMMER, District Judge.
BARNES, Circuit Judge.
This is a petition for judicial review of a final order of deportation entered against Jew Ten (hereinafter referred to as “petitioner”) by the Immigration and Naturalization Service (hereinafter referred to as “respondent”) pursuant to administrative proceedings under Section 242(b) of the Immigration and Nationality Act (8 U.S.C.A. § 1252(b)). The petition was timely filed. Service was properly made, and the deportation was stayed. This court has jurisdiction to review the order entered below under the provisions of Section 1105a of Title 8 United States Code Annotated, and Sections 1031-1042 of Title 5, United States Code Annotated.
The question here presented is whether respondent’s order is erroneous as a matter of law.
The facts are not in dispute. They may be summarized as follows: Petitioner is an alien, a native and citizen of China, who was first lawfully admitted into the United States in 1919 as the lawful minor son of a domiciled merchant. He last entered the United States at the Port of Honolulu, the then Territory of Hawaii, on August 10,1950, at which time he was admitted as a lawful returning permanent resident in possession of a valid re-entry permit.
On February 15, 1954, petitioner was convicted of a conspiracy to assist other aliens to enter the United States in violation of the law. The district court, pursuant to the provisions of § 241(b) (2) of the Immigration and Nationality Act (8 U.S.C.A. § 1251(b) (2)), recommended to the Attorney General that petitioner “be not deported.” This resulted in the provision of Subsection (a) (4) of § 1251 being inapplicable (conviction of a crime involving moral turpitude).
Despite this judicial recommendation, and the resulting inapplicability of § 1251 (a) (4), on April 3, 1954 respondent issued a warrant of arrest charging petitioner as being deportable under § 241 (a) (13) of the Immigration and Nationality Act of 1952.
After an extensive hearing, the Special Inquiry Officer, in a decision dated July 18, 1955, sustained the charge and directed that petitioner be deported from the United States. This decision was affirmed by the Board of Immigration Appeals on December 20, 1955.
Petitioner does not set forth his specification of errors in conformity with the rules of this court. In his statement of of facts, however, he says :
“This petition for review was filed for the specific purpose of seeking a judicial determination as to whether the administrative decision is erroneous as a matter of law.”
Thus, petitioner does not here assert that the record in no way supports respondent’s decision; consequently, this court is not called upon to determine whether there is reasonable, substantial, or probative evidence in the record to support respondent’s order. The issue presented, in petitioner’s words, is:
“The Immigration and Naturalization Service erred in holding petitioner subject to deportation on the charge set forth in the warrant of arrest contrary to the recommendation of the District Court to the Attorney General that petitioner not be deported from the United States.”
It is petitioner’s contention that respondent is without jurisdiction or power to deport him because petitioner is entitled to the benefit of the district court’s recommendation that he not be deported. The district court’s recommendation was founded upon § 241(b) of the Immigration and Nationality Act of 1952, which, prior to enactment of the Narcotics Control Act of 1956, read:
“(b) The provisions of subsection (a) (4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States, or (2) if the court sentencing such alien for such crimes shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.”
As one reads § 241(b), it seems fairly clear that the power of the sentencing court to recommend that a convicted alien not be deported is limited to those cases where an alien is convicted of an offense within the meaning of § 241(a) (4) of the Act (8 U.S.C.A. § 1251(a) (4)). But, as read and applied by some courts, § 241(b) was not free from ambiguity. The ambiguity in the scope of the application of § 241(b) resulted from first, the vague and uncertain language (here acknowledged to be so by respondent) of § 241(a) (4), and secondly, because for a number of years sentencing courts made judicial recommendations against deportation in cases where aliens were convicted of a violation of the narcotics laws — even though aliens convicted of violations of narcotics laws were specifically deportable under § 241(a) (11).
With this brief background in mind, suffice it to say that Congress was not happy with the interpretation given § 241 by the courts. Consequently, by § 301 (c) of the Narcotics Control Act of 1956 (70 Stat. 575) Congress amended § 241 (b) by adding the following sentence:
“The provisions of this subsection shall not apply in the case of any alien who is charged with being de-portable from the United States under subsection (a) (11) of this section.”
The congressional intent of this amendment is clear from its history. In Conference Report No. 2546, the managers of the bill said:
“(3) It amended section 241(b) of that act by including additional language to state clearly that this provision does not permit judicial recommendation against deportation of an alien convicted of a narcotic offense. Clarification of this provision has been made desirable by reason of the decisions in United States ex rel. De Luca v. O’Rourke ([8 Cir.] 213 F.2d 759) and Ex Parte Robles-Rubio (D.C. 119 F.Supp. 610).” (2 U.S.Code Cong. and Admin. News ’56, p. 3321.)
The 1956 amendment to § 241(b) is the basis for petitioner’s contention in the case at bar. This amendment, contends petitioner, directly or indirectly amends § 241(b) to mean that judicial recommendations can now be made in all those classes of deportability enumerated in § 241(a) except when the deportation is ordered under § 241(a) (11).
This contention, we believe, to be untenable. While the intent of Congress may be clearer in the statute’s legislative history than it is in the language of the statute itself, we do not believe § 241(b) can be given the meaning contended for by petitioner. As we read § 241(b), taking cognizance of its history, it can only mean that the sentencing court is limited to making recommendations in § 241(a) (4) convictions.
This brings us to the case at bar. The district court here recommended that petitioner not be deported. Does this recommendation render respondent powerless — or without jurisdiction — to deport petitioner? For the reasons stated above, the answer would depend upon whether the case at bar was a proceeding to deport petitioner under § 241(a) (4). It was not. Hence, the district court’s recommendation does not bar respondent from deporting petitioner, and respondent’s final order of deportation must be affirmed.
Respondent did not charge petitioner as being deportable under § 241(a) (4); nor was § 241(a) (4) relied upon by respondent in the proceedings below. Respondent did charge and find a violation of § 241(a) (13). In other words, respondent charged petitioner as being de-portable under § 241(a) (13) because he had committed acts proscribed under that section; not with being deportable for the reason that he had been convicted of a crime within the purview of § 241(a) (4). As pointed out in marginal note 4, supra, the only significance attached to petitioner’s conviction in the proceedings below was that the conviction had made it easier for respondent to prove that petitioner did in fact commit acts proscribed by § 241(a) (13). And, though it is not required, a reading of the record shows that respondent’s decision was well founded in fact.
Affirmed.
. This Subsection, 8 U.S.C.A. § 1251(a) (13), reads in pertinent part:
“(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—
* * * * *
“(13) prior to, or at the time of any entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law.”
. This section reads:
“(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—
* * * * *
“(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor, and regardless of whether the convictions were in a single trial.”
. This is pointed up in footnote 5 in Ex parte Robles-Rubio, N.D.Calif.1954, 119 F.Supp. 610, at page 613, which reads:
“5. Since 1922, when violation of the Jones-Miller Act was first made a deport-able offense, the courts have possessed the power to recommend against the deportation of an alien convicted of violating that narcotic statute. * * * And, when, in 1931, the violation of other narcotic statutes, including the Harrison Narcotics Act, was made a deportable offense, the power of the courts to recommend against deportation was made applicable to violators of these statutes. * * * Thus for 30 years prior to the passage of the Immigration and Nationality Act of 1952, the courts have been making recommendations against deportation in narcotic eases.”
. The opinion of the Board of Immigration Appeals reads:
“The deportation of the [petitioner] is sought under Section 241(a) (13) * * * 'in that prior to or at the time of any entry, he knowingly and for gain encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law. * * * Under [Section 241 (b) ] a nondeportable status created by judicial recommendation is limited to deportation charges brought under Section 241(a) (4) * * * unless said recommendation is preserved by * * * the saving clause of the' 1952 Act. * * * Since [the saving clause] is not applicable to the instant proceeding the judicial recommendation does not vitiate a charge laid under Section 241(a) (13). * * *
“ * * * As proof of the alleged unlawful acts the government relies on a transcript developed during [petitioner’s] trial on the indictment referred to above (Exs. 4, 5 and 114), the testimony of several Chinese aliens and some 182 exhibits consisting of visa files, affidavits and other evidentiary material.
“The extent of proof required to support the charges laid under Section 241(a) (13) is materially lessened by reason of [petitioner’s] conviction in the United States District Court * * * for violation of Title 18 U.S.C. (Rev.) Section 271. * * * ”
The sole Conclusion of Law reached by the Special Inquiry Officer reads :
“1. That under Section 241(a) (13) * * * the [petitioner] is subject to deportation on the ground that prior to or at the time of any entry, he shall have knowingly and for gain encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law.”
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_r_state | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Archie E. SIMONSON, Plaintiff-Appellant, v. UNITED PRESS INTERNATIONAL, INC., and The Associated Press, Inc., Defendants-Appellees.
No. 80-2708.
United States Court of Appeals, Seventh Circuit.
Argued June 3, 1981.
Decided July 16, 1981.
Richard H. Schulz, Petrie, Stocking, Meixner & Zeisig, Milwaukee, Wis., for plaintiff-appellant.
Evan J. Cutting, Baker & Hostetler, Cleveland, Ohio, Andrew 0. Riteris, Michael, Best & Friedrich, Milwaukee, Wis., for defendants-appellees.
Before SWYGERT and CUMMINGS, Circuit Judges, and GRANT, Senior District Judge.
The Honorable Robert A. Grant, United States Senior District Judge for the Northern District of Indiana, is sitting by designation.
SWYGERT, Circuit Judge.
The issue on appeal is whether the district court properly dismissed upon summary judgment plaintiff-appellant Archie E. Simonson’s defamation of character suit against defendants-appellees, United Press International (UPI) and Associated Press (AP). We affirm the judgment of the district court, 500 F.Supp. 1261.
On April 10, 1978, Simonson, a former county court judge for Dane County, Wisconsin, filed a complaint against UPI and AP alleging that the wire services defamed his character and injured him in his occupation in certain of their wire service dispatches issued on May 25 and 26,1977. The reports concerned a juvenile disposition hearing presided over by then-Judge Simon-son on May 25, at which Simonson was called upon to sentence a fifteen-year-old youth, who had previously pleaded no contest to a charge of second-degree sexual assault. The assault had taken place in an area high school stairwell and aroused interest and concern in the community. During the hearing, Dane County assistant district attorney Meryl Manhardt recommended the youth be placed in a juvenile facility. The following colloquy then took place between Manhardt and Simonson:
Simonson: (Y)ou are saying that I should be responsive to the community in what their needs and wishes are. Well, how responsive should I be? Should I adopt a double standard? This community is well known to be sexually permissive; look at the newspapers, look at the sex clubs, the advertisements of sex, the availability of it through your escort services, the prostitutes, they are being picked up daily. Go down State Street and the University area. I used to see girls clothed like that and I had to pay a lot of money to go into the south side of Chicago to view what I see down on State Street today. Even in open court we have people appearing — women appearing without bras and with the nipples fully exposed and they think it is smart and they sit here on the witness stand with their dresses up over the cheeks of their butts and we have this type of thing in the schools. So, is that the attitude of the community? Am I supposed to be responsive to that? Are we supposed to adopt a double standard? Is this community then exhibiting the sex in the movies, in the sex stores we now have on State Street up around in the square, in the shows? I’m talking about the bars and the taverns where it is readily available, The Dangle Lounge, The Whiskey, wherever else they do their thing; down here on Williamson Street, Ms. Brew’s, and the like. It is readily available. It is really wide open and are we supposed to take an impressionable person 15 or 16 years of age who can respond to something like that and punish that person severely because they react to it normally?
What is the attitude of this community and what are their mores, what does exist? I know there is a group that has recently been attempting to clean it up. For them I think it is going, to be an uphill fight because we haven’t hit rock bottom yet but we will someday and then the pendulum will swing the other way and how are you going to deter acts like this absent some explanation of these influencing environmental factors. What response do you have?
Manhardt: Your Honor, with all due respect, I find your remarks about women’s clothing particularly sexist.
Simonson: You bet it is. I can’t go around walking exposing my genitals like they can the mammary glands.
Manhardt: You are reflecting the general theory that a woman provokes an assault and I cannot accept that idea.
Simonson: It sure raises a lot of interest in my mind from time to time.
Manhardt: We are not talking about a consensual sex act, we are not talking about anything between adults, we are not talking about shows or magazines; we are talking about a personal assault and that’s admitted to in the plea of no contest that was entered.
Simonson: It is one thing to enter a plea on a charge like this and another thing to address myself to a dispositional case. It is absolutely whether it is in a criminal setting or juvenile disposition taking into consideration the circumstances surrounding the act.
Manhardt: There was an assault without consent on a 16 year old girl. Simonson then sentenced the delinquent fifteen-year-old youth to one year at a state reformatory, suspended the sentence, and directed that the youth participate in a home community treatment program.
Anita Clark, a reporter for the Wisconsin State Journal who was present at the hearing, wrote an article relating Judge Simon-son’s comments and disposition of the delinquent youth. Based on her article, UPI and AP wrote national dispatches reporting the hearing. Simonson’s comments on provocative dress and sexual permissiveness and their effect on a male’s sexual response, along with the relatively light sentence he imposed, received wide publicity in the news media and were met by immediate outrage in the community, which eventually led to Judge Simonson’s removal from office in a recall election.
Eleven months after the hearing, Simon-son filed his defamation suit against UPI and AP in the United States District Court for the Eastern District of Wisconsin, asking for $1,750,000 in damages. On March 3, 1980, the wire services filed motions for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The district court on October 28, 1980 granted defendant’s motions. Appellant Simonson filed a notice of appeal on November 25, 1980.
Simonson contends that the district court erred by finding the following:
1. The wire services’ news dispatches were “true in substance; ”
2. There is no genuine issue as to material fact of “actual malice; ”
3. The wire services’ news dispatches are privileged as “true and fair” accounts of a judicial proceeding under Wisconsin law;
4. Wisconsin’s retraction statute applies to appellees, UPI and AP, and is a condition precedent to appellant Simonson’s defamation suit. Simonson failed to comply with the statute.
Any of these findings would support the granting of summary judgment. Because we agree with the district court that the dispatches were “substantially true,” we affirm the judgment in favor of defendants.
Under Wisconsin tort law, Simon-son’s defamation action cannot succeed unless it is shown that the alleged defamatory statements were both defamatory and false. See, e. g., Schaefer v. State Bar of Wisconsin, 77 Wis.2d 120, 252 N.W.2d 343 (1977). See 3 Restatement (Second) of Torts § 581 A, Comments a-1 at 235-37 (1977). In addition, because the district court found Judge Simonson to be a “public official” within the New York Times v. Sullivan doctrine, he must also prove the wire services acted with “actual malice” in writing their dispatches. To defeat a motion for summary judgment, however, Simonson only has to present, among other things, some evidence of falsity and of malice. He has failed to meet even that slight burden.
On appeal, Judge Simonson contends to be false only two words used in the wire services’ dispatches. Both the UPI dispatch of May 26,1977 and the AP dispatch of May 25, 1977 referred to the sexual assault in the high school as a “rape.” UPI’s dispatch also used the word “ruled” when referring to the manner in which Judge Simonson made his statements from the bench concerning the normal sexual responses of young males. Judge Simonson challenges the use of both these words.
It is sufficient to note that “rape” as defined by common usage is incorporated into second-degree sexual assault under Wisconsin law: “Sexual contact or sexual intercourse with another without consent of that person by use of threat or force.” The youth pled no contest to the charge of second-degree sexual assault. In addition, counsel for the youth stipulated to facts appearing in the juvenile court records, and specifically the petition for determination of status for the juvenile, which made it clear that rape had occurred. The dispatches were in no manner made false by substituting the word in common usage for an exact legalism.
Simonson contends the use of the word “ruled” in the UPI dispatch to describe a “rhetorical question” from the bench “substantially alters the truth of the situation; ” that is, he says he never “ruled” that sexual assault is a normal reaction to prevalent sexual permissiveness and women’s provocative clothing. The fact remains, however, that Simonson did remark during a dispositional hearing over which he presided that:
It is really wide open and are we supposed to take an impressionable person 15 or 16 years of age who can respond to something like that and punish that person severely because they react to it normally?
The meaning of an allegedly libelous statement is to be determined by the plain and ordinary meaning of the word. Leuch v. Berger, 161 Wis. 564, 570, 155 N.W. 148, 151 (1915) (“plain and popular sense”); Dabold v. Chronicle Publishing Co., 107 Wis. 357, 362, 82 N.W. 639, 641 (1900) (what “the ordinary reader might well understand”). A plain and ordinary meaning of “ruled” includes statements and comments made by a judge when sitting on the bench. Judge Simonson’s remarks certainly fit this definition, for the purpose of the hearing was to determine the sentence for the juvenile offender. His conclusion about the normal reactions of young males made from the bench which “were relevant to the proceedings, and made at a point in the proceedings when one could reasonably conclude they affected the disposition of the case” is in common usage a “ruling” by the court. UPI’s use of that word was therefore accurate, and no jury could reasonably find otherwise.
The judgment of the district court is affirmed.
. Section 940.225(2), Wis.Stats. in relevant part provides as follows:
(2) Second degree sexual assault.
Whoever does any of the following is guilty of a class C felony.
(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence ....
. Clark’s newspaper article was only at the proposed-for-publication stage when AP received it on a computer printout on May 25, 1977. An edited version was published in the May 26, 1977 Wisconsin State Journal. The district court found “the computer printout differed from the final published article in two respects: (1) the printout did not include this phrase which was parenthetically inserted into the State Journal story: ‘Simonson said later in the hearing that sexual assault obviously is not condoned by the community’; (2) the printout, but not the final article, characterized Simon-son’s comments as a ‘tirade.’ ”
AP’s two dispatches of May 25 relied entirely upon Clark’s proposed article. It appears UPI’s dispatch of May 26 was based on the published version of Clark’s material. UPI also relied on a police investigatory report of the assault.
. Section 895.05(1), Wis.Stats.
. Appellant contends that to read Section 895.-05(2), Wis.Stats., to be a condition precedent to the recovery of punitive damages would render the statute violative of both the Fourteenth Amendment and Article 2, Section 9 of the Wisconsin Constitution. The district court declined to reach this constitutional issue. We note, however, that the statute does not prevent the recovery of actual damages. The district court indicated its reliance on the other three findings as bases for granting summary judgment.
. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
. The AP dispatch read in relevant part as follows:
A Dane County judge in Madison indicated today a 15-year-old high school boy was reacting normally to Madison’s so-called “sexual permissiveness” when he raped a female student last fall, (emphasis added)
The UPI dispatch read in relevant part as follows:
When a 15-year old boy raped a girl on a stairwell at West High School, Judge Archie Simonson ruled, he was reacting “normally” to prevalent sexual permissiveness and women’s provocative clothing, (emphasis added)
. Webster’s Third New International Dictionary defines “rape” in pertinent part as “illicit sexual intercourse without the consent of the woman and effected by force .... ”
. Section 940.225(2)(a), Wis.Stats.
. The record shows that intercourse occurred without the consent of the girl.
. Webster’s Third New International Dictionary’s definition of “rule” includes the following:
3a: to declare authoritatively: DECIDE, DECREE, DETERMINE; specif: to require or command by judicial rule; give as a direction, order, or determination of a court.
. Simonson v. United Press International, 500 F.Supp. 1261, 1266 (E.D.Wis.1980).
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer: |
songer_state | 18 | 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".
William McKinley STEGALL, Appellant, v. UNITED STATES of America, Appellee.
No. 11210.
United States Court of Appeals Sixth Circuit.
March 6, 1951.
Leon Wolf, Cincinnati, Ohio, for appellant.
David C. Walls, Charles F. Wood, and Norris W. Reigler, all of Louisville, Ky., for appellee.
Before HICKS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
PER CURIAM.
This case came on to 'be heard on the record and briefs, and oral argument of counsel.
And it appearing that the Government concedes that count 1 of the indictment is duplicitous;
And it appearing that no demurrer to the indictment was filed, nor objection thereto made prior to the verdict, and that the accused thus waived any right to complain because of the duplicity existing in count 1; Beauchamp v. United States, 6 Cir., 154 F.2d 413, certiorari denied, 329 U.S. 723, 67 S.Ct. 66, 91 L.Ed. 626, rehearing denied, 329 U.S. 826, 67 S.Ct. 183, 91 L.Ed. 702; Sparks v. United States, 6 Cir., 90 F.2d 61, 63;
And it appearing that the material allegations of both counts of the indictment were proved by convincing and undisputed evidence ;
And it appearing that the court sentenced the accused under count 2 of the indictment and that no sentence was imposed under count 1;
And it appearing that no error prejudicial to the accused is presented in the record or in the charge of the trial court (Cf. Sparks v. United States, supra):
It is ordered that the judgment be, and it hereby is, affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_state | 21 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Appellee, v. Warren KING, Appellant.
No. 77-1180.
United States Court of Appeals, Fourth Circuit.
Argued July 18, 1978.
Decided Sept. 22, 1978.
Michael Schatzow, Asst. Federal Public Defender, Baltimore, Md. (Charles G. Bernstein, Federal Public Defender, Baltimore, Md., on brief), for appellant.
Daniel F. Goldstein, Asst. U. S. Atty., Baltimore, Md., for appellee.
Before BOREMAN, Senior Circuit Judge, and WINTER and HALL, Circuit Judges.
BOREMAN, Senior Circuit Judge:
Warren King was convicted by a jury of two counts of kidnapping, 18 U.S.C. § 1201, after a bifurcated trial in which the jury first found him guilty of the substantive offenses and then determined that King was not insane at the time of his commission of the charged offenses.
The evidence disclosed that King kidnapped James Krouch in the District of Columbia and forced him to drive to Maryland where he took ■ Krouch’s car, leaving Krouch bound and gagged in a wooded area near a road. King next broke into the home of one Jay Disbrow in Havre de Grace, Maryland, where he tied up Dis-brow’s wife and children and then forced Disbrow to drive him to New Jersey where he released him unharmed and took his car. At trial Krouch and Mr. and Mrs. Disbrow all positively identified King as their assailant-kidnapper. Also there was evidence that King’s Florida driver’s license was found in Krouch’s car and King’s fingerprints were found in the Disbrow home.
At a pretrial hearing King told the judge that he did not want to have his court-appointed counsel represent him and insisted on representing himself. The judge engaged in a lengthy colloquy with King in an attempt to dissuade him from self-representation. He warned King of the seriousness of the charges, the potential penalty, the advantages of legal training and the likelihood of complex legal issues arising at trial. Nevertheless, even after consulting with his court-appointed attorney, King insisted on representing himself. The judge ordered court-appointed counsel to stay in the courtroom with King throughout trial, to give advice if necessary, and to take over the defense if King should so desire.
The court also decided, after a suggestion by government counsel, that King’s trial should be bifurcated on the issues of guilt and insanity. During voir dire King’s behavior became so bizarre that the judge informed the prospective jurors that the defendant’s mental competence would be an issue later in the trial:
that is to say, there will first be a trial as to the question of defendant’s guilt or innocence of the charges in the indictment, that is whether or not he did the acts with which he has been charged. Then only if a guilty verdict is returned will there be a second trial which would follow immediately thereafter on the question of whether or not the Defendant was or was not legally sane at the time of the commission of the acts; that is, whether he can be held responsible for his acts if a finding of guilt is returned.
The judge again mentioned the bifurcation of issues during his instructions to the jury at the end of the first stage of the trial.
On appeal King contends that the judge erred in: (1) failing to conduct an adequate inquiry into his waiver of the right to counsel and (2) informing the jury of the insanity issue during the first phase of the bifurcated trial.
King argues that the judge did not question him adequately to determine whether he was literate, competent and understanding of his rights. He contends that a “penetrating and comprehensive examination” must be conducted to determine a defendant’s educational background, age and general capabilities before a judge can determine that a defendant’s waiver of his right to counsel is knowing and intelligent. United States v. Townes, 371 F.2d 930 (4 Cir. 1966). Because the judge asked him about his educational background and not about his age or general capabilities, King argues that the judge did not develop a sufficient factual basis for determining that defendant’s waiver of counsel was knowing and intelligent within the meaning of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
While it is incumbent upon the trial court to determine that a defendant’s waiver of his right to counsel is knowing and intelligent, no particular form of interrogation is required. Townes, supra at 934. The court must make the defendant aware of the “dangers and disadvantages of self-representation,” so that the defendant “knows what he is doing and his choice is made with his eyes open.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 561 (1975). Thus, the court must assure itself that the defendant knows the charges against him, the possible punishment and the manner in which an attorney can be of assistance. Townes, supra at 933; Aiken v. United States, 296 F.2d 604 (4 Cir. 1961). The defendant must be made aware that he will be on his own in a complex area where experience and professional training are greatly to be desired. United States v. Gillings, 568 F.2d 1307 (9 Cir. 1978); Stepp v. Estelle, 524 F.2d 447 (5 Cir. 1975).
Even though the judge in the instant case did not delve deeply into the educational background, age and general capabilities of the accused as suggested in Townes, his explanation of the dangers of self-representation informed King of the crucial considerations necessary for a knowing and intelligent waiver of counsel and defendant’s responses indicate that he understood these dangers and that his choice was made “with his eyes open.” In addition, King was not strictly held to his waiver of counsel. He was allowed to have a hybrid representation in which he used court-appointed counsel to argue jury instructions, to cross-examine certain witnesses and to present arguments to the jury. From our examination of the record as a whole we find no involuntary deprivation of a constitutional right. See United States v. Sacco, 571 F.2d 791, 793 (4 Cir. 1978).
King argues that the judge erred in informing the jury during the first phase of trial that the trial would be bifurcated on the issues of guilt and insanity. Government counsel argues that it was necessary to inform the jury of the bifurcated nature of the proceedings because of the defendant’s bizarre behavior; that the court did not want the jury to consider defendant’s courtroom behavior in determining whether he was guilty of the substantive offenses; therefore, the judge informed the jury that the question of defendant’s sanity would be submitted for consideration in a later stage of the trial if the jury found defendant guilty of the charged offenses.
A defendant has no right to disregard the dignity, order and decorum of judicial proceedings. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Furthermore, the conduct of a bifurcated trial is to be determined by the trial judge in the exercise of his sound discretion: United States v. Greene, 160 U.S.App.D.C. 21, 33, 489 F.2d 1145, 1157 (1973), quoting Holmes v. United States, 124 U.S.App.D.C. 152, 154, 363 F.2d 281, 283 (1966).
The court not only has broad discretion in considering bifurcation, but also in prescribing its procedure, the form of the charge and submission of the questions to the jury, the admissibility of evidence in each stage, and even the impaneling of a second jury to hear the second stage if this appears necessary to eliminate prejudice. (Emphasis added)
In the instant case the judge had substantial reason to inform the jury of the bifurcated nature of the proceedings. The record reflects that the jurors were possibly confused and concerned about the defendant's courtroom behavior. During voir dire one prospective juror told the court that her observation of the defendant led her to believe that he was not “emotionally stable” and that she felt he should not be on trial. The judge’s decision to inform the jury that they could at some later point consider the issue of defendant’s mental competence at the time he committed the acts as alleged was entirely justified under the circumstances and we conclude that there was no abuse of discretion.
Accordingly, the judgment of the district court is affirmed.
Affirmed.
. During the first two days of trial, King and his court-appointed attorney shared responsibility for representing the defense. On the third day, however, at King’s request, court-appointed counsel completely took over and represented King for the rest of the trial.
. Throughout the proceedings King behaved in a disruptive and disrespectful manner. This behavior included: clapping his hands, laughing, whistling, tearing apart trial exhibits and attempting to take off his clothes. In the afternoon of the third day of trial King’s disruption of the proceedings forced the judge to order him removed from the courtroom. King refused to return to the courtroom unless the judge apologized to him and he voluntarily absented himself from the remainder of the trial.
. In Townes, the defendant waived his right to counsel and tendered guilty pleas to a two-count indictment charging him with bank robbery. In that case, the judge not only had to determine that defendant voluntarily waived his right to counsel, but also that defendant competently and intelligently entered his guilty pleas.
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_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.
SOCHANSKI, Stanley J., Appellant, v. SEARS, ROEBUCK AND CO. et al., The Goodyear Tire & Rubber Co. v. John F. SOLOMON, Jr., Palmer Tire Company, Geneva Metal Wheels Co.
No. 79-1963.
United States Court of Appeals, Third Circuit.
Argued Jan. 17, 1980.
Decided May 2, 1980.
August J. Lacko, Lyons & Lacko, Philadelphia, Pa., for appellant.
John J. O’Brien, Jr., O’Brien & O’Brien Associates, Philadelphia, Pa., for appellee.
Before HUNTER, HIGGINBOTHAM and SLOVITER, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
Stanley Sochanski brought suit in the federal district court under diversity jurisdiction alleging that he had been injured while repairing a defective tire of a garden cart sold by Sears, Roebuck & Co. (Sears). A jury awarded damages to Sochanski but the district court granted a motion for judgment n.o.v. stating that Sochanski had not met the burden of proof which Pennsylvania law required to prove that the tire was defective. We disagree and will reverse so that judgment may be entered for the plaintiff.
I.
Sochanski was injured while attempting to repair a tire from a garden cart sold by Sears, Roebuck & Co. The tire was manufactured by Goodyear Tire and Rubber Co. (Goodyear). The tire was mounted onto a metal frame (the wheel). This wheel unit (the tire and wheel) was purchased by the Palsgrove Manufacturing Co., which used the unit to make the garden cart, which was sold to Sears which, in turn, sold the cart to John Solomon in April, 1971.
In July, 1974 Solomon noticed that one of the garden cart’s tires was losing air and took the tire to the Palmer Tire Co. (Palmer) to have an inner tube inserted. The tire was originally a tubeless tire; Solomon felt that an inner tube would stop the leakage problem. Sochanski, an employee of Palmer, was assigned the repair job. At trial he testified about how he had tried to repair the tire. He stated that he first removed the tire from the wheel so that he could remove the valve stem from the wheel because the inner tube had its own valve. After removing the original valve stem, he put one side of the tire onto the wheel, pulling it over the edge of the wheel (flange) with a small crowbar specially designed for that purpose. He explained that the edge of the tire (the bead) was built up slightly so that it would fit snugly against the flange. (Goodyear’s expert explained that the bead is constructed of steel wires). He also explained that the edge of the tire was slightly smaller than the wheel on which it was to be placed so that the tire would lie taut against the flange when stretched to fit on the wheel.
After removing the tire he fit the inner tube on the wheel, checked the valve stem, and inflated the inner tube slightly. He explained that he inflated the tube so it would mold onto the wheel and thus not become folded or twisted. Next he lubricated the other side of the tire so that it could be put onto the wheel easily and pulled that side over the flange with the crowbars. Thus both sides were fastened onto the wheel within the two flanges. He then inflated the inner tube to fifteen pounds of air pressure and stopped to check the tire. He noticed that one edge of the tire was not securely against the flange. Although this was unusual, he felt that the bead would fit more securely once the tire was fully inflated. He then pumped the tire to the required thirty-four pounds of pressure. Again, he noticed that the tire was not securely against the flange. He testified that he figured “something else was wrong” and decided to take the unit apart to try a second time. As he leaned toward the tire to take it apart, the tire burst. The unit shot upwards and struck him in the head rendering him unconscious. Sochanski stated that the procedure he had used to fix the tire was the procedure which was regularly followed at Palmer. Edward Ortman, a fellow employee, concurred. As a result of the accident he suffered a concussion, fracture of the facial bone, spinal fluid rhinorrhea, and spinal meningitis. He was permanently deformed. He has lost his sense of smell and suffers a diminution of his IQ.
Sochanski brought suit, alleging that the tire was defective when Goodyear sold the tire to Palsgrove and through the chain of sales described above, Sears, the final seller, had sold a defective tire to Solomon and the defect had caused Sochanski’s injuries. He asserted that under section 402A of the Restatement (Second) of Torts (1965) Sears and Goodyear were strictly liable for his injuries. At trial he attempted to call Vassilis Morfopoulos as an expert witness. He asserts here that Morfopoulos is an expert on tire safety and would have testified that the tire and the wheel were mismatched and that this mismatch created strain on the tire causing it to pop off the wheel. The district court did not permit Morfopoulos to testify on the ground that Morfopoulos was not qualified.
The jury found, in response to special interrogatories, that the tire was defective when it left Goodyear’s hands, that the defect rendered it unreasonably dangerous, that the wheel unit was defective when it was sold by Sears, that the wheel unit was unreasonably dangerous, and that the defect was the proximate cause of Soehanski’s injuries. The jury awarded $395,000 in damages. In response to a motion for judgment n.o.v. the district court set aside the jury’s verdict. The court held that under section 402A a plaintiff is required to negate abnormal use and reasonable secondary causes, and that the plaintiff’s proof had fallen short of negating reasonable secondary causes.
Sochanski appeals the district court’s decision. He argues that the district court erred as a matter of law because he had met his burden of proof and that the district court abused its discretion by not permitting one of Sochanski’s expert witnesses to testify.
II.
Section 402A of the Restatement (Second) of Torts provides for strict liability of a seller when a defective product he has sold is the proximate cause of a user’s injuries.
Specifically, it states:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
This section has been adopted by the Pennsylvania courts, Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and applied a number of times. E. g., Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1975); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 359 A.2d 822 (1976).
A plaintiff may prevail under section 402A under a “malfunction’’ theory. Under the malfunction theory, the plaintiff need not prove the existence of a specific defect, if he can show that the product malfunctioned in the absence of abnormal use and reasonable secondary causes. Knight v. Otis Elevator Co., 596 F.2d 84, 89 (3d Cir. 1979).
Sears asserts that Sochanski misaligned the tire with the wheel, causing the tube to be pinched and thus explode, relying on the testimony of Goodyear’s expert witness, Robert Hill. The district court held that because Hill’s testimony on the possible mis-alignment showed that the accident might have been caused by a “reasonable secondary cause” and the plaintiff did not negate his mis-alignment theory, that the plaintiff had not met his burden of proof. We do not agree. Sears’ theory on misalignment is based solely on the testimony of Hill. Hill stated that it was his opinion that the tire had been mis-aligned and that he based his conclusion on marks he found on the wheel. He asserted that the marks had been caused in the accident and they showed that the tire had been mis-aligned. During cross-examination Hill, however, admitted that he was not certain of how the marks were made and that they might have been made in the manufacturing process. The jury could have reasonably disregarded this portion of Hill’s testimony because of this challenge.
The district court also relied on evidence which revealed that the inner tube ruptured on the bottom side causing the wheel unit to shoot upward. The court suggested that the rupturing may have been “the sole cause of the accident” and that the plaintiff had not refuted this possible cause. 477 F.Supp. 316, 320 (E.D.Pa.1979). Hill, however, testified that the rupture on the tube merely controlled the direction of the wheel unit and that “beyond that it ha[d] no significance.” Thus, the jury could have concluded that the tube was not the cause of the accident.
Sochanski’s testimony does not suggest that he mis-aligned the tire and it is sufficient to support the jury’s conclusion that he was repairing the tire properly. We note that the district court suggested that Sochanski admitted he did the repair incorrectly, stating, “Plaintiff also decided to take the wheel unit apart again because ‘maybe there will be something else wrong.’ ” Id. at 320 n.7. It is, however, possible that the jury interpreted this statement by Sochanski as a repetition of his earlier comment, “So I figured you know, there is something else wrong with the tire.” (emphasis added). Further, the jury may have been persuaded that the tire was defective because it failed to pull taut against the flange. Sochanski testified that the bead normally would have snapped against the flange after he inflated the tire to fifteen pounds of pressure. Thus, there was evidence from which the jury could have concluded that the plaintiff repaired the tire properly and it could have rejected the evidence on “reasonable secondary causes.”
This evidence is sufficient to meet the burden of proof required by Pennsylvania law. In Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968), the Supreme Court of Pennsylvania held that the testimony of the plaintiff and another witness which established that a beer bottle that had been properly stored had exploded without any apparent causation was enough to make the issue of a defect a jury question. In Bialek the plaintiff had called an expert witness to testify on a possible defect. The court did not find the expert’s testimony critical to its holding. In Agostino v. Rockwell Manufacturing Co., 236 Pa. Super. 434, 345 A.2d 735 (1975), allocatur denied, Nov. 26, 1975, the court held that there was sufficient evidence for the jury to find the existence of a defect in an electric saw solely on the basis of the plaintiff’s testimony that the automatic guard on the saw failed to operate. The court sustained the jury’s verdict for the plaintiff, even though no expert witness had testified. Accord McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971) (then District Judge Weis).
In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), on which the district court relied, the plaintiff attempted to proceed under the malfunction theory when he was injured by a malfunctioning crane. Reversing the lower court, the Supreme Court stated:
The questions when and where a defect originated should be left to the finder of fact so long as “reasonable and well balanced minds [could] be satisfied from the evidence adduced that the defective condition existed when the [product] was delivered [citations omitted]”. Greco v. Bucciconi Engineering Co., 407 F.2d 87, 90 (3rd Cir. 1969), (applying Pennsylvania law); see also Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969). On the other hand, “the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but . . there must be evidence upon which logically its conclusions may be based [citations omitted]”. Smith v. Bell Telephone Co., 397 Pa. 134, 138, 153 A.2d 477, 479 (1959).
319 A.2d at 922. The basis for the court’s decision in Kuisis was the plaintiff’s failure to prove that the crane had remained substantially unchanged after it left the manufacturer’s hands. The crane was first a shovel, then converted into a dragline, and then into a crane. It was twenty years old and had been subject to “the vicissitudes of over twenty years of rugged use.” Id.
We do not agree that Sochanski’s claim is similarly defective, although Sears argues that the district court’s order may be sustained on that basis. First, Hill testified that the explosion was not caused by either the insertion of the inner tube or any scars present on the tire. He described the tire as close to new and showing very little wear and tear.
Second, the plaintiff presented evidence at trial which showed the cart had not been misused or even put to significant use. Solomon, the owner, testified that the cart had been used only seasonally to transport leaves, grass and firewood and that it had been stored indoors. As the Kuisia court held:
The age of an allegedly defective [condition] must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact.
Id. at 923.
We therefore conclude that Sochanski has met his burden of proof under Pennsylvania law and that the jury’s verdict shoúld not have been disturbed. Because we hold that Sochanski met his burden of proof at trial, we will not reach his second claim that the district court erred by excluding his expert witness.
We will therefore reverse and remand so that the jury’s verdict may be reinstated.
. During the pendency of the appeal, Goodyear reached a settlement with Sochanski: We express no opinion about the effect of the settlement on Sears because neither Sears, Goodyear nor Sochanski has presented the issue to us.
. Sears also asserts that Sochanski did not meet his burden of proof on proximate cause because he did not negate the possibility that the tube was defective. As we have noted, Goodyear’s expert testified that the tube was not a material factor in the accident.
. In Knight v. Otis Elevator, where the trial judge was reversed for preclusion of certain expert testimony, we noted our increasing concern that some trial judges seem to improperly “require an expert in a products liability case to be intimately familiar with all aspects of the total machine rather than the particular part in issue.” 596 F.2d at 88. We repeat again here the words of the late Judge Staley in Trowbridge v. Abrasive Company of Philadelphia, 190 F.2d 825, 829 n.9 (3d Cir. 1951):
If we were to declare as a rule of law that one must actually have practical experience in a given industry in order to qualify as an expert in litigation involving its products, we might very well place an onerous burden on plaintiffs in some cases. Where the industry is small and tightly knit, it may be ven' difficult for the plaintiff to obtain the services of an expert currently employed therein, and it might be equally difficult to find someone who was formerly employed in the industry. But the key experts of an industry would normally be available to the defendant.
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_respond1_7_2 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
COMMISSIONER OF INTERNAL REVENUE v. BRISTOL.
No. 3658.
Circuit Court of Appeals, First Circuit
June 27, 1941.
L. W. Post, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for the Commissioner.
George D. Brabson, of Washington, D. C. (D. H. Blair, of Washington, D. C., and Frank H. Noyes, of Boston, Mass., on the brief), for Bristol.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAHONEY, Circuit Judge.
This is a petition by the Commissioner of Internal Revenue to review a decision of the Board of Tax Appeals in which the Board decided that there was no deficiency owing but that there was an overpayment by the respondent of a gift tax for the year 1937 in the amount of $4,641.60.
Pursuant to an ante-nuptial agreement between the taxpayer and his intended wife, the taxpayer purchased two annuities for her and transferred two pieces of realty to himself and her as tenants by the entirety in consideration of her relinquishment of the statutory rights she might have in certain stocks then owned by him. The question is whether the wife’s relinquishment of these prospective rights constituted adequate and full consideration in money or money’s worth for the transfers made to her by the taxpayer.
The taxpayer and his brother owned and controlled the Foxboro Company, a manufacturing corporation in Foxboro, Massachusetts, which had been in his family for many years. He desired to keep control of the stock of the Company and to insure that upon his death it would go to some of his six children by his first marriage. He was about to remarry, and he consulted his attorney as to the effect of his remarriage upon the family plan to retain control of the Company. The .attorney informed the taxpayer that in the event of his death, under the laws of Massachusetts, his widow would acquire a one-third interest in all his property.
The attorney also informed the taxpayer that it would be possible to transfer other property to his intended wife in lieu of her statutory interests. He advised him that the desired result could be accomplished by a will executed by the taxpayer and assented to by the intended wife, plus a transfer of certain other property to her. The taxpayer discussed the matter with the intended wife in the presence of his attorney, and she agreed to accept two annuities and an interest in two pieces of real estate as tenant by the entirety in lieu of any interest which she might have otherwise acquired in the Company’s stock. At the time this agreement was made the taxpayer owned 130,230 shares of the Company’s stock, valued at $6 per share, i. e., $781,380, the two pieces of real estate transferred to him and his wife as tenants by the entirety, valued at $34,000, and certain other real estate and securities of much less value than the stock in the Company.
By a will executed August 24, 1937, the taxpayer provided for the carrying out of the terms of the ante-nuptial agreement. By the terms of this will he bequeathed his Foxboro Company stock to one of his sons and to a bank on certain trusts, and left one-third of the residue of his estate, exclusive of this stock, to his intended wife. The latter attached to the will her acknowledgment of the will, and her consent thereto, and an agreement not to waive its provisions and attempt to take her intestate share. On August 26, 1937, the day they were married, he purchased two annuities which cost $51,983 each,, payable to his wife for life. On August 27, 1937, he transferred to himself and his wife as tenants by the entirety, in accordance with the agreement, his Foxboro winter home and his Falmouth summer home. There is no suspicion that the transaction was not in good faith or that it was entered into to evade taxes. It was a purely business transaction.
The taxpayer filed a gift tax return for the year 1937 in which he reported as taxable gifts the two annuities purchased for his wife. He paid a gift tax in the sum of $4,641.60 which was assessed against him on the basis of this return. In the same return he reported the transfer of the two parcels of real estate to himself and his wife as tenants by the entirety but claimed that these conveyances did not constitute taxable gifts.
The Commissioner notified the taxpayer on September 6, 1938, that the transfer of real estate to himself and his wife as tenants by the entirety was a taxable gift and gave notice of a deficiency in the sum of $2,056.92.
The taxpayer contested this deficiency, and on November 29, 1938, he filed a claim for refund of the gift tax assessed and paid in 1937 in the sum of $4,641.60 on the ground that the transfers of the annuities and the real estate were in no sense gifts but were transfers of property for adequate and full consideration in money or money’s worth pursuant to the marital agreement. The Commissioner refused to accede to the taxpayer’s claims and assessed a deficiency.
Upon review, the Board of Tax Appeals upheld the contentions of the taxpayer. It held that the transfers here involved were made for adequate and full consideration in money or money’s worth and, therefore, they were not subject to the gift tax. The Commissioner has appealed.
Each of the two annuities transferred pursuant to the agreement cost $51,983, a total of $103,966. The agreed value of the wife’s interest in the real estate transferred to her and her husband as tenants by the entirety was $19,550, the method of computation of which is set out in the margin. Thus the wife received, pursuant to the agreement, property to the value of $123,516. The taxpayer contends that, pursuant to the agreement, the wife relinquished her rights in the stock, and that the alleged value of the rights relinquished was' $149,764.50, computed by the same manner as that used by the Commissioner in valuing the wife’s interest in the real estate transferred. The Commissioner conceded on oral argument that if the method of computing this alleged interest of the wife in the stock were proper, the figure was correct. He denied that there was any present interest capable of evaluation, and contended that even if there were, there was no possible method of evaluation of this interest in money or money’s worth.
We agree with the Commissioner that the relinquishment by the wife of her statutory interest in the taxpayer’s estate was not adequate and full consideration in money or money’s worth for the transfer to her of the annuities and the interest in the pieces of real property. The transfers were, therefore, taxable under the provisions of Sections 501(a) and 503 of the Revenue Act of 1932 (47 Stat. 245, 247, 26 U.S.C.A. Internal Revenue Acts, pages 580, 585).
The laws of Massachusetts provide that if a husband in the taxpayer’s circumstances, i. e., with issue living, were to die intestate, either totally or partially, his surviving widow is entitled to one-third of the estate. There was some discussion at the oral argument as to whether the words “real and personal property not disposed of by will”, as used in this section, did not indicate that a husband, by will, could defeat his wife’s interest in the property remaining in his estate at death. Examination of this and the succeeding chapter shows that Chapter 190 refers only to intestate property, whether because there was no will or because not covered by the will, and that Chapter 191 contains all the rights of the surviving spouse as to property disposed of by will. If the taxpayer should die testate, his surviving widow could waive the provisions of his will and take the share set aside for her by statute. There is also provision for dower in real property which is waived if not demanded. It is the contention of the taxpayer that the binding ante-nuptial relinquishment of these various rights by the intended wife constituted adequate and full consideration in money or money’s worth for the transfers by the husband. We cannot agree.
It is well settled law in Massachusetts that the relinquishment by an intended wife of her statutory rights to share in her husband’s estate in the event of his death is sufficient consideration to support a contract by the husband to transfer to her certain property. Wellington v. Rugg, 1922, 243 Mass. 30, 136 N.E. 831; Collins v. Collins, 1912, 212 Mass. 131, 98 N.E. 588; Tarbell v. Tarbell, 1865, 10 Allen, Mass., 278; cf. Eaton v. Eaton, 1919, 233 Mass. 351, 124 N.E. 37, 5 A.L.R. 1426. Thus the agreement between the taxpayer and his wife is binding and enforcible.
However, it is equally well established that though mutual promises may be common law consideration sufficient to support an agreement, they may not be such consideration as will satisfy the statutory requirement of “an adequate and full consideration in money or money’s worth”. Taft v. Commissioner, 1938, 304 U.S. 351, 58 S.Ct. 891, 894, 82 L.Ed. 1393, 116 A.L.R. 346; Empire Trust Co. v. Commissioner, 4 Cir., 1938, 94 F.2d 307, 310; Stella S. Housman, 1938, 38 B.T.A. 1007, 1011. It is our opinion that the relinquishment of the wife’s statutory rights was not consideration within the meaning of the word as used by Congress in Section 503 of the Revenue Act of 1932, supra.
Section 503, providing that a transfer shall be deemed a gift unless the transferor receives full and adequate consideration in money or money’s worth, appears to mean that any transfer of property is to be treated as a gift to the extent that the transferor does not receive in return an adequate and full equivalent in money or something which can be valued in money. “Consideration”, as used in Section 503, is not th» same as common law consideration; it means that when the transferor gives something away and does not at the same time replace it with money of equal value or some goods or services capable of being evaluated in money, he is deemed to have made a gift within the taxing law. A similar phrase in the Massachusetts succession tax law was so construed to require “that the consideration must be for the full value of the property whether paid in money, or the acceptance by the transferor of property or services, or some benefit of an equivalent pecuniary measurement”. State Street Trust Co. v. Stevens, 1911, 209 Mass. 373, 379, 95 N.E. 851, 853. Cf. United States v. Banks, D.C.S.D.N.Y. 1883, 17 F. 322, 323. To our mind, the purpose of this section in the gift tax statute and similar wording in sections of the federal estate tax law was to prevent the depletion of the transferor’s or decedent’s estate, unless a tax was paid on the transfer, by requiring that the transferor or decedent receive in exchange something of the same money value.
We do not think that under any interpretation of the revenue act could Mrs. Bristol’s release of her statutory right to share in Mr. Bristol’s personalty at his death be regarded as consideration “in money or money’s worth”. The taxpayer’s resulting right to bequeath his stock in the Foxboro Company to people other than his wife obviously has no market value, cannot be sold, and does not increase the value of the property affected. The taxpayer evaluated the alleged rights of the wife in the stock of the Foxboro Company as though she had an inchoate right in the taxpayer’s personal property, similar to common-law dower in real property, which she was certain to acquire provided she survived her husband. This was the entire basis of the computation set out in footnote 2, supra. But the wife has no such inchoate right. The only right that the wife has in her husband’s personalty is a prospective right to have a one-third share of the personal estate belonging to her husband at his death. Until the moment of the taxpayer’s death, this prospective right of his wife may be either totally or partially defeated either by financial reverses which deprive the taxpayer of his personal property, including the Foxboro Company stock, or by deliberate inter vivos transfer of the property by the taxpayer whether or not with the express intent to defeat his wife’s interest therein. Redman v. Churchill, 1918, 230 Mass. 415, 119 N.E. 953; Leonard v. Leonard, 1902, 181 Mass. 458, 63 N.E. 1068, 92 Am.St.Rep. 426; cf. Holzbeierlein v. Holzbeierlein, 1937, 67 App.D.C. 219, 91 F.2d 250. The taxpayer may even make a present transfer of all his personal property to a trustee, reserving a beneficial life interest to himself with a gift over to a third person on his death, and reserving the right of variation by subsequent appointment, even though all this is done for the express purpose of preventing his wife from sharing in his estate. Kelley v. Snow, 1904, 185 Mass. 288, 70 N.E. 89. The right of the wife, during her husband’s lifetime, to share eventually in his personalty hears more resemblance to a mere expectancy which can be defeated than to inchoate dower. Cf. West v. Miller, 7 Cir., 1935, 78 F.2d 479, 483, certiorari denied, 1935, 296 U.S. 633, 56 S.Ct. 156, 80 L.Ed. 450; United States v. Banks, supra; Worcester County National Bank v. Commissioner of Corporations, etc., 1931, 275 Mass. 216, 175 N.E. 726; Humes v. United States, 1928, 276 U.S. 487, 48 S.Ct. 347, 72 L.Ed. 667; Mossberg v. McLaughlin, 1940, 127 Conn. 48, 14 A.2d 733 at page 735.
Release of common-law dower might stand on a somewhat different footing, since inchoate dower is an indefeasible right, undoubtedly susceptible to approximate valuation and, after release by a wife, the affected property can be sold by the husband for a substantially larger sum. However, according to our view of the proper interpretation of the phrase “adequate and full consideration in money or money’s worth”, release of dower and analogous rights cannot be regarded as consideration for purposes of the gift tax.
The federal estate tax originally provided that property transferred would not he included in the decedent’s gross estate if the transfer was the result of a hona fide sale for a fair consideration in money or money’s worth. See, e. g., Revenue Act of 1924, § 302, 43 Stat. 304, 26 U.S.C.A. Internal Revenue Acts, page 67. In 1926 Congress amended this to read “adequate and full consideration”. 26 U.S.C.A. Int. Rev.Acts, page 227. The obvious purpose of the amendment was “to narrow the class of deductible claims”. Taft v. Commissioner, 304 U.S. 351, 356, 58 S.Ct. 891, 894, 82 L.Ed. 1393, 116 A.L.R. 346.
It seems probable that the result of this amendment was to exclude the release of dower or analogous statutory rights as consideration for purposes of the estate tax of 1926. Under previous phraseology, such releases had been held “fair consideration” in cases of “hona fide sale” so that property passing by contract, as distinguished from will or intestacy, had occasionally escaped inclusion in the gross estate. Ferguson v. Dickson, 3 Cir., 300 F. 961; McCaughn v. Carver, 3 Cir., 19 F.2d 126; Stubblefield v. United States, Ct.Cl., 6 F.Supp. 440. In all these cases the decedent had died prior to the enactment of the Revenue Act of 1926.
The only case in which the phrasing of the 1926 act has been applied to dower rights resulted in a holding that their release does not constitute “adequate and full consideration.” Empire Trust Co. v. Commissioner, 4 Cir., 94 F.2d 307, 309. In that case the decedent died in 1931. Upon his death $50,000 passed to his wife in pursuance of a contract by which she had agreed to release her right of dower as well as all statutory rights in the remainder of the decedent’s estate. The Circuit Court of Appeals for the Fourth Circuit insisted upon the inclusion of the entire $50,000 in the decedent’s gross estate, pointing out the change in the applicable provisions of the estate tax since the decision in Ferguson v. Dickson, supra [300 F. 963], and the express recognition in the latter case of the difference between the phrases “bona fide sale for a fair consideration” and “adequate and full consideration”. Cf. Hopkins v. Magruder, D.C., 34 F.Supp. 381; Sheets v. Commissioner, 8 Cir., 95 F.2d 727, 730.
The only case in point, therefore, holds that under the estate tax provisions of the Revenue Act of 1926 release of dower cannot be regarded as “adequate and full consideration in money or money’s worth”; in fact, cannot be regarded as consideration at all, for the court allowed no deduction from the gross estate. The phraseology of the gift tax, enacted in 1932, is precisely the same, and it therefore seems a fair assumption that the consideration requisite under the two taxes is identical. Since release of dower does not meet the requirements of the estate tax, it does not meet the standards required by the identical words of the gift tax.
In 1932 Congress in § 804 of the Revenue Act of that year, 47 Stat. 280, 26 U. S.C.A. Int.Rev.Acts, page 642, amended § 303(d) of the Revenue Act of 1926 by adding the following provision:
“For the purposes of this title, a relinquishment or promised relinquishment of dower, curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent’s property or estate, shall not be considered to any extent a consideration ‘in money or money’s worth.’ ”
It is argued that the addition of this provision is an indication that Congress believed the release of dower to constitute consideration prior to 1932, and further that the amendment is restricted in effectiveness to the estate tax, since it expressly says “For the purposes of this title”, “this title” being title 3 which deals exclusively with the estate tax. We think, however, that the amendment was added merely from an abundance of caution and should be regarded as declaratory of the law as it previously existed. Between the amendment of the estate tax in 1926 so as to require “adequate and full consideration”, and the amendment of § 303(d) in 1932, McCaughn v. Carver, and Stubblefield v. United States, both supra, had been decided. While these dealt with the estate tax as it existed prior to 1926, they pointed the way to a possible means of tax avoidance which Congress may not have been certain it had forbidden with sufficient clarity, and therefore felt constrained to prohibit in words which could not be misconstrued. That the amendment may be regarded as no more than declaratory is to some extent indicated by the committee reports, both of which refer to the contrary view as “a subversion of the legislative intent expressed in § 302(a) and (b).” H. Rep. 703, 72d Cong., 1st Sess. (1932) 47; S.Rep. 665 (1932) 50. As the court said in Empire Trust Co. v. Commissioner, supra, “The reports of the committees of both Houses of Congress discussing this latter amendment show conclusively that the amendment was declaratory of the law as it existed in the act of 1926 and was made to avoid any misinterpretation of that act.” In Sheets v. Commissioner, 8 Cir., 95 F.2d 727, 730, the court said, “* * * we think that the amendment should be regarded as a declaratory definition of terms * *
If the amendment of 1932 be regarded as merely declaratory of the previous intent of Congress, then the phrase “adequate and full consideration” must be regarded as excluding release of dower as consideration under the estate tax of 1926 and, by parity of reasoning, under the gift tax of 1932.
However, even if the taxpayer is correct in contending that the 1932 amendment to the estate tax resulted in an actual change in the treatment of dower and analogous rights as consideration for estate tax purposes, we think it probable that the same provisions should be read into the gift tax. The phraseology is identical and, while the entire phrase “adequate and full consideration in money or money’s worth” is expressly qualified in the estate tax, it seems improbable that the identical phrase should be accorded an inconsistent meaning in the gift tax, enacted at the same time. Why Congress did not apply § 804 to the gift tax we do not know. It may have been inadvertence; it may have been that Congress felt that correction of the erroneous interpretation of the words in the estate tax would forestall similar erroneous construction of the same words in the newly enacted gift tax. Whatever may have been the reason, we believe that as an original matter, the phrase as used in the gift tax was intended to have a construction similar to that given by § 804; and we do not feel that the mere absence of such an express limitation should prevent that interpretation. The provisions of the revenue act imposing the gift tax have always been interpreted by the courts by reference to the complementary estate tax. “The gift tax was supplementary to the estate tax. The two are in pari materia and must be construed together. * * * An important, if not the main purpose of the gift tax was to prevent or compensate for avoidance of death taxes by taxing the gifts of property inter vivos which, but for the gifts, would be subject in its original or converted form to the tax laid upon transfers at death.” Sanford’s Estate v. Commissioner, 308 U.S. 39, 44, 60 S. Ct. 51, 56, 84 L.Ed. 20. The interpretation we adopt follows out the policy of the gift tax as recognized in the Sanford case supra. Had Mr. Bristol died, Mrs. Bristol’s dower rights would have become vested and her statutory share in the property would have passed to her, but nevertheless the value of her dower rights would have been included in Mr. Bristol’s gross estate. To hold that the release of dower by Mrs. Bristol during her husband’s life constitutes consideration for any transfer by him to her would in a sense defeat the purpose of the gift tax since it would permit an untaxed transfer by gift of property which would normally be subject to the estate tax upon the husband’s death. Mossberg v. McLaughlin, supra.
Another important purpose of the gift tax has always been to discourage the division of large estates among members of a family so as to distribute income and thereby to avoid the imposition of high surtaxes. To consider release of dower rights as consideration within the meaning of the gift tax would result in a serious curtailment of the usefulness of the gift tax in this situation, since it would inevitably permit the tax-free separation from the husband’s estate of a substantial proportion of his income-producing assets. Moreover, this tax-free transaction would take place under the very circumstances in which a division of assets in order to avoid surtaxes would be the most likely and practical — that is, the division between husband and wife so that the entire income will remain in the family. To hold that release of dower rights is consideration for a gift between husband and wife would therefore in a wide range of cases frustrate the purpose of the gift tax in its chief role as protector of the estate and income taxes. “Doubt, if there can be any, is not likely to survive a consideration of the mischiefs certain to be engendered by any other ruling. * * * Expediency may tip the scales when arguments are nicely balanced.” Woolford Realty Co. v. Rose, 286 U.S. 319, 329, 330, 52 S.Ct 568, 570, 76 L.Ed. 1128.
The transfers of the annuities and of the two pieces of real estate were without consideration in money or money’s worth within the meaning of the gift tax, and were, therefore, taxable under the Revenue Act of 1932, supra. The refund of the tax on the transfer of the annuities was properly refused by the Commissioner, and the deficiency tax on the transfer of the real property correctly assessed.
The decision of the Board of Tax Appeals is vacated, and the case is remanded to the Board for further proceedings in conformity with this opinion.
Value of two pieces of real estate transferred .... $34,000.00
The present worth of the right to receive the property at the death of a person aged 69 years (the taxpayer) provided a person aged 53 years (the wife) shall survive, computed according to actuarial tables of mortality$34,000 x 0.575 .................. 19,550.00
Value of the transfers of real estate ............... 19,550.00
Value of stock owned by taxpayer in August 1937 .. $781,380.00
Value of Vs of the stock, the interest allegedly received by the wife upon her marriage to the taxpayer ............. $260,460.00
Present worth of the right to receive this alleged interest at the death of a person aged 69 (the taxpayer) provided a person aged 53 (the wife) shall survive : — $260,-460.00 x 0.575 ............ $149,764.50
“§ 501. Imposition of Tax “(a) For the calendar year 1932 and each calendar year thereafter a tax * * * shall be imposed upon the transfer during such calendar year by any individual, resident or nonresident, of property by gift.”
Ҥ 503. Transfer for Less than Adequate and Full Consideration
“Where property is transferred for less than an adequate and full consideration in money or money’s worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this title, be deemed a gift, and shall1 be included in computing the amount of gifts made during the calendar year.”
Mass.Gen.Laws (Ter. ed.) c. 190, § 1:
“Section 1. A surviving husband or wife shall, after the payment of the debts of the deceased and’ the charges of his last sickness and funeral and of the settlement of his estate, * * * be entitled to the following share in his real and personal property not disposed of by will:
* * *
“(2) If the deceased leaves issue, the survivor shall take one third of the personal and one third of the real property.”
id., c. 191, § 15:
“Section 15. The surviving husband or wife of a deceased person, * * * within six months after the probate of the will of such deceased, may file in the registry of probate a writing signed by him or by her, waiving any provisions that may have been made in it for him or for her, or claiming such portion of the estate of the deceased as he or she would have taken if the deceased had died intestate, and he or she shall thereupon take the same portion of the property of the deceased, real and personal, that he or she would have taken if the deceased had died intestate; except that if he or she would thus take real and personal property to an amount exceeding ten thousand dollars in value, he or she shall receive in addition to that amount only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased * *
id., c. 189, § 1:
“Section 1. * * * A wife shall, upon the death of her husband, hold her dower at common law in her deceased husband’s land. * * * To be entitled to such curtesy or dower the surviving husband or wife shall file his or her election in claim therefor in the registry of probate within six months * * * and shall thereupon hold instead of the interest in real property given in section one of chapter one hundred and ninety [Note 5, supra], curtesy or dower, respectively, otherwise such estate shall be held to be waived. * * * ”
It is further provided in e. 191, § 17 that no dower or curtesy shall be allowed in addition to the provisions of a will unless the will so provides.”
“The gift tax will supplement both the estate tax and the income tax. It will tend to reduce the incentive to make gifts in order that distribution of future income from the donated property may be to a number of persons with the result that the taxes imposed by the higher brackets of the income tax law are avoided.” S. Rep. 665, 72d Cong., 1st Sess. (1932).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_direct1 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
KANDLE et al. v. UNITED STATES.
(Circuit Court of Appeals Third Circuit.
March 2, 1925.)
No. 3212.
I. Courts <@=332 — Equity rules promulgated by Supreme Court have force andi effect of law and apply to proceedings to abate liquor nuisance.
Equity rules promulgated by Supreme Court under Kev. St. §§ 862, 917 (Comp. St. §§ 1470, 1543), have force and effect of law and are applicable to cases brought under National Prohibition Act for abatement of liquor nuisances.
2. United States <@=124 — United States as litigant does not have attribute of sovereignty, but stands as ordinary suitor subject to equity rules.
When the United States becomes a party litigant, it divests itself of sovereignty and stands as ordinary suitor, bound by equity rules as are other litigants.
3. Courts <@=350 — Time for application for taking of deposition under equity rule, stated.
Under equity rules 47 and 50, plaintiff’s application to take depositions must be made in time for taking and filing of such depositions before lapse of 60 days from time cause is at issue.
4. Courts <@=352 — In absence of application for taking of deposition, cause may be tried as soon as it is at issue.
Under equity rules 47 and 56, if no application to take depositions is made, ease may be put on trial calendar as soon as cause is at issue.
5. Courts <@=352 — Placing suit to abale nuisance on trial calendar before expiration of time for taking depositions held not error.
In proceedings under National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.) to abate liquor nuisance, where neither party made or intended to make application to take deposition, it was not error to place case on trial calendar before time for taking and filing depositions had expired.
Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.
Suit to abate liquor nuisance by the United States against Aaron Handle and the Paramount Realty Company. Decree for the. United States, and defendants appeal.
Affirmed.
Harold Simandl, of Newark, N. J., for appellant Handle.
James Lafferty and Porter, Zink & Lafferty, all of Newark, N. J., for appellant Paramount Realty Co.
Walter G. Winno, U. S. Atty., of Hackensack, N. J., and Harlan Besson, of Hoboken, N. J., for the United States.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge.
The United States attorney for the district of New Jersey filed a bill of complaint against Aaron Handle and the Paramount Realty Company for maintaining a public and common nuisance at No. -557 Market street, Newark, N. J., in that they manufactured, kept, and sold intoxicating liquor there in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138(4 et seq.). Answers were filed by tho defendants, and the case, being at issue, was placed upon the trial 'calendar. The defendants Objected to a trial'at that time and moved to withdraw the case from the trial calendar on the ground that it could not be tried until the time for taking and filing depositions under equity rule 47 had expired, although admittedly neither party had made, nor intended to make, an application to take depositions. Rule 47 provides that “the court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order.” Depositions of the plaintiff must be taken within 60 days from .the time the cause is at issue, those of the defendant within 30 days from the expiration of the time for the filing of the plaintiff’s depositions, and rebutting depositions by either .party within 20 days thereafter. Rule 56 provides that after the time has elapséd for taking and filing depositions under these rules, the ease shall be placed on the trial calendar. In other words, defendants say that there must be a delay Of 110 days after the cause is at issue before it may be placed on the trial calendar.
The mode of proof in causes in equity and of taking and obtaining evidence in federal courts shall be according to rules prescribed by tjhe Supreme Court. Section 862, Revised Statutes of the United States (United States Compiled Statutes, § 1470); section 917, Revised Statutes of the United States (United States Compiled Statutes, § 1543). The rules in question were promulgated on November 4, 1912. They have the force and effect of law and may not be disregarded. American Graphophone Co. v. National Phonograph Co. (C. C.) 127 F. 349. When the United States becomes a party litigant, it divests itself of sovereignty and stands as any ordinary suitor before the court and is bound by these rules. United States v. Barber Lumber Co. (C. C.) 169 F. 184. These equity rules are applicable to eases brought under the National Prohibition Act for the abatement of nuisances. Grossman v. United States (C. C. A.) 280 F. 683.
The real question is: What do .these two rules mean? The defendants say that their operation as to the time for taking and filing depositions and placing cases on the- trial calendar is absolute and automatic. They rely on Jewell v. State Life Insurance Co. of Indianapolis, 176 F. 64, 99 C. C. A. 372, and Quinlivan v. Dail-Overland Co. (C. C. A.) 274 F. 56, 65. The opinions in these cases contain expressions which seemingly support their contention. The first ease was decided under rule 69, which was promulgated in 1842, when the general rule was not to take testimony orally in open court but before masters. Rule 69 of the old rules allowed three months and no more for the taking of testimony. In the second case cited, the question before us was not under consideration. The court reeitatively stated the provision of the present rule 56 as to when a ease shall be placed on the trial calendar without any attempt to construe it.
Under the old rule and practice of taking testimony out of court, rule 69 came automatically into operation as soon as the cause was at issue, and a ease could not be placed on the trial calendar until the time and opportunity thus provided for taking testimony had expired. Litigants now take testimony in open court at the trial, and there is no need of delaying the trial as was necessary under the old rules. The change in the method of taking testimony was made in order to expedite litigation. This new rule prevails, unless some exceptional cause arises to prevent it. If such cause arises, it must be shown by affidavit upon application of either party to take depositions of “named witnesses.” If no application is made, neither of the rules, 47 and 56, becomes operative and testimony is taken in open court. Rule 47 is silent as.to when application shall be made. It must be made, however, before a trial is had and in time for the plaintiff to take and file.his depositions within 60 days from the time the cause is at issue'. The plaintiff may not delay, therefore, 60 days before making the application. If application is not made, the ease may be put on the trial calendar as soon as the cause is at issue, and tried at any time. But a trial may be prevented before the expiration of the time provided for taking'ahd filing' depositions by an application of either party showing the necessary facts.
When considering the.motion to remove the ease from the trial calendar, Judge Rellstab asked if either party had made or' intended to make an application to take depositions. Both parties stated that no application had been1 made and that -they did not intend to make any. Thereupon he declined to remove the case from the trial calendar, and we do not think that he committed error.
The decree 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_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).
FRIEDMAN v. UNITED STATES.
(Circuit Court of Appeals, Sixth Circuit.
May 7, 1925.)
No. 4272.
1. Forgery <s=>5 — Indictment charging sale of altered Liberty Bonds with intent to defraud others to whom they might be sold held to state offense.
Indictment, charging sale and delivery of Liberty Bonds which had been altered with intent to defraud others to whom purchaser might sell them, stated violation of Criminal Code, § 151, notwithstanding person to whom accused sold bonds was not deceived; intent to defraud being sufficient, if it is to operate against future transferees.
2. Criminal law <§=»l 167(2) — Where conviction on one count of indictment is sustainable, defects in other counts are immaterial.
Where conviction under one count is sustainable, and sentence is not excessive under that count, defects in other counts are immaterial.
3. Forgery <®=»I0 — Uttering or selling altered Liberty Bonds is an offense.
Uttering or selling altered Liberty Bonds violates Criminal Code, § 151, notwithstanding alteration makes bonds void.
4. Forgery <S=>44('/2) — Accused’s knowledge that Liberty Bonds sold by him had been altered held proved.
Evidence helé to warrant finding that accused delivered Liberty Bonds to purchaser, knowing that they had been altered, in violation of Criminal Code, § 151.
In Error to the District Court of the United States for the Western District of Kentucky; Charles H. Moorman, Judge.
Sol Eriedman was convicted of uttering and selling Liberty Bonds which had been altered, and he brings error.
Affirmed.
Leopold Saltiel, of Chicago, Ill., for plaintiff in error.
Claude Hudgins, Asst. U. S. Atty., of Louisville, Ky. (W. S. Ball, U. S. Atty., and Lilburn Phelps, Asst. U. S. Atty., both of Louisville, Ky., on the brief), for the United States.
Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.
PER CURIAM.
Eriedman was convicted under two counts of an indictment charging that he violated section 151 of the Criminal Code by uttering and selling Liberty Bonds which had been altered. The bonds in question had been in fact stolen, and then altered by erasing the name of the registered holder and substituting therefor another and fictitious name. They were then transferred by Eriedman in connection with an assignment by the purported registered holder.
One count charged that he had sold and delivered these bonds to Erey, with intent to defraud Frey. The 'other count charged the same delivery with intent to defraud others, to whom Erey might sell them. It is now said that Erey had knowledge of the alteration, and so the proofs do not sustain a conviction under the first count, while the second count does not state an offense. We think the second count is not defective in this respect. The intent to defraud is sufficient, if it is to operate against a future transferee, even though the person to whom delivery is made is not deceived. U. S. v. Nelson, 27 Fed. Cas. 80. The conviction under one count being sustainable, and the sentence being not excessive under that count, defects under other counts are immaterial.
It is urged that, upon the making of the alteration, the bonds became void and were no longer an obligation of the United States and that to utter or sell a void paper is not within the statute. We cannot accept this construction. It would leave nothing for the statute to operate upon, since every “forged, counterfeited or altered obligation or other security of the United States” is in fact void.
There was sufficient evidence to support the jury’s finding that Friedman, when delivering the bonds, knew of the alteration. The bonds were in evidence, and there was undisputed testimony that the fact of alteration was obvious. Further, Friedman’s story of how he came into possession of them was not convincing.
In the rulings as to the admission of evidence, we find no reversible error, if any.
The judgment is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_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.
In the Matter of Grand Jury Witness Charles Joseph BATTAGLIA. Charles Joseph BATTAGLIA, Witness, Appellant, v. UNITED STATES of America, Appellee.
No. 81-5339.
United States Court of Appeals, Ninth Circuit.
Submitted May 18, 1981.
Decided August 20, 1981.
Rehearing Denied Oct. 5,1981.
Hirsh & Bayles, Tuscon, Ariz., for appellant.
Paul Corradini, Phoenix, Ariz., for appellee.
Before GOODWIN, ANDERSON and FERGUSON, Circuit Judges.
GOODWIN, Circuit Judge.
Charles Joseph Battaglia appeals a judgment of civil contempt. He was adjudged a recalcitrant witness for failing to answer certain questions before the grand jury, despite his claim that he was unable to remember the events in question.
In October 1978 Battaglia was indicted for mail fraud, conspiracy, and several drug-related offenses. In January 1979 he entered into a plea bargain pursuant to which he pleaded guilty to one count, the other counts were dismissed, and he agreed to testify as to the “involvement of Joseph Rae in the events underpinning the indictment.”
The government first sought Battaglia’s testimony in July 1979 when he was incarcerated at the United States Medical Center for Federal Prisoners at Springfield, Missouri. His testimony was postponed at the request of the prison officials because Battaglia was suffering from heart disease. During the summer and fall of 1979 the prison authorities continued to recommend that Battaglia not be required to testify.
After his release on parole, Battaglia was served with a subpoena to appear in May 1980 before the grand jury. He moved to quash the subpoena on the ground that the strain of testifying would endanger his life. Battaglia was examined by a government physician who agreed that there was a significant health risk. Consequently, although the district court refused to quash the subpoena, it ordered that Battaglia’s physician be permitted to stand outside the grand jury room door and that the proceeding be halted at Battaglia’s request.
Upon appearing before the grand jury on October 21, 1980, Battaglia stated that his memory was impaired by the drugs he had been taking for his heart condition, but he would try to answer the questions to the best of his ability. After a few minutes, Battaglia’s physician informed the United States Attorney that it was unsafe for Battaglia to continue, and the proceeding was halted.
On December 4, 1980, Battaglia was ordered to submit written answers to questions propounded by the government in lieu of a personal appearance before the grand jury. The government propounded a set of 55 questions relating to Rae’s involvement in a criminal scheme. In his written responses, Battaglia gave answers that failed to satisfy the government attorneys and they applied for an order to show cause why Battaglia should not be declared a recalcitrant witness under 28 U.S.C. § 1826.
At the hearing before the district court on the order to show cause, Battaglia argued that he had not been given notice of the answers which the government deemed insufficient. The court agreed and ordered the government to specify the answers with which it was not satisfied. Battaglia’s supplemental answers stated in slightly greater detail his inability to remember. Battaglia also pointed out that an FBI report of an interview with him concerning the scheme was inconsistent with the transcript of surreptitiously recorded conversations of his also concerning the scheme. Because of the inconsistency, he stated it was difficult for him to remember what had actually transpired.
At a second hearing on the order to show cause the government argued that Battaglia had the burden of proving that his answers were truthful. The court apparently adopted the government’s view of the burden of proof. In an attempt to comply with the court’s Understanding of the burden of proof, Battaglia presented testimony by a clinical psychologist and a clinical pharmacologist.
The psychologist, who had given Battaglia a battery of tests that morning, concluded that there was evidence of short-term memory impairment. He also found that Battaglia’s overall mental capabilities had “substantially” slipped from his native ability. The psychologist did not find gross indications of remote memory loss, but testified that Battaglia did not do well on one portion of an examination which would indicate remote memory loss. The psychologist testified that he did not believe that Battaglia was malingering because an untrained person would not know which answers to which questions would produce a desired result.
The pharmacologist testified on the possible effects of the drugs Battaglia was taking, Inderal and Demerol. He testified that there is some indication that Inderal causes short-term memory loss. He also testified that the drug causes depression, a symptom of which is memory impairment. He specifically testified that there is a possibility, although not a probability, that Inderal will cause long-term memory loss.
The pharmacologist testified that Demerol is a narcotic that depresses the central nervous system. A depressant adversely affects the memory function of a person under its influence. Moreover, the witness said animal experiments had shown that Inderal and Demerol, when taken together, will have a greater effect than one would expect from the simple addition of their individual effects.
Subsequently, the court found Battaglia to be a recalcitrant witness pursuant to 28 U.S.C. § 1826 and ordered him confined until such time as he answered the questions in a nonevasive manner. The court concluded that Battaglia’s claim of loss of memory was made in bad faith. It based its conclusion on the following facts: (1) Battaglia’s personal physician did not testify as to memory loss; (2) Battaglia presented no evidence from family or friends that he was suffering from memory loss; (3) the expert testimony related only to short-term memory loss and the possibility, not probability, of long-term memory loss; (4) Battaglia did not stress the alleged memory problems until he was ordered to answer the written questions; (5) Battaglia had no problem answering nonincriminating questions; and (6) Battaglia’s demeanor on the stand was evasive.
I. Applicability of the Statute
“Whenever a witness in any proceeding before ... [a] grand jury of the United States refuses without just cause shown to comply with an order of the court to testify . . . the court . . . may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony . . . .” 28 U.S.C. § 1826.
Battaglia contends that a witness’ false assertion that he does not remember does not constitute a refusal to testify within the meaning of the statute, but is an act of perjury. As perjury, Battaglia argues, it can be punished as contempt only upon a showing, not made here, that the perjury obstructed the performance of the court’s duties. See Ex Parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Collins v. United States, 269 F.2d 745, 750 (9th Cir. 1959), cert. denied, 362 U.S. 912, 80 S.Ct. 662, 4 L.Ed.2d 620 (1960).
A witness who testified that he does not remember an event can be convicted of perjury if it can be proven beyond a reasonable doubt that he does, in fact, remember the event. United States v. Ponticelli, 622 F.2d 985 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980). Battaglia assumes that this ends the inquiry. It does not. Wrongful conduct can be proscribed by more than one statute. Hence the real question is whether a false assertion of a lapse of memory constitutes a refusal to testify, in addition to setting the stage for a possible perjury prosecution.
The government cites no case that expressly holds that either general evasiveness or a false assertion of memory loss constitutes a refusal to testify within the meaning of 28 U.S.C. § 1826. In Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir. 1980), the Seventh Circuit affirmed a district court order finding appellant to be a recalcitrant witness upon a finding that the asserted memory loss was false. The issue in that case, however, appears to be whether the district court’s finding of falsity was clearly erroneous, not whether the behavior was proscribed by 28 U.S.C. § 1826. Id. at 357. Nevertheless, we are satisfied that a false assertion of memory loss does constitute a refusal to testify.
Although 28 U.S.C. § 1826 is a relatively new statute, it was intended to codify the common law of civil contempt. Gelbard v. United States, 408 U.S. 41, 42 n. 1, 92 S.Ct. 2357, 2358, n.1, 33 L.Ed.2d 179 (1972); United States v. Alter, 482 F.2d 1016, 1022 (9th Cir. 1973). There are many cases predating the enactment of § 1826 that treat a false assertion of inability to answer as a refusal to answer. See, e. g., Richardson v. United States, 273 F.2d 144, 147 (8th Cir. 1959) (“Courts have recognized that testimony false and evasive on its face is the equivalent of refusing to testify at all.”) Life Music, Inc. v. Broadcast Music, Inc., 41 F.R.D. 16, 24 (S.D.N.Y.1966) (“A court ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test.” (quoting from United States v. Appell, 211 F. 495 (S.D.N.Y.1913)).)
Three important policy considerations argue for this construction of the statute. First, if an evasive answer were not equated with a refusal to answer, even the most transparently false assertion of “I don’t remember” would be sufficient to avoid the recalcitrant witness statute. Second, even when a perjury prosecution would be appropriate, the government may be more interested in producing truthful testimony by use of § 1826 than in obtaining a criminal conviction for perjury. Third, the public, through our justice system, has a right to every person’s evidence in our search for the truth. See United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). A concocted evasive or false “I don’t remember” answer would provide an easy avenue for the reluctant witness to escape this high obligation with impunity.
II. Sufficiency of the Evidence
Battaglia also contends that the evidence was insufficient to support the finding that he falsely asserted that he did not remember. We do not reach this question because the allocation of the burden of proof to Battaglia instead of to the government requires a remand.
In a civil contempt proceeding, the contempt must be proved by clear and convincing evidence. United States v. Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980). The standard appears to be higher than the preponderance of the evidence standard, applicable to most civil cases, but lower than the beyond a reasonable doubt standard, applicable to criminal contempt proceedings. Id.
A civil contempt proceeding on a witness’ asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie showing of contempt; i. e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. See, e. g., United States v. Hankins, 565 F.2d 1344, 1351 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979).
Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. See United States v. O’Henry’s Film Works, Inc., 598 F.2d 313, 318 (2nd Cir. 1979). If the witness fails to meet this “burden of producing evidence,” the government’s prima facie case is sufficient to meet its burden of proof for a finding of contempt. See, N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 617-18 (9th Cir. 1973). The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question.
Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply. See, United States v. Hansen Niederhauser Co., Inc., 522 F.2d 1037, 1040 (10th Cir. 1975); United States v. Rizzo, 539 F.2d 458, 465-66 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 266-67 (W.D.Mo.1971); see generally, Mullaney v. Wilbur, 421 U.S. 684, 703 n.31, 95 S.Ct. 1881, 1892, n.31, 44 L.Ed.2d 508 (1975).
In N.L.R.B. v. Trans Ocean Export Packing, Inc., supra, at 616, we said:
“[Although inability to comply with a judicial decree constitutes a defense to a charge of civil contempt, . . . the federal rule is that one petitioning for an adjudication of civil contempt does not have the burden of showing that the respondent has the capacity to comply.... The contrary burden is upon the respondent. To satisfy this burden the respondent must show ‘categorically and in detail’ why he is unable to comply. . . . Since the Board did not have the burden of proof as to respondents’ ability to comply, it was under no obligation to allege such ability in its petitions to this court.”
Trans Ocean can be distinguished, however, because the respondent in Trans Ocean presented no proof of his inability to comply with the order. Consequently, the Trans Ocean court may have been referring to the burden of production rather than the burden of persuasion. By contrast, Battaglia has explained why he cannot comply. The quoted passage from Trans Ocean was in response to respondent’s erroneous contention that the government bore the burden of pleading and proving in its prima facie case that respondent possessed the ability to comply with the order. Battaglia makes no such contention here.
Other courts have held that in a contempt proceeding, where the defendant introduces evidence of inability to comply, the government has the burden of proving ability to comply. See, e. g., United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 267 (W.D.Mo. 1971) . See also United States v. Hankins, 565 F.2d 1344, 1351-52 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979) (dictum). These cases are consonant with the analogous principle of criminal law that although the government does not have the burden of disproving the existence of every conceivable affirmative defense, it does have the burden of disproving the existence of affirmative defenses actually raised. See, e. g., United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977); cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976).
The government may satisfy its burden of proof by establishing by clear and convincing evidence that the witness’ claimed inability to remember is not credible. Apparently, the government introduced no affirmative evidence that Battaglia recently had told anyone about the scheme, or that his medications do not, in fact, affect long-term memory. Cf. United States v. Cooper, 465 F.2d 451 (9th Cir. 1972) (by analogy, the government has the burden of persuasion with regard to an insanity defense and must introduce affirmative evidence attacking the defendant’s case).
The district court based its judgment almost exclusively on the gaps in Battaglia’s proof; i. e., on the failure of family, friends, or Battaglia’s personal physician to testify, on the expert witnesses’ failure extensively to testify with regard to long-term memory loss, and on Battaglia’s evasive demeanor. These are all legitimate considerations for a trier of fact, but the location of the burden of proof emphasizes their importance. We do not, however, disparage the trial judge’s power to decide all issues of credibility.
By placing the burden of persuasion on Battaglia, the district court made the gaps in Battaglia’s proof more damaging than the gaps in the government’s proof. This was error.
The cause is remanded for further proceedings in the district court with the burden of proving contempt remaining at all 'times upon the government.
Vacated and remanded.
. The manner by which a witness may meet his burden of production will depend upon the reason given for his inability to comply. For example, a witness who claims that he cannot recall a particular fact or event may explain his inability to comply “categorically and in detail” by testifying on the record that he does not remember. The witness has then offered as clear and detailed an explanation as possible for his inability to comply without exceeding the limits of faulty memory.
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_appnatpr | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Larry Michael GETCHEL, Defendant-Appellant.
No. 71-3048.
United States Court of Appeals, Ninth Circuit.
Sept. 25, 1972.
Roger S. Hanson (argued), of Hanson & Milman, Beverly Hills, Cal., David Unrot, Los Angeles, Cal., for defendant-appellant.
William C. Smitherman, U. S. Atty., James M. Wilkes, James E. Mueller, Asst. U. S. Attys., Tucson, Ariz., for plaintiff-appellee.
Before MOORE, MERRILL and TRASK, Circuit Judges.
The Honorable Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.
PER CURIAM:
Defendant Larry M. Getchel appeals from a judgment of conviction after a jury trial (Caleb R. Layton, D.J.) for the illegal importation of marijuana (28i/2 pounds) and hashish (3 grams) in violation of 21 U.S.C. § 176a. Indictment, Count II. Count I, charging conspiracy, was dismissed.
Appellant primarily challenges the sufficiency of the evidence to prove possession or knowledge of illegal importation of the narcotics. He claims that the evidence was entirely circumstantial and did not justify submission to the jury.
The chain of circumstantial evidence may be briefly summarized as follows:
Appellant, with another person, entered the United States from Mexico at Lukesville, Arizona, in a camper (pickup truck). Suspicious circumstances caused customs officials to follow the truck. Later that night the same truck was observed on a road closely paralleling a Mexican highway. The lights were turned off and when customs officials attempted to stop the vehicle it sped up, forcing an Agent off the road. Something fell or was thrown from the back of the camper. It proved to be a large sack and smaller boxes containing marijuana and hashish. The camper was discovered abandoned off the highway in the desert. Tennis shoe footprints led to Ajo, Arizona, where in the train yard were found the same tennis shoe tracks and a night bag which had been run over by a train. The Agent pursued the daily copper train out of Ajo, found the appellant on it, and arrested him. His shoes matched the footprints found around the abandoned camper. In his jacket pocket was marijuana debris and in his shirt the keys to the camper.
From the witness stand appellant gave a version of his activities quite at variance with the Government’s proof. Appraisal of the many inconsistencies in his testimony was for the jury. Attempted flight was also a factor to which the jury was entitled to give consideration. (Shorter v. United States, 412 F.2d 428 (9th Cir. 1969); Rossetti v. United States, 315 F.2d 86 (9th Cir. 1963).)
As to illegal importation, the Government identified the marijuana as having originated in South America. Appellant’s effort to disassociate himself from marijuana and the camper failed. The trial court’s charges correctly stated the law. No exceptions were taken.
The judgment of conviction is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
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 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.
Francis J. DONDERO, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant-Appellee.
No. 206, Docket 27666.
United States Court of Appeals Second Circuit.
Argued Jan. 16, 1963.
Decided Jan. 18, 1963.
Edgar T. Schleider, New York City (David Altschul, New York City, on the brief), for plaintiff-appellant.
Kalman V. Gallop, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty. for Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for defendant-appellee.
Before MEDINA, WATERMAN and MOORE, Circuit Judges.
PER CURIAM.
Upon attaining age 65, plaintiff applied for and received old-age insurance benefits of $85.00 per month beginning January 1954. In 1958 plaintiff reported a real estate commission of $8,800, precipitating a review of his social security status and resulting in a suspension by the Bureau of further payments and a direction of restitution of amounts previously paid to him in the years 1954 through 1957, totalling $4,620. Upon plaintiff’s request a hearing was held on February 17, 1959. The Referee’s Decision of April 15, 1959 affirmed the decision of the Board and held that plaintiff had received and was receiving wages in excess of $2,080 per annum, the amount at which benefits were to be totally suspended under Sections 203(b) and 203 (e) of the Social Security Act, 42 U.S.C. §§ 403(b) and 403(e). Upon denial of review by the Appeals Council of the Social Security Administration this decision became final and plaintiff then sought review in the District Court which dismissed his complaint, and he appeals. Opinion below reported at 205 F.Supp. 683. We hold this dismissal was proper.
The evidence showed that when plaintiff filed his retirement claim, he was president, general manager, principal stockholder and the only paid employee of the Dondero Holding Company, Inc., a real estate corporation formed in 1930, whose principal assets were a parcel of improved real estate yielding an annual rental of $10,000 and bank accounts and securities yielding annual interest and dividends of $1,000. Plaintiff’s salary of $4,200 and business expenses consumed most of the earnings. Plaintiff’s apartment served as office, with light secretarial work performed without compensation by his wife. After his “retirement” in 1954, plaintiff’s salary was reduced to $900 per annum and for the first time the wife was put on the payroll at $60 a week, although the somewhat minimal duties and services performed by each did not materially change and the plaintiff at all times remained the “moving force” of the operation.
The Referee thought that plaintiff’s testimony was discredited by the circumstances above outlined, and that the record established a “scheme of shifting wages” whereby plaintiff indirectly received “remuneration which is, in effect, wages to him.” We hold that these determinations were permissible and supported by substantial evidence as required under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Newman v. Celebrezze, 2 Cir., 1962, 310 F.2d 780; Poss v. Ribicoff, 2 Cir., 1961, 289 F.2d 10, cert. denied, 368 U.S. 902, 82 S.Ct. 178, 7 L.Ed.2d 96, rehearing denied, 1962, 368 U.S. 963, 82 S.Ct. 393, 7 L.Ed.2d 393; Walker v. Altmeyer, 2 Cir., 1943, 137 F.2d 531, 533-34.
In so holding, we reaffirm our prior statement in Newman v. Celebrezze, supra, that a claimant has the right to receive old-age benefits “irrespective of any dividend or other non-wage payments he might receive.” This principle, however, is inapplicable to the instant case since the joint income and corporation tax forms and the other relevant evidence established that the moneys, potentially payable as rents, dividends, and interest, with the attendant disadvantages involved in this form of distribution, were actually paid out and consistently treated as wages earned. Nor do we find in the decision below any attempt to penalize plaintiff for corporate or individual income tax procedures which may or may not be questionable.
The proceedings hitherto had, of course, constitute only an adjudication as of the time through which evidence was submitted, and are without prejudice to a new application by plaintiff based on a new set of facts. Newman v. Celebrezze, supra.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_genapel2 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
James ROCHE, Petitioner-Appellee, v. G. H. SIZER, Warden, Federal Correctional Institution, The United States Parole Commission, and William French Smith, Attorney General of the United States, Respondents-Appellants.
No. 422, Docket 81-2236.
United States Court of Appeals, Second Circuit.
Argued Feb. 1, 1982.
Decided April 1, 1982.
Barry K. Stevens, Asst. U. S. Atty. for the District of Connecticut, Hartford, Conn. (Alan H. Nevas, U. S. Atty., District of Connecticut, Bridgeport, Conn., of counsel), for respondents-appellants.
John L. Pottenger, Jr., Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, Conn. (Stephen Wizner, Renee D. Chotiner, P. J. Pittman, New Haven, Conn., on the brief), for petitionerappellee.
Before LUMBARD and VAN GRAAFEILAND, Circuit Judges, and BONSAL, District Judge .
Of the United States District Court for the Southern District of New York, sitting by designation.
BONSAL, District Judge:
On January 29, 1979 petitioner, James Roche, was arrested by federal agents, charged with conspiracy to distribute cocaine and marijuana (the Federal charges), and was sent to the Connecticut Correctional Institution at Hartford (“CCI Hartford”) where federal defendants are held while awaiting trial. On March 20, 1979 the State of Connecticut issued a warrant for petitioner’s arrest, charging him with the sale of cocaine in violation of the Connecticut General Statutes (the Connecticut charges).
On April 30,1979 petitioner posted a bond with respect to the Federal charges. However, since he had not posted bond with respect to the Connecticut charges, he remained incarcerated at CCI Hartford.
On May 7,1979 Chief Judge Clarie issued a writ of habeas corpus ad prosequendum directing that petitioner be turned over to the United States Marshal for trial on the Federal charges, the writ providing that “immediately after prosecution has been concluded, the United States Marshal for the District of Connecticut . .. shall return the said James Roche to the Connecticut Commissioner of Corrections, Community Correctional Center, Hartford, Connecticut____”
On June 13, 1979 petitioner pled guilty to the Federal charges and was sentenced by Judge Clarie to imprisonment for three years. He was then returned to Connecticut custody at CCI Hartford pursuant to the writ of habeas corpus ad prosequendum. On September 20, 1979, having pled guilty to the Connecticut charges, petitioner was sentenced to one-to-two years’ imprisonment by Judge Brennan of the Connecticut Superior Court and was incarcerated in the Connecticut Correctional Institution, Somers, Connecticut.
On December 3, 1979 petitioner was released on parole from Connecticut custody and, pursuant to a federal detainer, was delivered to the Federal Correctional Institution at Danbury to commence his federal sentence (18 U.S.C. § 3568 (1976)). He was given credit for time served for the period from January 29, 1979, the date of his arrest on the Federal charges, to April 30, 1979, the date on which he posted bond with respect to the Federal charges.
On January 5, 1981 petitioner moved for a reduction of sentence pursuant to Rule 35, Fed.R.Crim.P. “to recover jail time credit due to him for time served in State custody.” Chief Judge Clarie reduced petitioner’s sentence an additional 45 days to give him credit for the period from April 30, 1979, on which date petitioner posted bond on the Federal charges, to June 13, 1979, the date on which he was sentenced on the Federal charges.
On April 8,1981 petitioner filed a petition for habeas corpus in the district court, contending that his sentence on the Federal charges began to run from the date of his sentencing, June 13, 1979, rather than December 3, 1979, the date on which he was incarcerated in the Federal Correctional Institution in Danbury.
Petitioner argues that his range for release on parole was 20-26 months, according to the guidelines of the United States Parole Commission, and that he was notified by the Parole Commission that his incarceration would be continued to a presumptive parole after service of 26 months. Petitioner alleges that he has been incarcerated more than 26 months, using the date of his sentencing, June 13, 1979, as the starting date.
On May 20, 1981 the district court, Ellen B. Burns, J., directed the Parole Commission to credit petitioner with the time he was incarcerated between the date of sentencing before Judge Clarie, June 13, 1979, and December 3, 1979 when he commenced to serve his federal sentence, and stated that if such credit was not accorded by the close of business on June 5, 1981 the petition for a writ of habeas corpus would be granted and petitioner released as though he were on parole.
This decision conflicts with two other recent eases, Zeldes v. United States, Civil No. B-79-257 (D.Conn. April 15, 1980), aff’d. 636 F.2d 1206 (2d Cir. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981), and Betres v. Hambrick, Civil No. N-81-322 (D.Conn. Sept. 21,1981), in which the court below found under similar circumstances that the federal government had yielded primary jurisdiction. The .petitioner in Zeldes pled guilty to federal charges and was released on bail pending sentencing. He was then arrested on unrelated New York charges and held in New York custody. He appeared in federal court pursuant to a writ of habeas corpus ad prosequendum and was sentenced to a five-year term. He was then returned to a New York facility to await trial on the New York charges. In the meantime, a second New York charge was filed against him and he was sentenced to a term of six months “to run concurrently with [his] Federal sentence.” He served his sentence but remained in New York custody awaiting trial on the first set of charges. After trial, he was sentenced to a term to run consecutively to his federal sentence. He was then transferred to federal prison. Petitioner argued that his federal sentence began on the day he was sentenced rather than the day he was returned to federal custody. The court refused to grant petitioner credit on his federal sentence for the time spent in New York custody, noting that while the general rule is that the first arresting sovereign obtains, primary jurisdiction, that jurisdiction can be yielded. The court found that the federal government had yielded primáry jurisdiction because it had allowed petitioner to be imprisoned by New York authorities without challenging their jurisdiction. ' The court also found the use of the writ of habeas corpus ad prosequendum to obtain petitioner’s presence for sentencing to be persuasive. Petitioner attempted to rely on a letter showing that the judge intended that his sentence commence on the date of sentencing, but the letter was not a part of the record and the court refused to give it any weight.
The fact that Roche was placed in a Connecticut facility rather than a federal one while he was a federal pretrial detainee has no significance since there were no federal facilities available. We find, as in Zeldes, that primary jurisdiction over Roche passed to Connecticut when he posted bond on the Federal charges.
We find that the disposition below runs counter to the federal statute governing commencement of sentence and credit for presentence jail time (18 U.S.C. § 3568). Under 18 U.S.C. § 3568, petitioner’s sentence commenced on December 3, 1979 when he was released from Connecticut custody and delivered to the Federal Correctional Institution at Danbury to commence his federal sentence. Moreover, during the period between April 30, 1979 when he posted bail with respect to the Federal charges but not with respect to the Connecticut charges and May 7, 1979 when Judge Clarie issued the writ of habeas corpus ad prosequendum, he was under Connecticut custody and not federal custody. He returned to federal custody only for the period between May 7, 1979, the date of the writ of habeas corpus ad prosequendum, and June 13, 1979 when he was sentenced on the Federal charges and returned to Connecticut custody. The effect of the decision below would be to grant petitioner credit for the same period of time against both his federal and state sentences, which we find inconsistent with 18 U.S.C. § 3568, Zeldes v. United States, supra; Crawford v. Jackson, 589 F.2d 693 (D.C.Cir.1978), cert. denied, 441 U.S. 934, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979); Wolcott v. Norton, 365 F.Supp. 138 (D.Conn.), aff’d, 487 F.2d 513 (2d Cir. 1973).
Reversed, 516 F.Supp. 961.
. 18 U.S.C. § 3568 provides in pertinent part:
“The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed....
No sentence shall prescribe any other method of computing the term.”
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_jurisdiction | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
Ingridhutte Kurt WOKAN v. ALLADIN INTERNATIONAL, INC., Appellant.
No. 72-2106.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12 (6) July 2, 1973.
Resubmitted Under Third Circuit Rule 12(6) Sept.. 12, 1973.
Decided Sept. 13, 1973.
David S. Malis, Malis, Tolson & Malis, Marvin Krasny, Adelman & Lavine, Philadelphia, Pa., for appellant.
Frederich H. Ehmann, Jr., Philadelphia, Pa., for appellee.
Submitted Under Third Circuit Rule 12(6) July 2, 1973
Before GIBBONS and HUNTER, Circuit Judges.
Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
Before GIBBONS, HUNTER and WEIS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
In this diversity contract action, the defendant, Alladin International, Inc. (Alladin), appeals from the refusal of the district court to set aside a default judgment. The plaintiff, Ingridhutte Kurt Wokan (Ingridhutte), a West German glassware manufacturer, on April 20, 1972, filed a complaint in two counts. The first count sought $3,048.00, the price of goods actually delivered to Alladin. The second count sought $17,498.75 plus interest and storage charges, for goods ordered by Alladin, never delivered, but allegedly specially manufactured and not resalable. Process was served on Alladin’s president on May 2, 1972. Alladin did not respond in any manner, and a default judgment in the amount of $23,495.26 was entered on July 21, 1972. Thereafter, Ingridhutte issued execution attaching Alladin’s bank account at Fidelity Bank. Judgment was entered against the garnishee bank on August 17, 1972, in the amount of $9,796.36. This left an unsatisfied balance on the judgment of $13,698.90.
Counsel for Alladin (who is also an officer of the corporation) learned on August 14, 1972, that the account at Fidelity Bank had been attached. That day he called Ingridhutte’s attorney, advising that the funds attached represented money which had been advanced to Alladin by two of his acquaintances for the purpose of permitting Alladin to make a 20% settlement offer to its creditors, and that such a settlement offer had been made to and accepted by Alladin’s creditors other than Ingridhutte. On August 22, Alladin filed a motion pursuant to Fed.R.Civ.P. 55(c) and 60(b) to set aside the default judgment.
The first ground asserted for setting aside the default judgment was that it had been entered without notice to Alladin’s counsel, in violation of Rule 55(b) (2). This ground is entirely without merit. From the time the complaint was filed until August 14, 1972, there was no word from, never mind appear^ anee, on behalf of Alladin. See Port-Wide Container Co. v. Interstate Maintenance Corp., 440 F.2d 1195 (3d Cir. 1971).
The second ground for setting aside the default judgment was that it resulted from “mistake, inadvertence, surprise, or excusable neglect.” Fed.R. Civ.P. 60(b)(1). Alladin’s moving papers did not dispute that it owed the $3,048.00 referred to in the first count. On a motion to set aside a default or a default judgment, the moving party-must show that he has a meritorious defense. 6 J. Moore, Federal Practice ¶ 55.10[1], at 55-233 (2d ed. 1972). The district court, therefore, properly declined to reopen the judgment on the first count. It did, however, on September 28, 1972, order that the default judgment be opened on the second count, conditioned upon Alladin posting a bond for $14,500.00 to secure the $13,698.90 unsatisfied portion of the judgment, with interest, should Ingridhutte prevail on the merits. Financially embarrassed, Alladin was unable to post any such bond. On October 17, 1972, it moved to set aside the September 28, 1972 order and to set aside the default judgment unconditionally. The district court denied this motion on October 18, 1972, and this appeal followed. We have been advised by counsel that thereafter on November 13, 1972, Alladin filed a petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq., for an arrangement with its creditors. So far as we know, the Chapter XI proceeding has not resulted in an adjudication in bankruptcy. We are advised that no steps have been taken with respect to the judgment pursuant to Section 67(a) of the Bankruptcy Act, 11 U.S.C. § 107(a).
A motion pursuant to Rule 60(b)(1) for relief from a judgment is addressed to the sound discretion of the district court, and we may not disturb that court’s action in the absence of an abuse of discretion. Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951); Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185, 187 (3d Cir. 1942), cert. denied, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1943). Here the facts relied upon to establish such “mistake, inadvertence, surprise, or excusable neglect” are, to say the least, weak. But the district court held them to be sufficient, and Ingridhutte has not urged by cross appeal that this holding was an abuse of discretion. The sole substantial issue on the appeal is the propriety of the condition to reopening.
Rule 60(b) gives the district court explicit authority to impose terms upon the opening of a default judgment. Rarely, however, have the federal courts had occasion to discuss what those terms may be. The few cases which have dealt with the problem are collected in Annot., Propriety of Conditions Imposed in Granting Relief From Judgment Under Rule of Civil Procedure 60(b), 3 A.L.R.Fed. 956 (1970). The condition most commonly imposed is the payment of costs or attorneys fees. E.g., Hendricks v. Alcoa Steamship Co., 32 F.R.D. 169 (E.D.Pa.1963). The imposition of a condition that a bond be posted to secure any judgment is discussed in Thorpe v. Thorpe, 124 U.S.App.D.C. 299, 364 F.2d 692 (D.C.Cir.1966); there the district court entered an order vacating a default on condition that the defendant deposit in a joint savings account for himself and the plaintiff the amount demanded in the complaint, which actually exceeded the amount of the default judgment. The defendant, unable to make such a deposit, appealed. Judge Leventhal wrote:
“It may also be appropriate, in some cases, for defendant to be required to post bond to secure the amount of the default judgment pending trial on the merits. However, the condition imposed in this case — that appellant place in a joint bank account, in escrow, not only the amount of the default judgment, but the maximum amount demanded by appellee in her complaint — is unusual, indeed, so far as we can ascertain, unprecedented.
It goes beyond placing the parties in the position they were in before the default; it seeks, rather, to place them in the position they were in prior to the action that preceded, and precipitated, the litigation.
Assuming, without deciding, that restoring the parties to the status quo ante the alleged wrong is appropriate in some cases, there is no showing of any justification for doing so in this ease.
-x- *x- -x-
When such an extraordinary condition is approved it must be accompanied by supporting findings to show that it represents a reasonable exercise of discretion.
If appellant’s claim that he simply is unable to comply with the condition imposed is true, serious questions are raised, questions having an aura of denial of due process of law. See Societe Internationale, etc. v. Rogers, 357 U.S. 197, 209-210, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), where the Supreme Court stated, in another context, that imposition of an ‘impossible’ condition of a litigant’s right to a trial on the merits raises constitutional difficulties.” Id. at 694-95.
Judge Leventhal’s opinion in Thorpe v. Thorpe, supra, is as close as we have found to an authority in point. The order here, of course, is somewhat different in that it requires security only for the unsatisfied part of the judgment rather than for an amount in excess thereof equal to the original demand. The $9,796.36 obtained from Fidelity Bank was not affected by the order. As to that sum, apparently, it was intended that Alladin run the risk of not getting back any excess over the amount due on the first count if its defense on the second count should prevail. The security required was for the unpaid part of the judgment. We have the same difficulty with this condition to vacating the default as did Judge Leventhal with the condition imposed in Thorpe. We think it perfectly proper for a district court in an appropriate case to impose the condition to vacating a default judgment that the judgment holder not be deprived of any payment or security he has obtained as a result of the judgment. But it is difficult to imagine what set of circumstances would justify the imposition of a condition that the now disputed claim be made more secure than it was prior to the court’s action on the Rule 60(b) motion. There may be such circumstances, but they do not appear in this record.
In Thorpe v. Thorpe, supra, the District of Columbia Circuit remanded for findings which might support the unusual condition imposed, and for consideration of other less drastic conditions. Possibly in that domestic dispute circumstances justifying a requirement of pre-judgment security could at a hearing appear. We do not think any such circumstances could appear in this commercial lawsuit. Nevertheless, because the district court’s action under Rule 60(b) is discretionary, we believe a remand is appropriate. As we said earlier, Alladin’s factual showing of “mistake, inadvertence, surprise, or excusable neglect” was rather thin. Quite possibly the court was led to the exercise of discretionary power to reopen in part because of a mistaken belief that the condition of pre-judgment security for the full amount of Ingridhutte’s claim could be imposed on this record. Since we hold otherwise, the district court should have an opportunity to reconsider the motion to vacate the default judgment on the second count.
Nothing in this opinion shall be construed as a ruling upon the effect on the default judgment or the garnishment of Fidelity Bank of the Chapter XI proceeding.
The case will be remanded to the district court for further proceedings consistent with this opinion.
. Although the record is not clear, apparently there were no supersedeas of the garnish-ment judgment and the amount was paid over.
. The record does not disclose, and the parties have not advised, whether this appeal is prosecuted by a debtor in possession pursuant to Section 342 of the Bankruptcy Act, 11 U.S.C. § 742, or by a receiver pursuant to Sections 343 and 2(a) (3) of the Act, 11 U.S.C. §§ 743,11 (a) (3).
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_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. Ishmael GALLOP, Defendant-Appellant.
No. 86-5175.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 9, 1987.
Decided Jan. 28, 1988.
Robert Leon Pierson, for defendant-appellant.
Elizabeth Hartley Trimble, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., on brief), for plaintiff-appellee.
Before RUSSELL, MURNAGHAN and ERVIN, Circuit Judges.
MURNAGHAN, Circuit Judge:
Ishmael Gallop appeals from a conviction after a jury trial on a count of bank larceny in violation of 18 U.S.C. § 2113(b). On April 15, 1986, a federal grand jury in the District of Maryland indicted Ishmael Gallop. Anthony R. Gallagher, a public defender, was designated as the defendant’s counsel. Magistrate Paul M. Rosenberg arraigned the defendant on April 26, 1986 at which time he pled not guilty. Subsequently, Gallagher and the United States Attorney’s Office worked out a plea agreement and the rearraignment was set for June 13th.
At the rearraignment, Gallagher advised the district court that his client wished to strike the appearance of the federal public defender’s office. The defendant had complained to Gallagher that the office had not represented his interests adequately. Gallagher stated that there were obvious disagreements between himself and the defendant, and he felt that he would be unable to work with the defendant any longer as counsel. Finding that an irreconcilable difference existed, the court discharged the public defender. The court also granted a motion to postpone the trial.
On June 19, 1986, the court appointed James F. Garrity to represent the defendant pursuant to the Criminal Justice Act. Garrity filed a motion to suppress the defendant’s confession, challenging the volun-tariness of the statement. The district judge denied the motion after a hearing on September 11,1986. The suppression issue was reopened for additional testimony on September 18th and September 22nd, but was again denied.
On September 18th, Garrity informed the court that the defendant no longer wished to be represented by him. Garrity told the court that the relationship between himself and Gallop had entirely broken down. The defendant stated that his second attorney had done an inadequate job because he should have sought a postponement of the first suppression hearing until all parties were present. The district judge noted that the defendant had previously discharged his first counsel and indicated his concern that the defendant was attempting to obstruct the orderly procedure of the court. Under the circumstances, the district judge gave the defendant the choice of proceeding pro se or continuing with his second attorney. When the defendant indicated that he did not know how to represent himself, the court said that it would proceed with Garrity as counsel.
Garrity then indicated that he had another problem relating to his representation of the defendant but that the problem could not be revealed because of the confidential relationship between attorney and client. He represented that the problem might arise at trial. The district judge noted that the issue could be taken up at trial if it ever arose.
On September 22nd, a day before trial, the defendant renewed his request for a new attorney which was again denied. The district judge noted that Garrity had done a competent job representing the defendant. The defendant then indicated that he had no choice but to represent himself. The court asked Garrity to remain as a backup counsel.
On the day of trial, the defendant requested a postponement stating that he had not had adequate time to prepare a defense. The court denied the motion for postponement and again denied the request for another attorney.
The defendant was convicted by a jury of bank larceny and was sentenced to a term of incarceration of ten years and an imposition of $50 special assessment.
I.
An essential element of the Sixth Amendment’s protection of right to counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own choosing. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); United States v. Burton, 584 F.2d 485, 488-89 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). However, the right to counsel of defendant’s choosing is not absolute. Sampley v. Attorney General of North Carolina, 786 F.2d 610, 612-13 (4th Cir.1986), cert. denied, — U.S. —, 106 S.Ct. 3305, 92 L.Ed.2d 719 (1986). Such right must not obstruct orderly judicial procedure and deprive courts of the exercise of their inherent power to control the administration of justice. Id. at 613; United States v. Bragan, 499 F.2d 1376, 1379 (4th Cir.1974). An indigent defendant, moreover, has no right to have a particular lawyer represent him and can demand a different appointed lawyer only with good cause. United States v. Allen, 789 F.2d 90, 92 (1st Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986). The determination of whether or not the motion for substitution of counsel should be granted is within the discretion of the trial court and the court is entitled to take into account the countervailing state interest in proceeding on schedule. Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983); Sampley, 786 F.2d at 613.
In evaluating whether the trial court abused its discretion in denying defendant’s motion for substitution of counsel, the First and Ninth Circuits have held that the appellate courts should consider the following facts: Timeliness of the motion; adequacy of the court’s inquiry into the defendant’s complaint; and whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense. Allen, 789 F.2d at 92; United States v. Whaley, 788 F.2d 581, 583 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986). In the present case, the motion for substitution of counsel was made only five days prior to trial. As the trial court noted, the defendant had already been granted a similar motion which resulted in the trial being postponed for three months. In United States v. Mastroianni, 749 F.2d 900 (1st Cir.1984), the court held that the trial court did not abuse its discretion in denying a motion by an indigent defendant to substitute counsel four days before commencement of trial when there was little or no assurance that substitute counsel would be adequately prepared in time, and the defendant had been represented throughout by the federal public defender’s office. Id. at 913-14. Likewise, the record in this case indicates a lack of any assurances by the defendant that delay would not result from such substitution. A request for change in counsel cannot be considered justifiable if it proceeds from a transparent plot to bring about delay. See Morris v. Slappy, 461 U.S. at 13, 103 S.Ct. at 1617.
The record also indicates that the district judge adequately inquired into the defendant's complaint with regard to his second counsel. According to the defendant’s testimony, he sought a substitution of counsel because of inadequate representation by Garrity. The defendant asserted that if Garrity had been adequately representing him, he would have asked for a postponement of the suppression hearing until all witnesses were present. The defendant has clearly stated that he was not seeking a new counsel “because no personal conflict or whatsoever” (sic). The failure or refusal by Garrity to seek postponement of the hearing clearly did not constitute inadequate representation, especially in light of the fact that the remaining law enforcement witnesses to the defendant’s confession testified at subsequent suppression hearings. The district judge, thus, acted within his discretion in rejecting the line of argument advanced and finding that Garrity’s representation had been competent.
More troublesome, however, is the statement by the defense counsel that he believed that the relationship between himself and the defendant had entirely broken down and that there were additional problems in continuing the representation that could not be disclosed because of the confidential relationship. The district judge, with the concurrence of Garrity, decided that the issue could be taken up at trial if it ever arose. The failure by the trial court to proceed further to resolve the issue was not an abuse of discretion, especially when there is no evidence in the record to indicate that the question was reasserted during the trial, see Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976); United States v. Morrissey, 461 F.2d 666, 670 (2d Cir.1972), or that it impaired Garrity’s performance as stand-by counsel.
There is also no evidence in the record to indicate that the conflict between Garrity and the defendant was so great that it resulted in total lack of communication. Indeed, Garrity assisted the defendant during the trial and cross-examined the FBI agent who had witnessed the defendant’s confession.
II.
The defendant, in addition to the objections already dealt with, also complains that the trial court did not properly determine on the record whether the waiver was intelligent, knowing, and voluntary. He argues that the trial court’s failure to examine the effectiveness of the waiver denied him the Sixth Amendment right to counsel.
As other circuits have held, once the trial court has appropriately determined that a substitution of counsel is not warranted, the court can insist that the defendant choose between continuing representation by his existing counsel and appearing pro se. United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987); United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982); McKee v. Harris, 649 F.2d 927, 930-31 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982); Wilks v. Israel, 627 F.2d 32, 35-36 (7th Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981); United States v. Davis, 604 F.2d 474, 483 (7th Cir.1979); Maynard, 545 F.2d at 278. A refusal without good cause to proceed with able appointed counsel is a “voluntary” waiver. Maynard, 545 F.2d at 278. Since the trial judge properly exercised his discretion in finding that the defendant did not have justifiable reasons for requesting a further substitution of counsel, Gallop’s argument that his waiver was not voluntary is without merit.
Even if the choice to proceed pro se is voluntary, however, the court must still ensure that the decision to proceed pro se is made knowingly and intelligently. Padilla, 819 F.2d at 956; Welty, 674 F.2d at 188. The mere fact that an accused may understand that he has right to counsel and desires to waive the right does not automatically end the court’s responsibility. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). As the Supreme Court noted in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975):
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”
Id. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)).
While the Faretta Court recognized the absolute right of a defendant to represent himself as long as that decision is made knowingly, intelligently, and voluntarily, it did not lay down detailed guidelines concerning what tests or lines of inquiry a trial judge is required to conduct to determine whether the defendant’s decision was “knowing and intelligent.” The circuit courts have split on the type of record necessary to establish whether a defendant’s waiver of counsel is knowing and intelligent. The Third Circuit requires the trial judge to make a searching inquiry on the record and the failure to do so would be a reversible error. See Welty, 674 F.2d at 192-93. In the Sixth Circuit, the court affirmed the conviction of a defendant who waived his right to counsel without the benefit of a formal inquiry, but it exercised its supervisory powers and now requires the district courts to follow the model inquiry set forth in 1 Bench Book for United States District Judges 1.02-2 (3d ed. 1986). United States v. McDowell, 814 F.2d 245, 249-50 (6th Cir.1987); see also United States v. Bailey, 675 F.2d 1292, 1300 (D.C.Cir.1982), cert. denied sub nom. Walker v. United States, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982) (exercising supervisory power to enjoin upon the district court the practice of making clear on the record).
In contrast, in the majority of the circuits, including the Fourth Circuit, the trial judge is merely required to determine the sufficiency of the waiver from the record as a whole rather than from a formalistic, deliberate, and searching inquiry. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986); Richardson v. Lucas, 741 F.2d 753, 756-57 (5th Cir.1984); United States v. Hafen, 726 F.2d 21, 25-26 (1st Cir.1984), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); United States v. Kimmel, 672 F.2d 720, 721-22 (9th Cir.1982); United States v. Trapnell, 638 F.2d 1016, 1026-27 (7th Cir.1980); United States v. Tompkins, 623 F.2d 824, 828 (2d Cir.1980); United States v. King, 582 F.2d 888, 890 (4th Cir.1978); United States v. Pilla, 550 F.2d 1085, 1093 (8th Cir.1977), cert. denied, 432 U.S. 907, 97 S.Ct. 2954, 53 L.Ed.2d 1080 (1977). While those cases have expressed the appeal courts’ preference that the trial judge discuss with the defendant in open court the dangers and disadvantages of self-representation, the failure to do so would not automatically be a reversible error. See McDowell, 814 F.2d at 249.
Although the Fourth Circuit requires no particular form of interrogation, King, 582 F.2d at 890, we have indicated that “[a]t a minimum the district court should, before permitting an accused to waive his right to counsel, explain the charges and the possible punishments....” Aiken v. United States, 296 F.2d 604, 607 (4th Cir.1961). The district judges also should “develop on the record the educational background, age and general capabilities of an accused, so that the ability of an accused to grasp, understand and decide is fully known” to the trial court and fully disclosed by the record. Townes v. United States, 371 F.2d 930, 934 (4th Cir.1966), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967). The failure to do so, however, would not automatically render the proceedings unconstitutional. Aiken, 296 F.2d at 607.
In the present case, the district judge did not specifically discuss with the defendant the dangers or disadvantages of self-representation. Without a specific inquiry by the district court on the record, or other facts which show that Gallop had sufficient background or had been apprised of his rights by some other source, a determination that the defendant made his choice “with eyes open” cannot be made by a reviewing court without speculation.
What is clear in the instant case is that the defendant had tried to change his counsel for the second time only five days prior to trial. His refusal to proceed with Garrity was without good cause. The district judge properly noted his concern that the defendant was trying to obstruct the orderly procedure of the court. The defendant was also adamant in his rejection of Garrity. In determining the sufficiency of the waiver, the court should be entitled to take into account not only the countervailing advantage in proceeding on schedule, see Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610, but also the defendant’s insistence that he not be represented by a particular counsel. See United States v. Leifried, 732 F.2d 388, 390 (4th Cir.1984). The defendant cannot be allowed to continue the practice, with little or no apparent reason, of hiring and firing attorneys. At the same time, the court should not force such a capricious defendant to cooperate with an attorney if he is as adamant as the defendant here was that he cannot proceed with the appointed representation. The proper procedure, though not necessarily the exclusive one, is to order the defendant, as the district court had done in the instant case, to proceed pro se but also to order the appointed counsel to remain as a backup.
We believe that there must be some limit to the defendant’s ability to manipulate the judicial system even if he is unknowing and unintelligent. While a knowing, intelligent, and voluntary waiver of counsel generally is required before a defendant is allowed to proceed pro se, where a district judge finds, as was done implicitly in the instant case, that the defendant may reject every counsel for the purposes of delaying the trial, the court must be allowed to impose restraints. Therefore, even if the district court had failed to inquire into the knowingness and intelligence of the defendant’s waiver, we find that it was not a reversible error, given that generally adequate assistance of counsel was guaranteed.
III.
The defendant was convicted of bank larceny pursuant to 18 U.S.C. § 2113(b). As an element of the crime and as a prerequisite to federal jurisdiction, the government must prove that the institution from which the money was stolen was a bank as defined in 18 U.S.C. § 2113(f). United States v. Wingard, 522 F.2d 796, 797 (4th Cir.1976), cert. denied, 423 U.S. 1058, 96 S.Ct. 792, 46 L.Ed.2d 648 (1976).
In the case at bar, the government sought to prove this element by showing that the victim bank, Annapolis Bank and Trust Company, was insured by the FDIC. It introduced the following testimony of Randall Mark Roby, an audit officer from the Mercantile-Safe Deposit:
Q. What is the relationship between the Mercantile-Safe Deposit and Trust Company to the Annapolis Bank and Trust Company?
Roby. Mercantile-Safe Deposit and Trust Company is the lead bank for Mercantile Bank Shares Corporation and provides the auditing services for the affiliates within the holding company.
Q. And now this bank and trust is a member of that holding company, is that right?
Roby. Yes, ma’am.
Q. What conclusions did you reach after your audit?
Roby. ... The twenty-one thousand, to the best of our abilities had been removed from the bank premises.
Q. What did you do when you reached those conclusions?
Roby. ... We informed the FBI, the FDIC a bonding company and local police authorities.
Q. In December 1985 were the, was the Mercantile and its subsidiaries insured by the Federal Deposit Insurance Company?
Roby. Yes, ma’am.
The defendant argues that this testimony, by itself, was insufficient to establish that the Annapolis Bank and Trust Company was insured by the Federal Deposit Insurance Corporation. He argues that no certificate of insurance showing that the insurance was current as of the day of the theft was introduced. To support this argument, the defendant’s brief cites United States v. Ford, 642 F.2d 77 (4th Cir.1981), cert. denied, 451 U.S. 917, 101 S.Ct. 1996, 68 L.Ed.2d 310 (1981). In that case, this Court found that a testimony from the branch manager and a certificate of insurance “satisfied the minimum requirements for establishing federal jurisdiction under the bank robbery statute ...” Id. at 78.
As the government correctly notes in its brief, while a certificate of insurance was introduced in Ford, one was not introduced in United States v. Safley, 408 F.2d 603 (4th Cir.1969), cert. denied, 395 U.S. 983, 89 S.Ct. 2147, 23 L.Ed.2d 772 (1969). In Safley, this Court held that a testimony from a bank employee that the deposits “are” insured by the FDIC was sufficient evidence from which “the jury could draw the reasonable inference that the bank was insured at the time of the robbery.” Id. at 605. See also United States v. Taylor, 728 F.2d 930, 933 (7th Cir.1984) (uncontroverted testimony by bank’s vice president was sufficient); United States v. Baldwin, 644 F.2d 381, 385 (5th Cir.1981) (either the certificate of insurance or uncontradicted testimony was sufficient); United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.1980), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980) (uncontradicted testimony of two bank employees was sufficient); United States v. Williams, 592 F.2d 1277, 1281-82 (5th Cir.1979) (testimony from two bank officers was sufficient). In stating that the evidence presented, including a certificate of insurance, satisfied the minimum requirements in Ford, we did not mean to imply that a certificate of insurance was a sine qua non of proof of jurisdiction.
Gallop also asserts that the evidence was inadequate since Roby never testified as to whether Annapolis Bank and Trust Company was a subsidiary of Mercantile. Roby, however, did testify that Mercantile-Safe Deposit and Trust Company is the lead bank for Mercantile Bank Shares Corporation and provides the auditing services for the affiliates within the holding company. He stated that Annapolis Bank and Trust Company is a member of that holding company. He also testified that Mercantile and its subsidiaries were insured by the Federal Deposit Insurance Company.
When the appeals court determines the sufficiency of evidence, it should view the evidence in a light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941). Therefore, although what was presented by the government in this case is extremely meager, we believe that there was sufficient evidence from which the jury could reasonably infer that Annapolis Bank and Trust was a subsidiary of Mercantile-Safe Deposit and Trust Company.
IV.
For the foregoing reasons, we affirm the defendant’s conviction.
AFFIRMED.
. 18 U.S.C. § 2113(f) provides as follows:
As used in this section the term "bank” means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.
. It does not appear from the record that the defendant had challenged the insufficiency of evidence during the trial. Generally, absent plain or fundamental error, the court need not consider on appeal legal points which were available to the appellant but not pressed for the district court’s consideration. United States v. Seidlitz, 589 F.2d 152, 160 (4th Cir.1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 396 (1979). However, under § 2113, a bank must be federally insured in order to satisfy not only an element of the crime but to confer federal jurisdiction on the court. United States v. Harris, 530 F.2d 576, 578 (4th Cir.1976). Jurisdictional questions are of primary consideration and can be raised at any time. McGrath v. Kristensen, 340 U.S. 162, 167, 71 S.Ct. 224, 228, 95 L.Ed. 173 (1950).
. It is unclear whether the prosecutor, in asking this question, was referring to Mercantile-Safe Deposit and Trust Company or to Mercantile Bank Shares Corporation. However, since the FDIC insures deposits held by banks, he was probably referring to Mercantile-Safe Deposit and Trust Company.
. Despite the government’s assertions to the contrary, Roby never testified that Mercantile and its affiliates were insured by the FDIC.
.There is no evidence in the record which indicates that the judge, in framing his instructions, took judicial notice of the publicly well-known association as parent and subsidiary of the Mercantile-Safe Deposit and Trust Company and the Annapolis Bank and Trust Company.
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_3 | 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 concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
Application of William BALDWIN for Appointment of Counsel, William Baldwin, Appellant, and John M. Espinoza, Petitioner-Appellant, v. Charles L. BENSON, Warden, United States Penitentiary, Leavenworth, Kansas, United States Parole Commission, Griffin B. Bell, Attorney General of the United States, and United States Bureau of Prisons, Respondents-Appellees.
Nos. 77-1739, 77-1794.
United States Court of Appeals, Tenth Circuit.
Sept. 28, 1978.
Clayton D. Knowles, Denver, Colo., for appellant.
Leonard D. Munker, Federal Public Defender, on brief, for petitioner-appellant John M. Espinoza.
Roger M. Theis, Asst. U. S. Atty., Topeka, Kan. (James P. Buchele, U. S. Atty., Topeka, Kan., on brief), for respondents-appel-lees.
Before SETH, Chief Judge, and HOLLOWAY, McWilliams, BARRETT, DOYLE, McKAY and LOGAN, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The question here presented is whether a person who is charged with violation of parole is entitled, as a matter of right, to appointed counsel in parole revocation proceedings before both the Commission and court, under 18 U.S.C. § 4214. Both of these defendants have been charged with parole violation and in the applicable proceedings have had parole revoked following hearings in both cases. This is the only question raised in the appeal of William Baldwin.
The case of John M. Espinoza is an appeal from the denial of a petition for writ of habeas corpus which raised other points besides the right of counsel. Both appellants have been in the United States Penitentiary at Leavenworth, Kansas, and the prior court proceedings from which the appeals are taken occurred in the United States District Court for the District of Kansas.
BALDWIN PROCEEDINGS
William Baldwin was originally convicted of bank robbery and was sentenced to 18 years in prison. He commenced serving his sentence on February 20, 1967, and was released on parole May 15, 1974. He originated in Connecticut and was supervised in that district. His offense was theft, on November 19, 1976, of $1,154.00 from a retail shop in Manchester, Connecticut. He pleaded nolo contendere to this on April 20, 1977, and was fined $250.00. On April 28, 1977, a parole revocation warrant was issued for Baldwin and this was executed on May 2, at which time he was arrested and placed in the Correctional Center at Hartford, Connecticut, without preliminary hearing on revocation. Thereafter, he was transferred to Leavenworth, where the parole revocation hearing took place. In connection with the parole violation proceeding, he requested the appointment of counsel. The case is entitled: In the Matter of the Application of William Baldwin for the Appointment of Counsel. On June 10,1977, a memorandum was filed by Judge Arthur J. Stanley, Jr., denying the request for counsel. Baldwin’s request for rehearing was also denied July 19, 1977. The validity of the order denying counsel is before us on appeal.
ESPINOZA PROCEEDINGS
Espinoza’s conviction was bank robbery. Following conviction on March 29, 1966, he was sentenced to 15 years in prison. Release on parole was on April 15, 1971. On August 12, 1976, however, he was arrested on a parole violation warrant. Following his being held in custody at a number of federal institutions, he was finally transferred to the Federal Penitentiary at Leavenworth, Kansas. There he was charged with parole violation for having allegedly committed (1) assault and battery in June 1972, to which he pled guilty on September 14, 1972, at San Jose, California; (2) two drunk driving charges, one in September 1972, and the other in November 1972, to both of which he pled guilty. Since these were misdemeanors, it was not considered that they were sufficiently serious to require parole revocation. On March 1, 1976, he was arrested in San Jose and charged with receiving stolen property and grand theft. He entered a plea of nolo contendere on June 2, 1976 to two counts of receiving stolen property. It was understood that these would be reduced to misdemeanors. On July 1, 1976, he was sentenced to 90 days in the county jail. On August 12, 1976, he was arrested for violation of federal parole. Here again there was no preliminary revocation hearing held. Prior to the hearing on the violation of parole, he requested the appointment of counsel to assist him at the revocation hearing. However, this was denied, as shown by the memorandum of Judge Stanley, filed November 23, 1976. Subsequently, there was a hearing on the revocation and parole was revoked December 22, 1976. In June 1977, Espinoza requested that counsel be appointed to aid him in a habeas corpus proceeding. The Federal Public Defender’s office from Kansas was appointed to represent him. The proceeding was entitled: John M. Espinoza v. Charles L. Benson, Warden, etc., et al., No. 77-3187. The petition for habeas corpus was filed with the aid of the Public Defender’s office. This challenged the parole revocation on a number of grounds including the failure to appoint counsel for the revocation hearing. The petition for permanent writ was denied August 16, 1977, by Judge Richard D. Rodgers. Thereafter, notice of appeal was filed, and an order was entered allowing the appeal on August 31, 1977.
THE DISTRICT COURT DECISION
The trial court held that notwithstanding adoption by the Congress of 18 U.S.C. § 4214, that the appointment of counsel in a revocation proceeding continues to be within the discretion of the trial judge. The reason given was that the provision of the Parole Act which provides that counsel shall be provided adds the statement “pursuant to 18 U.S.C.A. § 3006A.” The trial court said the term “pursuant to” (in § 4214) means “in accordance with.” “The language of subsection (g) of 18 U.S.C. § 3006A is clear and unambiguous in providing the appointment of counsel for a person subject to revocation of parole when the court determines that the interests of justice so require.”
The court cited the pre-Parole Aet decisions of the Supreme Court, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 490, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). These cases were, of course, decided in the context of § 3006A(g), which expressly authorized the exercise of discretion in appointment of counsel. The conclusion was that the interest of justice did not call for appointment of counsel in the instant case.
I.
Before the enactment of the Parole Commission and Reorganization Act, which is commonly referred to as the Parole Act, the appointment of counsel in revocation proceedings was left to the discretion of the court or magistrate having jurisdiction of the case. See 18 U.S.C. § 3006A. The government contends that the discretionary aspect continues under the new law. One reason for this is that the court decisions have shown reluctance toward appointing counsel in parole revocation proceedings.
The Supreme Court has held, however, that the Sixth and the Fourteenth Amendments require the state and the federal government to appoint counsel for indigents accused of crime. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), which requires appointment of counsel for an indigent defendant at every stage of a criminal proceeding which involves substantial rights. But the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), ruled that parole revocation is not part of a criminal prosecution so as to require the appointment of counsel in these proceedings. The reasoning was that it deprived the parolee of less than the absolute liberty enjoyed by every citizen and it deprived him of only the conditional liberty dependent on observance of special parole restrictions. Morrissey did not decide the question whether the parolee is entitled to the assistance of counsel if he is indigent. The present law was enacted subsequent to Morrissey v. Brewer, supra. It was in that background that the Parole Act was adopted. Although it refers generally to § 3006A of the Criminal Justice Act, it provides that for those who are financially unable to hire counsel, counsel shall be provided pursuant to the Criminal Justice Act. Consistent with this, the Act specifically lists and enumerates the rights of the parolee, procedural and substantive, including the right to counsel at preliminary revocation proceedings as well as final ones.
The Supreme Court’s most recent decision in this general subject area, Moody v. Dag-gett, 429 U.S. 78, 84-85, 97 S.Ct. 274, 277, 50 L.Ed.2d 236 (1976), through the Chief Justice, commented on the right to counsel under § 4214(b)(1) and recognized the right to counsel under that related section by stating that the parolee is entitled to assistance of appointed counsel if requested. It was there said:
The 1976 Act and accompanying regulations, [28 CFR § 2.1 et seg.] (1976), incorporate the former procedures with few modifications. Under current law, the Parole Commission reviews the parole violator warrant within 180 days of its issuance, 18 U.S.C.A. § 4214(b)(1) [June 1976 Supp.]; the parolee, after notification of the impending review, is now entitled to assistance of appointed counsel, if requested, in preparing his written response. 18 U.S.C.A. § 4214(b)(1), (a)(2)(B) [June 1976 Supp.]. The 1976 Act also abolishes the annual status review formerly required. Previously it was general practice to defer execution of the warrant to completion of the subsequent sentence. It is now firm Commission policy that unless “substantial mitigating circumstances” are shown, the parole violator term of a parolee convicted of crime is to run consecutively to the sentence imposed for the subsequent offense. 28 CFR § 2.47(c) (1976). (Emphasis supplied).
II.
The legislative history of the Act shows that the Congressional intent was to provide counsel in all revocation proceedings unless the parolee waives such right. The House Conference Committee stated on page 34 of the Conference Report, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 351, 366, that “both the preliminary and revocation hearing shall be conducted in accordance with the following procedures”:
(b) the right to be represented by retained counsel or if he is unable to retain counsel, counsel shall be provided pursuant to the Criminal Justice Act (18 U.S.C. 3006A) or another representative as provided by rules and regulations.
On page 21 of the Report, it is said:
In the area of parole decision-making, the legislation establishes clear standards as to the process and the safeguards incorporated into it to insure fair consideration of all relevant material, including that offered by the prisoner. The legislation provides a new statement of criteria for parole determinations, which are within the discretion of the agency, but reaffirms existing caselaw as to judicial review of individual case decisions.
In the next paragraph the Report describes the provisions for appointment of counsel as follows:
The legislation also reaffirms caselaw insuring a full panoply of due process to the individual threatened with return to prison for violation of technical conditions of his parole supervision, and provides that the time served by the individual without violation of conditions be credited toward service of sentence. It goes beyond present law in insuring appointment of counsel to indigents threatened with reimprisonment. (Emphasis supplied).
Prior to enactment the Senate version of this measure provided for optional appointment under the Criminal Justice Act. The House version required retained or appointed counsel unless waived by the parolees. It was said by Representative Kastenmeier on the floor of the House:
* * * The two Houses were in disagreement over the role of appointed counsel in revocation hearings. The House bill held that revocation of parole entailed a serious possible deprivation of liberty which required that the parolee have the benefit of counsel in order to be able to marshal his arguments and organize his defense.
The Senate agreed that this was a reasonable position, and the Conference does provide for counsel at revocation proceedings. 122 Cong.Rec. H1500 (March 3, 1976).
III.
The wording of 18 U.S.C. § 4214(a)(2)(B) shows an intent on the part of Congress to confer on the parolee a right to counsel unless the parolee knowingly and intelligently waives such representation. The enacted provision reads as follows:
Opportunity for the parolee to be represented by an attorney (retained by the parolee, or if he is financially unable to retain counsel, counsel shall be provided pursuant to section 3006(A) or, if he so chooses, a representative as provided by rules and regulations, unless the parolee knowingly and intelligently waives such representation.
Use by Congress of the word “shall” and of the words which require that the parolee waive counsel knowingly and intelligently are cogent evidence of this intent on the part of Congress.
The quoted section is a part of the procedural provisions of the Act as to hearings to be conducted by the Parole Commission, the giving of notice as to violations and as to the time, place and purpose of the scheduled hearing, provision for appeal, the right of the parolee to testify and present witnesses, his opportunity to be apprised of the evidence against him and to confront and cross-examine adverse witnesses if he so requests. It also provides for subpoenaing witnesses and describes the proceedings applicable to subsection (B).
The government’s argument that the right to counsel in these proceedings continues to be subject to the discretion of the court is based on the reference in § 4214(a)(2)(B) to § 3006A. Section 3006A is the Criminal Justice Act, the various sections of which detail the procedure for appointment of counsel in criminal prosecutions. Subsection (g) of that Act states that persons subject to revocation of parole may be furnished representation pursuant to the Criminal Justice plan when the magistrate or the judge determines that the interests of justice so require. The government’s position is that this general reference to the Criminal Justice Act resulted in resurrecting the provision of the Act which makes appointment of counsel discretionary; that the matter of appointment of counsel continues to be a matter of discretion and not of right. This argument disregards the use of “shall” in the new Act and disregards as well the many evidences that Congress intended for the parolee whose parole was being revoked to have the right to demand or waive counsel. If Congress had intended for the law to remain the same, it is unlikely that it would have couched § 4214(a)(2)(B) in terms like “shall.” Nor would it have provided for existence of the right unless waived. Furthermore, Congress would not have, on the one hand, granted to the parolee a right to have counsel, while simultaneously nullifying the right by deferring generally to the Criminal Justice Act.
The terms of the Act considered as a whole are at odds with the construction which the government contends should be given. The new Parole Act undertakes to provide for due process at every stage of the proceedings and in this connection it provides for the right to counsel at each stage.
Thus, even a revocation which is pursuant to § (b)(1), which is based on a conviction for a federal, state or local crime subsequent to the granting of parole, notwithstanding that it constitutes probable cause for the revocation, nevertheless, requires a review by the Commission. It also requires that the parolee receive notice of the pending review and an opportunity to submit a written application containing information as to the disposition of the detainer (resulting from the conviction which is the basis for the parole violation). Section (b)(1) further states that the parolee shall have counsel as provided in subsection (a)(2)(B) unless it is waived to assist him in the preparation of such application.
If, in connection with revocation based on conviction the Commission needs additional information, notice must be given to the parolee. Also, he must be allowed to appear and testify and, unless waived, shall have counsel as provided in subsection (a)(2)(B).
In the situation in which the alleged violator is taken by warrant and knowingly and intelligently waives his right to a hearing under subsection (A), he is entitled to counsel under subsection (c), where he waives preliminary hearing and where the final revocation hearing is held within 90 days.
The point we make is that counsel is provided for not only at the revocation hearing, but in connection with most other actions which are taken incident to such revocation. All of this we say refutes the government’s argument that the right to counsel is hedged or conditioned. Instead it evidences intent by Congress that, unless waived, the right exists throughout the proceedings.
IV.
A line of decisions of this court, most of which are unpublished, pursue a position opposite to that which we take here. See Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978); In the Matter of the Application of Dale E. Crowder for Appointment of Counsel, No. 76-2103 (10th Cir., June 10, 1977); In the Matter of the Application of Thomas A. Quirk for Appointment of Counsel, No. 76-1578 (10th Cir., December 7, 1976). Cf. Coronado v. United States Board of Parole, 551 F.2d 275 (10th Cir. 1977). With the exception of Robinson v. Benson, supra, these are summary affirmance cases. All of these decisions dispose of the issue on the ground that the general reference in § 4214(a)(2)(B) to § 3006A, the Criminal Justice Act, perpetuated the old law. One subsection of § 3006A, subsection (g), provides for discretionary appointment of counsel. If the statute had been written so as to refer specifically to subsection (g) of § 3006A, the argument of the government would be better supported. As it is, the reference contained in § 4214(a)(2)(B) is to § 3006A alone. It is then a general reference to the machinery contained in the Criminal Justice Act and brings into play the machinery of that Act like manner of appointment and other administration.
In our unpublished decision, In the Matter of Ronald D. Richardson for Appointment of Counsel, No. 76-1786 (10th Cir., October 20, 1976), this court reiterated that no right to counsel existed. It said:
The Supreme Court has held that there is no per se requirement of appointment of counsel for indigents in the context of a parole revocation setting. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). However, 18 U.S.C.A. § 4214(a)(2)(B) and 18 U.S.C. § 3006(A) [3006A] provide for discretionary appointment of counsel where a court determines that the interests of justice so require.
The district court noted that appellant’s admission of conviction of another crime would be sufficient to justify revocation of parole, regardless of appellant’s intention to dispute charges listed on the warrant. Cotner v. United States, 409 F.2d 853 (10th Cir. 1969). On this basis, the district court determined that the interests of justice did not require appointment of counsel in appellant’s case.
This is somewhat representative of the basis on which these decisions have proceeded, which is that they assume that 18 U.S.C. § 4214(a)(2)(B) incorporates by reference 18 U.S.C. § 3006A(g). As noted above, they fail to take into account that subsection (g) is not mentioned in the new enactment. The opinion of the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), continues to be cited, notwithstanding that it is no longer law. We quote from Ronald D. Richardson, supra, because it is representative of the way that the others are handled. Because these cases are not in accord with the Act of Congress, they can no longer be regarded as authority.
The explanation for the resilience of the discretion rule in parole proceedings is perhaps attributable to the fact that the parole status has long been regarded as a privilege, which can be revoked at will. Due process in this context has not been considered a problem by the courts, and undoubtedly this is why the courts have been slow to accept the dictates of the 1976 Parole Act, even though it defines the rights of parolees in strong terms.
V.
Finally, counsel for the government have filed a “Suggestion of Mootness” in respect to both William Baldwin, appellant, and John M. Espinoza, petitioner-appellant.
As to Baldwin, it is said that following a regular review hearing in March 1978, the Parole Commission ordered that Baldwin be reparoled effective June 8, 1978. Subsequently, Baldwin was released on parole and is now under parole supervision.
Espinoza, it is said, was granted parole on April 25, 1978, “to the Northern District of California.” The government claims that it is axiomatic that a concrete and continuing case or controversy must exist in order to allow a judicial resolution of the issues presented by a case, citing DeFunis v. Ode-gaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1971), and North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). It is also pointed out that since neither appellant is in confinement, the required concrete case is not present.
We must disagree with the government’s position. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). There Sibron was convicted and sentenced to six months. He completed service of the six-month sentence, and it' was contended that the case became moot when he was released under St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). The Court «ruled, however, that serving the sentence did not cause mootness. It rejected the proposition that there was no longer subject matter on which the judgment of the court could operate. The Supreme Court noted that most criminal cases involve adverse collateral legal consequences, and so the mere possibility that this will be the case is enough to preserve a criminal case from ending “ignominiously in the limbo of mootness.” The fact that the conviction could be used in New York for impeachment purposes was regarded as enough to keep the litigation alive. The Court said that the case of St. Pierre had to be read in the light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will flow from the challenged conviction.
As to continued jurisdiction to entertain a writ of habeas corpus, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), has held that a state prisoner free on parole was in custody within the meaning of the habeas corpus act, § 2241, and could challenge the validity of his conviction. The Court said that while the petitioner’s parole released him from immediate physical imprisonment, it nevertheless imposed conditions which significantly confined and restrained his freedom, and that this was enough to keep him in the “custody” of the members of the Parole Board, in this instance Virginia, within the meaning of the habeas corpus statute. In Jones, as here, the accused had been in prison when the petition was filed.
In Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), the petitioner was in prison when the petition was filed. His sentence expired while the petition was pending and he was unconditionally released. The Court overruled its prior decision in Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960), and held that the release did not moot the proceeding. It noted that civil disabilities and burdens accompanied the prisoner after his release. This was seen as justification for its conclusion that the case was not moot.
Cf. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), wherein the Supreme Court held that where habeas corpus cannot be used that the writ of coram nobis can be employed for the purpose of attacking a judgment.
Thus it must be concluded that the suggestion of mootness is wholly without merit.
The cause is remanded to the district court with directions to that court to void the orders of revocation which were granted illegally and without having afforded the appellant and the petitioner-appellant the right to have counsel at the said hearing and for related proceedings consistent with the views expressed above.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer: |
songer_respond2_4_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 second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy providing services". Your task is to determine which specific substate government agency best describes this litigant.
BUICK MOTOR CO. v. CITY OF MILWAUKEE, WIS., et al.
No. 4418.
Circuit Court of Appeals, Seventh Circuit.
April 6, 1931.
O. A. Oestreieh, M. O. Mouat, and P. J. E. Wood, all of Janesville, Wis., and John Thomas Smith, of New York City, for appellant.
Walter J. Mattison and John M. Niven, both of Milwaukee, Wis., for appellees.
Theo. W. Brazeau, of Wisconsin Rapids, Wis., for Wisconsin Tax Commission.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal involves the validity of a reassessment by the Wisconsin tax commission for state income taxes for the years 1917 to 1924, inclusive, of appellant, Buiek Motor Company, a Michigan corporation licensed to do business in Wisconsin.
The company has a capital stock of $10,-000, all owned by General Motors Company, a Delaware corporation, and carried in the names of its nominees.
Under date of January 2, 1917, “General Motors Company * * * termed the Seller” contracted in writing with “Buiek Motor Company * * * termed the Buyer” whereby “the Seller agrees to sell to the Buyer and the Buyer hereby agrees to buy from the Seller the entire output of automobiles and their parts of the (seller’s) ‘Buiek’ factory at Flint, Michigan, upon a basis which will result in an annual net profit of Twenty-five Hundred Dollars to the Buyer on said business.” The contract has unlimited duration.
To appellant’s Wisconsin branch, with headquarters at Milwaukee, there was assigned as its territory the northern peninsula' of Michigan and all the state of Wisconsin, except the southern tier ofi e.ounties, which counties were part of the territory assigned to and served from the Chicago branch.
During the years in question appellant’s annual sales of cars and parts ranged from a minimum of $89,000,000 to a maximum of $231,000,000; whereof the annual sales of the Wisconsin branch were from $2,454,000 to $6,800,000. The ears and parts’sold by the Wisconsin branch were billed to the branch by appellant at about the same price as to independent distributors, and were shipped from General Motors’ factory at Flint, Mich., and remittances were made by the customers to the Wisconsin branch, whieh, having no bank account of its own, sent the remittances as received to General Motors.
For the year 1917 appellant returned for Wisconsin tax an income of $5,018.42, but later contended that its income was only $2,-500, which was the income whieh it annually returned for some years thereafter. For 1919 the tax commission, over appellant’s protest, added as further income $80,051, whieh represented, in the main, Wisconsin’s proportion of an aggregate amount of $1,419,290'.16 withheld by appellant as reserve for dealers’ rebates.
In 1920 the tax commission signified its dissatisfaction with appellant’s, general plan of return of income, and there ensued considerable correspondence and discussion between them, resulting, in -1921, in the inauguration of the general practice of treating appellant’s Wisconsin branch, for income purposes, as though the branch were an independent jobber or distributor of the Buiek products. Amended returns were accordingly filed for 1919 and 1929 (but none for prior years) whereunder there was refunded to appellant $2,993.78 of the income tax it had paid for 1919. For the subsequent years in issue appellant assumed to return its income upon this basis, and paid its income taxes thereon. The data for the annual returns were supplied by appellant.
But in 1926 the commission caused its own audit to be made of appellant’s accounts to ascertain whether the returns which had theretofore been made truly reflected its income. After an apparently exhaustive investigation of appellant’s accounts, as well as those of General Motors, the commission concluded that these returns -did not truly reflect the income and ordered a reassessment, whereby there was added to the income as returned sufficient to increase the tax which had been paid for the years in question, plus interest, by an aggregate for the period of $226,734. This reassessment of income, and the tax thereon, was sustained by the District Court, whose decree is the subject of this appeal.
As to the accuracy of the commission’s audit there is no controversy. In the concluding paragraph of appellant’s reply brief it is said: “The fact of the matter is that the audit of the commission is substantially correct, its premise or base of approach admitted ', * ■ * * ”
It is insisted for appellant that the transactions of 1929 and 1921 between appellant and the commission estop the commission from questioning returns made in pursuance of the understanding apparently then reached. Apart from any question of the right of the commission to bind the state by any understanding or contract, it does not appear that what was then done rose to the dignity of a contract, nor that there was a hearing and decision by the commission adjudicating the rights of the parties. In any event, it seems plain that at that time all of the salient facts bearing upon appellant’s income were not before the commission. Indeed, it is contended for appellee that in making the reassessment the commission did not depart from the general basis of understanding which was reached in 1921. To be sure, if the returns made by appellant had embodied the figures as found by the commission’s audit, the discrepancies between them would not appear. To the extent therefore that appellant’s returns were erroneous— whether intentionally or mistakenly — the commission could not be estopped by any understanding reached in 1921, as that understanding did not and could not properly bind the commission to specific items or figures of income.
In Judge Geiger’s further discussion of this proposition in his opinion in the District Court, to which we make reference, he has abundantly demonstrated that this contention of appellant is not well grounded. 43 F.(2d) 385.
But it is insisted that the intercorporate contract relation should be given effect, and that the stipulated $2,599 of net profit to appellant should be held to be the maximum of appellant’s actual taxable income for each of the years in question. Whether the contract, as between the contracting parties, is upon its face fraudulent, does not concern the state in the matter of its taxes upon income derived from business transacted within its limits. Whatever other purpose such a contract might have, the conclusion seems quite irresistible that one of its objects was to transfer the income arising from the business of such states as then had, or might thereafter enact, an income tax law, so that the income would not be taxable in the state where earned. This motive might not alone warrant the state in ignoring the contract, but if appellant, notwithstanding the contract, continued to earn the income upon business transacted within the state, the contract would not serve to defeat the right of the state to tax the income so earned.
The function of selling the product was a highly essential department of General Motors’ business, scarcely less so than the manufacturing end of the operations, and was entitled to be credited with a substantial share of the profits of the general business. By turning over to General Motors the remittances for sales made by appellant’s Wisconsin branch, the profits which appellant earned on its Wisconsin business were diverted to appellant’s one stock owner — General Motors. While appellant carried on this vast business under an arrangement with General Motors whereby the profits realized at once passed to General Motors, the profits constituted taxable income in Wisconsin ere they passed to the single beneficial owner of the capital stock. Distribution of corporate profits to or among stockholders, by whatever form, does not relieve the corporation from income tax on what is so earned and distributed. Cliffs Chemical Co. v. Wis. Tax Comm., 193 Wis. 295, 214 N. W. 447, 449; Shaffer v. Carter, 252 U. S. 37, 49 S. Ct. 221, 64 L. Ed. 445; Houston, etc., Co. v. United States (C. C. A.) 259 F. 1; Rensselaer & S. R. Co. v. Irwin (C. C. A.) 249 F. 726; West End St. Ry. Co. v. Malley (C. C. A.) 246 F. 625; Judson Freight Forwarding v. Commonwealth, 242 Mass. 47, 136 N. E. 375, 27 A. L. R. 1131.
It is maintained for appellant that General Motors was also licensed to do business in Wisconsin, and that if this income from the selling of Buick products were taxable in Wisconsin it should be assessable to General Motors as its income. But appellant is a distinct corporation, which had contracted with General Motors to buy and sell Buick automobiles and parts, and it was this separate entity which transacted this business in Wisconsin, and to this entity the state had a right to look for its tax upon the profit arising in Wisconsin from the transaction of this business there. Judge Geiger’s opinion has, in our judgment, well demonstrated that the intercorporate contract does not limit the state to a tax upon the income which the contract assumes to prescribe.
But if the binding effect of the transactions of 1921 were assumed, as contended for appellant, appellant would be likewise thereby bound, and, failing then and thereafter to have fully made the disclosures of income which those negotiations assumed would be made, it may not complain if thereafter the true state of the income is made to appear and its taxes reassessed accordingly. For the taxable years 1917 and 1918 it does not appear that any reassessment was made at all pursuant to the 1921 understanding, nor that the alleged agreement of 1921 was ever acted on as to those years.
The right to make such reassessment is recognized in section 71.25 (1), Wisconsin Statutes enacted in 1925.
In a quite comparable situation, where it was contended that the act should not be applied retroactively, and, if so applicable, would be unconstitutional, the Supreme Court of Wisconsin said that in passing the act the Legislature “merely directed tbe Tax Commission. to conform to a method which would have' been their duty to adopt without the act. But even if applied retroactively, the statute would not be unconstitutional on that ground.” Cliffs Chemical Co. v. Wis. Tax Comm., supra.
We find no merit in the suggestion that the sales made to dealers in the northern peninsula of Michigan were not Wisconsin business, and that the profit thereon was not includable in the Wisconsin returns. The sales were made through and by, and the remittances therefor made to, the Wisconsin branch at Milwaukee, and were in essence Wisconsin business. If the fact that the shipments to the northern peninsula were made directly from Flint constituted them Michigan and not Wisconsin business, then, by the same token, the sales made in that very considerable territory comprising the southern tier of Wisconsin counties, although made by the Chicago branch, would be Wis- ■ consin business and the profits taxable in 'Wisconsin. But appellant did not include in its Wisconsin returns the income on that business, and it would thus scarcely be in position to maintain that the northern peninsula business transacted through the Wisconsin branch was not Wisconsin business.
It is contended that section 71.25 is unconstitutional because it grants to the commission judicial powers, if authorizing it to determine whether the intercorporate contract was in fraud of the Wisconsin income tax law. On this we need say no more than that the statute was distinctly held constitutional by the Wisconsin Supreme Court in Cliffs Chern-, ical Co. v. Wis. Tax Comm., supra.
It is further contended that the reassessment in question deprives appellant of prop-* erty without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States. To the extent that this contention is predicated on the assumption that appellant is taxed upon income which it did not receive, that proposition of fact has been heretofore sufficiently considered, and disposed of contrary to appellant’s contention.
The Cliffs Chemical Co. case, where the tax was upheld on property which, as produced, was distributed to the corporate stockholders, and where the same federal constitutional proposition would be involved as here, was heard on error in the United States Supreme Court, which dismissed it “for'want of" a substantial federal question.” Cliffs Chemical Co. v. Wis. Tax Comm., 277 U. S. 574, 48 S. Ct. 435, 72 L. Ed. 994.
Appellant insists that, in any event, it is entitled to such a deduction from the ascertained income as would be the equivalent of such a federal income tax as would have been required to be paid by an independent jobber or dealer who had earned on Wisconsin business the same income which was found to have been earned by appellant for the years in question. Appellant contends that an independent dealer -who had earned this income would have been required to pay a federal tax very much larger than the federal taxes which in fact the commission did deduct from income.
The commission dealt with the federal income tax feature by apportioning to the Wisconsin income a proportionate share of the entire federal income tax which was paid for the respective years by General Motors, whose returns to the federal government included the profits of all its subsidiaries, including appellant. The apportionment made by the commission is not attacked, but the method is questioned. For instance^ for the year 1921 the deductible losses of General Motors Company were sufficiently heavy to neutralize its entire profits and it paid no federal income tax for that year; and so for that year the commission made no deduction on account of federal income taxes. To the extent that in other years the income of General Motors was reduced by deductible losses, the proportion of federal income taxes paid attributable to Wisconsin income wonld be proportionately less, whereas it is contended the profits of an independent dealer transacting the Wisconsin business would not likely have been subject to such reduction.
Of course we cannot know what deductions from income an independent dealer would have been entitled to make. There are many contingencies which could not have been anticipated. Once it is determined what income was taxable to appellant, the tax will not be defeated by embarrassments in the way of determining what deductions from income the taxpayer might have been entitled to have had allowed.
If the practice was, as it seems to have been, to determine the federal income tax upon a consolidated return by General Motors and all its subsidiaries, we cannot see that the state was derelict in its duty or unfair toward appellant in deducting from Wisconsin income, for purposes of the state income tax, such a proportion of federal income taxes paid by the parent company as would be attributable to Wisconsin income. If none were paid, then none would be deductible. The gross amount so deducted by the commission for federal taxes paid by General Motors, and attributable to Wisconsin income, during the period in question, was $422,237.82, and we find no substantial ground for complaint in the contention that the deduction should have been made.
Under the circumstances appellant is not in position to complain of the method adopted, particularly as the record makes no disclosure of a definite plan which is more fair.
Generally speaking, strict máthematical certainty cannot reasonably be expected in such matters. In the routine of taxation as applied to ordinary business, slight departures either in method or computation involving trivial amounts will.not be noticed. Having in mind the magnitude of the business here involved, we believe the commission reached a conclusion which sufficiently approximates justice between this taxpayer and the state as to require approval of the result.
The decree of the District Court is affirmed.
“(1) Wken any corporation liable to taxation under this act conducts its business in such a manner as either directly or indirectly to benefit the members or stockholders thereof or any person, interested in such business, by selling its products or the goods or commodities in which it deals at less than the fair price which might be obtained therefor, or where a corporation, a substantial portion of whose capital stock is owned either di’rectly or indirectly by another corporation, acquires and disposes of the products of the corporation so owning a substantial portion of its stock in such a manner as to create a loss or improper net income, the commission may determine ’the amount of taxable income of such corporation for the calendar or fiscal year, having due regard to the reasonable profits which but for such arrangement or understanding might or could have been obtained from dealing in such products, goods or commodities.”
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy providing services". Which specific substate government agency best describes this litigant?
A. Police, Sheriff
B. Fire
C. Taxation
D. Human Services/Welfare/Health Care
E. Streets and Highways
F. Transportation
G. Election Processes
H. Education - Not School Board
I. Other Service Activity
J. not ascertained
Answer: |
songer_counsel | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" 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".
Erna YAFFE and James Hornsby, Plaintiffs-Appellants, v. James E. POWERS, as Chief of Police of the Fall River Police Department and Ronald Andrade, as a Police Officer in the Fall River Police Department, Defendants-Appellees.
No. 71-1269.
United States Court of Appeals, First Circuit.
Heard Dec. 8, 1971.
Decided Jan. 26, 1972.
Matthew H. Feinberg, Boston, Mass., with whom John Reinstein, Cambridge, Mass., Ronald F. Kehoe, C. Michael Malm, and Hausserman, Davison & Shattuck, Boston, Mass., were on brief, for appellants.
James P. McGuire, Fall River, Mass., with whom McGuire & Collias, Fall River, Mass., was on brief, for appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
On May 5, 1970, some two hundred citizens attended a memorial service, commencing at the campus of Bristol Community College and terminating at the post office in Fall River, Massachusetts, to protest United States military action in Cambodia and Ohio National Guard action at Kent State University. Prior to this gathering, Fall River authorities had been concerned over the activities of a “Regional Action Group” which they feared to be organizing a violent demonstration along with activists who had taken part in recent riots in other Massachusetts cities. In order to keep track of “the extent of infiltration and participation by known violent activists of the Regional Action Group into the conduct of the memorial services”, the Fall River police department sent a police photographer, not in uniform, to take pictures of the activities at the campus and post office.
Plaintiff Yaffe, invited by the sponsors to speak as a substitute for her husband who was then running for Congress, and plaintiff Hornsby, a clergyman and member of the Fall River school committee, were among those present who were included in one or more photographs taken. One or more photographs of Hornsby was purportedly displayed in a public area of the Fall River police station for several weeks. A police photograph of a speaker, an alleged member of the Regional Action Group, at the memorial service, and three onlookers, including plaintiff Yaffe, was allegedly given to the Providence Journal and published in connection with a story on “Fall River Radicals”, based on defendant Andrade’s testimony before the Senate Subcommittee on Internal Security. The testimony related to surveillance of the Regional Action Group prior to a planned march on May 1, 1970 — which was called off at the last minute.
The plaintiffs brought suit against the Fall River police chief and Sergeant Andrade, alleging that surreptitious police photography, surveillance, the keeping of notes, and the maintaining and circulating of photographs and dossiers on participants at meetings such as that held on May 5, 1970, harass the plaintiffs and deter others from participating in public meetings held to express unconventional views. Plaintiffs seek a declaratory judgment that such surveillance, photographing, maintaining files, and circulating the contents thereof have violated their constitutional rights, and an injunction restraining defendants from taking such actions except “where such actions are necessary for the apprehension of persons who will be charged with specifically defined crimes.”
The present appeal follows plaintiffs’ unsuccessful attempt before the district court to represent as a class “all other individuals who wish to ... engage, in the City of Fall River, in peaceful political discussion without surveillance and photographing by defendants . . . without becoming the subject of dossiers, reports and files maintained by the defendants, and without any publication by defendants to other persons of the contents of any such dossiers . . . .” Plaintiffs, so conceiving their class, immediately sought to initiate extremely broad discovery, encompassing not only any police department file item relating to them as individuals and all notes relating to the May 5, 1970, meeting, but all files, memoranda, notes, etc. “relating in any manner to political protests, demonstrations, rallies or meetings and other so-called ‘subversive activities’ carried on in the Fall River area during 1969 and 1970 . . . excepting therefrom matter relating directly to the prosecution of any person who has been charged with a crime [,] which charge has resulted in a criminal conviction or is still pending.” Both the determination of the class and the scope of the discovery order were the subject of a memorandum and order, prepared by the magistrate and approved by the district-court. The court found that the requirements of Rule 23, F.R.Civ.P., had not been fulfilled and ordered discovery accordingly limited to matters directly relating to the named plaintiffs.
We have asked for and received briefing on the issue of the appealability of a district court’s refusal to recognize a class. Plaintiffs concede that the order was not “final” within the meaning of 28 U.S.C. § 1291 and that there was no certification by the court under 28 U.S.C. § 1292(b), but assert that the district court’s action is nonetheless appealable under 28 U.S.C. § 1292(a) (1) as an order “granting, continuing, modifying, refusing or dissolving injunctions . .” Although the district court did not specifically act with reference to the injunctive relief claimed in the complaint, the substantial effect of its order denying leave to proceed as a class is • to narrow considerably the scope of any possible injunctive relief in the event plaintiffs ultimately prevail on the merits. Even if defendants are prohibited from recording, collecting and disseminating information on the named plaintiffs, as well as on others who may be persuaded to intervene, the assumed chilling effect of the continued surveillance of non-parties would reduce the class of persons willing to engage in public exchange of views on controversial subjects to those named in the complaint. Had the district court declined to determine a class provisionally, reserving final decision until more facts were presented, see Rule 23(c) (1), the case would be in a different posture insofar as appealability is concerned. As it is, we hold the district court’s order appealable as a denial of the broad injunctive relief sought and proceed to a review of the order on its merits. Brunson v. Board of Trustees, 311 F.2d 107 (4th Cir. 1962), cert, denied, 373 U. S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963). Cf. Spangler v. United States, 415 F.2d 1242, 1246-1247 (9th Cir. 1969); Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 825-826 (2d Cir.), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). See also Note, Interlocutory Appeal from Orders Striking Class Action Allegations, 70 Col.L.Rev. 1292 (1970).
In passing on plaintiffs’’ application for certification of a class, the district .court assumed that “all of the requires ments of Rule 23 of the Federal Rules of Civil Procedure must be met before an action can be classified as a class action.” From this erroneous premise, the court then proceeded to identify three requirements which it felt had not been sufficiently satisfied. First, the court stated that the class which plaintiffs hoped to represent had not been adequately defined. In reaching this conclusion the court compared the class allegation in the complaint, where the relevant class was defined as those “who wish ... to engage, in the City of Fall River” in various forms of public protest, with that in plaintiffs’ supporting memorandum of law, where the putative class we defined as those persons “in the Fall River community who have been similarly subject to police surveillance . . . .” This variance, according to the court, left the class inadequately defined since “it is not uncommon” for “the majority of the people attending rallies, indeed if not all” to come from outside the host community. Second, the court felt that as to such an amorphous group of persons there was no assurance of predominating questions of law or fact. The court took judicial notice that “professional demon-trators”, variously described as “persons who engage in the business of promoting demonstrations or who attend demonstrations for the sake of creating disturbances”, often attend mass rallies and as to those persons there would be different questions of fact and different defenses available to the police. Finally, and as a consequence of the two difficulties noted above, the court doubted that a class action was superior to other available methods for the fair and efficient adjudication of the controversy.
It is quite understandable that courts, when called on as here to order wide-open discovery in the name of recently refurbished class actions in the relatively new civil rights field, might well take a jaundiced look at the nature and scope of injuries asserted. Yet for a court to refuse to certify a class on the basis of speculation as to the merits of the cause or because of vaguely-perceived management problems is counter to the policy which originally led to the rule, and more especially, to its thoughtful revision, and also to discount too much the power of the court to deal with a class suit flexibly, in response to difficulties as they arise. See Committee’s Criticism and Notes to Revised Rule 23, 3B Moore’s Federal Practice f[ 23.01 [8] — [13] (2d ed. 1969).
Had the discretion lodged in the trial court by Rule 23(c) and (d) as to determination of classes and subclasses, conditional orders, imposing conditions, prescribing measures to prevent undue complication, etc., been properly exercised, we would have given its decision weighty deference. Cypress v. Newport News General and Nonseetarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967). See also 3B Moore’s Federal Practice 23.50, at 1105 (2d ed. 1969). But because of several fundamental legal misconceptions which significantly affected the court’s receptiveness to plaintiff’s application, much of the available discretion was not exercised and considerations both of judicial efficiency and of ultimate fairness to the parties therefore require us to engage in a rather full review of the proceedings below.
The most basic error committed by the district court was in applying the criteria set out in subdivision (b) of Rule 23 cumulatively rather than alternatively. In holding that a class should not be certified because its members had not been sufficiently identified, for example, the court applied standards applicable to a subdivision (b) (3) class rather than to a subdivision (b) (2) class. Although notice to and therefore precise definition of the members of the suggested class are important to certification of a subdivision (b) (3) class, notice to the members of a (b) (2) class is not required and the actual membership of the class need not therefore be precisely delimited. In fact, the conduct complained of is the benchmark for determining whether a subdivision (b) (2) class exists, making it uniquely suited to civil rights actions in which the members of the class are often “incapable of specific enumeration”. Committee’s Notes to Revised Rule 23, 3B Moore’s Federal Practice j[ 23.01 [10-2] (2d ed. 1969).
Similarly, the existence of “predominating” questions and the availability of other methods of resolution which might be superior to a class action are not criteria of a subdivision (b) (2) class, but again of a (b) (3) class, which was not suggested. It may be, as the court indicated, that several questions of law or of pertinent fact are involved here, or as the court did not indicate, that there are no questions of law or of fact common to the class, but only the latter would be grounds for denying class status and even it may — require__pxeli.mi-nar^ — discovery. To pronounce finally, prior to allowing any discovery, the non-existence of a class or set of subclasses, when their existence may depend on information wholly within defendants’ ken, seems precipitate and contrary to the pragmatic spirit of Rule 23. ******Evidence which might be forthcoming might well shed light on a final decision on this issue. Tatum v. Laird, 444 F.2d 947, 957 n. 21 (D.C. Cir. 1971).
The danger of passing on the merits of a claim at the stage when only the existence of a class is at issue, as well as the confusion resulting from the court’s speculation as to the status of the members of the putative class rather than its focusing on the effect of the conduct complained of, is made real for us by the court’s equating as “professional demonstrators” “those who engage in the business of promoting demonstrations” and those “who attend demonstrations for the sake of creating disturbances”. Whatever justification for advance surveillance could rightly apply to the latter, see Anderson v. Sills, 56 N.J. 210, 265 A.2d 678 (1970), might not be at all appropriate for the former, which would include Quakers planning gentle anti-war vigils.
We have said enough to reveal our conviction that the court’s refusal to recognize a class action was based in significant part upon its failure to recognize both the obligations and opportunities of Rule 23. This, however, is not to say that we have enough grasp of the interests of the putative class as they may be defined by the actions of the defendants to declare and define the class ourselves and, as plaintiffs pray, order discovery proceedings to commence in accordance with such determination. Such a declaration and the attendant consequences should not ordinarily stem from a reviewing court. The genius of Rule 23 is that the trial judge is invested with both obligations and a wide spectrum of means to meet those obligations. See, e. g., Baxter v. Savannah Sugar Refining Corporation, 46 F.R.D. 56, 60 (S.D.Ga.1969). An appellate court is not well situated to umpire an entire ball game.
We therefore conclude that the issue of the existence of a class must be reopened by the district court. A decision to declare the existence or non-existence of a class (or subclass) need not necessarily be made at this stage of the proceedings. But progress toward re-, solving the class definition issue would seem to require some discovery, under such terms as the court may see fit to impose, of the extent of, say, the practice of the police photographing and making such photographs available to others. Since a rule 23(b) (2) class is defined by the actions which a defendant has taken toward the class, and which should arguably be enjoined, it may appear sensible to ascertain the nature of the actions taken with more precision than reference to pleadings and affidavits permits. While what we have) said implies somewhat more initial discovery than that limited to information concerning the two plaintiffs, we do not imply that, prior at least to a definitive determination of a class, the entire police files over a substantial period be produced for adversary examination. Not only may there be sensible limits as to time and type of occasion, but as to materials said to be irrelevant or to involve potential harm to others the court may undertake an in camera inspection. Cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Prom our entire discussion it should also be apparent that, if a class action is to be managed with sensitivity both to plaintiffs’ reasonable demands and to defendants’ responsibilities, the district judge must keep close to the heart of the litigation. Delegations of discrete chores to a magistrate must not be permitted to cause the judge to lose the feel of the pulse of the proceedings.
Our purpose is not to chart the future of this litigation, but to indicate that there are certain standards governing the recognition of a class; that the burden of administering this kind of a class suit should not be pessimistically estimated; and that in the wise use of the power to determine when, how, and for how long, and subject to what conditions in the interest of minimizing eviden-tiary complexities a class should be recognized the special responsibility and opportunity of a federal trial court. At this juncture, unless a claim is patently frivolous, that court should ask itself: assuming there are important rights at stake, what is the most sensible approach to the class determination issue which can enable the litigation to go forward with maximum effectiveness from the viewpoint of judicial administration ?
Reversed and remanded for further proceedings consistent with this opinion.
. That a viable class is not beyond conjecture is illustrated by a somewhat analogous situation in Broughton v. Brewer, 298 F.Supp. 260, 267 (N.D.Ala.1969) [“persons whose poverty or lack of apparent means of livelihood renders them susceptible to arrest under the present Alabama vagrancy laws, and against whom the vagrancy laws have been or may be applied to repress constitutionally protected rights of free expression”], and in Hairston v. Hutzler, 334 F.Supp. 251 (W.D.Pa.1971) [all black persons living in or visiting Pittsburgh who have been or may be injured by a pattern of police harassment and intimidation]. We add that our conjecture does not necessarily imply our endorsement, particularly when such would be premature.
. Wo are mindful of Judge Weinstein’s approach in Dolgow v. Anderson, 43 F. R.D. 472, 501-503 (E.D.N.Y.1968), rev’d on other grounds, 438 F.2d 825 (2d Cir. 1971), in requiring, prior to determining a class, tliat there be a substantial possibility of prevailing on the merits, but are dissuaded from adding this requirement, particularly in civil rights cases, by the observations of Judge Tyler in Fogel v. Wolfgang, 47 F.R.D. 213, 215 n. 4 (S.D.N.Y.1969). See also Katz v. Carte Blanche Corporation, 52 F.R.D. 510, 513-514 (W.D.Pa.1971).
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_method | I | What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
SIMMONS et al. v. BROOKS.
No. 6133.
United States Court of Appeals for the District of Columbia.
Argued May 14, 1934.
Decided June 11, 1934.
Henry I. Quinn, of Washington, D. C., for appellants.
John S. Barbour, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRO-NER, Associate Justices.
MARTIN, Chief Justice.
An appeal from a judgment recovered in an action for damages for personal injuries sustained in an automobile accident.
In the declaration the plaintiff alleged that the defendants, Sol A. Simmons, Louis A. Simmons, and Abraham Simmons, were partners trading as the Simmon's Motor Company; that in April, 1931, plaintiff was driving his automobile upon a public highway in, Stafford county, Va.; .that at the same time one J. F. Letcher was driving a car on the same road, slightly ahead of the plaintiff and. going in the same direction; that plaintiff and Letcher were driving with due care; that as they were going up a grade which curved to their left a third automobile, belonging to the defendants, then and there operated by one J. R. Proetor as the agent and employee of the defendants, approached them from the opposite direction; that Proetor carelessly and negligently drove the defendants’ car upon the wrong side of the road and at a high and dangerous rate of speed and collided first, with the automobile operated by Letcher and immediately thereafter and in consequence thereof with the ear operated by the plaintiff, whereby plaintiff suffered serious injuries for which he prayed judgment in damages.
The defendants for their plea admitted their ownership of the automobile driven by-Proctor at the time of the accident and the fact that it was in collision with the automobile owned and operated by the plaintiff at the time and place alleged in the declaration; hut denied that Proctor was operating the automobile at that timo as their agent or employee or that he was then engaged in any manner in and about their business; and they averred that the collision was due solely to the negligence of Letcher in operating his automobile.
The (¡ase was tried to the jury and a verdict was returned for the plaintiff. A motion for a new trial was overruled by the court and judgment was entered for plaintiff upon the verdict. Whereupon the present appeal was taken.
It is disclosed by the record that the plaintiff introduced testimony in chief describing the collision of which he complained, together with the injuries which he suffered because of it; also testimony tending to show that the car driven by Proctor at the time of the collision had oil it a dealers’ tag for the year 1831, which had been issued to the defendants by the District of Columbia, and the regulations in force in the District at the time of the accident, which provided that such dealers’ tags should not be transferred from one vehicle to another, nor be loaned to another by the person to whom issued, but should be applied to- automobiles held by dealers for sale or demonstration only; and that under the laws of Virginia it was lawful for a car with the dealers’ tags thereon to ho operated over the highways of the state of Virginia without registering the vehicle under the laws of Virginia, but only when such machine was being used by the dealer or his agent for sale purposes. The plaintiff then rested.
At the conclusion of the plaintiff’s evidence and at the close of all the evidence, the defendants moved for a directed verdict claiming that plaintiff had failed to introduce any proof that the car operated by Proctor which collided with the plaintiff's car was being used on business of the defendants or operated by him as agent or employee of defendants. The court overruled the motion to which the defendants excepted and this ruling is assigned as error by the appellants.
We think this assignment of error is not well taken. The fact that the ear at the time of the accident was owned by the defendants who were dealers in automobiles and used cars and bore the dealers’ license tags issued to them, which they could not lawfully use except upon automobiles Jieid by them for sale or demonstration purposes, was sufficient to raise an inference that Proctor, the driver, was acting as an employee of the company with authority to demonstrate the car for them; and this presumption obtains until overthrown by credible testimony to the contrary. Callas v. Independent Taxi Owners Ass’n, 62 App. D. C. 212, 66 F.(2d) 192. But if the presumption be overcome by undisputed proof to the contrary, the question becomes one for the court, and not the jury. Curry v. Stevenson, 58 App. D. C. 162, 26 F.(2d) 534. If, however, the evidence is reasonably subject to contradictory interpretations, the question of liability of the defendants is for the jury. Tischler v. Steinholz, 99 N J. Law, 149, 152, 122 A. 880.
The record discloses without contradiction that the defendants at the time in question were engaged in the business of selling automobiles including used cars; that they were in possession of dealers’ license plates or tags-, as alleged in the declaration, issued to them by the District of Columbia as identification tags necessary to their business as such dealers, which they wore entitled to use upon automobiles for sale or demonstration purposes, but which they were not entitled to use for any other purpose. The defendants testified that they had never permitted the use of such license plates for any purpose except to be placed upon cars for sale or demonstration; that Harold Simmons was a relative of the partners but was not himself a partner; that he looked after the used ear business, but had no authority to- lend ears to anybody for pleasure purposes or private business purposes, nor to put the dealers’ tags on cars except for strictly business purposes.
Harold Simmons as a witness for defendants. testified that he had loaned Proctor the car in question to he used by him from Saturday night to Monday morning; that nothing was said by Proctor or himself at that time about demonstrating the ear to anybody or attempting to sell it; that he was not a member of the firm, but was the “used car manager” for them and the partners knew nothing about this transaction between him and Proctor; that he simply took it upon himself to loan Proctor the car and that he had no authority to lend cars to people or to allow the use of dealers’ tags to anyone except for sale or demonstrations; that the tags were intended to be used for demonstration purposes only; that he had loaned cars before to Proctor as a. personal favor expecting that everything would be all right; that he allowed him to use this ear for the purpose of making a trip into Virginia to see his people and not for the purpose of demonstrating it or serving the Simmons Company. He denied that he had said to Proctor at the time he loaned him the car that if anything happened Proctor was to say that he was taking the car down there to demonstrate it, but he testified that he said to Proctor that in ease he was stopped he was to say that the ear was the property of the Simmons Motor Company. Witness testified that he was authorized to put dealers’ tags on used cars for the purpose of demonstration only.
On cross-examination the witness was asked whether he recalled having a talk with Mr. Letcher at Quantieo', and he answered that he did. He was then asked the following question: “On the occasion of that talk did you not say to Mr. Letcher that the insurance carried by your company, speaking of Simmons Motor Company, would not protect it against an injury to Mrs. Proctor — -Mrs. Proctor had suffered an injury, I believe— but that his, Letcher’s, insurance would, and that if Letcher would admit liability for that accident you would either make his ear as good as new. or give him a new car?” The defendants objected to this question, but the court Overruled the objection and witness, over exception, answered as follows: “No, sir; absolutely not. There was nothing along those lines ever said.”
In rebuttal the witness Letcher testified as follows: “That on the day following the accident Harold Simmons, while talking to witness at QuantieO', Virginia, said to witness that the insurance carried by the Simmons Motor Company would not protect it against Mrs. Proctor, but that witness’ insurance would and if he would admit liability for the accident that they would either make his car as good as new or give him a new car and he declined that proposition.”
The defendants also called Proctor, the driver of the ear, as a witness who. testified in substance that he was a barber by occupation, and was never employed by the Simmons Company in any capacity, and was never authorized by them to demonstrate or attempt to sell any of their cars; that he rented the ear which he was driving at the time of the collision from Harold Simmons for the purpose of driving down into Virginia in order to visit some of his people and that the accident happened when he was returning on that trip. He testified that he was told by Harold Simmons, that if he got into any trouble upon the trip he should say he was taking the car to demonstrate it as the agent of the Simmons Motor Company, but that in fact he did not take the car for such a purpose.
In rebuttal, however, the witness Oder-man testified that he was at the scene of the accident immediately after the occurrence and told Proctor that his ear was totally demolished, and that Proctor then said that he was awfully sorry because he had the car sold or was pretty sura he had the ear sold to his cousin or brother-in-law or some of his relatives in Bowling Green, Va.; that Proctor said that he was not a dealer in cars but was a'barber by trade and sold cars for the Simmons Motor Company week-ends and holidays; and that he was figuring on selling this particular car. The witness Curtis testified that he had a conversation with Proctor on the morning following the accident at the hospital in Fredericksburg, and that Proctor told him he was a barber by trade but between times sold used cars for the Simmons Motor Company and that he had this car to demonstrate to a cousin or brother-in-law at Bowling Green, Va.
Proctor denied these conversations when testifying in chief and the trial justice instructed the jury that this testimony was to be considered solely by way of impeachment. It is proper for this court likewise to consider it as such, and it reflects seriously upon the value of Proctor’s testimony in chief.
The credibility of the testimony of the witness Harold Simmons may be considered in the light of a contradiction which occurs in course of his evidence. In his examination in chief he said: “I have never been in the company with Mr. L’Hommedieu when he spoke with Mr. Letcher. Us three have never been in the same room together. When he came to see Mr. L’Hommedieu I was not present. I was out of town.” On cross-examination, however, he was asked “When you were on the»stand before you were very positive, were you not, you were never present with Mr. L’Hommedieu and the sergeant? — A. Yes, sir, I was mistaken. Q. You went so far as to say you were not even in town ? — A. Yes, sir, I was mistaken about that.”
It is contended by appellants that it was error for the court to permit the plaintiff’s counsel to ask the witness Harold Simmons the question above copied indicating that insurance was carried by the Simmons Motor Company and by Letcher. Appellants claim that the court should have withdrawn a juror and declared a mistrial because' of the injection of the insurance feature into the ease. We do not think that the court’s ruling in this particular was erroneous. It was plainly the purpose of the question to impeach the credibility of the witness Harold Simmons by showing his attempt to make a corrupt bargain with Letcher for the settlement of the damages resulting from the accident. It is true that this incidentally disclosed the fact that there was automobile insurance held by the parties, but that was an incidental and unavoidable result. It is not suggested that counsel for the plaintiff referred to this fact in their argument to the jury, nor does it appear that counsel for the defendants asked the court Cor a charge cautioning the jury to disregard the question of insurance when considering the testimony in relation to the facte in the case.
The trial justice in Ms charge to the jury instructed them with great care to consider the testimony relating to the conversations between the witnesses and other parties as admitted for the purpose of impeachment only and not as testimony relating to the questions at issue. We think that these instructions sufficiently informed the jury of ' their duties in that behalf. Capital Construction Co. v. Holtzman, 27 App. D. C. 125. Paxson v. Davis, 62 App. D. C. 146, 65 F. (2d) 492. The jury having seen, and heard the witnesses evidently considered the legal presumption first mentioned to be more reliable than their testimony.
Upon the entire record we conclude that the trial’court committed no error in the submission of the ease to the jury and its judgment therefore is affirmed with costs.
HITZ, Associate Justice, took no part in the decision of this case.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer: |
songer_casetyp1_1-3-1 | P | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
LEA v. UNITED STATES.
No. 11736.
Circuit Court of Appeals, Fifth Circuit.
Feb. 15, 1947.
Rehearing Denied March 17, 1947.
Edwin H. Grace, of New Orleans, La., for appellant.
Herbert W. Christenberry, U. S. Atty., and N.E. Simoneaux and Robert Weinstein, Asst. U. S. Attys., all of New Orleans, La., for appellee.
Before HOLMES, McCORD, and WALLER, Circuit Judges.
WALLER, Circuit Judge.
When his demurrer to an indictment, brought under Section 100, Title 18 U.S. C.A., was overruled, the defendant pleaded nolo contendere, was adjudged guilty, and received the sentence of the Court. He now appeals, assigning as error the overruling of the demurrer.
An indictment should state every material fact necessary to inform the defendant of the nature of the charge against him so that he would be able successfully to interpose a plea of former jeopardy against any other prosecution for this same offense. The indictment here alleges: That the defendant did unlawfully, feloniously, and fraudulently embezzle and convert to his own use certain monies of the United States; that said monies were the proceeds of the sale of certain United States War Savings Bonds, which sales were made by the United Theatres, Incorporated; that the United Theatres, Incorporated, were duly authorized to act as issuing agent for the sale of said bonds; that the defendant came into lawful possession of said monies as an agent and employee of said United Theatres, Incorporated. Thus the ownership of the money, the source from whence it came, the lawful possession of the money by the defendant, as an agent, or employee, of the United Theatres, Incorporated, and the felonious conversion of the money by the defendant to his own use, were alleged.
We think: That the allegation that “the defendant having then and there come into the lawful possession of said monies • as an agent and employee of the said United Theatres, Incorporated,” should be taken in connection with the other allegations in the indictment and', so considered, it is an allegation of fact; that the facts alleged are sufficient to show that when the defendant, as an agent or employee, came into the lawful possession of said money, his possession was in trust; that the indictment is amply sufficient to sustain a plea of former jeopardy to any other indictment for the same offense, and that no omission therein hampered the defendant in preparing his defense.
Sec. 556, Title 18 U.S.C.A., is as follows:
“No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.”
Sec. 391, Title 28 U.S.C.A., commands that we “shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”
The defendant, by his plea of-nolo con-tendere, admits the truth of the facts appropriately alleged in the indictment, and we think the facts alleged are sufficient to charge him with the crime of embezzling monies of the United States as defined in the statute under which the indictment here was brought.
The judgment of the Court below is affirmed.
The indictment alleged that the defendant “did unlawfully, feloniously and fraudulently embezzle and convert to his own use certain, monies and property of the monies and property of the United States of America, to-wit, the sum of 818,333.64, a further description of which is unknown to yonr Grand Jurors, the said sum of $38,133.64, being the proceeds of sales of certain United States War Savings Bonds, Series E, made by United Theatres, Incorporated during the period aforesaid, the said United Theatres, Incorporated being then and there duly authorized and qualified to act as issuing agent for the sale of said United states War Savings Bonds, Series E, and the said defendant having then and there come into the lawful possession of said monies as an agent and employee of the said United Theatres, Incorporated; * * *”
“§ 100. (Criminal Code, Section 47.) Embezzling public moneys or other property. Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of tho moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both.”
In Moore v. United States, 160 U.S. 268, 16 S.Ct. 294, 295, 40 L.Ed. 422, the crime of embezzlement was defined as “the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.”
Cf. Wilson v. United States, 5 Cir., 158 F.2d 659.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer: |
songer_method | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
UNITED STATES of America v. Sherman KENDIS, Appellant.
Nos. 89-5260, 89-5261.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) July 5, 1989.
Decided Aug. 18, 1989.
Sherman Kendis, Fort Worth, Tex., pro se.
Donna A. Krappa, Edna Ball Axelrod, Newark, N.J., for appellee.
Before SLOVITER, HUTCHINSON and NYGAARD, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This is an appeal by Sherman Kendis, pro se, from the order of the district court denying his motion for reconsideration of the court’s order denying his motion for reduction of sentence pursuant to Fed.R. Crim.P. 35. Kendis, an attorney, pled guilty on February 9, 1987 to one count of bank fraud for unlawfully converting $144,976.29 while acting as an attorney for Ocean Club in Atlantic City by forging the signature of payees on checks given him for purposes of settlement of their claims. We shall refer to this matter as Kendis I. Pursuant to his plea agreement, Kendis was required, inter alia, to pay restitution to all potential victims. On April 10, 1987 Kendis was sentenced to five years imprisonment but all but six months of the incarceration were suspended and he was placed on five years probation to commence upon release. Execution of the sentence was stayed until May 4, 1987 when he reported for prison. On the same day he filed for personal bankruptcy.
Kendis was released from custody on September 21, 1987. In October 1987, the government moved to revoke Kendis’ probation on the ground that the money he had used to make restitution to clients during the period between the acceptance of his guilty plea and his sentencing was actually money which had been entrusted to him by other clients and which he had improperly converted to his own use.
In November, 1987 Kendis was indicted on five counts of bank fraud committed during the period between March 11, 1987 and May 4, 1987 while he was released on bail and awaiting sentencing in Kendis I. We shall refer to this matter as Kendis II.
On December 14, 1987, following a hearing on the revocation of probation issue, the district court revoked Kendis’ probation. Thereafter on September 30, 1988 Kendis pled guilty to two counts of the five count indictment in Kendis II. He was sentenced on October 13, 1988 to three years incarceration and a fine of $10,000 on each of the two counts to which he had pled guilty, the sentences to run consecutively, and was also ordered to pay $264,925 in restitution and a $100 special assessment. On the same day the district court vacated its sentence in Kendis I as a result of the revocation of Kendis’ probation, and sentenced him to four years incarceration to be served consecutively to that imposed in Kendis II. The court also directed that Kendis pay restitution as previously ordered.
On appeal Kendis contends first that the district court abused its discretion in revoking his probation on Kendis I because the offense on which the district court relied for such revocation occurred prior to his sentencing and hence while he was not on probation. We reject Kendis’ argument. In United States v. Camarata, 828 F.2d 974, 977 n. 5 (3d Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1036, 98 L.Ed.2d 1000 (1988), we recognized that some courts had adopted the fraud on the court exception to the general rule that revocation of probation is generally based on acts occurring after sentencing. See also United States v. Veatch, 792 F.2d 48, 51 (3d Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986). We are now faced with the issue directly, and we also adopt the principle that revocation of probation is permissible when defendant’s acts prior to sentencing constitute a fraud on the court.
Kendis argues, however, that his action in using clients’ converted funds to pay restitution did not constitute a fraud on the court because there was no concealment of the crime and the court was aware of the possibility of other potential victims of Kendis’ illegal activity. In this case, the record shows that Kendis relied heavily on his acts of restitution to persuade the district court to give him a relatively light prison sentence in Kendis I and that Ken-dis failed to reveal that restitution had been made with clients’ money. Revocation of probation under the fraud on the court theory was thereafter appropriate under these circumstances. See United States v. Jurgens, 626 F.2d 142, 144 (9th Cir.1980).
Kendis next contends that the district court abused its discretion in failing to take into account explicitly the amount of time he previously served in custody before sentencing him for the revocation of probation. He argues that therefore the Bureau of Prisons improperly computed his sentence by failing to credit him with the six months that he had served on Kendis I prior to his revocation of probation.
We agree with those courts that have held that when a convicted defendant receives less than the maximum possible sentence, it is presumed that the trial court has credited defendant with time already served unless the record shows otherwise. See Granger v. United States, 688 F.2d 1296 (9th Cir.1982); see also Ochoa v. Lennon, 750 F.2d 1345, 1348 (5th Cir.), cert. denied, 474 U.S. 979, 106 S.Ct. 382, 88 L.Ed.2d 335 (1985); Davis v. United States, 790 F.2d 716 (8th Cir.1986).
Kendis also argues that the district court abused its discretion in failing to make specific factual findings regarding his ability to pay restitution. While it is true that this court has held that such findings are required where there is a dispute over restitution in order to aid in appellate review of the district court’s ruling, see United States v. Poliak, 844 F.2d 145, 155-56 (3d Cir.1988), we explained in United States v. Hand, 863 F.2d 1100, 1106 (3d Cir.1988), that such factual findings are not required when there is no dispute regarding the defendant’s ability to make restitution. In this case, as in Hand, Ken-dis did not object to restitution at any time preceding or during the sentencing hearing. Accordingly, the district court did not abuse its discretion.
For the foregoing reasons we will affirm the order of the district court.
. We have examined Kendis’ additional arguments, i.e. that 18 U.S.C. § 3013 dealing with special assessments is unconstitutional, that the district court improperly ignored the indictment against him by the state of New Jersey and hence violated the double jeopardy clause of the United States Constitution, and that the district court should have applied retroactively the Sentencing Guidelines of the Sentencing Reform Act of 1984 which became effective after the acts committed by Kendis. After consideration, we reject each of Kendis’ contentions.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer: |
songer_casetyp1_7-3-4 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities".
COCLIN TOBACCO CO., Inc., Creditor, Appellant, v. Robert J. GRISWOLD, Trustee, et al., Appellees. In the Matter of Louis G. GREENFIELD, Bankrupt.
No. 7057.
United States Court of Appeals First Circuit.
April 9, 1969.
C. Delos, Putz, Jr., New York City, with whom Cadwalader, Wickersham & Taft, New York City, was on brief, for appellant.
Leonard Toboroff, Yonkers, N. Y., with whom Norman S. Isko, Yonkers, N. Y., was on brief, for Carvel Creditors, ap-pellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
This is an appeal from the United States District Court for the District of Puerto Rico sitting in bankruptcy. The issues presented for our determination pertain to the allowance of the claims of the two major unsecured creditors of the bankrupt estate — appellant Coclin Tobacco and appellee Carvel, Inc.
Louis G. Greenfield, the bankrupt, was a partner in the now defunct New York City law firm of Greenfield, Rothstein, Klein & Yarnell. Both claims involved in this appeal arose out of the activities of the bankrupt’s law firm. In the interest of clarity the factual background of each claim will be set forth separately.
In March, 1962, Coclin engaged the bankrupt’s law firm for the purpose of bringing a private antitrust suit against Brown & Williamson Tobacco Company and British American Tobacco Company. Coclin paid a $15,000 retainer and on April 25, 1962, a complaint was filed in the Southern District of New York. In June of 1963 the bankrupt’s law firm failed to appear when Coclin’s case was called and the case was dismissed for lack of prosecution.
When Coclin discovered the dismissal it retained a new law firm and sought to restore the case to the docket. When attempts to restore the case failed, a new complaint was filed.
Coclin seeks to recover $15,000 paid under the retainer and $15,000 alleged to have been expended in the attempt to restore the original complaint and in the filing of the new complaint. Coclin is a partnership creditor.
Carvel’s claim rests upon a judgment of the New York Supreme Court rendered against the bankrupt for conspiracy to bring false and baseless lawsuits. The memorandum of decision directing judgment for Carvel in the amount of $11,580,488.34 was issued on April 11, 1966. The judgment was entered by the Clerk on July 25, 1966. Carvel is an individual creditor of the bankrupt.
On May 16, 1966, the bankrupt filed his petition in bankruptcy in the United States District Court for the District of Puerto Rico. After receiving proofs of claim, the referee allowed Carvel’s claims “provisionally” and disallowed Coclin’s claims as being contingent and unliquidated.
The district court affirmed the referee, holding that under New York law there must be an abandonment by . an attorney in order to entitle the client to recover money paid for legal services. The court found that Coclin had discharged the bankrupt’s firm and therefore its claim was disallowed. The court then held that Coclin was not a “person aggrieved” under § 39 of the Bankruptcy Act, and therefore had no standing to seek review of the Carvel claims.
Coclin brings this appeal. We reverse for the following reasons. In rejecting Coclin’s claim the court relied upon Tenney v. Berger, 93 N.Y. 524 (1883), as holding that there must be an abandonment of a cause by an attorney in order to justify recovery by a client. New York law is not so limited. It is clear that an attorney who is discharged for cause has no right to recover a fee and may be forced to remit a retainer paid in advance. Rimos v. Rimos, 81 N.Y.S.2d 347 (Sup.Ct.Sp.T.1948) ; See also Ganzales v. Hegner, 20 Misc.2d 232, 192 N.Y.S.2d 212 (Sup.Ct.Sp.T.1959) ; Schwartz v. Tenenbaum, 7 A.D.2d 866, 182 N.Y.S.2d 51 (1959) ; In re Montgomery, 272 N.Y. 323, 6 N.E.2d 40, 109 A.L.R. 669 (1936).
The conduct of the bankrupt’s law firm clearly constituted grounds for discharge; thus Coclin has a right to recover sums paid the firm for legal services. We take no position on the amount Coclin is entitled to recover nor do we comment on the question of the liquidation of Coclin’s claim. We say only that Coclin has a valid claim under New York law.
In light of our disposition of Coclin’s claim, Coclin is clearly a “person aggrieved” under § 39 of the Act and is therefore entitled to seek review of Carvel’s claim. In addition, Coclin has standing to seek review as the representative of the trustee, the estate, and all other creditors, a position which Coclin occupies by virtue of having sought and obtained such authority from the referee. In re New England Tire & Rubber Co., 13 F.2d 1004 (D.Mass.1926).
. Carvel’s claim is based upon the commission of an intentional tort by the bankrupt. As a general rule tort claims are not provable in bankruptcy. An exception exists — and it is the only exception for intentional tort claims — where the claim has been reduced to judgment prior to the filing of the petition in bankruptcy. Lewis v. Roberts, 267 U.S. 467, 45 S.Ct. 357, 69 L.Ed. 739 (1925) ; 3A Collier, Bankruptcy 63.25 [1] (14th ed. 1968).
The petition was filed on May 16,1966, and Carvel’s judgment was not entered by the Clerk until July 25, 1966. Carvel argues that under New York law the entry by the Clerk is merely a ministerial act and that the claim was actually reduced to judgment on April 11, 1966 when the memorandum of decision was issued.
Section 63(a) (1) of the Bankruptcy Act requires that the judgment evidence " * * * a fixed liability * * absolutely owing at the time of the filing of the petition * * * whether then payable or not * * Questions of the finality of a judgment are governed by the law of the rendering forum, Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946).
Our task is to determine whether under New York law entry of judgment is required in order to satisfy the demands of § 63(a) (1).
Our research has not disclosed, nor has counsel brought to our attention, any New York decisions which have directly considered the issue before us. Appellant relies on Royal Baking Powder Co. v. Hessey, 76 F.2d 645 (4th Cir. 1935), where the court refused to admit to proof a claim based on a New York judgment entered three days after the filing of the petition in bankruptcy. Despite the superficial resemblance of Royal Baking Powder to the case at bar, we think that it is clearly distinguishable.
It is true, of course, that in entering a judgment a clerk does not perform a judicial function. However, it is equally clear that New York courts have looked at the criticality of the requirement of entry from the standpoint of the purpose to be served. Entry is necessary for certain purposes. Entry fixes the period for appeal, Vogel v. Edwards, 283 N.Y. 118, 27 N.E.2d 806 (1940), and entry tolls the period for computation of interest on a judgment. See § 5003, N.Y.CPLR ; Ariola v. Petro Trucking Corp., 50 Misc. 2d 216, 270 N.Y.S.2d 309 (Sup.Ct.Sp.T. 1966). Most importantly, entry is a prerequisite to enforcement of a judgment through execution. § 5230, N.Y.CPLR ; Vogel v. Edwards, supra; Langrick v. Rowe, 126 Misc. 256, 212 N.Y.S. 240 (Sup.Ct.Sp.T.1925).
We recognize that some New York cases have held entry not to be necessary for certain purposes. See, e. g., Vogel v. Edwards, supra ; Langrick v. Rowe, supra; Brovender v. Williams, 3 A.D.2d 841, 161 N.Y.S.2d 439, appeal dismissed, 3 N.Y.2d 903, 167 N.Y.S.2d 922, 145 N.E.2d 868 (1957). However, in each of these cases the result may be explained by the specific issue before the court, and perhaps most significantly, in none of these cases was the court called upon to decide whether an unentered judgment was “absolutely owing”.
We think it beyond dispute that § 63(a) (1) of the Bankruptcy Act requires a “final” judgment.- The basis for requiring finality is two-fold: first, that the amount of the claim be liquidated, and secondly, that the claim have merged in the judgment. Under the present state of the law the liquidation requirement is no longer critical in most cases. However, the prerequisite of merger remains unaltered by amendments to the Bankruptcy Act. To be sure merger is something of an artificial concept but we are not without some guidelines. For. example, there can be no doubt that the rendition of a verdict, while liquidating a claim, does not result in merger and therefore is not provable in bankruptcy. See, e. g., In re Ostrom, 185 F. 988 (D.Minn.1911) ; Matter of Eads, 17 F. 813 (D.Wash. 1926). When the requirement of § 63(a) (1) is viewed in that light, we believe it clear that under New York law a judgment is not final until entered. See, Van Arsdale v. King, 155 N.Y. 325, 329, 49 N.E. 866, 867 (1898) ; Klepper v. Canadian Pacific Ry. Co., 193 Misc. 808, 85 N.Y.S.2d 258 (1948) ; Matter of DiMaria, 37 Misc.2d 617, 236 N.Y.S.2d 443 (Sup.Ct.1963) ; Matter of Diamond, 37 Misc.2d 714, 235 N.Y.S.2d 505 (Sup.Ct.1962), aff’d mem., 19 A.D.2d 590, 240 N.Y.S.2d 954 (App.Div.1963). See also Concourse Super Service Station, Inc. v. Price, 33 Misc.2d 503, 226 N.Y.S.2d 651 (Sup.Ct.1962).
No reason appears as to why entry did not occur until three months after rendition. “Under New York practice, as we understand it, the prevailing party may prepare the judgment to be entered, if indeed the clerk has not earlier entered it. 9 Carmody-Waite, Cyclopedia of New York Practice, §§ 63.91-63.113. Even assuming that the delay was due solely to the inaction of the clerk, appellee could have obtained an order from the trial court compelling entry of the judgment. Cf. Greenwich Bank v. Hartford Fire Ins. Co., 250 N.Y. 587, 166 N.E. 334 (1929).”
We recognize that our opinion may appear to display an undue concern with technical distinctions. The appearance is unavoidable since § 63(a) (1) of the Bankruptcy Act requires that we divine the mysteries of New York civil practice. The result reached is also unavoidable. Congress has provided a narrow avenue for the proof of intentional tort claims in bankruptcy. Nothing in the merits of Carvel’s claim or in the policies of Bankruptcy Act justifies departure from the Congressional prescription.
Reversed and remanded for proceedings consistent with this opinion.
. The case was settled during the time that this appeal was pending.
. As a partnership creditor Coclin can share in the assets of the bankrupt estate, if at all, only after the payment of individual creditors. § 5(g), Bankruptcy Act, 11 U.S.C. § 23(g). Collier, Bankruptcy §§ 5.26-5.28 (1968).
. The Carvel claim was actually comprised of the claims of eight parties all of which were plaintiffs in the New York proceedings against the bankrupt.
. The cases cited by appellee, Carvel, are strikingly inapposite. For example, Martin v. Camp, 219 N.Y. 170, 114 N.E. 46, L.R.A.1917F, 402 (1916), merely states the rule that an attorney discharged without cause may recover in quantum meruit. In the Matter of Snyder, 190 N.Y. 66, 82 N.E. 742, 14 L.R.A.,N.S., 1101 (1907), involved a clause in a retainer agreement providing that no fee would be paid if the case was settled. The court permitted the attorney who had settled the case to recover, holding such clauses to be against public policy.
. There are allegations in appellee’s brief that $5,000 of the retainer was actually paid to Coclin’s Connecticut counsel and that $5,500 was returned to Coclin by one of the bankrupt’s law partners. The validity of these allegations and any other issues relating to the amount of Coclin’s claim must be determined by the district court on remand.
. The unliquidated nature of Coclin’s claim does not bar its provability under § 63 of the Bankruptcy Act, and ordinarily will not prevent its allowability unless the district court concludes that liquidation will require too much time and expense, § 57(d) Bankruptcy Act, 11 U.S.C. § 93 (d). We leave this matter to the district court with the observation that it is the policy of the Bankruptcy Act to permit liquidation of claims by the district court where feasible. Cases are legion where the courts have liquidated damages arising out of the breach of unusual contracts. See, e. g., Central Trust Co. v. Chicago Auditorium Ass’n, 240 U.S. 581, 36 S.Ct. 412, 60 L.Ed. 811 (1916) (contract by transfer company to carry baggage and passengers) ; In re Hurlbutt, H. & Co., 143 F. 958 (2d Cir. 1906) ; In re Swift, 112 F. 315 (1st Cir. 1901) (contracts to buy stock on margin). Of course, the claimant’s duty to mitigate damages may be considered. In re Dant & Dant, 39 F.Supp. 753 (D.Ky.1941).
. The peculiar treatment of tort claims in bankruptcy must be explained by resort to history rather than logic. Tort claims were restricted in provability in English law, probably because bankruptcy was conceived as a means of dealing with commercial debts, and this restrictive approach was carried over to the Bankruptcy Act of 1898.
. In Royal Baking Powder, supra, the trial court sent its proposed findings and opinion to the clerk on March 10, 1931. The judge had not signed the opinion, and on March 12, 1931, several creditors of the bankrupt obtained a stay restraining the trial court from signing the opinion. On March 13, 1931, the bankruptcy petition was filed and on March 16, 1931, the stay was vacated by the trial judge who subsequently ordered the judgment amended nunc pro tunc so as to be dated March 12, 1931. In short, Royal Baking presented, on its facts, a stronger case for respecting the timing of the completion of formalities. In addition, we do not find the New York law relied upon by the court persuasive.
. For example, in Vogel v. Edwards, supra, the issue before the court was whether emergency legislation concerning deficiency judgments should apply to a judgment rendered before but entered after enactment of the statute.
. In the Matter of Diamond, supra, and In the Matter of DiMaria, supra, provide particularly helpful illustrations of the effect of entry on finality. In both eases the defendant sought to escape arbitration on the ground that the claim had been reduced to judgment. However, in both cases the court held the defense invalid because there had been no entry of judgment and therefore the claim had not merged in a judgment.
. Appellee urges that In re Ganet Realty Corp., 9 F.Supp. 246 (S.D.N.Y.1935) is authority for allowance of its unentered judgment. We do not agree. The claim involved in that case was one for mortgage deficiency and would have been provable without a final judgment — the only question being one of liquidation. As the court in that case pointed out, the order of sale entered before bankruptcy conclusively fixed the amount of the claim.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
Answer: |
songer_casetyp1_7-2 | E | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
The DETROIT EDISON COMPANY, Petitioner, Public Service Co. of Indiana, Inc., Intervenor, National Association of Regulatory Utility Commissioners, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents.
Nos. 78-3187, 78-3196.
United States Court of Appeals, Sixth Circuit.
Argued June 17, 1980.
Decided Sept. 5, 1980.
Rehearing and Rehearing En Banc Denied Oct. 22, 1980.
Harry H. Voigt, Michael F. McBride, LeBoeuf, Lamb, Leiby & MacRae, Washington, D. C., for petitioner in No. 78-3187 and for intervenor.
Charles W. Campbell, Plainfield, Ind., for intervenor in No. 8-3187.
Peter A. Marquardt, Detroit, Mich., for petitioner in No. 78-3187.
Stephen S. Ostrach, Sheldon L. Trubatch, U. S. Nuclear Regulatory Comm., Washington, D. C., for respondents in Nos. 78-3187 and 78-3196.
Paul Rodgers, William R. Nusbaum, Nat. Ass’n of Regulatory Utility Commissioners, Charles Gray, Washington, D. C., for petitioner in No. 78-3196.
Stephen F. Eilperin, U. S. Nuclear Regulatory Comm., Washington, D. C., Griffin B. Bell, Atty. Gen. of U. S. Dept, of Justice, James W. Moorman, Edward Shawaker, Anne S. Almy, Washington, D. C., for respondents.
Before BROWN, MARTIN, and JONES, Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
This care requires us to rule on the Nuclear Regulatory Commission’s present practice of regulating the location of electric transmission lines constructed in connection with proposed nuclear power facilities. We must determine whether or not the Commission’s policy of conditioning approval of license applications on environmentally acceptable routing of transmission lines exceeds the agency’s authority under the Atomic Energy Act, 42 U.S.C. § 2011 et seq. and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA).
The Commission’s position on transmission line regulation has evolved over the past decade. Prior to the 1969 enactment of NEPA, the Commission perceived its duties under the Atomic Energy Act primarily in terms of protecting the public from radiation hazards. NEPA, however, made “environmental protection a part of the mandate of every federal agency and department . . . [The Commission] is not only permitted, but compelled, to take environmental values into account” in carrying out its regular functions. Calvert Cliffs Coordinating Committee v. AEC, 449 F.2d 1109, 1112 (D.C.Cir. 1971). Under NEPA, federal agencies must “use all practicable means” to avoid environmental “degradation” to the extent consistent with “other essential considerations of national policy.” 42 U.S.C. § 4331(b). Thus, in the early 1970’s the Commission began to consider the environmental implications of proposed nuclear facilities.
By 1974, the Commission had adopted an aggressive approach to its environmental responsibilities in the context of transmission line siting. In that year, the Commission’s Atomic Safety and Licensing Appeal Board ruled that the Commission could, as a condition of licensure, insist that off-site transmission lines built solely to serve a nuclear facility be designed to minimize environmental disturbance. Detroit Edison (Greenwood Energy Center, Units 2 and 3) ALAB-247, 8 A.E.C. 936 (Greenwood).
The response to Greenwood among utility companies and local utility regulatory bodies was immediate. Public Service Company of Indiana and Detroit Edison Company filed a petition for rule-making pursuant to Section 2.802 of the Commission’s Rules of Practice. The proposed rule would have amended 10 C.F.R., Part 50, “Licensing of Production and Utilization Facilities,” by excluding transmission lines and other off-site construction from the Commission’s regulatory ambit. Under the proposal, the Commission could continue to “consider” the probable environmental effects of transmission lines, but could no longer compel the use of an alternative route as a condition of licensure. When notice of Detroit Edison’s petition appeared in the Federal Register, eleven parties, including the National Association of Regulatory Utility Commissioners, filed comments in support of the proposal. The Commission nonetheless denied the petition for rulemaking on February 23, 1978, and Detroit Edison filed a petition for review in this court.
The legal issue before us is essentially jurisdictional. Does the Commission have statutory authority to use its licensing power as a means of mitigating the adverse environmental effects of off-site transmission line construction? If so, what is the source of that authority-the Atomic Energy Act, NEPA, or both?
Petitioners insist that neither the Atomic Energy Act nor NEPA empowers the Commission to regulate off-site transmission lines. They contend, first that the Atomic Energy Act limits the Commission’s regulatory jurisdiction to matters of nuclear safety significance, national defense and security, and certain antitrust questions. In the absence of a showing that electric power lines fall into any of these categories, petitioners conclude that the Commission has exceeded its statutory authority. In support of this argument, they cite Sections 271 and 274(k) of the statute as evidence that Congress intended to reserve the power to regulate transmission lines to state and local agencies. Second, petitioners contend that NEPA confers no substantive jurisdiction on federal agencies. They acknowledge that NEPA permits agencies to “consider” environmental values as part of the decision-making process; they deny, however, that it authorizes active “regulation” beyond the confines of the agencies’ organic statutes.
The Commission, on the other hand, argues that the Atomic Energy Act and NEPA represent independent sources of authority to regulate transmission lines. According to this interpretation, Section 101 of the Atomic Energy Act, 42 U.S.C. § 2131, permits the Commission to assert jurisdiction over transmission lines as “important component parts” of a nuclear “utilization facility.” Furthermore, the Commission claims, NEPA itself requires federal agencies to use whatever power they possess to implement national environmental policy. A congressional directive to “consider” environmental factors is meaningless unless agencies can also act to minimize the environmental damage attributable to their licensees.
For the reasons discussed below, we find: 1) that the regulation of off-site transmission lines is within the Commission’s authority under Section 101 of the Atomic Energy Act; and 2) that nothing in the Atomic Energy Act precludes the Commission from implementing, through the issuance of conditional licenses, NEPA’s environmental mandate. We need not, and do not, decide whether NEPA is an independent source.of substantive jurisdiction.
In Public Service Company of New Hampshire v. United States Nuclear Regulatory Commission, 582 F.2d 77 (1st Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978), the petitioners challenged a Commission order to reroute transmission lines tying the proposed Seabrook Nuclear Power Station to an existing transmission grid. The rerouting order was based on the Commission’s decision to preserve a natural area of forest and marshland. In a thoughtful and persuasive opinion, the First Circuit denied the petition for review, basing its conclusion on a finding that the Commission’s order was a proper exercise of jurisdiction under the Atomic Energy Act.
Section 101 of the Atomic Energy Act, 42 U.S.C. § 2131, authorizes the Commission to license and regulate the use of a nuclear “utilization facility.” 42 U.S.C. § 2014 defines “utilization facility” in part as “. . . (2) any important component part especially designed for such equipment or device as determined by the Commission.” (emphasis added). Thus, Congress delegated broad authority to the Commission to define, on the basis of its own experience and expertise, the phrase “component parts” of a “utilization facility.” Public Service Co., supra, at 82-83. This assertion of jurisdiction is entitled to judicial deference. Power Reactor Co. v. Electricians, 367 U.S. 396, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961).
Petitioners’ arguments that the Commission has overreached its authority consist largely of citations from the Atomic Energy Act’s legislative history and subsequent judicial comments on the statute generally. The message, apparently, is that the Commission’s primary function is to protect the public from radiological hazards. Beyond this, petitioners offer only the unsupported assertion that transmission lines are unrelated to nuclear safety. On that evidence alone, without further development of either the legal or factual bases of their argument, petitioners ask us to hold that a longstanding regulatory policy is “so contrary to the purposes of the . . . statute as to warrant intervention and correction by this court.” Public Service Co., supra, at 83.
The disputed exercise of jurisdiction is based on the Commission’s interpretation of a statute which is “virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives.” Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir. 1968). The Commission’s policy has been approved by at least two federal appellate courts-explicitly in Public Service Co., supra, and implicitly in Culpepper League for Environmental Protection v. NRC, 574 F.2d 633 (D.C.Cir. 1978). Finally, we read with approval the First Circuit’s discussion of the eloquence of congressional silence in matters concerning the Commission. Public Service Co., supra, at 83-84. Against the weight of this authority, we have only the petitioners’ unsupported statement that transmission lines are so irrelevant to the Atomic Energy Act that their regulation constitutes an abuse of agency discretion. We are simply unpersuaded by that argument.
We turn now to petitioners’ claim that Sections 271 and 274(k) of the Atomic Energy Act prohibit the Commission from assuming jurisdiction over off-site transmission lines. Petitioners interpret those provisions to mean that Congress has reserved exclusive control over transmission lines to state and local agencies. We disagree. The statutory language merely ensures that the authority of other agencies will continue, unimpaired by the provisions of the Atomic Energy Act. Nowhere does it suggest that the regulatory field is completely closed to the Commission. The First Circuit in Public Service Co., supra, at 84-85, analyzed the legislative history of Section 271 and concluded that the provision is merely a “garden variety nonpreemption clause.” Our study of the record here convinces us that the same description applies to Section 274(k).
Finally, in light of our previous findings, we uphold the Commission’s practice of conditioning licenses on the use of a Commission-approved transmission route. “The directive to agencies to minimize all unnecessary adverse environmental impact . [remains] except when specifically excluded by, statute or when existing law makes compliance with NEPA impossible.” Public Service Co., supra, at 81; Calvert Cliffs Coordinating Committee, supra, at 1115; Flint Ridge Development Co. v. Scenic Rivers Association, 426 U.S. 776, at 787-788, 96 S.Ct. 2430, at 2437, 2438, 49 L.Ed.2d 205 (1976). In this case, we have found no statutory conflict which might prevent the Commission from complying fully with both the Atomic Energy Act and NEPA. The Commission is empowered by its organic statute to regulate off-site transmission lines; in the exercise of that power it must pursue the objectives of the Atomic Energy Act and NEPA simultaneously. Under the Atomic Energy Act, the Commission can issue conditional licenses for regulatory purposes. There can be no objection to its use of the same means to achieve environmental ends as well. Public Service Co., supra, at 85-86.
The petition for review is dismissed.
. In 1974, licensing and related regulatory functions of the Atomic Energy Commission were transferred to the Nuclear Regulatory Commission. See Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq. References in this opinion to “the Commission” may therefore indicate either agency.
. We are concerned throughout this opinion with “off-site” transmission lines, defined as that section of line between the plant site boundary and the first point of connection with an existing or planned high voltage system.
. See 10 C.F.R. 50.10(e)(1)(iv), 37 Fed.Reg. 5745 (March 21, 1972); Tennessee Valley Authority (Brown’s Ferry Nuclear Plant, Units 1, 2, 3) 6 A.E.C. 3 (January 22, 1973).
. Petitioners’ proposed rule reads:
The provisions of paragraphs (c) and (d) of this section shall not be deemed to prohibit any off- site construction activities including, but not limited to, construction of transmission lines. Further, paragraph (e) of this section shall not be deemed to authorize the Director of Nuclear Reactor Regulation to either authorize or prohibit any such off-site construction activities.
. In Culpepper League the court decided the substantive issue-whether the Commission erred in failing to direct an applicant to use an alternative transmission route-without questioning the Commission’s authority to order such a change.
. Section 271 reads:
Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the' generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission: Provided, That this section shall not be deemed to confer upon any Federal, State, or local agency any authority to regulate, control, or restrict any activities of the Commission.
42 U.S.C. § 2018.
Section 274(k) reads:
Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.
42 U.S.C. § 202 l(k).
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
songer_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.
COOK v. UNITED STATES.
No. 4355.
United States Court of Appeals First Circuit.
Dec. 28, 1948.
Writ of Certiorari Denied March 7, 1949.
See 69 S.Ct. 647.
William B. Sleigh, Jr., of Boston, Mass., for appellant.
Thomas P. O’Connor, Asst. U. S. Atty., of Boston, Mass. (William T. McCarthy, U. S. Atty., and Edward A. Counihan, Asst. U. S. Atty., both of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, Chief Judge, and GOODRICH (by special assignment), and WOODBURY, Circuit Judges.
MAGRUDER, Chief Judge.
This is an appeal from an order denying appellant’s motion to vacate judgment and sentence in Criminal No. 17205 and on Count 1 of the indictment in Criminal No. 17206, on which appellant had been tried in the court below and found guilty by a verdict of the jury.
In No. 17205 appellant was charged in a single count with an offense under 18 U.S.C.A. § 315 [now § 2115], In No. 17206 he was charged in two counts with offenses under 18 U.S.C.A. § 82 [now §§ 641, 1361], Appellant was sentenced on April 4, 1945,- to imprisonment for five years in No. 17205, to begin after the service of other sentences in Nos. 17222 and 17204 imposed by the trial court at the same time. Appellant was sentenced to two years on each of the two counts in No. 17206, said sentences to run consecutively and to begin after service of sentence in No. 17205. Appellant took no appeal from these judgments of conviction. He has some little time to serve on the earlier sentences before commencing service on the sentences in Nos. 17205 and 17206. He is now confined at Alcatraz, in California.
Violation of 18. U.S.C.A. § 82 carries with it the penalty of a fine or imprisonment, or both. But it is provided in 18 U.S.C.A. § 315 that one guilty of the offense there described “shall be fined not more than $1,000 and imprisoned not more than five years.” (Italics added.) Therefore, in sentencing the appellant, the district court was in error in failing to impose a fine to accompany the prison sentence in No. 17205.
On January 16, 1948, the trial judge received a letter from appellant calling attention to the failure to impose a fine in No. 17205, and asking that the letter be treated “as such a motion to make my sentence legal on No. 17205.” It might have seemed odd that the prisoner should object that a fine was not imposed upon him. But he explained in his letter “that where the law requires the imposition of a fine as well as a prison term, the fine must be assessed before the prisoner can begin serving a legal and valid sentence”; and he expressed the apprehension that he might at the instance of the Government “be resentenced on Indictment 17205 and given a new 5 yrs. which would lose me whatever time I had already served on it.”
The district court on January 20, 1948, entered an order in No. 17205 amending the judgment therein by the addition of a new paragraph adjudging “that the defendant pay a fine in the sum of one dollar, ($1.00) and, that the payment of said fine be suspended.” This was technically an increase of sentence, which the court was without power to impose without the accused being present. Price v. Zerbst, D.C.N.D.Ga.1920, 268 F. 72. See Rule 43, Federal Rules of Criminal Procedure, 18 U. S.C.A., with which compare Rule 35. It would seem that in prosecutions for felony the accused cannot effectively waive his right to be present at the sentencing. See Rule 43. See also Lewis v. United States, 1892, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011. However that may be, we do [not find in appellant’s letter to the district judge, above referred to, any clear expression of an intention to waive his right to be present.
On April 16, 1948, appellant filed under Rule 35 the motion with which we are now concerned, a motion to “vacate judgments and sentences imposed under Indictment No. 17205 and Count One of Indictment No. 17206”. This motion was denied on May 3, 1948, and the present appeal is from that order of denial.
For the reason already stated, appellant is entitled to the vacation of the district court’s order of January 20, 1948, amending the original judgment by the addition of a fine. But if appellant is also entitled to insist that the original judgment, sentencing him to imprisonment merely, must be vacated, then appellant will have to be escorted under guard on a transcontinental trip from Alcatraz to Boston to be present at the reseiitencing. That consequence would seem to be particularly absurd in the circumstances of this case. Appellant is in error in his suggestion that if the original sentence is vacated he may indicate his intention to plead guilty, and consent to the transfer of the case to the United States District Court for the Northern District of California for disposition, under the provisions of Rule 20, F.R.Cr.P. Rule 20 deals with the situation where an accused is arrested in a district other than that in which the indictment is pending against him, and provides that with the approval of the United States Attorney for each district the defendant may waive trial in the district in which the indictment is pending and consent to be sentenced in the district wherein the arrest took place, upon plea of guilty. The rule has no application to the situation presented in the case at bar. Cook has been tried, found guilty and sentenced in the District , of Massachusetts, and if there is any correction of sentence to be done, it must be done by the district court in Massachusetts.
The original sentence of imprisonment only, in No. 17205, was not null and void. The term imposed was within the limit authorized by 18 U.S.C.A. § 315; in fact it was the maximum term of imprisonment prescribed by Congress for that offense. No doubt the sentence was defective in its failure to include a fine. This was a defect of which the Government was entitled to complain. Thus, if there had been an appeal from the original judgment, the appellate court, upon suggestion of the United States Attorney, might have remanded the case with direction to correct the sentence by the imposition of a fine. Barrow v. United States, 1924, 54 App.D.C. 128, 295 F. 949. And we suppose that in the case at bar the Government would have been entitled to move in the district court under Rule 35 for correction of sentence by the addition of a fine.
On principle, we think it is clear that the defect in the original sentence here, the lack of a fine, was not prejudicial to the defendant and was not a defect of which the defendant was entitled to Complain. It has been so held in many cases, with which we entirely agree. Bartholomew v. United States, 6 Cir., 1910, 177 F. 902, certiorari denied 1910, 217 U.S. 608, 30 S.Ct. 697, 54 L.Ed. 901; Nancy v. United States, 9 Cir., 1926, 16 F.2d 872; Flynn v. United States, 7 Cir., 1931, 50 F.2d 1021; Jordan v. United States, 4 Cir., 1932, 60 F.2d 4, certiorari denied 1932, 287 U.S. 633, 53 S.Ct. 84, 77 L.Ed. 549; Matchok v. United States, 3 Cir., 1932, 60 F.2d 266; Widener v. Harris, 4 Cir., 1932, 60 F.2d 956. These cases are a complete answer to the apprehension expressed by appellant that (unless the sentence is lawfully corrected now by the addition of a fine) he will be subject to the risk that, when in the future he begins to serve the prison sentence imposed by the original judgment in 17205, he may thereafter be brought back to the court below and resentenced to the maximum term of five years in prison, accompanied by a fine, with no credit for the time already served under the original sentence. If this apprehension were well-founded in law, the cases just cited could not have held that the defect in the original sentence was not prejudicial to the defendant and did not constitute an error of which the defendant was entitled to complain.
Our conclusion is not inconsistent with the holding in Bozza v. United States, 1947, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. In this case the accused was convicted of an offense under § 2833(a) of the Internal Revenue Code, 26 U.S.C.A. § 2833 (a), which called for a mandatory penalty of a fine of not less than $100 and imprisonment for not less than thirty days nor more than two years. The sentence originally pronounced was two years’ imprisonment. The prisoner was then taken to a local detention jail awaiting transportation to the penitentiary. But five hours after the imposition of sentence, the district judge recalled the prisoner and corrected the sentence by the imposition of the minimum mandatory fine. Though the prisoner had technically begun the service of his sentence, 18 U.S.C.A. § 709a [now § 3568], the Supreme Court upheld the action of the district judge in amending the sentence by the imposition of the mandatory fine, as against the argument that such action constituted double jeopardy in violation of the Federal Constitution. The Court said, 330 U.S. at page 166, 67 S.Ct. at page 649, 91 L.Ed. 818: “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” We find not even a remote suggestion in the Bozza case to the effect that if the defendant there had served a substantial part of the sentence under the original judgment, the trial court could have vacated such judgment in its entirety and resentenced him for a. two-year term of imprisonment, together with the mandatory fine, so that the defendant, getting no credit for the time already served, might have been required to serve in the aggregate a term in excess of the maximum term prescribed by law for the offense in question. Cf. King v. United States, 1938, 69 App.D.C. 10, 98 F.2d 291, 295 n. 3.
In his motion to vacate the original judgments and sentences in Nos. 17205 and 17206, appellant also sought to raise various objections to the technical sufficiency of the indictments. These objections might have been raised by appropriate motions prior to verdict, or perhaps by a motion in arrest of judgment “within 5 days after determination of guilt” as provided in Rule 34, F.R.Cr.P. Such objections are now untimely. See Colbeck v. United States, 8 Cir., 1926, 14 F.2d 801; Audette v. United States, 9 Cir., 1938, 99 F.2d 113; Bugg v. United States, 8 Cir., 1944, 140 F.2d 848. A motion for correction of sentence under Rule 35 presupposes a valid conviction and affords a procedure for bringing an improper sentence < into conformity with the law. The short time limit upon motions in arrest of judgment, as provided in Rule 34, cannot be circumvented by a motion at any time after conviction for vacation of judgment and sentence on the ground of defects in the indictment upon the theory that such a motion is merely a motion to “correct an illegal sentence” under Rule 35. The object of such a motion would be not to “correct” a .sentence but to be relieved of it altogether.
The order of the District Court entered January 20, 1948, amending the original judgment by the addition of a fine is vacated, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.
Although Rule 35 states that an illegal sentence may be corrected “at any time”, perhaps the district eoiirt would be without power to impose a fine after the defendant had fully served the term imposed by the original judgment; in this situation, a question of double jeopardy would be presented.
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_numresp | 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 respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. DICKINSON. SAME v. WITHROW.
Nos. 5419, 5420.
Circuit Court of Appeals, Fourth Circuit.
Jan. 4, 1946.
"Roger P.'Marqüis, Atty., Department of Justice, of Washington, D. C. (J.. Edward' Williams, Acting Head, Lands Division,' Department of Justice, of Washington, D. C., and Leslie E. Given, Ú. S. Atty., of Charleston, W. Va.,' on the brief), for appellant.
Ernest K. James, of Charleston,'W. Va., for appellees.
Before S'OPER, Circuit Judge, and COLEMAN and BARKSDALE, District Judges.
SOPER, Circuit Judge.
These appeals were taken by the United States from judgments against it'in two suits brought by landowners under the Tucker Act, 28 U.S.C.A. § 41 (20), to recover compensation for the taking of their, lands and for the erosion and intermittent flooding thereof caused by raising the water level of the Kanawha River in South Charleston, West Virginia, by the erection and operation of the Winfield Lock and Dam.
Dickinson’s land consisted of a tract 3.1 acres in extent which bounded on the low-water mark of the river for a distance of 411 'feet. Dickinson acquired the land on August 16, 1937, and between that date and September 22, 1938, which the court found to be the date of the taking, he made substantial improvements thereon in the form of' grading and filling, construction of sewers, water and gas lines, the installation of a gasoline filling station and the erection of a large residence near the top of the river bank. By reason of raising the level of the river and the operation of . the dam 0.22 . acre of land was permanently submerged and 0.10 acre thereof lying between the elevation of 566 feet and 574 feet above mean sea level will be subject to intermittent flooding. The court found that on September 22, 1938, the 0.22 acre permanently flooded had a fair market value of $400 and the flowage easement to flood intermittently the 0.10 acre a fair market value of $75.
The court also found that during the latter raises in the stage of the river, and after the attainment of the present permanent level of 566 feet, considerable erosion of the residue of the plaintiff’s property at the river bank occurred which was caused by the saturation and softening of the soil and the wave action thereon that resulted from the permanent flooding of the 0.22 acre of tire plaintiff’s land. For the damages caused by this erosion the District Judge allowed the property owner the sum of $4,245.63 on the theory that for this sum appropriate protective work along the river bank to prevent the erosion, consisting of a rock toe wall and stone riprapping up to an elevation of 569 feet, could have been installed.
Withrow’s property is a tract of land, 'containing a number of city lots, and fronting on the river approximately 180 feet. The District Court found that 0.11 acre thereof was permanently submerged and 0.04 acre will be subject to intermittent flooding as the result of the raising of the level of the river and the operation of the dam. The court found that the land was taken on September 22, 1938, and that then the fair market value of the land permanently submerged was $200 and the fair market value of the flowage easement to flood intermittently the 0.04 acre was $35.
The court also found that, during the latter stages in the rise of the river and after the attainment of the permanent pool stage of 566 feet above mean sea level, considerable erosion to the residue of the property at the river bank ■was caused by the saturation and softening of the soil and the wave action thereon which was the direct and proximate result of the taking of the 0.11 acre permanently flooded. For the damages caused by the erosion the court allowed the sum of $1,859.40 on the theory that for this sum of money the owner could have erected a rock toe wall and stone riprapping to an elevation of . 569 feet above sea level which would have protected the property from erosion.
The first important contention raised by the United States is that both suits were barred by limitations under the Tucker Act because they were not instituted until the month of April, 1943, the complaint of Dickinson on April 1 and the complaint of Withrow on April 10, more than six years after the rights of action accrued. The decision of this question depends upon the date upon which the taking of the plaintiffs’ properties occurred and for this purpose it is necessary to consider the several steps which took place leading to the construction and completion of the dam and the raising of the river from time to time as the pool was filled. The improvement of the river to support a 9 foot channel by substituting four new locks and dams for those previously in place was authorized by the Acts of July 3, 1930, 46 Stat. 918, 928, and August 30, 1935, 49 Stat. 1028, 1035. The Winfield Lock and Dam was constructed under the authority of these Acts, and on July 1, 1936, notice was given to the holders of War Department permits in the area that the water elevation would be raised, and shrubbery and vegetation along the river banks were cut by the government. By October 21, 1936, construction of the dam had proceeded far enough to raise the elevation in the pool of a previous dam downstream from the plaintiffs’ properties which, however, were not affected thereby. Subsequently the river was raised by the operation of the Winfield Dam at the plaintiffs’ properties by gradual stages from a previous elevation of 554.65 to the present elevation of 566 feet above mean sea level, namely, on May 30, 1937, to 556 feet; on October 20, 1937, to 558 feet; on January 6, 1938, to 563.15 feet; on August 26, 1938 to 565 feet; on September 1, 1938, to 565.5 feet and on September 22, 1938, to 566 feet. The dam was officially inspected and accepted by the federal government on August 20, 1937.
The District Judge held that the cause of action in each case accrued on September 22, 1938, when the pool was filled and the river was finally raised to the contemplated new level of 566 feet, an increase of 11.35 feet over the former normal level, whereby the lands of the plaintiffs were permanently submerged as above described. Under this holding the suits of the plaintiffs instituted in April, 1943, were not barred by limitations. The United States, however, contends that the taking occurred and the right of action accrued on October 21, 1936, before the lands of the plaintiffs were actually invaded, but when the construction of the dam had proceeded far enough to raise the level of the pool downstream below the lands of the plaintiffs. Alternatively the government suggests that the taking occurred on May 30, 1937, when the level of the river opposite the plaintiffs’ lands was first raised by the operation of the dam from 554.65 to 566 feet and plaintiffs’ lands were first partially submerged. It will be observed that if the earlier daté is accepted as correct, the pending suits were barred; but if the later date is accepted, the pending suits were brought in due time. In either event it is important to fix the precise date because it is said that the cases at bar were selected as tests to determine the legal principles to be applied in similar süits now pending in the District Court.
It is conceded by both parties that although the use of the lands by the United States was continuous, only one cause of action accrued; and this position is sustained by the decisions which hold that when a permanent structure erected by government authority results in the invasion of or damage to land, only one right of action arises and this accrues upon the completion of the structure and the happening of the injury, and in this action, all damages, past, present and prospective are recoverable. Suehr v. Chicago Sanitary District, 242 Ill. 496, 90 N.E. 197; Carpenter v. Lancaster, 212 Pa. 581, 61 A. 1113; King v. Board of Council of City of Danville, 128 Ky. 321, 107 S.W. 1189; 4 Sutherland on Damages, 4 Ed., § 1039; 1 Am.Jur., Actions, § 117.
The contention of the United States that the pending suits are barred by limitations rests primarily upon the decisions of the Court of Claims in County Court of Marion County, W. Va., v. United States, 53 Ct. Cl. 120, and Dooner et al. v. United States, 95 Ct. Cl. 392. In the first of these cases it was suggested that it might be said that the statute of limitations begins to run in cases of this kind when the dam is completed and put in operation, or when the first damage is suffered, or at some subsequent time when the taking is to be deemed complete. The case before the court concerned certain county roads which were occasionally invaded by intermittent floods alleged to be caused by the erection of a government dam which was completed and began to fill on November 3, 1903. The suit was not brought until November 5, 1911. The landowner claimed that the taking did not occur until 1911, contending that the statute did not begin to run until the cause of action was complete and the roads had been abandoned. But .the evidence showed that all the roads were subject to intermittent flooding as soon as the pool filled and the court therefore rejected the landowner’s contention and, without stating that the right of action accrued when the dam was finished or when the water first began to submerge the land, held that so far as there was any taking, it was complete when the water had reached pool level. The point was emphasized that the time of accrual of the right of action did not depend on the time when the county decided to abandon the use of the roads. Again, in the second cited case from the Court of Claims, Dooner et al. v. United States, 95 Ct.Cl. 392, 397, 399, it was held that the owner of permanently flooded lands was entitled to interest from the date when the land was completely submerged.
We think that this is the rule to be applied in the cases now under consideration. The taking occurred in the course of the exercise by the United States of its right to improve the navigation of the river, but without prior condemnation or purchase of the land which it intended to invade. These circumstances gave rise to an implied contract to pay for the land taken, but the subject matter of the contract and the extent of the land to be taken were not established with certainty until the pool was raised to its permanent level. Until this occurred the whole matter was subject to government change and control and the taking was not complete. It is established that the mere fact that the government has undertaken a flood control project and completed a part thereof without the invasion of the land of abutting owners does not- amount to a taking thereof. United States v. Sponenbarger, 308 U.S. 256, 265, 60 S.Ct. 225, 84 L.Ed. 230; Danforth v. United States, 308 U.S. 271, 286, 60 S.Ct. 231, 84 L.Ed. 240. An intention ultimately to use the land is not sufficient to constitute a taking under these circumstances.
When we come to the merits of the case we find no denial of liability on the part of the United States for the value of the land permanently submerged or for
the damage, if any, to the land from permanent intermittent floods caused by the operation of the dam. Both invasions, if found to exist, are conceded to be takings for which compensation must be paid by the government under the rules established by the decisions, and the values placed by the District Judge upon the land are not attacked.
The decision of the District Judge is attacked principally because he allowed substantial compensation — $4,245.63 in the case of Dickinson and $1,859.40 in the case of Withrow — for the erosion and damage caused by the raising of the pool to the residue of the property not permanently submerged. The United States contends that the losses suffered by the landowners in this respect were not the result of a taking of the property in the constitutional sense, but were merely consequential damages attendant upon a public undertaking for which no recovery can be allowed by the courts. Many cases are cited in which the courts have been called upon to consider damages to land from flooding or erosion caused by the erection of dams, dykes and other structures under governmental authority; and it has been necessary to draw the difficult line between the taking involved in the direct appropriation of private land for public use for which the United States is liable at the suit of the landowner, and the indirect consequential damages flowing from the construction of public structures which are recoverable only by act of Congress. These cases illustrate a variety of circumstances in which heavy damages from flooding or erosion took place and it was held that the United States was not liable for the loss sustained or for the cost of protective measures to prevent it.
But these decisions do not touch the specific point upon which the landowners here rely, for in none of them was there a permanent submersion and an acknowledged taking of any part of the land such as has occurred in the cases now before the court. The landowners rest their case in this respect on another line of authority which holds that when part of an owner’s land is completely taken, he is entitled not only to compensation therefor but also to compensation for any damage occasioned to his remaining land. It was on this theory that the court below based its findings in the sums above stated for the cost of protecting the residue of the lands against erosion and flood damage. The court found as to the Dickinson property that between 5,000 and 7,000 cubic yards of the river bank broke off and slipped into the river, approximately thirty trees, ranging in diameter from six inches to one foot six inches, slipped into the river or were destroyed, and a large crack developed iri the earth above the top of the river bank and extended through the foundation of Dickinson’s residence causing substantial damage. This erosion and damage the court found to be due to the saturation and flooding of the soil and wave action as the direct and proximate result of the permanent flooding of the above described 0.22 acre of Dickinson’s land.
With respect to Withrow’s land the court made the similar finding that considerable erosion of the river bank abutting the property occurred, a substantial part of the bank broke off and slipped into the river, approximately twenty trees ranging in diameter from six to twenty-four inches slipped into the river or were destroyed, and the unpaved portion of the river road near its dead end in front of Withrow’s residence subsided from four to eight inches. This erosion and damage was due to the same causes as in the case of Dickinson and was the result of the taking of the aforesaid described 0.11 acre of With-row’s land which was permanently flooded. The court also found that in view of the character and value of the properties as of September 28, 1938 when the pool was filled, it would have been sound economy for Dickinson to have spent the sum of $4,245.63 and for Withrow the sum of $1,-859.40 to protect the residue of their respective properties against erosion and damages.
There is abundant authority to support this point of view, for example, United States v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 55 L.Ed. 165, 31 L.R.A.,N.S., 1135, where a part of a farm was taken for the purpose of improving the navigation of a stream by the erection of government locks and dams, and in addition an easement of access from the land to a public road was destroyed. The court held that the government was liable for the damage to the residue, saying (219 U.S. at pages 183, 184, 185, 31 S.Ct. at page 163) :
“ * * * Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted. * * *
“The constitutional limitation upon the power of eminent domain possessed by the United States is that ‘private property shall not be taken for public use without just compensation.’ The ‘just compensation’ thus guaranteed obviously requires that the recompense to the owner for the loss caused to him by the taking of a part of a parcel, or single tract of land, shall be measured by the loss resulting to him from the appropriation. If, as the court below found, the flooding and taking of a part of the plaintiff’s farm has depreciated the usefulness and value of the remainder, the owner is not justly compensated by paying for only that actually appropriated, and leaving him uncompensated for the depreciation over benefits to that which remains. In recognition of this principle of justice it is required that regard be had to the effect of the appropriation of a part of a single parcel upon the remaining interest of the owner, by taking into account both the benefits which accrue and the depreciation which results to the remainder in its use and value. Thus, in Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 967, 42 L. Ed. 270, 283, it is said: ‘Consequently, when part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition as to be in itself of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened.’ ”
See also, United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680; Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328; United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 156 A.L.R. 390; Lewis on Eminent Domain, 3d Ed., §§ 686 and 710.
A more recent application of the rule is found in cases in which losses to the property of the Chicago, B. & Q. Railroad Company were occasioned by improvements in the navigation of the Mississippi River. In United States v. Chicago, B. & Q. R. Co., 8 Cir., 82 F.2d 131, 106 A.L. R. 942, certiorari denied 298 U.S. 689, 56 S. Ct. 957, 80 L.Ed. 1408, it wa§ shown that the level of the river was raised by a government dam to such a height as to flood twenty-four acres of the railroad’s property and to cover the right of way and railroad embankment to a point 3.45 feet below the top of the railroad ties. Hence it became necessary to raise and widen the embankment and to raise the tracks so as to create a freeboard of seven feet above the new level of the pool and also to raise culverts and bridges and riprapp the embankment with .rock. This work was necessary in order that the railroad might have as good and safe a track as it had before the improvement and to secure protection against the effect of 'saturation, wave action and distortion by ice. The suit was brought by the United States for condemnation of the floodway easement over the right of way and railroad embankment, and it was held that the railroad was entitled to recover not only the value of the twenty-four acres permanently submerged, which was comparatively small, but also the cost for the changes in the embankment and the railroad line which were needed to protect the railroad and enable it to continue in operation. A verdict in favor of the railroad for $240,000 was sustained. This decision was followed by United States v. Chicago, B. & Q. R. Co., 7 Cir., 90 F.2d 161, in which the railroad was allowed the sum of $400 for 1.6 acre submerged and the additional sum of $347,411.65 as just compensation for the damage to the remainder of the railroad’s property caused by the construction and operation of the dam.
We think that this rule is applicable here and that in each case the landowner should be compensated for the loss to the residue of his property occasioned by the building of the dam. The District Judge, as we have seen, based the amount of the recovery in each case upon the reasonable cost, as of September 22, 1938, of protective work adequate to prevent the damage by erosion if installed prior to the raising of the level of the river. He found that the cost of such work in the Dickinson case would have been $4,245.63 and in the Withrow case $1,859.40 and that in each instance it would have been sound economy, in view of the character and nature of the property, to have made the expenditure.
The United States argues that there was no showing as to whether or not these sums exceeded the damages from erosion and therefore should not have been allowed because the government is not liable for any sum greater than the market value of the property that might otherwise be destroyed. The testimony, however, shows that Dickinson’s property was wprth $45,000 and Withrow’s property $1*5,000 in September, 1938, and qualified witnesses testified that- in view of the character and value of the property, the expenditure of larger sums than those allowed by the court to prevent erosion and damages would have been economically justified. This evidence can only mean that the erosion unchecked would destroy property values equal to or in excess of the cost of preventive structures. The issue involved is one of fact, and there was evidence to support the finding of the judge. There was abundant evidence given at the hearing to show that erosion had resulted and would result from the operation of the dam; and it was the function of the trial court to determine the amount of the resultant damage. We find no reason to upset its findings in these respects.
The United States also contends that Dickinson is not entitled to compensation for the permanent flooding of the entire 0.22 acre submerged, because in the year 1940, with the permission of the Secretary of War, he reclaimed the greater part thereof. This was done at a cost of $16,000 by the installation of protective work consisting of earth and rock fill to prevent further erosion and damage. The fill exceeded the amount of the river bank that had been washed into the river, with the result that all but 0.05 acre of the land originally submerged was reclaimed. It is therefore contended that Dickinson is entitled to be compensated only for the 0.05 acre, and the decision in Kelley’s Creek & N. R. Co. v. United States, 100 Ct.Cl. 396, 412, is cited in support of the contention. We disagree with the holding in that case insofar as it may be thought to lead to the conclusion that Dickinson was not entitled to be paid for the value of the entire acreage completely taken on September 26, 1938. At that time the land was taken under an implied contract on the part of the United States to pay for it. It is clear that the government was not relieved from this obligation by the mere fact that the landowner, with its approval, subsequently recovered a part of the acreage at his own expense.
Finally, the government contends that there was no evidence to support the finding that the government took an easement to flood the land intermittently or to support the value placed upon the easement by the court. In neither aspect can the contention be sustained. The easement relates to the land between the permanent elevation of the pool at 566 feet and elevation 574 feet above sea level covering 0.10 acre of Dickinson’s land for which $75 was allowed and 0.04 acre of With-row’s land, for which $35 was allowed. Qualified witnesses estimated the diminution of value that would occur upon the assumption that the acreage would be flooded from time to time and these estimates were in excess of the allowances made by the court. There was in addition evidence to support the finding that the acreage would be subject to intermittent flooding by the operation of the dam. It was shown that the government had acquired by condemnation flowage easements extending to the elevation of 574 feet on non-navigable streams contributory to the Winfield Pool in the vicinity of the Dickinson and With-row properties and that within the eight foot area between the elevations of 566 and 574 feet the stage of the river can be made to rise and fall through the manipulation of the dam. The frequency within which the flooding will occur was not shown, but we think that the acquisition of flowage easements in the vicinity and the construction of the dam with equipment capable of flooding the lands to the elevation of 574 feet indicate an intent to subject the land to intermittent flooding and amount to the taking of easements for which compensation was due. See Peabody v. United States, 231 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351.
The judgments of the District Court will be
Affirmed.
The intention of the United States to use the land of a private owner as a suitable field over which to fire heavy guns installed for the purpose may constitute a taking; Peabody v. United States, 231 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351; Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1, 39 S.Ct. 399, 63 L.Ed. 809; but it is obvious that in such a situation, the existence of the intention itself deprives the owner of the use of his land and constitutes a taking.
Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 20 L.Ed. 257; Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142, 96 A. L.R. 1; United States v. Sponenbarger, 308 U.S. 256, 267, 60 S.Ct. 225, 84 L.Ed. 230; United States v. Willis, 4 Cir., 141 F.2d 314, 316.
Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238, 48 L.Ed. 414; Manigault v. Springs, 199 U.S. 473, 26 S.Ct. 127, 50 L.Ed. 274; Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363; Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374, 46 L.R.A.,N.S., 624; Cubbins v. Mississippi River Comm., 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041; Horstmann Co. v. United States, 257 U.S. 138, 42 S.Ct. 58, 66 L.Ed. 171; Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608; United States v. Chicago, M., St. P. & P. R, Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761; Salliotte v. King Bridge Co., 6 Cir., 122 F. 378, 65 L.R.A. 620; Franklin v. United States, 6 Cir., 101 F.2d 459; W. A. Ross Const. Co. v. Yearsley, 8 Cir., 103 F.2d 589;' Cf. Coleman v. United States, C.C. N.D.Ala., S.D., 181 F. 599.
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_respond1_3_3 | 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 concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
BANGOR AND AROOSTOOK RAILROAD COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION, Respondent, Maine Central Railroad Company et al., Intervenors. MAINE CENTRAL RAILROAD COMPANY, Petitioner, v. UNITED STATES of America, and Interstate Commerce Commission, Respondents, Bangor and Aroostook Railroad Company, Intervenor. Robert W. MESERVE and Benjamin H. Lacy, Trustees of the Property of Boston and Maine Corporation, Debtor, Petitioners, v. UNITED STATES of America, and Interstate Commerce Commission, Respondents.
Nos. 77-1082, 77-1105 and 77-1108.
United States Court of Appeals, First Circuit.
Argued Sept. 12, 1977.
Decided March 30, 1978.
Rehearing Denied No. 77-1082 May 12, 1978. See 578 F.2d 444.
Laurence S. Fordham, Boston, Mass., with whom Verne W. Vance, Jr., Scott C. Moriearty, Boston, Mass., Todd D. Rakoff, Foley, Hoag & Eliot, Boston, Mass., William M. Houston, Edward T. Robinson, and Ga-ston, Snow & Ely Bartlett, Boston, Mass., were on briefs, for Bangor and Aroostook Railroad Co.
Peter J. Nickles and Eugene D. Gulland, Washington, D. C., with whom Covington & Burling, Washington, D. C., and Scott W. Scully, Portland, Me., were on briefs, for Maine Central Railroad Co.
Sidney Weinberg, Boston, Mass., for Robert W. Meserve and Benjamin H. Lacy, Trustees of the Property of Boston and Maine Corp., Debtor.
Lee A. Monroe and Sidley & Austin, Washington, D. C., on brief for intervenor Canadian Pacific Limited.
Charles H. White, Jr., Associate Gen. Counsel, Washington, D. C., with whom Mark L. Evans, Gen. Counsel, John H. Shenefield, Acting Asst. Atty. Gen., Carl D. Lawson, Daniel J. Conway, Attys., Dept, of Justice, and Raymond Michael Ripple, Atty., Washington, D. C., were on briefs, for I. C. C. and the United States.
Before CAMPBELL, Circuit Judge, TUTTLE, Circuit Judge, and WOLLENBERG, District Judge.
Of the Fifth Circuit, sitting by designation.
Of the Northern District of California, sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
These are consolidated petitions to review cease and desist orders and damage awards entered by the Interstate Commerce Commission in a report and order of February 4, 1977. 28 U.S.C. §§ 2321, 2342, 2344. The Commission’s actions followed administrative proceedings concerning the legality of interchange arrangements between the Bangor and Aroostook Railroad Co. (BAR) and Canadian Pacific Ltd. (CP). Initiated in 1973 by the Commission itself, the proceedings focused upon complaints which Maine Central Railroad (MEC) and the Boston and Maine Corporation (B&M) filed in 1974 seeking damages on account of BAR’s purportedly unlawful preference of CP.
In agreement with an administrative law judge, the Commission concluded that BAR, “aided” by CP, had “unduly prejudiced Maine Central Railroad Co. and Boston and Maine Corporation... in the distribution of traffic in violation of section 3(4) of the Interstate Commerce Act [the Act],” 49 U.S.C. § 3(4).
Acting under authority of § 16(1) of the Act, 49 U.S.C. § 16(1), the Commission held BAR liable in damages to the two complaining carriers. But the Commission’s assessment of the amount of damages was considerably lower than the ALJ’s. It ordered BAR to pay damages of $176,323 to MEC and $86,917 to B&M, with 4% interest.
BAR here challenges the Commission’s ruling that it was guilty of conduct viola-tive of § 3(4). It also challenges the Commission’s awarding damages to MEC and B&M and the amounts assessed. In separate petitions, MEC and B&M also contest the amount of damages, claiming that the ALJ’s higher assessments should have been adopted.
We conclude that the Commission had ample basis to find that BAR violated § 3(4) and that its conduct damaged MEC and B&M. We also sustain the Commission’s determination of damages. However, since we find the cease and desist orders to be overly broad, we vacate those orders and remand that aspect of the case for clarification.
I
At the heart of BAR’s allegedly improper conduct is a formal agreement that BAR and CP concluded in July, 1970, initiating a shipper solicitation program in an attempt to divert “as much traffic as possible” from MEC and B&M onto BAR’s alternative connecting line, CP. The facts we state are drawn from the opinions of the ALJ and the Commission. Except as noted, they are substantially undisputed.
BAR’s track network spans 541 miles in Maine. It connects with CP at Brownville Junction, located 45.3 miles north of Northern Maine Junction, where BAR interchanges with MEC. MEC connects further on with B&M. These four railroads skirt and cross the Canadian border in the northeastern reaches of Maine, offering alternative through routes for shippers with goods to be transported across the region. Paper, frozen vegetables, starch, clay, and wood-pulp, primarily, are shipped over these lines. Depending on a shipper’s origination and destination points, he may have the option of routing his traffic via BAR and CP, or via BAR with MEC and B&M. BAR is primarily an originating carrier, receiving goods directly from shippers rather than from other railroads, and shipping them out toward destinations not reached by its lines.
In October of 1969, the Amoskeag Co., a company controlled by a “voluntary association” known as Dumaines, purchased 99 percent of BAR stock. Frederic C. Du-maine, who controls Dumaines, became a director and chief executive officer of BAR after the purchase. When this purchase was made, Amoskeag owned 26 percent of MEC stock as well; the Commission found that “word of an impending merger between MEC and BAR became widespread” after the acquisition. In early November, 1969, the president of BAR (who had stayed on at the request of Dumaine) asked that BAR’s general freight manager prepare a traffic study showing which of the cars presently traveling via Northern Maine Junction could instead be interchanged at Brownville Junction, without modifying their destinations. A series of memos on this subject followed; most were passed on to Dumaine by the president of BAR, in late November and early December of 1969. The memos detailed the commodities and numbers of carloads that were subject to such a diversion; one set forth the estimated loss, about $2.8 million per year, that was predicted to accrue to MEC and B&M should all 24,000 such carloads successfully be rerouted. Another memo, circulated in mid-December, compared transit times for goods traveling the alternative routes, and showed little over-all difference between the two routes.
Negotiations between CP and BAR to arrange a cooperative effort in support of a freight diversion plan were initiated late in 1969, and continued through the first half of 1970. Salient features of the negotiations were BAR’s undertaking to furnish CP origin and destination statistics of all traffic subject to diversion, CP’s duty aggressively to solicit new traffic, and CP’s agreement to expand and improve its interchange facilities at Brownville Junction in order to handle the expected additional traffic. CP also indicated by letter its understanding that any agreement regarding concerted solicitation efforts that was ultimately concluded would be “long-term and not subject to any reversal of policy” by BAR.
In mid-January, BAR investigated the potential financial impact on BAR of the proposed re-routing efforts: it compared the divisions that it would receive from additional traffic of different commodities when shipped over CP instead of over MEC. The investigation showed that diversion would decrease BAR’s revenues in some cases and induced CP to offer to pay BAR a “car allowance” for every additional car moving over its lines that would otherwise give BAR a diminished division.
After further discussion and correspondence, the terms of an agreement were reached in early June of 1970, and activity pursuant to that agreement intensified. Under the heading “PRIVATE” a written confirmation of the agreement set forth inter alia that BAR had,
“agree[d] to interline with CP Rail via Brownville Junction as many cars of paper products and potatoes as it is possible for it so to interline and anticipates that by reason of this agreement such interline traffic will be increased by approximately 24,000 cars annually as follows:
“Forwarded to CP Rail
Paper 11,000
Potatoes 4,500
Other 3,500
Sub-total 19,000
Received from CP Rail
Misc. 5,000”
The agreement described the allowances that CP agreed to pay BAR on additional carloads of potatoes and paper products that would be interlined at Brownville Junction; those payments were to be made “quarterly by check through the Claims Section of the Auditor of Freight Claims”. CP also formally undertook to improve its interchange facilities. Not specifically spelled out in the memorandum, but apparent from the correspondence and testimony regarding the negotiations of early 1970, was the commitment of both parties vigorously to solicit traffic on behalf of CP. The pact was to bind the parties over a fifteen year period; there was provision, however, for reopening and renegotiation every five years, on 180-day notice. The agreement was not formally executed until July 31, 1970, but it was by its terms to take effect retroactively, as of January 1, 1970.
The Commission received evidence that pursuant to this agreement, both carriers approached shippers, urging them to route their traffic over CP instead of via MEC. Though service differences such as transit time, reliability, and car supply were sometimes cited to the shippers in support of the solicitations, those comparisons do not appear to have been grounded in either fact or prior study. BAR also “distributed suggested routes to the principal shippers on its lines.... All suggested routes were via Brownville Junction.” CP and BAR personnel made some solicitation visits jointly, in search of more traffic for CP.
The sales efforts of BAR and CP coincided, with a drop in traffic shipment over MEC that was marked enough to prompt MEC’s inquiry of shippers and carriers about the possible reasons behind the decrease. As MEC became generally aware of the intensified promotion campaign on CP’s behalf, MEC engaged in some counter-solicitation in an attempt to stem the tide, and evidently had some success. BAR’s and CP’s efforts continued in varying intensity over five years, until the agreement was terminated at CP’s request on February 18, 1975, retroactive to January 1, 1975.
II Liability under § 3(4)
Section 3(4) of the Act, entitled “Interchange of traffic”, provides,
“All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.” [Emphasis supplied.]
49 U.S.C. § 3(4). In a rate discrimination case brought under the section, the Supreme Court has commented generally, “In the absence of any settled construction of § 3(4),... its manifest purpose to deprive railroads of discretion to apportion economic advantage among competitors at a common interchange must be the basic guide to decision.” Western Pacific Ry. Co. v. United States, 382 U.S. 237, 244, 86 S.Ct. 338, 343, 15 L.Ed.2d 294 (1965).
The Supreme Court has not had occasion expressly to construe the language in § 3(4) barring “undue prejudice” in the distribution of traffic. However, a three-judge court in Southern Pacific Ry. v. United States, 277 F.Supp. 671 (D.Neb.1967), aff’d mem., 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275 (1968), has interpreted this part of § 3(4) to prohibit a carrier from soliciting traffic preferentially, in favor of one connecting line over another:
“The prohibition of Section 3(4) is against discriminatory conduct of the carrier against connecting lines. The Act cannot be circumvented by wrongfully inducing the shipper to commit the discrimination in place of the carrier. In other words, the legislation is not to be so weakly construed that it permits the carrier to accomplish indirectly what he cannot do by direct preferential routing. In view of the clear policy expressed by the statute, we see no meaningful distinction between arbitrarily soliciting the unrouted freight at that time and arbitrarily routing it should the shipper leave it unrout-ed.... ‘[T]here is no basis for the contention that Congress intended to exempt any discriminatory action or practice of interstate carriers affecting interstate commerce which it had authority to reach.’ U
“... [W]e feel that preferential solicitation when done on a ‘preconcerted’ and ‘systematic’ discriminatory basis,. falls within the statutory prohibition of Section 3(4) as well [as preferential routing]. The preferential solicitation dictated by the agreement is without concern for competitive benefits of similar lines and without relationship to the best possible service to the shipper. It is as much an apportionment of ‘economic advantage’ as direct routing itself.”
277 F.Supp. at 685, quoting Houston, East & West Texas R. Co. v. United States, 234 U.S. 342, 356, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), and Western Pacific Ry., supra. It is to be noted that the judgment in Southern Pacific was summarily affirmed by the Supreme Court, although summary affirmance on statutory questions such as were there presented does not inevitably conclude future interpretations of § 3(4). Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam); Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) (Burger, C. J., concurring).
We accept the district court’s interpretation in Southern Pacific, and the Commission’s similar construction in this case. Section 3(4) addresses the “interchange of traffic.” The proscribed act is “unduly prejudicpng] a connecting line in the distribution of traffic.” A defense is provided carriers who route traffic “specifically routed by the shipper,” New York v. United States, 568 F.2d 887, 894 n. 12 (2d Cir. 1977); this is consistent with other provisions of the Act that protect shippers’ freedom. The other subsections within § 3(4) all speak to a carrier’s obligation to afford even-handed treatment to its connecting lines, except room is allowed for different treatment when warranted by so-called “service considerations.” The provision seems obviously meant to avert the anti-competitive effects of a powerful or well-positioned carrier using its influence and position in favor of one connecting line over another, and thus skewing the market as that market is structured under the Act.
Especially in light of Southern Pacific, we think the language of the statute put BAR fairly on notice that its conduct was prohibited. BAR, primarily an originating carrier, waged a broad-gauged and long-term solicitation campaign in support of only one of its connecting lines, CP. There is substantial evidence supporting the Commission’s finding that the sales effort was initiated, and continued, not on the basis of any markedly superior service (i. e. “service considerations”) that CP furnished its shippers, but rather for some other motive. The evidence indicated that in the study of comparative transit times undertaken prior to BAR’s broaching the possibility of joint solicitation with CP, no one carrier demonstrated a distinct advantage. Until after the negotiations had begun, BAR attempted no assessment of the reliability of alternative carriers, nor even of BAR’s own divisions in the rates of commodities shipped over the two available routes. An examination of the latter subsequently revealed that BAR itself would lose revenues on potatoes and paper products should those goods be interlined with CP rather than with MEC, causing CP to agree to pay BAR so-called “car allowances” for diverted traffic. The facilities of CP did not dictate that it would be in every shipper’s interest to ship via CP: CP had to expand and upgrade its interchange facilities with BAR as part of the agreement to solicit the divertible traffic.
Further, BAR points in its brief to no specific instances where BAR’s recommendations to shippers were individually tailored according to service considerations. BAR’s solicitation efforts were uniformly on behalf of CP. Its undertaking was to solicit “all traffic possible” for CP, not just traffic that CP could, objectively, handle better than others. The agreement BAR entered into with CP committed it to seek traffic on behalf of CP over a fifteen-year period, without provision for release in less than five years. Should CP’s service have deteriorated, BAR remained obliged to solicit on its behalf. The agreement was a secret one; the “car allowances” CP was to pay BAR appear to have been concealed as freight claim payments. BAR favored CP by providing it with a detailed list of shippers and commodities originating on BAR lines; BAR distributed no such lists to other carriers as a matter of policy. This cannot conceivably constituted even-handed treatment in the distribution of traffic.
Post hoc characterization of these activities as salutary promotion of competition through fair-minded recommendations to strong and sophisticated shippers is implausible. Though the Commission made no express finding that these solicitations were fraudulent or coercive, nor that competition, as distinct from competitors, was injured by the campaign, its findings did not reveal the impartial approach toward connecting lines in the distribution of traffic that is required of an originating carrier by § 3(4).
We therefore have little hesitancy in upholding the Commission on the facts of this case. In so doing, we go no further than to support a ruling that active and deliberate solicitation by an originating carrier for one or more of its connecting lines, to the plain neglect and detriment of other connecting lines, violates § 3(4) of the Act, when such solicitation is not supported by a significant service differential between those carriers (or any other specific exception grounded in the Act) that objectively could justify a departure from impartial treatment.
While this construction of § 3(4) seems clear enough, BAR disagrees, and has launched a multi-faceted attack on both the Commission’s interpretation and application of the section. First, with CP, it urges that the traffic that it solicited was “specifically routed by the shipper,” in that it arrived at BAR’s loading platforms, for example, with routing instructions signed by the shipper. BAR argues that it merely followed the shippers’ instructions when it routed the solicited traffic via CP. Moreover, BAR claims to have been prohibited by § 3(4) from rerouting that traffic in derogation of the shippers’ wishes. BAR relies correla-tively on sections 15(10), 15(11), and 15(12) of the Act, 49 U.S.C. §§ 15(10), 15(11), 15(12), as exemplifying Congress’ intention to protect “unfettered shipper choice,” and submits that to construe § 3(4) as prohibiting BAR from routing in accordance with shippers’ instructions would “make a mockery” of § 15(10), and conflict with the purposes of the Act.
We find no merit in this argument. Section 3(4), while consistent with the subsections of § 15, does not blindly deify “shipper choice.” Its focus is inter-carrier relations. The shipper choice that BAR relies on in its defense was tainted by BAR and CP’s solicitation efforts, which were not founded upon the shippers’ service interests, and provides no satisfactory justification of the systematic favor BAR bestowed on CP.
BAR objects that no inquiry was made into whether the prejudice suffered by MEC and B&M was “undue.” It contends that “undue” prejudice refers to injury incurred as a result of harm to competition, drawing an analogy to antitrust law. But while the Commission has characterized the statute as “pro-competitive”, that characterization does not thrust § 3(4)’s construction into the thick of antitrust doctrine. BAR’s analogy asks too much. Undue prejudice may refer to a disadvantage to a connecting line that is unwarranted by service considerations. Such harm to connecting lines as may result from a carrier’s breach of the strictures of § 3(4) are recoverable in damages under the terms of the Act without an independent assessment of the state of “competition” in the market, and the Commission is empowered to make such an award. 49 U.S.C. §§ 8, 13(1), 16(l). And as the Commission noted, it is “inapposite for BAR and CP to maintain that the BAR-CP agreement promoted competition when a normal competitive situation presupposes that each connecting line has equal advantage and opportunity to solicit shippers.”
BAR further urges that its soliciting activities and agreement with CP were not shown to have “distributed traffic.” It says that it would be illogical to conclude that the ultimate routing instructions given by the shippers on each of the thousands of shipments reflected BAR’s choice rather than the shipper’s choice. But while it might be possible for a minor connecting carrier to maintain that its solicitations on behalf of another connecting line did not carry enough weight to amount to “distribution”, an originating carrier such as BAR, controlling many miles of track by which shippers gained railway access to various destination points, could reasonably be found to command a position from which it exerts substantial influence over shippers’ choice of routes, regardless of a shipper’s experience or sophistication. This is not to say that an originating carrier necessarily controls its shippers — it may depend on them collectively as much as they on the carrier — nor that a carrier could sanction noncooperative shippers by simply refusing them service — other sections of the Act limit a carrier’s power in dealing with shippers; but a shipper might well feel compelled to cooperate with an originating carrier rather than incur its disfavor. Further, BAR and CP instituted and carried out a systematic program of solicitation, pursuant to agreement, rather than sporadically asking for business in a few instances. We see no reason not to characterize this as an effort to “distribut[e] traffic” in contravention of § 3(4).
Last, BAR asserts that the Commission’s reading of the statute conflicts with the first amendment of the United States Constitution. This contention was not raised before the agency, but even assuming it is now open we see no merit in it. Though first amendment protection has lately been afforded some types of commercial speech, see Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (attorney advertising); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (residential “for sale” signs); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (advertising of drug prices), the first amendment has not yet been held to limit regulation in areas of extensive economic supervision, such as the securities, antitrust, and transportation fields, where the exchange of information can be a vital element in an illegal scheme. Shaping the regulation of “speech” in those areas is more a matter of policy development than one of constitutional right; it lies most appropriately with Congress and the regulatory agency. Even if some language in the above-cited cases may have seemed to herald a new era of first amendment law, see Virginia State Board of Pharmacy, supra, 425 U.S. at 762, 96 S.Ct. 1817, the revolution has yet to envelop the transportation field to the extent BAR asserts.
Moreover, unlike the statutes questioned in the cases cited by BAR, the challenged construction of § 3(4) does not dictate silence on the part of carriers. It does not prevent an originating carrier from providing information of any and all sorts to shippers on an even-handed basis. It does require that an originating carrier make good faith efforts to ascertain the accuracy of purported “information,” and it limits the pressure that an originating carrier may put on a shipper. Without demonstrable superiority of a connecting line, an originating carrier, in its influential position, is precluded from sponsoring that line. Cf. Bates v. State Bar, supra, 433 U.S. at 4904, 97 S.Ct. 2691. It is hard to see how this standard does violence to first amendment values.
In the present case, despite the absence of an express ruling that BAR’s solicitation included statements that were fraudulently or deceptively made, the Commission’s opinion leaves little doubt that BAR’s statements were at least misleading. That a few of the statements were discovered after the fact to have been inadvertently accurate offers no justification for BAR’s manifestly unequal treatment of CP and MEC, and does not rebut an overall judgment that the solicitations were recklessly made.
Finally, we dismiss BAR’s argument that the Commission’s findings were not supported by substantial evidence on the record viewed as a whole. Though BAR can point to portions of the record that might have justified findings different from the Commission’s, the Commission could properly choose to rely on the evidence that it found most trustworthy and plausible. Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Its conclusions derive substantial support from the record: this is the test they must satisfy. Illinois Central RR. Co. v. Norfolk & Western Ry. Co., 385 U.S. 57, 66, 69, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); 5 U.S.C. § 706(2)(E).
Ill Damages
1. The Commission’s method of calculation.
To calculate the extent of the damage to MEC and B&M resulting from BAR and CP’s unlawful conduct, the Commission applied a “before and after” test. It projected the expected market shares of the two carriers in certain divertible commodity traffic on the basis of previolation market figures, and compared those shares with the actual market shares enjoyed by MEC and B&M over the period from 1970 through 1974, when the unlawful activity was in progress. The market share differential was then translated into terms of carloads lost by the carriers for each commodity. Each carload of a given commodity was assigned a figure representing the average gross revenue brought in by such carloads. To each carload was also attributed a portion of the carrier’s operating expenses, including certain overhead costs which were determined in accordance with guidelines developed in rate-making procedures before the Commission. These costs were integrated into the damage formula by application of certain “operating ratios” calculated in standard fashion by the Commission; those ratios reflect the proportion of expenses to revenues in traffic of a given commodity. The Commission totaled the estimated net revenues lost per carload in each type of traffic, combined with the number of carloads lost per commodity by virtue of BAR’s conduct, to give a monetary estimate of the injury suffered by MEC and B&M. The Commission attempted to exclude from its calculation, traffic that originated or terminated on MEC, B&M, or CP, since that traffic would not have been subject to diversion. B&M’s damages were assessed essentially as a proportion of MEC’s award. See infra.
2. Damages — The carriers’ primary objections
All three carriers complain at length about the Commission’s computation of damages. BAR strenuously argues that no damages at all should be recovered by MEC and B&M. It says that the proofs relied on by the Commission and proposed by those carriers are “purely speculative” and fail to satisfy the standards of proximate cause required in a court of law. We find this contention without merit. A similar “before and after” comparison of market shares has been accepted in antitrust litigation when more precise measurements of the plaintiff’s damage would be too burdensome or are unobtainable for some other reason. See, e. g., Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931); Harverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 804-07 (1st Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). BAR contends that by examining interchange reports for Brownville and Northern Maine Junctions over 1970-74 and interviewing shippers, the injured carriers could and should have reconstructed unlawful solicitations and the shippers’ state of mind with regard to individual shipments in order to arrive at a precise count of shipments that were unlawfully diverted. But such an investigation would have required combing through the records of more than ten thousand shipments in each year of the five-year period. The difficulty of the task has been augmented by BAR’s destruction, since the violation, of interchange information concerning the destinations of the diverted freight, as well as of the computer printouts on shippers that BAR passed on to CP. The law does not demand that injured parties be so burdened. The wrongdoer could be required to bear the risk of uncertainty in the calculation of the number of carloads diverted by its actions, see Story Parchment, supra, 282 U.S. at 563-65, 51 S.Ct. 248. The Commission supportably found that MEC and B&M had met the burden of establishing “some resultant injury” from the § 3(4) violation. This was a rational inference, for, as the ALJ explained,
“[tjhere are no facts of record which evidence service superiority in movements via Brownville Junction over Northern Maine Junction. In 1969 the transit times via the two interchange points were comparable. Routing changes resulting from carrier rate adjustments and concessions are short term and occur in both study and compared periods. There is no evidence of any abnormal market trend in the compared periods which affected originations and terminations on BAR. Nor is there any evidence of changes in supply sources and sales outlets that required elimination of MEC or MEC and B&M participation as intermediate carrier or carriers in the movements. What were present in the 1970-74 periods which were not present in 1969 were (1) the BAR-CP agreement and solicitation campaign and (2) the Great Northern-CP 100 car a month agreement.”
Once the fact of injury was demonstrated, the Commission was authorized to determine if “any party. is entitled to an award of damages under the provisions of this chapter for a violation thereof.” 49 U.S.C. § 16(1). The method of assessing the damages to be charged to BAR became a matter for the Commission’s reasoned judgment, based on its expertise in the field. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); see Bagel Bakers Council v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977). The Commission had merely to settle on a reasonable and rational method of computation, see Bagel Bakers Council, supra. We must defer its choice among rational methods. NLRB v. Seven-Up Bottling Co., supra. The Commission’s decision to award damages for this § 3(4) violation, with its reasoned conclusion as to their measurement, reflected a policy choice peculiarly within its realm. See 49 U.S.C. § 12; Consolo v. FMC, supra, 383 U.S. at 620-21, 86 S.Ct. 1018 (1966); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); United Van Lines, Inc. v. ICC, 545 F.2d 613 (8th Cir. 1976); cf. American Power and Light Co. v. SEC, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946); Maine Potato Growers v. Butz, 540 F.2d 518 (1st Cir. 1976). See generally 4 Davis, Administrative Law Treatise § 30.10 (1958). Applying these principles, we disagree with BAR that the Commission’s methodology was outside acceptable limits, as providing a reasonable yardstick for estimating the harm visited on MEC and B&M by BAR’s actions.
While BAR seeks elimination or reduction of the award, the injured carriers seek reinstatement of the ALJ’s higher assessments. Thus they ask us to remand the case with instructions to reinstate the ALJ’s decision and award. However, it is not our province to choose between the awards of the ALJ and the Commission. Any review of the ALJ’s actions is only incidental to our review of the Commission’s decision. See 28 U.S.C. §§ 2321, 2342, 2344. The Commission was in no sense bound by the ALJ’s recommendation. “An agency loses no power of decision by having an administrative law judge preside at a hearing.” Davis, Administrative Law of the Seventies (1976 Supp. to Administrative Law Treatise) § 10.03 at 313. See Adolph Coors Co. v. FTC, 497 F.2d 1178, 1184 (10th Cir. 1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975). A reviewing court may consider the decision of the ALJ as part of the record, but, except on matters of credibility, it is due little deference when the Commission has made an independent evaluation that is substantially supported by the evidence. See United States Retail Credit Ass’n, Inc. v. FTC, 300 F.2d 212, 216-17 (4th Cir. 1962).
Thus the question before us is not whether the ALJ’s approach was, in our view, better, but simply whether the Commission’s method of computing the extent of the carriers’ injury was rational. As regards the latter question, the injured carriers are not persuasive in arguing that it was not. MEC and B&M maintain that their projections of market share (which the ALJ accepted) based on the percentage of the market held by each during 1969, a one-year period, should not have been rejected by the Commission. The Commission, however, deemed those to be speculative, and made independent market share projections, based on market share figures for the preceding five to eight years. Where a trend was. evident, the Commission extrapolated from the figures according to the trend; where no increasing or decreasing market share appeared, the Commission averaged the statistics for the preceding years and applied that simple average as a constant estimated market share during the period of the violation in
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer: |
songer_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
ZERBST, Warden, v. McPIKE.
No. 8634.
Circuit Court of Appeals, Fifth Circuit.
June 16, 1938.
Lawrence S. Camp, U. S. A tty., and Flarvey H. Tisinger, H. T. Nichols, and J. Ellis Mundy, Asst. U. S. Attys., all of Atlanta, Ga., for appellant.
Before FOSTER, SIBLEY, and HUT-CHESON, Circuit Judges.
SIBLEY, Circuit Judge.
Will McPike by habeas corpus challenged the legality of his imprisonment in the federal penitentiary at Atlanta, on the ground that the sentence of three years imposed on him Nov. 7, 1933, in the District Court for the Western District of Louisiana had expired. He obtained a judgment of discharge and the warden of the penitentiary appeals.
The undisputed evidence is that Mc-Pike was arrested by the State of Louisiana and was in the parish jail awaiting trial. On Nov. 6, 1933, he was 'indicted in the federal court for fraudulently impersonating a United States officer. On Nov. 7th the State officers brought McPike into the federal court and suffered him to be tried. He pleaded guilty and was sentenced to serve in the penitentiary for three years, no time being fixed for the commencement of the sentence. He was then taken by the State officers back to jail. On Nov. 13th he was tried and convicted for a State offense and sentenced to the State penitentiary for three to five years. The commitment which the clerk of the federal court issued on Nov. 7th was not executed but was returned Nov. 24th with an entry that McPike was confined as a prisoner in the Louisiana penitentiary as a State prisoner. After serving the State sentence he was taken on an alias commitment to the federal penitentiary Aug. 2, 1936. The deputy marshal testifies that McPike was maintained in the jail as a State prisoner before and after his trial in federal court, and was never maintained there as a federal prisoner and the District Attorney who handled the case testifies that the State never yielded jurisdiction over him to the federal government, except to try him.
Under the inviolable rules of comity, which are reciprocal, the State having first arrested and imprisoned McPike could not without its consent be deprived of his custody until through with him. Ableman v. Booth, 21 How. 506, 16 L.Ed. 169; Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390. But the State could “lend” the prisoner to the federal government in order to afford him a speedy trial and to convenience the witnesses who might be necessary to be assembled for or against him. 'This can be done without a complete surrender of the prior jurisdiction over him which the State had acquired. This we think is fairly decided in the case of Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879. There the prisoner was serving a federal sentence and was taken on habeas corpus to the State court to be tried for a State offense, the federal officer accompanying him and maintaining federal custody. Ponzi was evidently to be returned to his federal service after the trial. It was held that the procedure was lawful. The fact that Ponzi was originally in federal rather than State custody does not alter the principle, nor does the fact that he had been already convicted when “loaned” to the State distinguish that case from this. The prior right acquired by first arrest continues unchanged until the arresting government has completed the exercise of its powers, and a waiver extends no further than it is intended to extend. Without the consent of the State authorities the United States Marshal could not lawfully take the person of McPike from the State officers, although McPike had been brought into the federal court and tried; and he did not attempt to. When McPike was taken back to jail he entered it not to await transportation to the federal penitentiary but to await trial in the State court. The proviso of 18 U.S.C.A. § 709a therefore does not apply. His federal sentence could begin to run only from “the date on which [he] is received at the penitentiary, reformatory or jail for service of said sentence”, by the express provision of that law. It has not yet Been fully served. The judgment is reversed with direction to remand the prisoner to the custody of the warden.
Judgment reversed.
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_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.
SEELEY TUBE & BOX CO. v. MANNING.
No. 9693.
United States Court of Appeals Third Circuit.
Argued Nov. 18, 1948.
Decided Dec. 20, 1948.
Albert Freeman, of Newark, N. J. (Bilder, Bilder & Kaufman, of Newark, N. J., and George G. Tyler and William J. Nolan, Jr., both of New York City, on the brief), for appellant.
S. Dee Hanson, of Washington, D. C. (Tfaeron Lamar Caudle, Asst. Atty. Gen., George A. Stinson and Robert N. Anderson, Sp. Assts. to Atty. Gen., Isaiah Mat-lack, U. S. Atty., and Edward V. Ryan, Asst. U. S. Atty., both of Newark, N. J., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH and O’CONNELL, Circuit Judges.
GOODRICH, Circuit Judge.
This is a suit by a taxpayer to get back some money from the Government. The taxpayer was entitled to a refund for taxes paid in 1941. It was repaid $40,384.66 and the Government kept back $4513.34 which it claimed as interest upon an alleged deficiency. The District Court denied relief to the taxpayer who, therefore, seeks help here.
The point of the case can best he understood if non-technically stated, leaving statutory references and the like for footnote elaboration. The taxpayer paid the tax it thought due for income and excess profits for 1941. Later deficiencies on both income and excess profits taxes were asserted by the Commissioner. Because the taxpayer had gone into bankruptcy the assessments were perfected in the accelerated fashion provided for in the statute. Then in 1943 the taxpayer had a severe operating loss. By the terms of the statute there is a carry-back provision for the operating loss and the taxpayer is entitled to credit therefor back through 1941. As a result of the application of the statutory rule the alleged deficiency in the taxpayer’s 1941 'tax disappeared. Not only that, but the taxpayer became entitled to a refund on the amount it had paid for the same year. It is the difference between what it paid and what the Government paid it back that is -the subject-matter of this suit.
It is argued on behalf of the Commissioner that the money was due when the deficiency was asserted. The Government is, on this argument, 'entitled to interest on the difference between what the taxpayer paid and what the Government claimed until the debt due the Government was swept away by the application of the carry-back provisions of the statute already mentioned. The taxpayer, on the other hand, says that it does not owe interest for non-payment of deficiencies in taxes which, in the light of subsequent events, have been found not to exist.
We think the argument here is overwhelmingly on the side of the taxpayer. It should be noted at the outset that the taxpayer is not claiming any interest from the United States. If it were, a different sort of problem would be presented and some of the rather elaborate argument made on behalf of the Commissioner would be in point. All the taxpayer wants is to get back the money it paid the Government which is undisputedly coming to it because of the carry-back provisions. It asks, in other words, for the return of principal only.
Interest not contracted for by the terms of an agreement between parties is generally described as damages for the detention -of money to which another is entitled. The Government adopts that theory in this case. But what money was the Government entitled to here? As it turned out, taxpayer not only did not owe any money, but had money coming back to it. The only thing on which an interest claim could be predicated is the inchoate liability of the taxpayer which disappeared under the application of the carry-back provisions of the statute. We think that inchoate liability is not sufficient to call for the payment of anything but inchoate interest, whatever that may be, and so far as real money is concerned the taxpayer is entitled to get it back.
Both sides admit there is little decided case law that is very helpful. The taxpayer certainly has analogous authority in its favor in one line of cases. These decisions allowed the recovery by the taxpayer against the Government of interest paid on a tax by the taxpayer in a situation where it developed that the assessment was erroneous. The taxpayer was allowed to recover the interest he had paid in spite of a compromise agreement made with the Government at the time he paid the interest. Big Diamond Mills Co. v. United States, 8 Cir., 1931, 51 F.2d 721; Colorado Milling & Elevator Co. v. Howbert, 10 Cir., 1932, 57 F.2d 769; Phelps v. United States, 2 Cir., 1939, 105 F.2d 904. It also cites a previous ruling by the Commissioner which tends to support this point of view. The Commissioner relies heavily on Brandtjen & Kluge, Inc. v. United States, D.C.Minn.1948, 78 F.Supp. 509. This case is not exactly in point because a plaintiff was trying to get back interest and the court did not think that a refund of a tax included interest. But it is pretty close to the case before us, and the court there relied upon the instant case in the District Court for authority. The Minnesota court also pointed out that the plaintiff’s argument was “appealing, forceful and persuasive of the lack of logic in the Bureau’s refusal to return the interest * * 78 F.Supp. 509, 513.
After reviewing the authorities and reading the legislative history cited to us by each side we conclude to reverse. And the basis for that reversal, simply stated, is that the interest on nothing (what taxpayer owed the Government), is necessarily nothing. Therefore, the taxpayer is entitled to his money.
The judgment will be reversed with directions to order judgment for the plaintiff.
The taxpayer’s fiscal period involved here is from January 1, 1941 to September 30, 1941. It filed its tax returns and paid taxes covering this period, and it is these payments to which the carry-back provisions are applicable.
Internal Revenue Code § 274, 26 U.S. C.A. § 274, provides:
“§ 274. Bankruptcy and receiverships— (a) Immediate assessment.
“Upon the adjudication of bankruptcy of any taxpayer in any bankruptcy proceeding or the appointment of a receiver for any taxpayer in any receivership proceeding before any court of the United States or of any State or Territory or of the District of Columbia, any deficiency (together with all interest, additional amounts, or additions to the tax provided for by law) determined by the Commissioner in respect of a tax imposed by this chapter upon such taxpayer shall, despite the restrictions imposed by section 272 (a) upon assessments be immediately assessed if such deficiency has not theretofore been assessed in accordance with law. In such cases the trustee in bankruptcy or receiver shall give notice in writing to the Commissioner of the adjudication of bankruptcy or the appointment of the receiver, and the running of the statute of limitations on the making of assessments shall be suspended for the period from the date of adjudication in bankruptcy or the appointment of the receiver to a date 30 days after the date upon which the notice from the trustee or receiver is received by the Commissioner; but the suspension under this sentence shall in no case be for a period in excess of two years. Claims for the deficiency and such interest, additional amounts and additions to the tax may be presented, for adjudication in accordance with law, to the court before which the bankruptcy or receivership proceeding is pending, despite tbe pendency of proceedings for the redetermination of the deficiency in pursuance of a petition to the Tax Court; but no petition for any such re-determination shall be filed with the Tax Court after the adjudication of bankruptcy or the appointment of the receiver.”
The applicable provision of the Internal Revenue Code reads as follows:
Ҥ 122. Net operating loss deduction
“ (b) Amount of carry-back and, carryover — (1) Net operating loss carry-back. If for any taxable year beginning after December 31, 1941, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed .(A) with the exceptions, additions, and limitations provided in subsection (d) (1), (2), (4), and (6) and (B) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss.” 26 U.S.C.A. § 122(b).
The applicable sections of the Revenue Act of 1938, §§ 271, 292, 52 Stat. 534, 541, 26 U.S.C.A. §§ 271; 292, provide;
Ҥ 271. Definition of deficiency
“As used in this chapter in respect of a tax imposed by this title ‘deficiency’ means—
“(a) The amount by which the tax imposed by this title exceeds the amount shown as the tax by the taxpayer upon his return; but the amount so shown on the return shall first be increased by the amounts previously assessed (or collected without assessment) as a deficiency, and decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax; or
“(b) If no amount is shown as the tax by the taxpayer upon his return, or if no return is made by the taxpayer, then the amount by which the tax exceeds the amounts previously assessed (or collected without assessment) as a deficiency^ but such amounts previously assessed, or collected without assessment, shall first be decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax.”
Ҥ 292. Interest on deficiencies
“Interest upon the amount determined as a deficiency shall be assessed at the same time as the deficiency, shall be paid upon notice and demand from the collector, and shall be collected as a part of the tax, at the rate of 6 per centum per annum from the date prescribed for the payment of the tax (or, if the tax is paid in installments, from the date prescribed for the payment of "the first installment) to the date the deficiency is assessed, or, in the case of a waiver under section 272 (d), to the thirtieth day after the filing of such waiver or to the date the deficiency is assessed whichever is the earlier.”
“It was only by reason of the permitted retrospective deduction for the taxable period * * * of the so-called ‘net operating loss carry-back’ from the later year, as provided by Section 122 (b) (1), that the taxpayer eventually became entitled to an abatement of the deficiency taxes. This, however, was after they had already been in existence for some considerable time, as already shown. Hence, the only amount the Commissioner was legally permitted to refund was the aggregate sum of the taxes paid, less the statutory interest on the deficiencies which had accrued between the due date of the payment of the taxes on December 15, 19-11, and the date of the deficiency assessments on August 2, 1943 (Section 292 (a)), no interest being refundable except that which accrued after the refund claims were filed on March 15, 1944 (Section 3771 (c)). Consequently, the Commissioner had no alternative than to refuse to refund the interest in question. The exaction of interest from the Government requires specific statutory authority * * * and it may be computed only according to (lie statutory provisions in force at the time of the allowance of a refund or credit. * * * ” Brief foi Appellee, pp. 13-14.
15 Am.Jur., Damages § 159 (1938); Restatement, Contracts § 337 (1932).
Referring to penalties and interest collected without aulhority, this ruling states “ * * * that interest and penalties are in the nature of accretions to the tax and should be considered as a part thereof in connection with any refund or credit of the tax.” I.T. 1447, 1-2 C.B. 220 (1922).
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_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.
BISHOP et al. v. E. A. STROUT REALTY AGENCY, Inc.
No. 6066.
United States Court of Appeals Fourth Circuit.
Argued April 19, 1950.
Decided May 29, 1950.
Sol C. Berenholtz, Baltimore, Md. (Solomon Kaplan, Baltimore,.Md., on brief), for appellants.
John W. T. Webb and William W. Travers, Salisbury, Md. (Webb, Bounds, Travers & Adkins, Salisbury, Md., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER.and DOBIE,,Circuit Judges.
PARKER, Chief Judge.
This is an' appeal by plaintiffs from a judgment for defendant on a directed verdict in an action to recover damages for deceit. Plaintiffs are husband and wife who purchased a tract of land with water frontage for the purpose of using it as an angler’s camp. The defendant is the real estate agency that is alleged to have sold the property acting through its local representative or “associate”, one Oscar C. Davis, who was not joined in the action. The complaint alleges that plaintiffs were induced to purchase the land through the false and fraudulent representations of Davis as to the depth of the adjacent water and that they suffered damage as a result. The case was heard before a jury' and the trial judge directed verdict for defendant on the ground that the falsity of the representations -could have been discovered by plaintiffs by an examination of the property purchased. Defendant contends that the direction of. the verdict should be sustained on the ground given 'by the trial judge and also on the additional 'grounds that no fraudulent intent was shown, that there was no proof of damage and that it was not shown that Davis was acting for defendant in the sale of the property.
As the case must be tried again it is not desirable to discuss the evidence in detail. It is sufficient to say that when taken in the light most favorable to plaintiffs, as it must be on motion for, directed verdict, it was amply sufficient to take the case to the jury. There was evidence tending to show that the property was listed with defendant for sale, that Davis handled business for defendant in the locality where the land was situate and that defendant after-wards recognized the sale as having been made through its agency. There was evidence that' plaintiffs notified Davis of the purpose for which they desired the property and of the necessity of having deep water adjacent to it-so that boats could be brought in, and that they were assured by him that this property would suit them to a “T” and that the water adjacent was not less than six feet deep at low tide and nine feet or more deep at high tide. They testified that they were shown- the property at high tide and relied upon these statements of Davis without making soundings because they trusted him and had no reason to believe that he was not telling the truth. Plaintiffs paid $3,000 down, giving a $4,000 mortgage for the remainder of .the purchase price, and entered into possession and made certain expenditures for improvements. Shortly thereafter they discovered that the water adjacent to the property was very shallow. Because of this, it was not at all suited for the purpose for which it had been purchased and plaintiffs had to abandon it. When they attempted to see Davis, they were unable to get -him to meet with them to discuss the matter. The mortgage given by plaintiffs was foreclosed and the property was bought in at the foreclosure sale for the amount of the mortgage debt. The evidence thus presents all the elements necessary to a recovery on the ground of actionable fraud, which are set forth by the Court of--Appeals of Maryland in Gittings v. Von Dorn, 136 Md. 10, 15, 109 A. 553, 554, as follows:
“To entitle the plaintiff to recover it must be shown: 1. That the representation made is false; 2. that its falsity was either known to the speaker, or the misrepresentation was made with such a reckless indifference to truth as to be equivalent to actual knowledge; 3. that it was made for the purpose of defrauding the person claiming to be injured therebjs 4. that such person not only relied upon the misrepresentation, but had a right to rely upon it in the full belief of its truth, and that he would not have done the thing from which the injury resulted had not such misrepresentation been made; and 5. that he actually suffered damage directly resulting from such fraudulent misrepresentation. McAleer v. Horsey, 35 Md. 439; Buschman v. Codd, 52 Md. 202; Robertson v. Parks, 76 Md. 118, 24 A. 411; Cahill v. Applegarth, 98 Md. 493, 56 A. 794; Boulden v. Stilwell, 100 Md. 543 [551] 60 A. 609, 1 L.R.A.,N.S., 258.”
We do not think that plaintiffs are precluded of recovery because they accepted and relied upon the representations of Davis as to the depth of the water without making soundings or taking other steps to ascertain their truth or falsity. The depth of the water was not a matter that was apparent to ordinary observation; Davis professed to know whereof he was speaking; and there was nothing to put plaintiffs on notice that he was not speaking the truth. There is nothing in law or in reason which requires one to deal as though dealing with a liar or a scoundrel, or that denies the protection of the law to the trustful who have been victimized by fraud. The principle underlying the caveat emptor rule was more highly regarded in former times than it is today; but it was never any credit to the law to allow one who had defrauded another to defend on the ground that his own word should not have been believed. The modern and more sensible rule is that applied by the Court of Appeals of Maryland in Standard Motor Co. v. Peltzer, 147 Md. 509, 510, 128 A. 451, where it was held not to be negligence or folly for a buyer to rely on what had been told him. This is in accord with the modern trend in all jurisdictions which is summed up in A.L.I. Restatement of Torts, sec. 540 as follows:
“The recipient in a business transaction of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.”
The rule is thus stated with citation of the pertinent authorities in 55 Am.Jur. p. 539:
“The tendency of the courts, however, is not to deny relief to a defrauded purchaser on the ground that he was negligent in relying on the vendor’s representations, and the mere fact that he could have ascertained by inquiry and investigation the falsity of express representations of existing facts, the truth of which was known to the vendor and unknown to the purchaser, will not necessarily bar him from relief. In this connection it has been said that the unmistakable drift is toward the doctrine that the vendor cannot shield himself from liability by asking the law to condemn the credulity of the purchaser.”
Defendant places particular reliance upon the old case of Buschman v. Codd, 52 Md. 202, where the rule is stated: “Where the real quality of the thing is an object of sense, obvious to a person of ordinary intelligence, and the parties have equal knowledge or means .of acquiring information by the exercise of ordinary inquiry and diligence, and nothing is said for the purpose of preventing such inquiries as every prudent person ought to make, under such circumstances there is no warranty of the seller’s knowledge of the truth of his representations, or of the fact being as it is stated to be.” We do not think that this indicates that the law of Maryland differs from the law prevailing in other jurisdictions. See A.L.I.Restatement of Torts sec. 541. The case here, however, is not one of a represéntation obviously false but of a representation of fact which plaintiffs had no reason to doubt, made by one who professed to know whereof he was speaking and who made it for the purpose of influencing their judgment and bringing about a sale of the property. The rule applicable in such a situation is the general rule as set forth in the Restatement, which was applied by the Court of Appeals of Maryland in Standard Motor Company v. Peltzer, supra, where the false representation was that a 1917 model truck offered for. sale was a 1920 model and had been used for only a very short while. In answer to an argument based on Buschman v. Codd, supra, that the plaintiff was not justified in relying upon the representation, the court said:
“The evidence showed that the buyer here had some experience as an owner and user of a truck, and that the truck was displayed for his inspection without restriction. On some of his visits to the salesrooms he remained an hour and more. He testified,' however, that his illiteracy rendered him unable to read marks or names on the truck and its engine, and that, having the statements of the selling agents to depend upon, he did not undertake to determine any of the facts for himself. He was not an expert in motor vehicles; he was a farmer. The selling agents, on the other hand, were presumably experts with exact information as to the track they were selling. And the court could not say that it was negligence and folly for this buyer to accept and rely on whatever had been told him.” [147 Md. 509, 128 A. 453.]
Little need be said as to the other grounds urged to sustain the direction of the verdict. It is said that there was no evidence of fraudulent intent; but the misrepresentations were made for the purpose of inducing a sale apd, if Davis did not make them with knowledge of their falsity, it is a fair inference that he made them with “reckless indifference to truth.” The fact that he avoided an interview with the plaintiffs after they had discovered the wrong that had been done them was a circumstance tending to show guilty knowledge on his part. It is said there is no proof of damage resulting from the fraud; but plaintiffs are out more than $3,000 as a result of their experience and the fact that the property brought no more than the mortgage when offered at public sale is some evidence that it was not worth what plaintiffs paid for it when they were led to believe that it had deep water adjacent and was just the sort of property that they were looking for to establish an angler’s camp. It is significant that in the motion for directed verdict no question was raised as to the sufficiency of the proof on the issue of damages; and the trial judge gave no such reason for directing the verdict. As to proof of agency, the evidence that the property was listed with defendant and that after the sale defendant recognized it as having been made through its agency, is sufficient to take the case to the jury. Defendant could not do business through Davis and escape responsibility for his conduct by relying upon limitations in a contract of which plaintiffs had no notice. The rules of law applicable to. such a situation are too elementary to justify discussion.
The judgment appealed from will be reversed and the case will be remanded for a new trial.
Reversed and remanded.
. Maryland Oases dealing with the right to recover on the ground of deceit are McAleer v. Horsey, 35 Md. 439; Buschman v. Codd, 52 Md. 202; Weaver v. Shriver, 79 Md. 530, 30 A. 189; Boulden v. Stilwell, 100 Md. 543, 60 A. 609, 610, 1 L.R.A.,N.S., 258; Gittings v. Von Dorn, 136 Md. 10, 109 A. 553; Standard Motor Co. v. Peltzer, 147 Md. 509, 128 A. 451; Purdum v. Edwards, 155 Md. 178, 141 A. 550; Babb v. Bolyard, Md., 72 A.2d 13. While these hold that mere statements of opinion or intent or statements which are obviously false do not furnish the basis for an action of deceit, there is nothing in any of them to indicate that the law of Maryland is not in accord with the general law on the subject to the effect that one who has made to another false representations as to material and subsisting facts, which are reasonably relied upon by the party to whom they are made and are acted upon by him to his damage, is liable for the damage resulting from the fraud. While statements the falsity of which should have been as obvious to the person to whom made as to the maker have been held not to furnish grounds of action, there is no holding ■ that a defrauded person is not justified in relying upon a false statement, of material fact which he has no reason to doubt.
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_r_stid | 14 | 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 task is to identify the state of the first listed state or local government agency that is a respondent.
Sampath K. HEMMIGE, Plaintiff-Appellant, and Cross-Appellee, v. CHICAGO PUBLIC SCHOOLS, et al., Defendanfs-Appellees, and Cross-Appellants.
Nos. 83-1443, 83-1548.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 20, 1985.
Decided March 10, 1986.
Kathern MacKinnon, Northwestern Univ. Leg. Clinic, Chicago, 111., for plaintiff-appellant, and cross-appellee.
Maria Campo, Chicago Board of Educ. Legal Dept., Chicago, 111., for defendantsappellees, and cross-appellants.
Before CUDAHY, POSNER, Circuit Judges, and BROWN, Senior District Judge.
The Honorable Wesley E. Brown, Senior District Judge of the United States District Court for the District of Kansas, is sitting by designation.
WESLEY E. BROWN, Senior District Judge.
In this civil rights action Sampath K. Hemmige, a school teacher, appeals from the judgment and order of the district court dismissing his employment discrimination claims against the Chicago Public School system which were brought under the provisions of 42 U.S.C. Sec. 2000e and 42 U.S.C. Sec. 1983. The defendants, members of the Board of Education of the City of Chicago, and various employees of the board, appeal a judgment in favor of Hemmige which awarded him $570.41 as damages for unpaid teaching hours.
Hemmige, an East Indian Hindu, was employed as a non-tenured, day-to-day substitute teacher in the Chicago Public Schools from the fall of 1977 through July, 1980, pursuant to temporary teaching certificates which were issued upon a yearly basis. His application for a temporary certificate for the 1980-1981 school year was denied in July, 1980, upon a finding that his teaching performance had been unsatisfactory. Hemmige contends that his teaching certificate was not renewed because of discrimination against his national origin and religion, and in retaliation for filing a complaint with the Equal Employment Opportunity Commission (EEOC). He also claims that he was denied procedural due process because he was not given a hearing on the decision not to renew his certificate.
Since an issue has been raised with respect to the appropriate scope of the judicial proceedings below, we first discuss in some detail the background of this case.
While Hemmige has been a teacher for more than thirty years, most of his teaching experience has been in India, Ethiopia and Canada. He has two Masters Degrees — one in English Literature, and the other in Education, and he is qualified as an expert in teaching English as a second language. In June, 1977, he moved to Chicago, Illinois and applied for a temporary teacher’s certificate with the Board of Education for the City. He was granted a certificate for the 1977-1978 school year, and was employed as a day-to-day substitute teacher. This was a non-tenured position whereby Hemmige was “on-call” on a daily basis as the need for substitute teachers might dictate. The temporary certificate expired by its own terms on August 31, at the end of each academic year, and in June, 1978, Hemmige reapplied for a certificate for the 1978-1979 school year. In a letter dated July 28, 1978, he was advised that a certificate was being denied due to an unsatisfactory teaching report.
On August 31, 1978, Hemmige filed a discrimination charge with the Illinois Fair Employment Practices Commission, claiming that he had been discriminated against because of his East Indian national origin. The school board subsequently issued a certificate for the 1978-1979 school year, and again, a certificate for the 1979-1980 school year. On June 13, 1980, Hemmige filed a charge of religious and national origin discrimination by defendants with the Equal Employment Opportunity Commission. In this charge Hemmige made the following allegations:
“I have been employed by the Chicago Board of Education as a Substitute Teacher since September 1979. (sic) On June 11,1980 while working at the above named facility (Montefiore High School) I was called a poor Hindu, Indian, told to get out, pushed, and not allowed to sign out by Daniel G. Griffin, Principal. The Board of Education employs more than 15 people.
“I was called names, pushed and told to leave without being allowed to sign out by Mr. Griffin because I had gone to the restroom. The Board of Education’s contract with the Chicago Teachers Union Sections 6-17,17-2 and 25-1 allow teachers to have a lunch period and a free period during the day. Teachers are not required to work more than 6 periods a day. There are at least five (5) minutes between classes for breaks.
“I believe that I have been discriminated against because of my national origin, East Indian, in that: I was not allowed to take a break during the day. After he learned that I had taken a break during class, Mr. Griffin pushed me and yelled, ‘poor Hindu, Indian get the hell out and go to your country. I won’t let you sign out.’ He also called the police. Officer Ramao ... asked Mr. Griffin to allow me to sign out. Mr. Griffin refused and at 2:20 p.m. I left the building.
“Mr. Griffin refused to allow me to sign out. He told me I would not be paid for the day.”
While this charge was pending, Hemmige applied for a temporary certificate for the 1980-1981 school year. In a letter dated July 18, 1980, Hemmige was informed by the Board that it would not renew his teaching certificate, citing seven unsatisfactory reports from various Chicago public schools.
After receiving a right to sue letter, Hemmige filed a pro se complaint in this action. He there complained of discrimination in race, color, sex, religion, and national origin, claiming that he had been ill treated in every respect. After counsel was appointed, a four count amended petition was filed, which claimed that defendants discriminated against him on the basis of national origin and Hindu religion, retaliated against him for filing the EEOC charge, denied due process by deciding not to renew the certificate, without prior notice or opportunity to be heard, and that the defendants had breached his contract by failing to pay him for all of his work.
On February 10, 1982, the District Court granted defendant’s motion to dismiss charges of alleged discrimination occurring prior to August 19, 1979 because they were not timely filed. The court noted that an incident which occurred at Moses Montefiore School on June 11, 1980, was the subject matter of the EEOC charge filed by Hemmige on June 13, 1980. The scope of the amended complaint, however, covered alleged discrimination from September, 1977 to September, 1980, and in addition, included a charge of retaliation for filing the 1980 charge. In determining the appropriate scope of the amended complaint, as it related to the EEOC charge, the trial court recognized that the scope of the judicial complaint is not limited to the precise facts set out in the EEOC charge — but rather “to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” See Jenkins v. Blue Cross Mut. Hospital Ins., Inc., 538 F.2d 164, 167 (7 Cir.1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598, citing the standard applied in Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5 Cir.1971):
“The correct rule to follow in construing EEOC charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that ‘the complaint in the civil action * * * may properly encompass any * * * discrimination like or reasonably related to the allegations of the charge and growing out of such allegations ****.’ ” (Citing King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga.1968)).
The trial court found that the allegations of Count II of the amended petition, which related to a pattern of discrimination by defendant against minorities, vastly exceeded any investigation which could reasonably be expected to grow out of the charge of discrimination relating to the events at Montefiore High School on June 11, 1980. Accordingly, Count II was dismissed in its entirety.
Count I of the petition concerned several incidents of conduct which preceded the incident of June 11,1980. The court found that any alleged acts which occurred before August 19, 1979 (300 days before the EEOC charge was filed) were untimely under Section 706(e) of Title VII, 42 U.S.C. Sec. 2000e-5(e), which provides that:
“... (I)n a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceeding under the State or local law, whichever is earlier____”
See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).
The retaliation claim was allowed to stand since the permissible scope of a judicial complaint includes any new acts occurring during the pendency of the charge before the EEOC.
Plaintiff contends that the allegations in Count I establish a “continuing violation” theory of discrimination and that the district court erred in dismissing allegations which concerned incidents occurring prior to August 19, 1979. In Stewart v. CPC International Inc., 679 F.2d 117, 120 (7th Cir.1982), this Circuit determined that a plaintiff can charge a continuing violation when the employer has engaged in a practice of discrimination, usually involving hiring or promotion practices, where it is difficult to fix the exact day a particular violation may have occurred, or where an employer has covertly followed a practice of discrimination. However, in Stewart we recognized that a finding of continuing discrimination must be based upon a present violation, within the relevant time period. In our discussion of United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) we noted that:
“... the Supreme Court’s emphasis upon the need to show a present violation of Title VII indicates that an employer may be held liable for a continuing practice of discrimination ¿/the plaintiff can demonstrate that the practice has actually continued into the ‘present’ — that is, into the time period relevant to the date the charge of discrimination was filed. At least one discriminatory act must have occurred within the charge-filing period. Discriminatory acts that occurred prior to this period constitute relevant evidence of a continuing practice, and may help to demonstrate the employer’s discriminatory intent; and they will of course be used to determine the extent of the remedy that is in order____ But the prior discriminatory acts do not come into play at all unless the plaintiff can show in the first place that the discrimination is ‘presently’ continuing.” (679 F.2d at 121.) (Emphasis of the court)
Because we find that plaintiff failed to establish any incident of a “present” discrimination, there was no basis for consideration of the theory of “continuing discrimination.”
After our review of the transcripts and record, we agree with the trial court’s finding that the evidence in this case overwhelmingly establishes that plaintiff’s teaching certificate was not renewed because of his own failure as a substitute teacher, and not because of his national origin or religion, or because of any other discriminatory bias. In this connection, the court below made certain credibility determinations which were adverse to Hemmige’s position. For instance, plaintiff claimed that on June 11, 1980, Mr. Daniel G. Griffin, the Principal of Moses Montefiore School, called him “an ugly, poor old Indian,” and ordered him to leave the school without justification, all because of Griffin’s bias and prejudice against him. In giving evidence to the court, Mr. Griffin specifically denied calling plaintiff a name, or pushing him. Griffin testified that he ordered plaintiff to leave the school because he had left his class alone for an extended period of time, he used a telephone in a secretary’s office, instead of being in the washroom, as claimed, and that he was evicted from the premises only after plaintiff created a scene, indicating that he would not obey Mr. Griffin. In the face of this conflicting evidence, the trial court discredited plaintiff’s testimony, finding that Mr. Griffin was the one worthy of belief, and that his letter of June 11, 1980, was fully justified.
Other incidents reflected plaintiff’s inability to work with students. In December, 1979, an altercation occurred in a girls’ chorus class which Hemmige was conducting at Roosevelt High School. The principal, Ursula Blitzner, reported the incident in this manner:
a * * * *
The student claimed that the teacher (Hemmige) requested her to change her seat three times. She moved twice and balked the third time. The student alleged that the teacher pushed her out of the chair, and she fell to the floor.
The teacher claimed that he requested the student to move several times because she was disruptive, and he alleged that he did not in any way touch her or the chair.
“The mother of the student came to school. A conference was held with the teacher, student, parent, and principal. The same impasse was reached at the conference. The student was checked by the matron at the time of the alleged incident and reported no bruises.” (Ex. 31)
In March, 1980, Ms. Blitzner again found it necessary to report plaintiff’s behavior to the Director of Teacher Personnel: (Ex. 32)
“Mr. Sampath K. Hemmige ... was a substitute at Roosevelt High School on Friday, March 21, 1980. His ability to work with high school students is extremely limited; his method of classroom management is to order the students to leave the class and not return.
“I returned the students to his class during the morning session with the directions for our procedures for handling student discipline. During the afternoon session, he again ordered students out of his class. They alleged that he also used derogatory language.
“In addition, he insisted that he was not going to cover a class that I asked him to cover, because he was ‘overworked and paid a mere pittance by the Board of Education, and that he needed the period to rest.’ I persisted, and he did cover the class.
“Since this is the second incident that I have reported to your office about Mr. Hemmige, I request that he not be sent to Roosevelt High School at all.”
After reviewing the evidence the trial court resolved credibility questions in favor of Ms. Blitzner’s testimony concerning incidents at Roosevelt High School and found that her actions and reports were not inspired in any way by plaintiff’s national origin or ethnic attributes, but rather by his conduct as a substitute teacher.
Plaintiff also testified about an event which occurred at DuSable High School on May 21, 1980 when he allegedly was required to attend a “Gospel Choir,” and where the Principal, Judith Steinhagen, allegedly expressed a preference for a Jewish substitute. Although there was no contrary testimony, the trial court chose to discredit plaintiff’s testimony because he did not believe that plaintiff had testified truthfully as to a number of other material matters. In this respect, it was noted that plaintiff had testified in a manner “wholly contrary” to Ms. Steinhagen’s report dated May 21, 1980, received in evidence as Exhibit 34:
“Mr. Sampath Hemmige was a substitute teacher at our school today. All students were assigned to report to a music assembly beginning at 9:42 seated by division teachers. Mr. Hemmige brought a chair in from the lunchroom and sat blocking the fire aisle. When questioned he told me that he had no division — he did and had the program card showing same. He then sat in an auditorium seat but refused to remove the chair after several requests. Within two minutes after the musical presentation began — our reknown (sic) Gospel Choir — he left the auditorium.
“I followed him out and repeatedly explained his responsibility for supervision of his class. He refused to do so. I then told him that if he refused to discharge his duties he was released from DuSable.
“He refused to leave and loudly and publicly in the main office challenged my competency to be in charge of this, or any school and called me a prejudiced dictator. He further stated that he was present and supervising for the entire assembly. This is not true.
“I do not want him sent to DuSable and sincerely believe that some serious investigation should be made before he is given a temporary certificate for 1980-1981. He is unsatisfactory.”
Pursuant to school board policy, a conference concerning the unsatisfactory report of Ms. Steinhagen was held with plaintiff on June 13,1980. After he was given a copy of the report, he denied all charges, stating that the principal was a racist and had referred to him as an “Indian.” The conference report (Ex. 35) further related that:
“Mr. Hemmige contends that the principal requested that he perform duties which he feels are not in line with his-position as a teacher. He was advised of Board Rule 6-13 — Duties of Teachers.
“Mr. Hemmige was made aware of the role of the principal and his role as a teacher. He was advised to be circumspect in his relationship with principals.
“Mr. Hemmige was reminded that another unsatisfactory letter could cause his termination.”
As previously noted the unsatisfactory report from the DuSable principal was followed by another unsatisfactory report from Mr. Griffin, under date of June 11, 1980. On June 25, 1980 a conference was held with plaintiff regarding this letter, where he was again informed that while serving in a school as a day-to-day substitute teacher, he was under the jurisdiction of the local school principal.
Our lengthy review of the evidence which was before the trial court fully supports the finding that plaintiff was not a competent substitute teacher and this was why the Board did not renew his license. Likewise, the evidence did not support, “in any degree,” plaintiffs claim of unlawful discrimination, or retaliation against him because he had filed an EEOC charge.
Plaintiff contends that he possessed a property interest in his teaching certificate which was protected by the Fourteenth Amendment, and that he was deprived of his right to due process because the Board refused to renew his certificate without notice or an opportunity for hearing. Here, it is clear that plaintiff was a non-tenured, temporarily employed teacher. Under Illinois law, only tenured teachers are entitled to notice and hearing pending dismissal, and plaintiff’s expectation of employment was governed by his one-year temporary certificate. The union contract provided that the services of an unsatisfactory temporarily certificated teacher could not be terminated “until he has been given an unsatisfactory rating by at least two principals.” There were no agreements between plaintiff and the Board that his temporary teaching certificates would be issued on a continuing basis. Each certificate was limited to a one year term, and was not subject to automatic renewal. Under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and our decisions in McElearney v. University of Illinois, 612 F.2d 285 (7th Cir.1979); Smith v. Board of Education, 708 F.2d 258 (7th Cir.1983); and Eichman v. Indiana State University Board of Trustees, 597 F.2d 1104 (7th Cir.1979) plaintiff had no property interest in a temporary teaching certificate. Contrary to the situation found in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), there was no evidence that the Board’s rules or policies had fostered any expectation of continued employment. Likewise, our recent decision in Vail v. Board of Education, 706 F.2d 1435 (7th Cir.1984) affirmed by equally divided court, 466 U.S. 377, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984) may be distinguished, for there, the plaintiff had a two year employment promise.
The district court found that plaintiff was entitled to payment for overtime in the sum of $570.41. The ruling in this regard was preceded by this comment:
“Some of the testimony from the past or Board employees which I credited does support the conclusion that the plaintiff is wrong when he said he taught extra classes at the end of the school day. Some of the evidence suggests that there were no classes to be taught at the end of the day. Therefore, precluding the opportunity for the plaintiff to teach at that time.
“In any event, I am going to find in favor of the plaintiff and- award him overtime pay of $570.41 that he says he has coming. The plaintiff, at least, has some documentary evidence in support of that figure. It is not, in relative terms, a large amount and it is simply unworthy of a legal or judicial analysis on a day-today basis in order to reach some greater precision.”
We have reviewed the trial transcript and exhibits received in evidence in this case. The only evidence to support the award of overtime is plaintiffs self serving testimony and Exhibit 84, a “diary” of notes made by Hemmige concerning teaching assignments, travel notes, and other comments. The diary was written in the Hindi language and abbreviated English. Plaintiff testified that he marked his “overtime days” in this diary with an asterisk, although no times of arrival or departure are indicated. Plaintiff testified that his claim for overtime was based upon being asked to work extra classes, above his “normal load.” In this respect he claimed that the union contract governing overtime pay for substitute teachers provided for payment of $42.00 per day for a 6-hour day, and $50 per day for an 8-hour day, with certain increments after 100 days of service. (Ex. 56, p. 126) Hemmige claimed that he was not allowed to eat lunch at the Montefiore School, but the evidence shows that this was a closed campus and no teacher had a free lunch hour during the school day, which ended at 2:30. Teachers were then free to eat lunch or go home at that time. A similar situation existed at the Anderson School. In some instances, plaintiff claimed that he had to work after school hours until 4:30 p.m. but the testimony of principals was to the contrary— there were no classes lasting until 4:30, and plaintiff was not asked to take any extra classes at the end of the school day. Under the union contract a principal was allowed to assign teachers extra classes in emergency situations, and the first persons called upon for this service were the substitute teachers.
While the trial court found that plaintiff at least had “some” evidence on his overtime claim, there was no finding that such evidence was credible. The record is in fact to the contrary. The court did not “believe that the plaintiff has testified truthfully as to a number of material matters,” and found that plaintiff refused to take classes when he had an obligation to do so. Plaintiff had the burden of proof in establishing his breach of contract claim, and in our view he failed to offer sufficient credible evidence to support a finding that he was entitled to $570.41 in overtime pay.
The judgment entered in favor of all defendants and against the plaintiff on all claims of discrimination and retaliation is AFFIRMED. The judgment awarding plaintiff the sum of $570.41 on the issue of overtime pay is REVERSED.
. Under date of December 15, 1977, the principal of one Chicago School wrote to the substitute teacher division advising that Hemmige, in his judgment was “unsatisfactory.” “He refused to take an assignment to teach a class because he said he would not take more than five classes. This was an emergency since we were short of substitutes.”
"If he is not terminated, we certainly do not wish him sent here again.” (Ex. 24)
Under date of March 6, 1978, a principal from a second high school reported that Hemmige was reluctant to accept assignments offered to him and requested that he not be sent to that school again. (Ex. 27)
On June 12, 1978, a third principal reported that Hemmige became upset and created a scene in refusing to take an assigned class. This principal believed that Hemmige’s "actions and behavior were unprofessional” and he requested that Hemmige not be sent to that high school as a substitute in the future. (Ex. 26)
. In this discrimination charge Hemmige claimed that he had not received any oral or written reports regarding his teaching performance from principals; that no principal had ever observed him in a classroom teaching assignment, and that “Dr. Ellenbogen has stated to me that 'You are an Indian so I have terminated you.’" (Ex. 67)
. This letter, directed to the Substitute Teacher Center, was as follows:
“Please do not send substitute teacher Sam-path K. Hemmige ... to Montefiore in the future.
Today he left his class unattended and could not be found for a considerable period of time. He was finally discovered in a counselor’s office using a school telephone.
I told him at that time (1:15 p.m.) to sign out and that he would only be credited with a half day. He refused to sign out.
I called Sub-Center with the above information.” (Ex. 37)
. Under the provisions of the Chicago Teachers Union contract in force for September, 1979 through August 1981, which governed plaintiffs rights under a temporary teaching certificate, Section 39-4.3 provided that:
"When a temporarily certified teacher employed on a day-to-day basis receives an unsatisfactory rating, the Department of Personnel shall schedule a conference with such teacher to give him a written copy of the reasons and give him positive suggestions for improvement.
"The services with the school system of an unsatisfactory temporarily certificated teacher employed on a day-to-day basis shall not be terminated until he has been given an unsatisfactory rating by at least two principals, unless there is evidence of moral laxity or serious misconduct.” (Tr. Vol. 1, p. 16)
. During plaintiffs teaching appointments in Chicago, unsatisfactory reports were received from seven different schools. Conferences were held with him in January, 1978, February, 1979, and on the two occasions discussed in 1980.
. Here, of course, plaintiffs employment was not “terminated,” while his 1979-1980 certificate was in force.
. Other Exhibits purportedly summarized material in this diary, e.g., Exs. 71, 75, 76, 77 and 80.
. While teachers had no "free” lunch period they could eat with the students during the student lunch hour if they preferred.
Question: What is the state of the first listed state or local government agency that is a respondent?
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_typeiss | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
In re MILLER & HARBAUGH. HARBAUGH v. CLARK.
No. 6433.
Circuit Court of Appeals, Ninth Circuit.
Feb. 23, 1932.
Barnett H. Goldstein, H. E. Collier, and S. J. Bischoff, all of Portland, Or., for appellant.
Coan & Rosenberg, of Portland, Or., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges and WEBSTER, District Judge.
Rehearing denied April 4, 1932.
PER CURIAM.
January 6, 1931, the order adjudging Paul C. Harbaugh in contempt of court was made and entered in the District Court of the United States for' the District of Oregon, for disobeying a turnover order made and entered in In re bankruptcy of Miller & Harbaugh, a corporation.
January 28, 1931, petition for allowance of appeal to the United States Circuit Court of Appeals for the Ninth Circuit was filed in the District Court of the United States for the District of Oregon.
January 28, 1931, assignment of errors was filed.
January 28, 1931, an order was made and entered allowing an appeal to the United States Circuit Court of Appeals for the Ninth Circuit.
January 28, 1931, citation on appeal was issued and served on the appellee, and due and timely and legal service was admitted the same day.
April 7, 1931, the transcript in this cause was filed with the 'clerk of the United States Circuit Court of Appeals for the Ninth Circuit, and the cause was duly docketed.
April 13, 1931, appellee entered his appearance in this court.
April 14, 1931, appellant’s brief was filed.
September 11, 1931, appellee’s brief was filed herein.
September 17, 1931, appellant’s reply brief was filed herein.
September 17, 1931, this cause was tried at the Portland, Or., session of the United States Circuit Court of Appeals for the Ninth Circuit.
September 21, 1931, appellee filed an additional brief.
October 26, 1931, a judgment was entered herein, 53 F.(2d) 176, reversing the order of the United States District Court for the District of Oregon.
Thereafter appellee filed a petition and brief for a rehearing.
December 14, 1931, an order was entered herein denying the petition for a rehearing, 54 F.(2d) 612.
December 14, 1931, “upon application of Messrs. Coan & Rosenberg, counsel for the appellee,” an order Staying issuance of mandate was made and entered herein pending petition for a writ of certiorari to be filed with the Clerk of the Supreme Court of the United States.
January 2, 1932, the clerk of this court forwarded (as of December 28, 1931), to the clerk of the Supreme Court of the United States the original and copies of the transcript of record for use upon petition to the Supreme Court of the United States for writ of certiorari.
January 4, 1932, appellee served the motion now before the Court, and likewise served a motion to stay the issuance of mandate to March 10, 1932, and also prays that this court fix a time within which the petition for a writ of certiorari be docketed in the office of the clerk of the Supreme Court of the United States.
No motion was ever filed to dismiss the appeal prior to the entry of the judgment in this court.
The question presented by this motion was not argued in the briefs filed herein, nor was the question presented at the oral argument of the ease.
The question was not presented upon the petition for rehearing.
The court did not, prior to the rendition of this judgment, pass upon the matter sua sponte.
Both parties have filed briefs, on the jurisdictional questions involved, and a further hearing of the motion is neither necessary nor desirable. It is clear that, if this appeal is from an order in a proceeding in bankruptcy, this court acquired no jurisdiction over the matter by the allowance of an appeal by the District Court. This was decided by this court in Standard Sanitary Mfg. Co. v. Momsen-Dunnegan-Ryan Co., 51 F.(2d) 684, in conformity with the decisions of other Circuit Courts of Appeal. Quarles v. Dennison (C. C. A. 10) 45 F.(2d) 585; Broders v. Lage (C. C. A. 8) 25 F.(2d) 288, 289; Taylor v. Voss, 271 U. S. 176, 181, 46 S. Ct. 461, 70 L. Ed. 889; Gate City Clay Co. v. Dickey (C. C. A. 8) 39 F.(2d) 581, and numerous eases cited; Shoreland Co. v. Conklin, 30 F.(2d) 489 (C. C. A. 5); Stanley’s Incorporated Store No. 3 v. Earl (C. C. A. 8) 25 F.(2d) 458; Schnurr v. Miller, 49 F.(2d) 109 (C. C. A. 8).
That the order adjudicating the appellant in contempt for a failure to obey a turnover order is a proceeding in bankruptcy was decided by the Circuit Court of Appeals of the first circuit in Ahlstrom v. Ferguson, 29 F.(2d) 515. We see no reason to doubt the .correctness of this conclusion, and consequently the appeal must be dismissed.
Appeal dismissed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_typeiss | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Winthrop C. CONDICT and Elsie E. Condict, Plaintiffs-Appellants, v. Alden Revelle CONDICT, Karen K. Condict, Leland Thomas Grieve, Kermit Brown, John MacPherson, James W. Hearne, Keith Schafer, Sharen Schafer, Ted Jenkins, Walter Junior Leavelle, Garland Bartlett, Sr., and Garland Bartlett, Jr., Defendants-Appellees.
No. 85-2001.
United States Court of Appeals, Tenth Circuit.
March 25, 1987.
Herbert K. Doby of Elletson, Doby & Felde, Cheyenne, Wyo., for plaintiffs-appellants.
Randall R. Steichen (Raymond J. Turner, with him on the brief) of Sherman & Howard, Denver, Colo., for Alden Revelle Condict, Karen K. Condict, Keith Schafer, Sharen Schafer, Ted Jenkins, Garland Bartlett, Sr., Garland Bartlett, Jr., and James W. Hearne, defendants-appellees.
Blair J. Trautwein of Hathaway, Speight & Kunz, Cheyenne, Wyo. (Kermit C. Brown of Brown & Davidson, Rollins, Wyo., with him on the brief), for Leland Thomas Grieve and Kermit C. Brown, defendantsappellees.
James A. Applegate of Hirst & Apple-gate, Cheyenne, Wyo., for John MacPherson, defendant-appellee.
Robert A. Van Vooren (of counsel) of Lane & Waterman, Davenport, Iowa, for James W. Hearne, defendant-appellee.
Before HOLLOWAY, Chief Judge, and BALDOCK and McWILLIAMS, Circuit Judges.
This case was formerly published at 815 F.2d 579. Republication was required because of inadvertent omission of a portion of footnote 3.
McWILLIAMS, Circuit Judge.
This case represents an effort to fit a family dispute over a family ranching operation into the RICO mold. The district court held that it didn’t fit and entered summary judgment on June 5,1985, for the defendants on the RICO claim and also dismissed a pendant claim based on common law fraud, deceit, and misrepresentation. We see no fit either, and on that basis we affirm.
The Condict ranch properties at one time occupied approximately 26,000 acres in Carbon County, Wyoming, and ranching operations were begun in about 1885 by Winthrop C. Condict. His son, Winthrop C. Condict II, ran the ranch until his death in 1955. The will of Winthrop C. Condict II distributed the ranch property as follows: one-half interest to his wife, Aurilla, and one-sixth interests to each of his three children, Alden Condict, Winthrop C. Condict III, and Maysel Condict Beales. Thereafter the Condict Ranch was operated under a general partnership agreement by Aurilla Condict, the surviving widow; Alden Condict, a surviving son; Winthrop C. Condict III, another surviving son; and the latter’s wife, Elsie Condict.
During the 1970’s and the early 1980’s a bitter family quarrel developed over the ranching operations, with Winthrop C. Con-dict III and his wife, Elsie, on one side, and Winthrop’s mother, Aurilla, and his brother, Alden, on the other side. In a setting of constant disagreement and continual family dispute over the ranch and its operation, Alden Condict and his mother, now deceased, brought an action in 1982 in the state district court in Carbon County, Wyoming, seeking partition of the ranch realty, dissolution of the partnership, an accounting, appointment of a receiver and damages, including $500,000 in punitive damages. Winthrop C. Condict III and his wife, Elsie, defendants in the state partition proceeding, filed a counterclaim alleging that Winthrop’s brother, Alden, and his mother, Aurilla, were guilty of fraud, concealment of assets, misappropriation of assets, waste, and sought damages, both compensatory and punitive.
On November 23, 1982, a Wyoming state judge dissolved the partnership and, subsequently, a receiver was appointed to operate the ranch. The ranch properties later were divided temporarily by the state court, pursuant to stipulation, on a “north-south” split, using Wyoming Highway 130 as the dividing line. Although the state court proceedings have been tortuous, we are now advised that they are drawing to a close. As indicated, the general partnership was dissolved, a receiver has been operating the ranch and his reports have been approved. The realty has been divided. And, beginning on October 8,1985, the state court had a 10-week trial on the accounting phase of the dispute. However, we have not been advised as to whether the state court has ruled on the accounting matter.
In any event, on October 30, 1984, Winthrop C. Condict III and his wife, Elsie, filed the instant action in the United States District Court for the District of Nebraska. The first claim for relief was a RICO claim based on the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (1982 and Supp. III 1985). The second claim for relief was based on common law fraud, deceit, and misrepresentation. There are twelve named defendants. They are: Alden Condict and his wife, Karen; Sharen Schafer, Karen’s twin sister, and Sharen’s husband, Keith Schafer, both Colorado ranchers; Leland Grieve, the receiver for Condict Ranches; Kermit Brown, court appointed counsel for the receiver; John MacPherson, a Wyoming attorney who represented Alden and Aurilla Condict in the state partition proceeding; James Hearne, a certified public accountant in Cheyenne, Wyoming, who from 1979 to 1983 prepared tax returns for the partnership; Ted Jenkins and Walter Junior Leavelle, referred to in the complaint as “thugs,” in the employ of Alden Condict; and Garland Bartlett, Sr. and Garland Bartlett, Jr., also employees of Alden Condict, but not described as “thugs,” although they, according to the complaint, “beat up and intimidated Win and Elsie Condict.”
The several defendants filed motions in the RICO proceeding in the United States District Court for the District of Nebraska, including a motion for change of venue pursuant to 28 U.S.C. § 1404(a). This latter motion was granted, and the case was transferred to the United States District Court for the District of Wyoming. Thereafter, the Honorable Ewing T. Kerr, a senior judge for the United States District Court for the District of Wyoming, heard defendants’ motions to dismiss or for summary judgment. Judge Kerr granted these motions and dismissed both of plaintiffs’ claims. Plaintiffs appeal such dismissal. We affirm.
As stated, the several defendants variously filed motions to dismiss under Fed.R. Civ.P. 12(b), and, in the alternative, motions for summary judgment under Rule 56. The district court apparently did consider matters outside the four corners of the complaint, and accordingly, in a technical sense, granted summary judgment for the defendants. We agree that under the circumstances there is no genuine issue of fact and that judgment for the defendants, whether it be on the basis of Rule 12(b) or 56, was appropriate.
According to the complaint, the gist of plaintiffs’ claim is that the defendants conspired to “seize control of the Condict Ranches, a ten million dollar plus ranching operation which had previously been run as a partnership by Aurilla Condict [the mother], her sons Win and Alden, and Win’s wife, Elsie Condict.” The complaint was filed specifically under 18 U.S.C. § 1964(c). In support of their RICO claim, the plaintiffs alleged that the defendants were guilty of fraud, consisting “of the previously mentioned conduct, including but not limited to Alden and Karen Condict’s attempts to wrongfully deprive Win and Elsie Condict of their rightful share of partnership income and to wrongfully impose upon them an inappropriate share of the partnership burdens. Further, the remaining principal defendants — Hearne, Grieve, Brown, MacPherson — were pulled into the original conspiracy to cover-up the original wrongs, for their own profit, and to drive Win and Elsie from the ranching business.”
It was further alleged that “[e]ach defendant herein has engaged in ‘racketeering activity’ as that phrase is defined by 18 U.S.C. Section 1961(1)(B) in that he or she has engaged in wrongful conduct, as set forth herein, in violation of Title 18 of United States Code, Section 1341 (relating to mail fraud), and Section 1343 (relating to wire fraud).” And, in the same vein, it was alleged in the complaint that “[s]aid racketeering activity under section 1961(1) constituted a pattern under section 1961(5) in that, since October 15, 1970, defendants and their conspiracy utilized both the mails and wires on more than two occasions each during the past ten years in furtherance of the scheme described herein.” Finally, in support of their RICO claim, the plaintiffs alleged that:
By virtue of the operation of their fraudulent and conspiratorial schemes, and acting with knowledge of functionally identical and consciously parallel fraud by defendants corrupted the Condict Ranches which is an “enterprise”, as that term is defined by 18 U.S.C. Section 1964(4).
The connection between the defendants’ pattern of racketeering activity and the enterprise is that the defendants’ scheme to defraud was designed to wrongfully acquire plaintiffs’ interest in the ranch, to make plaintiffs pay too much support for the ranch and to cover up previous fraud by Alden and Karen Condict.
The second claim for relief was a pendant claim for common law fraud, deceit and misrepresentation.
By way of relief, the plaintiffs sought, both preliminarily and permanently, to enjoin the defendants from their unlawful acts, treble damages, restitution, together with costs and attorneys’ fees.
The district court in dismissing the action and entering judgment for the defendants held that the complaint failed to state a claim upon which relief could be granted. Specifically, the district court held that the complaint failed to allege the following: (1) that activities of the defendants were in furtherance of a tie to organized crime or with criminal activities of an organized nature; (2) that the defendants, or any of them, have been convicted of the predicate acts of mail or wire fraud upon which the RICO claim is founded; (3) that the plaintiffs suffered a “distinct RICO injury”; and (4) that the predicate acts of mail and wire fraud were not pleaded with sufficient particularity. Further, the district court concluded that the Condict Ranch partnership is not an “enterprise” within the meaning of 18 U.S.C. § 1962. Having dismissed the RICO claim, the district court also dismissed the second claim for common law fraud, deceit and misrepresentation.
About one month after the district court entered judgment in the instant case the Supreme Court in Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) held that in a RICO proceeding based on 18 U.S.C. § 1962(c) there is no requirement that a private action can proceed only against a defendant who has already been convicted of a predicate act or of a RICO violation and, further, that there is no requirement that the plaintiff in such private action suffer a “racketeering injury” as opposed to an injury resulting from the predicate acts themselves. Recognizing Sedima, the defendants on appeal concede that certain, though not all, of the reasons given by the district court for its action are no longer viable. Specifically, the defendants concede that an actionable RICO claim need not allege a distinct RICO injury, nor need it allege that the defendants have already been indicted for, or convicted of, the predicate acts of mail or wire fraud, or that the defendants had ties to organized crime. However, the defendants do argue that under Sedima the plaintiffs must still allege that the defendants are conducting, or are participating in conducting, the affairs of an “enterprise,” i.e., Condict Ranches, “through a pattern of racketeering activity.” In this particular, the defendants argue that the complaint is fatally deficient, while plaintiffs argue that the complaint does measure up to Sedima and 18 U.S.C. § 1962(c).
The RICO claim in the instant case, as in Sedima, is based on alleged violations of 18 U.S.C. § 1962(c) and possibly 18 U.S.C. § 1962(d). ■ However, any claim under § 1962(d) based on a conspiracy to violate the provisions of 18 U.S.C. § 1962(a), (b), or (c) must necessarily fall if the substantive claims are themselves deficient. Accordingly, our interest necessarily focuses on 18 U.S.C. § 1962(c). That section of the statute provides as follows:
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
In Sedima, the Supreme Court held that a violation of 1962(c) requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activities, and that a plaintiff to state a claim under 1962(c) must allege each of these four elements. Sedima, 105 S.Ct. at 3285. Our narrowing issue then is whether, under the record before us, the plaintiffs have charged the defendants, or any of them, with the conduct, or participation in the conduct, of an enterprise, i.e., Condict Ranches, through a “pattern of racketeering activities.” In this connection, our focus is specifically directed to the phrase “pattern of racketeering activities,” and, even more particularly, to the one word “pattern.” We believe the present complaint is deficient in these particulars, and that any evidentiary matter before the district court strengthens that conclusion. The gravamen of the present complaint is that the defendants engaged in common law fraud, and deceit and in the course of their conduct used the mails and wires more than twice. Such in our view does not make out a RICO claim under § 1962(c).
In Sedima, at p. 3285, note 14, the Supreme Court commented as follows:
As many commentators have pointed out, the definition of a “pattern of racketeering activity” differs from the other provisions in § 1961 in that it states that a pattern “requires at least two acts of racketeering activity,” § 1961(5) (emphasis added), not that it “means” two such acts. The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance two of anything do not generally form a “pattern.” The legislative history supports the view that two isolated acts of racketeering activity do not constitute a pattern. As the Senate Report explained: “The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one ‘racketeering activity' and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.” S.Rep. No. 91-617, p. 158 (1969) (emphasis added). Similarly, the sponsor of the Senate bill, after quoting this portion of the Report, pointed out to his colleagues that “[t]he term ‘pattern’ itself requires the showing of a relationship ____ So, therefore, proof of two acts of racketeering activity, without more, does not establish a pattern____” 116 Cong.Rec. 18940 (1970) (statement of Sen. McClellan). See also id., at 35193 (statement of Rep. Poff) (RICO “not aimed at the isolated offender”); House Hearings, at 665. Significantly, in defining “pattern” in a later provision of the same bill, Congress was more enlightening: “criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” 18 U.S.C. § 3575(e). This language may be useful in interpreting other sections of the Act. Cf. Iannelli v. United States, 420 U.S. 770, 789, 95 S.Ct. 1284, 1295, 43 L.Ed.2d 616 (1975).
A recent opinion of this court, Torwest DBC, Inc. v. Dick, et al, 810 F.2d 925 (10th Cir.1987), sheds considerable light on our present problem. In Torwest, two corporations, i.e., Vace and Great-West, formed a new corporation, Torwest, which would engage in the business of acquiring and developing real property. Great-West was to provide the financing for Torwest, and Vace was to find new properties for acquisition by Torwest. Thereafter the individual incorporators of Vace in a secret deal acquired realty in the name of a nominee corporation and then proceeded to “sell” the land to Torwest at an inflated price. When Torwest discovered the scheme, it brought suit against the individual incorporators of Vace, and their nominee corporation, Canusa Investments. Torwest asserted a RICO claim under the provisions of 18 U.S.C. § 1962(c), as well as pendant claims based on state law. The United States District Court for the District of Colorado dismissed Torwest's complaint under Rule 56, holding that allegations that directors of Vace secretly purchased realty and resold it at a substantial profit to Torwest did not allege the pattern of racketeering required to state a claim under 1962(c), there being only one scheme, one result, one set of participants, one victim, one method of commission, and thus, no continuity and no pattern of racketeering activity. Torwest DBC, Inc. v. Dick, et al, 628 F.Supp. 163, 165-66 (D.Colo.1986), aff'd, 810 F.2d 925 (10th Cir.1987).
On appeal, we affirmed the judgment entered by the district court in Torwest. In so doing, we commented as follows:
In this case, the court and the parties assumed for purposes of the court’s ruling that defendants engaged in numerous racketeering acts. It is clear that when, as here, the acts are part of a common fraudulent scheme, they satisfy the relationship requirement of Sedima. See, e.g., Superior Oil Co. v. Fulmer, 785 F.2d 252 (8th Cir.1986). However, to establish a RICO pattern, a plaintiff must also demonstrate continuity, that is, “the threat of continuing activity.” Sedima, 105 S.Ct. at 3285 n. 14. This element is derived from RICO’s legislative history, which indicates that RICO does not apply to “sporadic activity” or to the “isolated offender”. Id.
The continuity requirement has been the source of considerable difficulty. Courts generally agree that to make an adequate showing of continuity under Sedima, a plaintiff must demonstrate some facts from which at least a threat of ongoing illegal conduct may be inferred. A scheme to achieve a single discrete objective does not in and of itself create a threat of ongoing activity, even when that goal is pursued by multiple illegal acts, because the scheme ends when the purpose is accomplished. Courts that have considered a RICO claim grounded on this type of scheme have therefore required some additional evidence showing that the scheme was not an isolated occurrence. See, e.g., Lipin Enters. Inc. v. Lee, 803 F.2d 322, 324 (7th Cir.1986) (acts to defraud one victim one time insufficient in absence of showing of other victims or other frauds). A more difficult question is presented when the RICO claim is based on one scheme involving one victim, but the plan contemplates open-ended fraudulent activity and does not have a single goal that, when achieved, will bring the activity to an end. Some courts have found that such an ongoing scheme is itself sufficient to satisfy the continuity element of a RICO pattern. See, e.g., Morgan v. Bank of Waukegan, 804 F.2d 970, 976 (7th Cir.1986); see also Illinois Dept. of Revenue v. Phillips, 771 F.2d 312 (7th Cir.1985). Other courts may require additional proof showing that the defendants have engaged in similar activity in the past, or have been involved in other criminal activity, or pose a threat of similar activity in the future. See, e.g., Superior Oil Co., 785 F.2d at 257.
Torwest DBC, Inc., at 928-29.
Based on our understanding of Sedima, and our pronouncement in Torwest, we believe that the present complaint does not, and cannot under the admitted facts, meet the “continuity requirement” commented on in Torwest or the “conduct of an enterprise through a pattern of racketeering activities” requirement of § 1962(c). Rather, this is but an unsuccessful effort to dress a garden-variety fraud and deceit case in RICO clothing.
Certain of the defendants argue in this court that they are entitled to attorney’s fees under Fed.R.Civ.P. 11. A matter of this sort should be considered and ruled on initially by the district court.
Judgment affirmed.
. More specifically, it was alleged that Alden Condict utilized the "wires” more than twice to arrange the sale of hay in the summer of 1983 and that defendants Grieve, Brown, and MacPherson "repeatedly used the mails to submit court documents and bills."
. Plaintiffs mistakenly cited 18 U.S.C. § 1964(4) as defining "enterprise”; the term is defined in 18 U.S.C. § 1961(4).
"A notable exception to the continuity requirement is the case of R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir.1985), in which the court did not address the issue of continuity and held that a pattern could be established solely on the-basis of related illegal acts. R.A. G.S. has been criticized for its failure to heed the Supreme Court’s discussion in Sedima, see, e.g., Papagiannis v. Pontikis, 108 F.R.D. 177, 179 n. 3 (N.D.Ill.1985), and we do not find it persuasive.”
Other courts have interpreted the Supreme Court’s Sedima discussion on pattern in a similar fashion. As the Eighth Circuit stated: [P]roof of a “pattern of racketeering activity” "requires more than one ‘racketeering activity' and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern." Superior Oil Co. v. Fulmer, 785 F.2d 252, 257 (8th Cir.1986), quoting Sedima, (isolated fraudulent effort, implemented by several fraudulent acts, insufficient to prove "continuity” required to form pattern). Reaffirming that position in an even more recent case, the Eighth Circuit in Holmberg v. Morrisette, 800 F.2d 205 (8th Cir.1986), reversed a lower court finding of liability on a RICO claim and held that "one scheme” did not constitute "the continuity necessary to form a 'pattern' of racketeering activity.” Id. at 210. The Ninth Circuit held that an "isolated event” did not establish the "threat of continuing activity” and therefore did not meet the requirement of a showing of "continuity plus relationship which combines to produce a pattern.” Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1399 (9th Cir.1986), citing Sedima, In Lipin Enterprises Inc. v. Lee, 803 F.2d 322 (7th Cir.1986), the Seventh Circuit, affirming a lower court’s dismissal for failure to allege a pattern, noted that much more than two acts must be shown in order to demonstrate a pattern. “The separate racketeering acts must reflect both 'continuity' and 'relatedness' in order to constitute a pattern.” Id. at 323, citing Sedima. For similar reasoning by lower courts, see also, Northern Trust Bank/O'Hare, N.A. v, Inryco, Inc., 615 F.Supp. 828 (D.C.Ill.1985) (noting that although footnote 14 of the Sedima decision is dicta, "its message was both plain and deliberate. Lower courts concerned about RICO's expansive potential would be best advised to focus on the hitherto largely ignored 'pattern' concept.” Id. at 832; Forstmann v. Culp, 648 F.Supp. 1379 (M.D.N.C.1986) ("the general consensus among the courts has been that Sedima's continuity element requires that the predicate racketeering acts alleged in the Complaint must have occurred in different criminal episodes," id. at 1388, quoting Frankart Distributors, Inc. v. RMR Advertising, 632 F.Supp. 1198, 1200 (S.D.N.Y.1986)); H.J. Inc. v. Northwestern Bell Telephone Co,, 648 F.Supp. 419 (D.Minn.1986) (plaintiffs’ attempt to “splinter a series of related acts” into a RICO cause of action "falls short of establishing a 'pattern.' ” Id. at 425).
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_genapel1 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Plaintiff-Appellant, v. Jerry V. MITCHELL and Roger Woods, Defendants-Appellees.
No. 90-7423.
United States Court of Appeals, Eleventh Circuit.
Feb. 26, 1992.
Frank W. Donaldson, U.S. Atty., Anthony A. Joseph, James A. Sullivan, Asst. U.S. Attys., Birmingham, Ala., for plaintiff-appellant U.S.
John C. Robbins, Doug Jones, Birmingham, Ala., for defendant-appellee Jerry V. Mitchell.
Jo Allison Taylor, Birmingham, Ala., for defendant-appellee Roger Woods.
Before TJOFLAT, Chief Judge, CLARK , Senior Circuit Judge, and KAUFMAN , Senior District Judge.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of Maryland, sitting by designation.
TJOFLAT, Chief Judge:
The Government appeals from an order in the Northern District of Alabama granting a motion in limine to preclude certain expert testimony on the basis of Fed. R.Evid. 403 and 702. In the absence of a record of the pre-trial hearing on this motion, we find ourselves unable to affirm the challenged order. We therefore vacate the district court’s order and remand the case for further proceedings.
I.
Defendants Jerry V. Mitchell, Chief of Police for Albertville, Alabama, and Roger Woods are charged with three counts of conspiracy to commit extortion, and defendant Mitchell individually with twelve counts of extortion, all in violation of the Hobbs Act, 18 U.S.C. § 1951 (1988). Specifically, defendants stand accused of “fixing” tickets for driving under the influence of alcohol (DUI) in exchange for money. In order to obtain a conviction under the Hobbs Act, the Government must establish a connection between the extortionate conduct and interstate commerce. 18 U.S.C. § 1951(a).
On the morning of the scheduled trial date, June 11, 1990, both defendants, prior to the empaneling of the jury, filed motions in limine to preclude the testimony of Dr. Robert A. Voas. Upon hearing arguments from counsel and receiving the Government’s proffer of Dr. Voas’ testimony in camera, the district court orally granted the motions. No record of the arguments, the proffer, or the court’s oral ruling exists because the in camera hearing on the motions occurred in the absence of a court reporter. In a written order issued later that day, the court precluded Dr. Voas’ testimony “under [Fed.K.Evid.] 702 and 403.”
Left without the assistance of a record of the Government’s proffer, we turn to the court’s written order for a brief summary of the proffer. According to the court’s order, Dr. Voas, “[i]f permitted to testify ... would establish his qualifications as an expert in alcoholism and highway safety and then testify to the same matters that were presented by him as a witness in United States v. Wright, 797 F.2d 245, 249 (5th Cir.1986) [, cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987) ].” In a footnote to the quoted sentence, the order further explains that “[t]he government has indicated that it would not attempt to elicit from Voas in this case his opinion that failure to prosecute DWI charges has a demoralizing effect upon police officers.”
On June 11, 1990, the Government filed its notice of appeal from the district judge’s order granting defendants’ motions to preclude Dr. Voas’ testimony. On June 15, 1990, the Government filed its certification that the appeal was not taken for purposes of delay and that the precluded evidence constitutes a substantial proof of a fact material in the proceedings. Accordingly, we have jurisdiction pursuant to 18 U.S.C. § 3731 (1988).
II.
We review the preclusion of evidence under an abuse of discretion standard. United States v. Norton, 867 F.2d 1354, 1361 (11th Cir.) (quoting United States v. Mitchell, 666 F.2d 1385, 1390 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982)), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 701 (1989). In order for us to hold, however, that the district court did not abuse its discretion in precluding Dr. Voas’ testimony prior to trial and in the absence of a detailed and reported proffer by the Government, we would have to conclude that the precluded testimony could under no circumstances have been admissible. Based on the relevant parts of the record in this case, which include defendants’ motions in limine and the district court’s bare-bones order, we cannot reach this categorical conclusion.
We first consider the reasons for precluding Dr. Voas’ testimony enunciated in the district court’s order. We then determine whether Dr. Yoas’ testimony, under all possible trial scenarios, would have been inadmissible as irrelevant.
A.
To affirm the district court’s pretrial order precluding Dr. Yoas’ testimony pursuant to Fed.R.Evid. 702, we would have to find either that Dr. Voas’ “scientific, technical, or other specialized knowledge” under no circumstances could have “assisted] the trier of fact [in this case, the jury] to understand the evidence or to determine a fact in issue,” or that the district court properly exercised its discretion in finding Dr. Voas unqualified as an expert, or both. Addressing the latter alternative first, we point to Dr. Voas’ conspicuous absence at the in camera hearing that supposedly settled his lack of qualifications. The district court therefore would have had to find Dr. Voas unqualified without ever having asked Dr. Voas a single question and without ever having observed or heard Dr. Voas respond to a question posed to him by counsel for either side. Should there have been a dispute about Dr. Voas’ qualifications—and, in the absence of a record or a more detailed order, we can only speculate—the district court could not have resolved it based solely upon arguments presented by counsel without abusing its discretion.
Turning to the other possible basis for precluding Dr. Voas’ testimony pursuant to Rule 702, we cannot rule out that this testimony might have assisted the jury. Looking into our crystal ball for clues about what the trial might look like and about what might have transpired at the time the Government puts forth Dr. Voas’ testimony, we can easily make out a scenario in which Dr. Voas’ testimony benefits the jury. Although defendant Mitchell, based on his experience as Police Chief, might well be familiar with the effects that failure to prosecute DUI offenders might or might not have on interstate commerce, defendant Mitchell might well decide not to testify, or, should he take the stand, might decide not to give his opinion on this subject. In either case, Dr. Voas’ testimony on this issue would not be cumulative, and therefore would assist the jury in its deliberations.
Without the benefit of a trial transcript or a record of a detailed outline of what the trial transcript would include, which conceivably could have been established at the pre-trial hearing on defendants’ motions in limine, we cannot eliminate the possibility that Dr. Voas’ testimony might assist the jury. Accordingly, we cannot conclude that the trial court did not abuse its discretion in precluding Dr. Voas’ testimony.
B.
Similarly, we could affirm the pretrial preclusion of Dr. Voas’ testimony on the basis of Fed.R.Evid. 403 only if we found that there exists no possible trial scenario in which the probative value of this testimony would not be “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. In the absence of a trial transcript or a recorded and very detailed road map of the case, we cannot with any confidence arrive at this conclusion. On the sparse record before us, we simply cannot determine what probative value, if any, Dr. Voas’ testimony might have at the time it is presented by the Government.
Rule 403 requires a delicate balancing of probative value against certain effects that testimony might have on the jury or on the trial proceedings at the moment it is presented. We can fill neither dish of this balance. On the one hand, the probative value, if any, of Dr. Voas’ testimony depends heavily upon what has transpired at trial before and what will transpire following its presentation, including, but not limited to, defendant Mitchell’s testimony, should he take the stand. On the other hand, the effect on the jury of Dr. Voas’ testimony will depend crucially on the specific posture of the trial at the time of its presentation. Cf. United States v. Beechum, 582 F.2d 898, 915 (5th Cir.1978) (en banc) (“a significant consideration in determining the probative value of extrinsic offense evidence is the posture of the case”), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Whether or not Dr. Voas’ testimony will cause undue delay or waste of time will likewise entirely depend upon when it is introduced. A scenario in which Dr. Voas’ testimony might not constitute cumulative evidence already has been outlined above.
Finally, even if we could, and clearly we cannot, foresee where Dr. Voas’ testimony would fall on the balance to be struck under Fed.R.Evid. 403 at the time of its introduction at trial, certainly we cannot predict with any confidence whether or not the district court, by giving a limiting instruction instead of excluding the evidence altogether, could circumvent any or all of the negative effects contemplated in Fed. R.Evid. 403 that might be associated with this testimony.
C.
Not only are we unable to conclude that Dr. Voas’ testimony, under all possible trial scenarios, would have been inadmissible on the grounds cited in the district court’s preclusion order, but also we cannot find that Dr. Voas’ testimony necessarily would have been inadmissible as irrelevant. On the contrary, Dr. Voas’ testimony might well have revealed a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Dr. Voas’ testimony regarding the effects of failing to prosecute DUI offenders does not appear clearly irrelevant to the interstate commerce element of the Hobbs Act crimes charged in the indictment. See United States v. Wright, 797 F.2d 245, 249 (5th Cir.1986) (upholding a finding, based on testimony by Dr. Voas, that failure to prosecute DUI offenders results in interference with interstate commerce sufficient for Hobbs Act purposes), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). Even if we were to find that Dr. Voas’ testimony could never be relevant to any fact placed at issue in the pleadings prior to trial, we cannot exclude the possibility that this testimony might become relevant as the trial progresses and additional facts become of consequence to the trial’s outcome. For example, Dr. Voas’ testimony about the effects of failing to prosecute DUI offenders might become relevant as the defense, through testimony, seeks to establish either that one or both of the defendants knew nothing of any effects on interstate commerce caused by a failure to prosecute DUI offenders, or that no such effects exist. At that time, Dr. Voas’ testimony would become relevant as to the credibility of the defense witness rendering this testimony, insofar as a witness’ credibility becomes a consequential fact as soon as he or she takes the stand.
III.
For the reasons stated above, we VACATE the district court’s order precluding the testimony of Dr. Voas and REMAND the case with the instruction to conduct an adequate hearing on defendants’ preclusion motions in the presence of a court reporter.
VACATED and REMANDED.
. The Fifth Circuit in Wright, 797 F.2d at 249, found not clearly erroneous the district court’s factual findings underlying its conclusion that the government had proved the interstate commerce element of a Hobbs Act crime, which conclusion relied on the following testimony given by Dr. Voas, as summarized by the Fifth Circuit:
Mr. Voas testified that the consumption of alcohol is "a major, perhaps the major factor in causing highway accidents[ ]’’ [and] that the more serious an automobile accident is, the more likely it is that a drinking driver is involved. Voas also testified that a person who has been arrested for DWI has a much greater chance of later being involved in a fatal accident than has a person with no DWI arrest or conviction record. It was Voas' opinion that the higher risk can be reduced either by treating the drinking driver or by suspending or revoking his driving privileges. Voas also testified that when the public became aware, either through the press or by word of mouth, that people arrested for DWI are not being prosecuted, then the deterrent effect of criminal sanctions is diminished. Failure to prosecute cases where the evidence is sufficient to sustain a conviction has a demoralizing effect on police officers to the point that they tend to make fewer arrests. Finally, Voas testified that alcoholism is a tremendous problem in the United States, costing the nation one hundred billion dollars per year in medical expenses and lost working time, and that people with drinking problems who finally do seek help often do so because they have been arrested and prosecuted on a charge of drunk driving.
Id.
. In its entirety, Fed.R.Evid. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
. The district court’s order does not indicate on which of these potential grounds it relies.
. The order provided in relevant part:
In Wright, a majority of the appellate panel upheld a Hobbs Act conviction based on Voas’ opinions that had been received in a non-jury trial apparently without objection. Here, in this jury trial, the defendants have objected to that testimony and the court concludes under [Fed.R.Evid.] 702 and 403 that such testimony should not be permitted.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
. We further urge the district court to consider whether it would be prudent to rule on defendants’ preclusion motions prior to the time at which the Government intends to put Dr. Voas on the stand. As our opinion indicates, a ruling prior to trial would appear questionable in the absence of detailed presentations by both parties predicting with sufficient certainty the exact state of the record at the time the Government seeks to present Dr. Voas' testimony.
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_usc2 | 18 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Appellee, v. Richard A. DOUGHERTY, Appellant.
No. 84-5152.
United States Court of Appeals, Eighth Circuit.
Submitted April 11, 1985.
Decided May 31, 1985.
Peter Thompson, Minneapolis, Minn., for appellant.
Janice M. Symchych, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and WOODS, District Judge.
The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas, sitting by designation.
HENRY WOODS, District Judge.
After a jury trial, the appellant, Richard A. Dougherty, was found guilty of twenty-five counts of misapplying $14,500,000 in funds of the First National Bank of St. Paul, Minnesota, and falsifying the bank’s books and records. The nine counts of misapplication dealt with the improper issuance of bankers’ acceptances in violation of 18 U.S.C. § 656. The remaining sixteen counts charged a violation of 18 U.S.C. § 1005 in that appellant willfully failed to record these transactions. Appellant was given concurrent sentences of a year and a day on three counts, five years of probation, and a $15,000 fine on the remaining counts by the trial judge. Appellant challenges the sufficiency of the evidence and the correctness of the jury instructions. We affirm the convictions.
Appellant was a vice president in charge of the International Banking Division of the third largest bank in the Ninth Federal Reserve District. The offenses charged were mainly related to the financial difficulties of a seafood processing venture by Transalaska Fisheries Corporation (Transalaska). Based in Seattle, the company proposed to convert a ship into a floating seafood processor and to harvest mainly king crab. In April, 1979, Dougherty secured approval of the bank’s loan committee for a $3,500,000 advance for which Transalaska gave a term note. Conversion of the ship ran into delays and cost overruns, with the result that the ship was not ready for the 1979 king crab harvest. The 1980 season fell far below expectations. During conversion in September, 1979, Dougherty disbursed $350,000 beyond the approved limit, documenting the excess amount in a memo to the bank’s president and in comments placed in the Transalaska credit file (T. 162-63). Transalaska’s financial difficulties worsened, and its officers began calling on Dougherty for more financing. He complied by using the device of unapproved bankers’ acceptances. The First National Bank of St. Paul required approval of its senior loan committee for loans and credit extensions in excess of $100,000 (T. 143-45). Dougherty sat on the senior loan committee and participated in its weekly discussion and decisions on lending (T. 123-27, 1078-80). He presented none of the bankers’ acceptances for Transalaska to the loan committee for approval (T. 15, 1361-62, 1378-79). Nor were they posted in the bank’s general ledger. Proceeds of the acceptances were deposited into the company’s checking account. On maturity date Dougherty paid off the maturing acceptance with a new one, in an amount equal to or greater than the maturing acceptance, since the customer was unable to meet the obligation on its due date. An overdraft would have resulted if he had allowed the account to be charged on the due dates. When a customer’s account suffers an overdraft of $1,000 for five days, a computerized printout automatically goes to the loan review personnel (T. 169, 1090). This pattern of roll-overs prevented what would have been a series of overdraft reports from coming to the attention of the loan review committee.
The same system of bankers’ acceptances and concealment was used by Dougherty to finance the operation of David No-land, who was engaged in the restaurant business in the Minneapolis-St. Paul area. Dougherty extended Noland more than $400,000 in bankers acceptances during 1979 and 1980, none of which were paid. These advances were made in spite of the fact that Noland was a very poor credit risk. If anything, bankers’ acceptances were more inappropriate in Noland’s case than in the advances to Transalaska Fisheries. Although the Transalaska and No-land transactions were not recorded in the bank ledger, Dougherty maintained a private desk drawer accounting of the transactions (Berg 31).
When it appeared that an audit in progress would uncover the concealed multi-million dollar losses of the bank, Dougherty went to the bank president and confessed that he had issued the unauthorized acceptances. Four days later he tendered his resignation. There is no evidence that appellant personally profited from any of these transactions or that he had any type of special relationship with the officers of Transalaska Fisheries Corporation or David Noland.
I. SUFFICIENCY OF THE EVIDENCE
In determining the sufficiency of the evidence, this court must accept all reasonable inferences in support of the jury verdict and resolve all conflicts in its favor. Klein v. United States, 728 F.2d 1074 (8th Cir.1984). The fact that appellant did not personally profit from his criminal conduct is not a legal excuse for his action. United States v. Mouton, 617 F.2d 1379, 1385 (9th Cir.1980), cert. denied, 449 U.S. 860, 101 S.Ct. 163, 66 L.Ed.2d 77 (1980). There was a great deal of conduct on appellant’s part on which the jury could have based a guilty verdict. The jury was entitled to conclude that appellant led the bank’s internal auditor, Patricia Slater, to believe that lending limits were monitored with respect to bankers acceptances by virtue of monthly reports to the loan committee. (See Exhibit A, Question 3(c) to the testimony of Patricia Slater.) This was a false statement, as were his statements to the same auditor that the acceptances were accounted for in ledger entries (Slater 25-26). The jury could quite understandably have disbelieved Dougherty’s statement that he did not record the transactions because he was too immersed in the daily business of Transalaska and Noland (T. 1247-49), particularly since he found time to record the transactions in a private log kept in his desk (T. 1413-15). The jury was entitled to infer that the motive for not recording 72 unapproved bankers’ acceptances was to practice deception on officials of the bank. The jury was also entitled to believe that appellant used bankers’ acceptances in an unconventional and improper fashion and breached virtually all the statutory and regulatory requirements for such instruments. In so doing, appellant was actually extending conventional loans to Transalaska and Noland totally beyond his authority and in complete circumvention of the bank’s loan committee. By this secretive device he extended $14,500,000 in unauthorized credit to these two customers. This amount of absolute liability on the part of the bank caused its financial condition to be misrepresented during the period involved to its officers, shareholders, the public, and the federal bank examiners. The evidence in this case is sufficient to show an intentional misapplication and falsification of bank records. Such evidence has been found sufficient in several cases before this court involving similar improprieties on the part of bank officials.
II. THE INSTRUCTIONS.
A. Specific Intent.
Appellant argues vigorously that the court should have instructed that specific intent was a necessary element in all the charges and that the court erred in refusing his proferred instruction No. 20 (A. 21), which is essentially Devitt & Black-mar, Federal Jury Practice and Instructions, No. 14.03. This instruction would have required the government to “prove that the defendant knowingly did an act which the law forbids or knowingly failed to do an act which the law requires, purposely intending to violate the law.” (A. 21.) In another requested instruction (No. 27), appellant wanted the jury to be told that misapplication required “The specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law.” (A. 28.) With regard to the intent element of 18 U.S.C. § 656, Judge Devitt charged that it was only necessary that the government prove “That the defendant acted willfully and with intent to injure or defraud the bank or to deceive its officers, directors, and examiners” (T. 1519). With regard to the intent required for a conviction under 18 U.S.C. § 1005, he charged that the government must prove “that the defendant made or omitted such entry willfully and with knowledge of the resulting falsifying and with the intent to deceive the officers or examiners.” He then gave the standard definition of “willfully” and “knowingly.”
The above instructions of the trial judge correctly declared the law and are in accord with the view of “specific intent” taken by all the circuit committees who have promulgated Model Jury Instructions. For instance, the Seventh Circuit committee recommends “avoiding instructions that distinguish between ‘specific intent’ and ‘general intent.’ In place thereof the Committee recommends that an instruction be given which defines the precise mental state required by the particular offense charged.” Federal Criminal Jury Instructions of the Seventh Circuit, p. 79 (West Publishing Co. 1980). This is precisely the course followed by Judge Devitt. The Seventh Circuit Committee points out that appellant’s suggested distinction between “general intent” and “specific intent” confuses more than enlightens juries, citing United States v. Bailey, 444 U.S. 394, 400-409, 100 S.Ct. 624, 629-36, 62 L.Ed.2d 575 (1980). The requirement that a defendant must know that his act violates the law is ordinarily not an essential element of the offense. “Defendants [are] not entitled to an instruction which [includes] the ... phrase [that the defendant knowingly did an act which the law forbids, purposely intending to violate the law]. ‘A requirement of proof not only of this knowledge of likely effects, but also of a conscious desire to bring them to fruition or to violate the law would seem particularly, in such a context, both unnecessarily cumulative and unduly burdensome.’ ” United States v. Brighton Building & Maintenance Co., 598 F.2d 1101, 1106 (7th Cir.1979) cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979) (criminal antitrust prosecution). The same point was made in United States v. Arambasich, 597 F.2d 609 (7th Cir.1979) where the court held that the trial court properly refused a stock specific intent instruction. Accord, W. LaFave & A. Scott, Criminal Law § 28 at 202 (1972); Model Penal Code § 2.02, Comment (Tent.Draft No. 4 1955). “The stock ‘specific’ and ‘general intent’ instructions should be avoided in favor of instructions that precisely define the requisite mental state of the particular crime charged: e.g. ... 18 U.S.C. § 1005 (intent to injure or defraud a bank).” Federal Criminal Jury Instructions of the Seventh Circuit, pp. 81-82 (West Pub. Co. 1980).
The same approach is taken by the Committee on Model Jury Instructions of the Ninth Circuit. “For example, to speak of a defendant’s ‘purpose’ or to use the phrase ‘purposely intending to violate the law’ requires a jury to find that a defendant knew his act violated the law. Ordinarily, that is not an essential element of the offense, and defendant is not entitled to such an instruction. Cooley v. United States, 501 F.2d 1249, 1253 (9th Cir.1974); cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); United States v. Fierros, 692 F.2d 1291, 1293-95 (9th Cir.1982). Thus the standard instructions should be avoided.” Manual of Model Jury Instructions For The Ninth Circuit (West Pub. Co. 1984).
We believe that the view expressed by the above authorities and formulated by Judge Devitt’s instructions is the better view. It also has the approval of the Supreme Court. United States v. Bailey, supra.
Unless used in the statute itself or unless the crime falls within that rare type of offense where defendant’s knowledge that he is violating the law is an element of the offense, there is no occasion for an instruction defining specific intent.
B. Other Objections to the Instructions.
Appellant claims that the trial judge summarized the evidence in a manner that was unfair to him, that he virtually directed a verdict on the misapplication count, and that he failed to submit appellant’s theory of the case to the jury. These contentions are without merit. Judge Devitt’s summary of the respective positions of the parties was neutral (T. 1527-30). He mentioned in his comments the defenses upon which appellant could justifiably rely. We find no indication of bias or prejudice in the charge to the jury.
As to the contention that Judge Devitt directed a verdict on the misapplication count, it is sufficient to say that no more was said in his remarks than appellant and his attorney admitted in the course of the trial. Counsel in his opening statement told the jury that except for the issue of intent, there would be substantial agreement with the government’s case (T. 63). Then in summation, appellant’s counsel stated that the real essence of the ease was whether the government had proved an intent to deceive (T. 1480-81). Appellant admitted that approval of the loan committee had not been obtained and that proper • entries had not been made, in addition to other significant facets of the government’s case (T. 1331, T. 1334). These admissions were acknowledged by appellant’s counsel in summation (T. 1481). We agree that the testimony of appellant and statements of his counsel were tantamount to admission of the second element of the offense of misapplication: “That the defendant misapplied the funds or credits of the bank.” The issue in the case was whether the government could establish element number three: “That the defendant acted willfully and with intent to injure or defraud the bank, or to deceive its officers, directors, and examiners.” (T. 1519.) This was made perfectly clear in the instructions of the trial judge (T. 1530).
The convictions are affirmed.
. The Honorable Edward J. Devitt, Senior United States District Court Judge, District of Minnesota.
. A bankers acceptance is a negotiable instrument, governed by 12 U.S.C. § 372 and applicable regulations and rulings of the Federal Reserve Board, which define and interpret the "eligibility” of the financing instrument (Anderson 10). An "eligible” bankers acceptance is one which the Federal Reserve has authority to purchase (Anderson 10). Eligible bankers' acceptances ordinarily, and for purposes of this case, are used to finance shipments of goods between foreign countries (Anderson 12-13). The typical transaction involves an exporter who proves in some manner to the bank that he has a given amount of product which will be shipped to a foreign country. He must have goods or a firm contract at least equal to the amount of financing. The shipment must be consummated in 180 days or less. The bank may then agree to finance for whatever period of time the shipment will require by taking the exporter’s promise to pay in the form of a written draft. The bank stamps the word “accepted” on the draft, and the authorized officer signs or initials the item. The document will provide for a given sum to be due on a given date, correlating with the completion of the shipment. An authorized officer then places on the face of the instrument an eligibility clause, describing the international transaction in goods which is represented by the acceptance. The proceeds of the shipment then are to be used to liquidate the transaction, without expectation of resorting to collateral or other security. (Anderson 25, 31; T. 613.) The bank may choose to hold the acceptance until maturity, at which time the customer pays the bank. More commonly, however, the bank sells acceptances at a discount on the secondary market, with the bank paying the holder in the face amount upon maturity (Anderson 44-49). The market maintains a high interest in the instrument because it is a secure, no-risk investment due to the bank's absolute obligation to pay upon maturity, regardless of the customer’s ability to pay the proceeds from the transaction (Anderson 85; T. 476).
. He had been discharged from his employment and had a poor credit record, and his commission checks from a former employer were assigned to the bank (T. 171-72). In November, 1980, he had a negative net worth of $635,000 (T. 176).
. In sum, the prerequisites to an eligible bankers’ acceptance are:.
(a) that there be a specific transaction involving the shipment of goods usually between foreign countries;
(b) that there be actual goods or a firm contract for sale of the goods, in either case, representing at least the face value of the acceptance; (Anderson 26, 29);
(c) that the transaction take no longer than 180 days, to correlate to the time set forth on the acceptance; and
(d) that the acceptance be paid upon maturity with the proceeds of the transaction. (Anderson 12, 79; T. 1350-52.)
. See nn. 2 and 4, supra.
. United States v. Mohr, 728 F.2d 1132 (8th Cir.1984) (exceeding loan limit and concealing documents); United States v. Ness, 665 F.2d 248 (8th Cir.1981) (check-rolling without deposits to customer accounts, which were not really legitimate loans); United States v. Bevans, 496 F.2d 494 (8th Cir.1974) (rollover of insufficient fund checks and their treatment as new checks each day to avoid posting as overdrafts).
. "Willfully” connotes a voluntary, intentional violation of a known legal duty ... and the word “knowingly” ... means that the acts charged were done voluntarily and intentionally and not because of accident or other innocent mistake (T. 1516-17).
. This new approach, exemplified in the American Law Institute’s Model Penal Code, is based on two principles. First, the ambiguous and elastic term "intent" is replaced with a hierarchy of culpable states of mind. The different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness, and negligence. See LaFave & Scott 194; Model Penal Code § 2.02. Perhaps the most significant, and most esoteric, distinction drawn by the analysis is that between the mental states of "purpose” and “knowledge.” As we pointed out in United States v. United States Gypsum Co., 438 U.S. 422, 445 [98 S.Ct. 2864, 2877, 57 L.Ed.2d 854] (1978), a person who causes a particular result is said to act purposefully if "‘he consciously desires that result, whatever the likelihood of that result happening from his conduct,' ” while he is said to act knowingly if he is aware “ 'that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.’ ” 444 U.S. at 404, 100 S.Ct. at 631.
. It does not appear in these statutes, and our attention has not been called to any others using the term “specific intent.”
. In the case of United States v. Marvin, 687 F.2d 1221, 1227 (8th Cir.1982), cert. denied, 460 U.S. 1081, 103 S.Ct. 1768, 76 L.Ed.2d 342 (1983), this court held that it was error not to give Devitt & Blackmar § 14.03, the specific intent instruction. An examination of that opinion reveals that the court intended to require, for that particular offense, the defendant’s actual knowledge that he was violating the law, thus placing the offense of acquiring and possessing food stamps in that narrow range of cases where such knowledge is essential.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_geniss | G | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
THOMASSON v. BURLINGTON TRANSP. CO.
No. 2405.
Circuit Court of Appeals, Tenth Circuit.
May 19, 1942.
Rehearing Denied June 26, 1942.
Emmett Thurmon, of Denver, Colo., for appellant.
J. L. Rice, of Denver, Colo. (J. C. James and J. H. Cummins, both of Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
William R. Thomasson instituted an action against the Burlington Transportation Company in the District Court of the United States for the District of Colorado to recover damages for personal injuries sustained by him in an automobile collision at the intersection of Eighteenth Street and Glenarm Place, in the City of Denver. At the conclusion of the evidence offered by plaintiff, the court instructed a verdict for the defendant. Judgment was entered thereon and plaintiff has appealed.
There is a conflict between the state law and the ordinances of the City of Denver defining the rights and duties of persons' who approach a street intersection ■ at right angles. Ch. 16, § 208, of the Colorado Statutes Annotated, 1935, provides:.
“(a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.
“(h) When two vehicles enter an intersection from different . highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”
Ordinance No. 16 (Series of 1932), § 65(a), of the City of Denver, as far as material herein, provides: “Every .driver of a vehicle approaching the intersection of a street shall yield the right-of-way at such intersection to the driver of any vehicle approaching from the right, and the driver of the vehicle on the left shall decrease the speed of the vehicle operated by him and have said vehicle under- control before crossing such intersection, and it shall be his duty to yield the right-of-way to the vehicle on the right; ...”
Plaintiff contends that where there is a conflict, as here, between the city ordinance and the state law, the former must give way and that the respective rights and duties of the parties are to be measured by the state law. The Supreme Court of Colorado does not sustain plaintiff in this position. In City and County of Denver v. Henry, 95 Colo. 582, 38 P.2d 895, 898, the Supreme Court said: “Our conclusion is that the right of way at street intersections in the city of Denver is controlled by the ordinance in question, not by the statute.” The question of plaintiff’s contributory negligence therefore must be measured by the requirements of the city ordinance of the City of Denver.
Eighteenth Street and Glenarm Place intersect at right angles. At the time of the accident, plaintiff was driving his automobile on Eighteenth Street and approached the intersection from a northwesterly direction. Defendant’s bus was being driven along Glenarm Place, and approached the intersection from a southr westerly direction. Defendant’s bus therefore appeared on plaintiff’s right and had the right of way at the intersection. The duty which rested upon plaintiff as he approached this intersection under these circumstances has been clearly defined by the Supreme Court of Colorado. In Golden Eagle Dry Goods Co. v. Mockbee, 68 Colo. 312, 189 P. 850, 851, the court, in interpreting the meaning -of such an ordinance, said: “We think the right rule is that it is the duty of every driver when approaching a street intersection to use reasonable care to see whether there is likelihood ’of collision with any car approaching from the right, and, if there is, to yield to it the right of way, and to keep his car under such control that he can do so.”
If, when plaintiff reached the crossing, conditions were such that it would raise a, question, in the mind of a reasonably prudent person whether he had time to cross in the face of a car approaching from his right, it was his duty to stop and yield the right of way to defendant.
Each street is 48 feet wide and has a 16-foot sidewalk on each side. Plaintiff testified that he approached the intersection of the street at an approximate speed of ten to twelve miles per hour; that as he came to the west sidewalk line, he looked to his right and saw defendant’s bus about 125 to 130 feét away, approaching at a speed of fifteen miles per hour; that he proceeded into the intersection and looked to his left to observe traffic from that direction; that he then looked up and saw the bus coming at a speed of from twenty-five to thirty miles per hour and only approximately 25 feet away; that he then jammed on his brakes, and the crash occurred. He testified that he did not reduce his speed before he applied his brakes.
It must be borne in mind that estimates of distances and speeds are subject to a considerable margin of error, especially when formed on a moment’s glance while approaching an intersection. All of this prompts a reasonably prudent person to stop before crossing an intersection in the face of an approaching car which has the right of way, unless it clearly appears that it is safe to cross. A reasonably prudent person takes no needless chances at a street crossing. The ordinance required plaintiff to reduce his speed when he entered the intersection. Notwithstanding that he saw a car approaching which had the right of way, only 130 feet away, and realizing, as he must have, that he might be in error both as to the distance and the speed of the car, nevertheless he drove into the intersection without reducing the speed of his car, as the ordinance required, and paid no further attention to the approaching car that had the right of way until it was too late for him to stop, as he was required to do. It needs no extended discussion to support the conclusion that in the most favorable light of the evidence, plaintiff was guilty of contributory negligence as a matter of law.
While not much stress is laid on it in plaintiff’s brief, one of the assignments of error relates to the doctrine , of the last clear chance. Defendant’s bus had the right of way. The driver had the right to assume that plaintiff would stop. Of course, if defendant saw plaintiff in a place of danger and could stop, it was his duty to do so. Under such circumstances it would be negligence for which defendant would be liable to fail to stop, notwithstanding that plaintiff was negligent in bringing about his peril. It is sufficient to say that there is no evidence in the record from which it can be concluded that defendant’s bus driver saw the peril in which plaintiff had placed himself at a time when he could have stopped.
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_respond1_7_2 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
DISTRICT OF COLUMBIA v. KENDALL
Court of Appeals of District of Columbia.
Submitted May 3, 1927.
Decided May 26, 1927.
No. 4544.
Criminal law <§=»1024(5)~ Court of Appeals held without jurisdiction to review by writ of error judgment of not guilty found by court sitting without jury (Code, §§ 44 and 935).
Where prosecution for violation of Employment Agency Act, § 8, as amended by 35 Stat. 641, was tried to court without jury on agreed statement of facts, and the defendant adjudged not guilty and discharged, held, under District of Columbia Code, §§ 44, 935, Court of Appeals had no jurisdiction of writ of error by District of Columbia to review trial court’s action.
In Error to Police Court of the District of Columbia.
John D. Kendall was charged with violation of statute, and to review a judgment of the police court finding him not guilty and discharging him, the District of Columbia brings error.
Writ of error dismissed.
F. II. Stephens and E. W. Thomas, both of Washington, D. C., for plaintiff in error.
S. A. Syme, of Washington, D. C., for defendant in error.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
MARTIN, Chief Justice.
The District of Columbia filed an information in the police court of the District against John D. Kendall, charging him with violation of section 8 of the Employment Agency Act (as amended by 35 Stat. 641), by unlawfully receiving from an applicant for employment a sum of money greater than $2, as a fee for the procurement of employment and work for the applicant.
The defendant pleaded not guilty, and the issue was tried to the court without a jury, upon an agreed statement of facts. The court found and adjudged the defendant not guilty, and he was discharged. The District of Columbia noted an exception to the finding and judgment of the police court “on the matters of law contained therein,” and filed various assignments of error, all of which challenged the interpretation placed by the court upon the statute in question. A writ of error was issued from this court, upon application of the District, for a review of these proceedings.
We are satisfied, however, that we are without jurisdiction in the case. The right of the plaintiff in error to such a review by this court is based upon the provisions of section 935, D. C. Code, which section reads as follows, to wit:
“In all criminal prosecutions the United States or the District of Columbia, as the ease may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, that if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.”
It may be noted, under section 44, D. C. Code, the finding and judgment entered by the police court in this case are entitled to “the same force and effect in all respects as if the same had been entered and pronounced upon the verdict of a jury.”
In United States v. Evans, 30 App. D. C. 58, it was held that under section 935, an appeal by the prosecution does not lie from a judgment discharging the accused after a verdict of not guilty, based upon exceptions taken during the trial.
In District of Columbia v. Burns, 32 App. D. C. 203, which was a prosecution for an alleged violation of the pure food statute, this court held that it has no power to review, on writ of error to the police court of this District, a judgment of that, court of not guilty, noi jury trial having been demanded by the accused, Mr. Chief Justice Shepard, speaking for the court, said:
“Under the procedure prescribed in the police court a jury is not called unless demanded by the accused. None was demanded in this case, and the question of the guilt of defendant, as a matter of law and fact, was submitted to the court. Instead of quashing the information and dismissing the prosecution, the court, after hearing some evidence and excluding other, adjudged him not guilty, and discharged him as a result of that judgment. T.he effect of the judgment is the same as if it had been entered on the verdict of a jury. The defendant cannot be retried for the same offense. Were this court to entertain jurisdiction and determine that the judgment of the police court was erroneous, it could not be vacated and a new trial ordered. * * * It is unfortunate, therefore, that the'police court did not content itself with quashing the information and dismissing the prosecution, in accordance with its view of the law, without going further and adjudging the defendant not guilty. While it seems probable that the court took an erroneous view of the law, we are without jurisdiction to express an opinion upon the question, by reason of the judgment actually rendered.”
It is immaterial that the facts in the present case were submitted to the court by means of an agreed statement, rather then by the testimony of witnesses. Consistently with the foregoing decisions, the writ of error issued in this case is dismissed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_circuit | I | What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
INTERNATIONAL VIDEO CORPORATION, Plaintiff-Appellee, v. AMPEX CORPORATION, Defendant-Appellant.
No. 71-1935.
United. States Court of Appeals, Ninth Circuit.
Sept. 4, 1973.
Francis A. Even (argued), John F. Flannery, of Fitch, Even, Tabin & Lue-deka, Chicago, 111., J. Bruce McCubbrey, San Francisco, Cal., for defendant-appellant.
Karl A. Limbach (argued), Richard E. Peterson, Thomas A. Gallagher, of Lim-bach, Limbach & Sutton, San Francisco, Cal., for plaintiff-appellee.
Before CHAMBERS and TRASK, Circuit Judges, and TAYLOR, District Judge.
Honorable Fred M. Taylor, Senior United States District Judge for the District of Idaho, sitting by designation.
TRASK, Circuit Judge:
This is an appeal from an order dismissing both a complaint for declaratory-judgment and a counterclaim for patent infringement on the basis that there was no actual or justiciable controversy between the parties. Appellant, Ampex Corporation (Ampex), claims the court had no authority to dismiss its counterclaim over its objection and challenges the court’s discretion in refusing to award attorneys’ fees. We affirm.
International Video Corporation (International), the plaintiff-appellee, originally sought a declaratory judgment that it was not infringing an Ampex patent covering video tape recording apparatus. Ampex unsuccessfully sought dismissal of the action asserting by way of Motion to Dismiss, that there was no justiciable controversy. Thereafter, Ampex “reluctantly” filed a compulsory counterclaim to prevent waiver of its right to sue International for patent infringement. Fed.R.Civ.P. 13(a). The counterclaim alleged :
“Without hereby waiving its denial of the existence heretofore of a justi-ciable controversy between the Plaintiff, International Video Corporation, and the Defendant, Ampex Corporation, with respect to the Defendant’s Patent 2,956,114, or to infringement thereof by the Plaintiff; and without waiving its right of review of the District Court’s denial of the Defendant’s motion to dismiss the declaratory judgment complaint herein for want of justiciable controversy; and to prevent possible loss of right for failure to assert what may be held to be a compulsory counterclaim, the Defendant counterclaims against the Plaintiff, IVC, ...” C.T. at 71.
A year later, International having changed its position completely, filed a Motion to Reopen Defendant’s Motion to Dismiss, arguing that the factual context of the action had changed and that the action should be dismissed as Ampex had previously suggested. The court granted International’s motion explaining:
“In effect, plaintiff argues that the circumstances giving rise to this action have so changed that it would serve no useful purpose to proceed further. In light of plaintiff’s presentation, this argument is persuasive. Although the parties may still be in some disagreement over the patent in question, the changes in circumstances referred to by plaintiff demonstrate that ‘there are no longer adverse parties with sufficient legal interests to maintain the litigation.’ 6A Moore’s Federal Practice j[ 57.13, at 3074 (2d ed. 1966). See Cover v. Schwartz, 133 F.2d 541 (2d Cir.), cert, denied, 319 U.S. 748, [63 S.Ct. 1158, 87 L.Ed. 1703] (1942). Therefore, the motion to reopen is granted, and the complaint is dismissed.
“Dismissal of the complaint does not require dismissal of the counterclaim. See Altvater v. Freeman, 319 U.S. 359, [63 S.Ct. 1115, 87 L.Ed. 1450] (1943). However, defendant has made it clear both in the counterclaim itself, and in opposing plaintiff’s motion, that the counterclaim was reluctantly filed to protect against a waiver under Federal Rule of Civil Procedure 13(a). Since the complaint has been dismissed, defendant need fear waiver no longer. There being no actual controversy between the parties, the counterclaim is also dismissed.” C.T. at 236.
Ampex does not challenge that part of the court’s order dismissing International’s complaint. However, it has appealed dismissal of its counterclaim.
Ampex contends that the dismissal of its counterclaim for patent infringement was error because it has never agreed to a voluntary dismissal under Rule 41(a)(2), Fed.R.Civ.P. and because the prerequisites for an involuntary dismissal under Rule 41(b) or (c) have not been met. Ampex argues that dismissal of a complaint does not necessarily require dismissal of a counterclaim which has a jurisdictional basis independent of the main action. See McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339 (9th Cir. 1966). Here, Ampex asserts, there was such an independent jurisdictional basis for the counterclaim —federal patent jurisdiction. Ampex relies on Pioche Mines Consolidated, Inc. v. Fidelity-Philadelphia Trust Co., 206 F.2d 336 (9th Cir. 1953), where a similar order of dismissal of a counterclaim was reversed because the counterclaim rested independently upon separate federal grounds for jurisdiction, specifically, diversity of citizenship.
We conclude that Rule 41 is inapplicable to the dismissals in this case which were predicated on lack of jurisdiction. Rule 41, cited by appellant, applies to voluntary dismissals and involuntary dismissals other than dismissals for lack of jurisdiction. Rule 12 dismissals for lack of jurisdiction are non-discretionary and are to be entered whether the parties object or not.
Ampex’s argument must fail because it ignores the crucial threshold question — whether a justiciable controversy exists — underlying the court’s orders of dismissal. If there is no controversy, there is no jurisdiction in a constitutional sense regardless of whether statutory jurisdiction might otherwise be properly founded.
In hearing the original motion to dismiss brought by appellant Ampex, the court concluded that a justiciable controversy existed. Ampex has never retreated from its original argument that the declaratory judgment complaint was dismissable for want of a justiciable controversy. The mere filing of a compulsory counterclaim does not establish a justiciable controversy where none previously existed. Cf. Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241 (9th Cir. 1967). The Ampex counterclaim shows on its face that no justiciable controversy is being asserted. The counterclaim expressly asserts Ampex’s continuing position that the alleged dispute raised by International’s complaint does not amount to a justiciable controversy. The counterclaim was filed nonetheless because it might be considered a compulsory counterclaim which Ampex could lose forever if not then asserted. A comparison of the International complaint for declaratory judgment with the Ampex counterclaim for patent infringement convinces us that identical issues are involved in each. We do not quite understand how one can be dismissed for want of a justiciable controversy without the dismissal of the other. Both dismissals are required because the court lacks jurisdiction to adjudicate unless there is an actual controversy. This court has stated:
“Compulsory counterclaims are required to be dismissed only when the complaint is dismissed for want of jurisdiction.” Pioche Mines Consolidated, Inc. v. Fidelity-Philadelphia Trust Co., supra, 206 F.2d at 336.
Here the complaint was dismissed for want of an actual controversy and dismissal of the counterclaim was mandatory because it suffered from the same fatal jurisdictional defect.
Although the court’s conclusion that the International complaint should be dismissed for lack of an actual controversy has not been directly attacked, we have nevertheless considered that finding and agree that it is not clearly erroneous. The court’s original conclusion that jurisdiction existed was based on the testimony and arguments by the parties and was strongly urged by the plaintiff-appellee, International. When the court was asked by that same party, which had reversed its position, to reconsider the appellant’s motion to dismiss, there was no longer a party arguing that a controversy existed. Ampex weakly maintained that the court should be bound by its original determination but Ampex produced no new evidence concerning the controversy. Ampex does not appear to be claiming, even now, that an actual controversy exists; rather, Ampex contends it will be prejudiced by a dismissal. The damages it could recover should it ever elect to bring a new infringement claim against International may be less than the amount it could recover if the date of the counterclaim in this action were used as the triggering date for the assessment of damages under the patent marking statute, a statutory limitation upon the recovery of damages, 35 U.S.C. § 287. The court avoided any injury to the interests of Ampex by providing that the dismissal of the counterclaim was without prejudice to its right to refile the claim. In answer to the claim that the amount of recoverable damages might be less, the court promptly stipulated that if Ampex refiled its claim within six months from the date of dismissal, it would be permitted to assert damages and rights retroactively to the date of the filing of the counterclaim. Ampex did not refile its claim within that grace period. Under these circumstances where neither party appears to be asserting that any real controversy exists, and the rights of Ampex could be fully protected, the court properly concluded that the complaint and counterclaim should both be dismissed.
Appellant further contends that the district court abused its discretion in refusing to award Ampex attorneys’ fees occasioned by International’s suit. Ampex argues that International’s capricious change of position and the resultant dismissal of the action mandate such an award. Appellant predicates the court’s authority to award attorneys’ fees on Rule 41(a)(2) which provides for “terms and conditions” in dismissal orders.
International does not dispute that the court had the power to award attorneys’ fees but maintains that the court’s discretionary conclusion against such an award should be sustained. International points out that Ampex’s conduct was not so exemplary and International’s so heinous that equity would require an award of attorneys’ fees in this case. Allowance of attorneys’ fees is normally within the judicial discretion of the trial court. Lea v. Cone Mills Corp., 467 F.2d 277 (4th Cir. 1972). Furthermore, an award of attorneys’ fees is ordinarily improper in the absence of a statute or under the most unusual circumstances. Maier Brewing Co. v. Fleischmann Distilling Corp., 359 F.2d 156 (9th Cir. 1966). We conclude that there was no abuse of discretion in denying appellant’s request for an award of its attorneys’ fees.
Affirmed.
. Rule 41(a)(2) provides in pertinent part:
“If a counterclaim lias been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.”
. Rule 12(h) provides, for instance :
“. . . whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”
. U.S.Const., art. Ill, § 2. The test for a justiciable controversy was suggested in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941) :
“Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient' immediacy and reality to warrant the issuance of a declaratory judgment.”
. Ampex has counterclaimed saying at the same time that it challenges jurisdiction. Query: could Ampex challenge jurisdiction after losing on the merits of the counterclaim?
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_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".
FLYNN ex rel. YOUNG QUONG ON v. TILLINGHAST, Commissioner of Immigration.
No. 2760.
Circuit Court of Appeals, First Circuit.
Feb. 18, 1933.
MORTON, Circuit Judge, dissenting.
Everett Flint Damon, of Boston, Mass. (A. Warner Parker, of Washington, D. C., on the brief), for appellant.
John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
The issue in this class of eases where admission is denied is (3) whether tho applicant was given a fair hearing, that is, was permitted to introduce all the evidence he desired and have it made a part of tho record of the administrative board before which his ease was heard; (2) whether there was an entire lack of convincing evidence, or any substantial evidence contra, on which the conclusion of the immigration officials could rest.
The burden of proving his right to enter the country as a citizen is on the applicant. This burden involves satisfying the immigration officials, "who have the sole power to determine the credibility of witnesses, and the weight of the evidence as to the facts entitling the applicant to enter as a citizen. The conclusion of a Special Inquiry Board may rest, therefore, on a lack of evidence of sufficient weight in the minds of the members to carry conviction.
Bearing in mind that they have the power to determine the credibility of witnesses, and whether the evidence has sufficient weight to sustain the burden on the applicant, to reverse a decision of the immigration officials refusing admission to an applicant, and of the District Court in denying a petition for habeas corpus, this court must find that the evidence in favor of the applicant is so clear and convincing that the immigration officials must have acted arbitrarily in rejecting the evidence in favor of the applicant because in their opinion the witnesses for the applicant were unworthy of belief, or in finding ,that all the evidence in applicant’s favor did not satisfy the members of the board that the applicant was a citizen of this country.
It is often difficult to determine, not only what evidence the immigration officials rejected as unworthy of belief and on what ground, but also what weight they attached to the evidence in favor of or against the applicant.
The question is not what this court would have found on the evidence that appears in the printed record. • The Supreme Court said, in Chin Yow v. United States, 208 U. S. 8, at page 13, 28 S. Ct. 201, 203, 52 L. Ed. 369: “But, unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open,, and, we may add, the denial of a hearing cannot be established by proving that the decision was wrong.” U. S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106, 47 S. Ct. 302, 71 L. Ed. 560; Tisi v. Tod, 264 U. S. 131, 133, 44 S. Ct. 260, 68 L. Ed. 590.
The conduct of the hearing and the conclusion of the immigration officials must be so clearly arbitrary and unfair as to amount to a denial of due process. Tang Tun v. Edsell, 223 U. S. 673, 681, 32 S. Ct. 359, 56 L. Ed. 606.
Upon the evidence as it appears in the printed case, a court exercising judicial powers might have decided that the applicant was a son of a citizen of this country. Six different witnesses stated that the alleged father, Quong Yuen, alias Young Quong Yuen, had a son, by name Quong On, or referred, to him by that name, three of whom were not related, but were testifying in support of the applicant on the other occasions, when he was deported. A brother of the alleged father and one son also testified, in other proceedings, that Quong Yuen had a son, by name Quong On.
The alleged father and a younger brother of the applicant stated that there was a picture of the alleged father and the applicant framed and hanging on the walls of the home in China, which the applicant at first denied and said he was never photographed with any other member of his family. After the evidence was closed, the infimigration board opened the case to permit the offering of the photograph, which the alleged father claimed to have had forwarded from China. The picture was identified by the applicant and the younger brother as that of the alleged father and the applicant. The father said the photograph was taken at Hong Kong in 1911, or just before the.first application for admission by this applicant, though it does not appear to have been produced in support of that application. While the applicant on his first examination in this ease insisted that there was no such photograph, when it was produced he remembered with considerable detail that it was taken sixth month S. H. 3; or just before he sailed for Vancouver in 1911. He recalled how he and his alleged father went to Hong Kong, and where they stayed; that he had his passport photograph taken at the same time; that their costumes were furnished by the photographer, whose name he remembered, and also the route by which they returned home. Such plethora of detail of an event of which he remembered nothing a short time before may have raised a suspicion in the minds, of the immigration officials that whoever wrote him that his case was to be reopened may have given him more ■information.
If the immigration officials believed all these witnesses and there was no discrediting evidence, they could have found that the applicant was the son of an American citizen; the citizenship of Quong Yuen being admitted.
Upon what grounds then, may the Board of Inquiry have denied the applicant’s right to enter? In the first place, this was. the applicant’s third application, he having been twice rejected before, first in 1911 and again in 1923. On his previous applications, the alleged father and the applicant gave their names as Quong Yuen and Quong On. They now claim the family name is Young. An alleged uncle of the applicant and all the uncle’s family go by the family name of Quong. Standing alone, a Chinese name would have little significance, though the family name is considered of great importance in China, as the deceased members of the family are objects of reverent worship. No adequate explanation of this change of name was made.
The applicant testified that he worked on his father’s farm, which consisted of five ows of land in one parcel, and was working on it during one of his father’s visits to China. The alleged father testified that he had no single parcel as large as five ows, but his farming land consisted of several smaller parcels, and that at none of his visits did the applicant work on the land farming. The applicant, after his denial of admission in 1923, lived in what is called the Straits Settlement. The alleged father says he wrote to him while there at least two letters each year, and received at least one letter each year from the applicant. The applicant testified he neither wrote his father during that time nor received any letters from him. These discrepancies by themselves, however, we deem of minor importance.
But the immigration board may have properly attached considerable weight to the evidence of the applicant, the alleged father, and the alleged uncle and his family as to the date and place of the death of the paternal father and mother of the alleged father. Ancestor worship is a well-known and deep-rooted custom in China, and the younger generations hold in reverence their forbears, especially after their decease. One would have a right, therefore, to expect some degree of accord in the family testimony as to the date and place of death of the parents and grandparents, and their place of burial.
Here, however, appears a striking inconsistency which may have resulted in the immigration officials giving little, if any, credence to the evidence of many of the witnesses, as. their testimony cannot be harmonized.
The applicant states that he saw both his paternal grandfather and grandmother; that they lived in a house in the sixth row in the village, which now, if not during their lifetime, belongs to his alleged father; that his grandfather died first and his grandmother about a year before his application in 1911.
At the time of his application in 1911, when 18 or 19 years old, the applicant testified that his grandfather was then living and his grandmother was dead; he now says they both died about twenty years ago, and the grandfather died first; that they were both buried in Gong Bing How, with a stone at each grave; that his grandmother’s stone is marked Hor She though both he and his alleged father have previously testified that her name was Look She.
The applicant at the first hearing said both grandparents died in the house in the sixth row in Ng Young Village. On his second application, he said they died in the house in the seventh row where his parents resided, but now says the grandparents died in the house in the sixth row.
The alleged father, however, says his mother, the grandmother of the applicant, died before the applicant was born; that his father died about 1900, in the house in the sixth row and not in the seventh, as the applicant has stated. Both agree that the paternal grandfather and grandmother of the applicant were buried in Gong Bing How.'
The blood brother of the alleged father and all his family have testified on other occasions that the parents of the alleged father and the alleged uncle died in Kim Goo Village, and were buried in War Long How, and their graves were not marked.
The applicant says the name of his grandfather was Young Yoke Toy and his grandmother’s name was Hor She; the alleged uncle’s family say the grandfather’s name was Quong Young Wah or Wai, and the grandmother’s name was Look She.
Certainly a blood brother of the alleged father and the brother’s children should know the names of the paternal ancestors, where and when they died, and whore they were buried, and how their graves were marked, equally as well as the applicant and his alleged father. Both cannot be right. The immigration officials must have been obliged to reject one or the other as unworthy of belief.
If the applicant’s grandmother died before he was born, he could not have seen her. His testimony and that of the alleged father as to the time of her death cannot be reconciled. Bearing in mind that in 1911 the applicant was 18 years old when he testified as to their death but a short time previous, while the father says his mother died before 1894 and the father about 1900, the immigration officials cannot be said to have been arbitrary in also rejecting one or the other of these witnesses as unworthy of belief. The applicant was testifying in 1911-as to what he said were recent 'occurrences. The father said they had occurred from ten to twenty years before.
It is quite evident that the immigration officials could not have given credence to both the testimony of the uncle’s family and that of the alleged father and the applicant; and that there were such discrepancies in the testimony of the alleged father and this applicant that also warranted the rejection of the testimony of one or the other. Granted the power to determine which, if any, of these witnesses the immigration officials did believe, we do not think it can be said they' acted arbitrarily in concluding finally that the evidence did not satisfy them that the applicant was the son of Young Quong Yuen.
If the officials found that the alleged fa- • ther or the applicant, or both, were not worthy of belief, they might have given little weight to’ the photograph alleged to have been taken just before 'the first application was made. At least, they expressly found it was not of sufficient weight to overcome the other adverse testimony. .
In case there is a practice of bringing in Chinamen under a fraudulent claim of relationship, as the numerous cases rejected and the careful scrutiny of the claims would indicate, the determination of relationship from photographs as between members of the Chinese race is not an entirely safe guide on which to rely. If the board found that the testimony of these witnesses could not be relied on, the photograph proves no more than at some time Young Quong On, alias Quong On, accompanied Young Quong Yuen, alias,.-Quong Yuen, to Hong Kong, where ■they, had -their photograph taken together.
The decree of the District Court is affirmed.
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_appnatpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William Ernest DICKERSON et al., Plaintiffs-Appellees-Cross Appellants, v. CONTINENTAL OIL COMPANY et al., Defendants-Appellants-Cross Appellees, and Charles N. Duddleston, d/b/a Duddleston Welding Company, Defendant-Appellee, HOUMA WELL SERVICE, INC. and Crown Petroleum Corporation, Third-Party Defendants-Appellees.
No. 30631.
United States Court of Appeals, Fifth Circuit.
Sept. 28, 1971.
Rehearings Granted In Part Dec. 1, 1971, Jan. 13, 1972.
Rehearing Denied Feb. 9, 1972.
Fred H. Sievert, Jr., Lake Charles, La., Breard Snellings, New Orleans, La., for Continental Oil Co.; Stockwell, St. Dizier, Sievert & Viccellio, Lake Charles, La., of counsel.
Samuel C. Gainsburgh, New Orleans, La., Leonard Fuhrer, Alexandria, La., Bob F. Wright, Lafayette, La., Louisiana Trial Lawyers Assn., amicus curiae.
Wm. B. Baggett, Lake Charles, La., for William Ernest Dickerson; Bag-gett, Hawsey & McClain, Lake Charles, La., of counsel.
Gilbert L. Dozier, Baton Rouge, La., for Doyle.
John R. Martzell, Martzell & Montero, New Orleans, La., for Ruth Clark and Houma Well Service, Inc.
Russell T. Tritico, Lake Charles, La., for D. Clark.
Young & Burson, Eunice, La., for Guillory.
Frank M. Brame, Lake Charles, La., for Lula Mae Taylor; Brame, Stewart & Bergstedt, Lake Charles, La., of counsel.
Henry L. Yelverton, Lake Charles, La., for Dunham.
Jones & Jones, Cameron, La., for Charles and Virginia Duddleston; J. B. Jones, Jr., Cameron, La., of counsel.
Daniel J. McGee, Mamou, La., for Monk.
Beeson & Beggs, Vidor, Tex., Payton R. Covington, Lake Charles, La., for Bishop.
John B. Scofield, Thomas M. Berg-stedt, Scofield & Bergstedt, Lake Charles, La., for Ins. Co. of North America.
John G. Torian, II, J. J. Davidson, Jr., Davidson, Meaux, Onebane & Donohoe, V. Farley Sonnier, Lafayette, La., for Charles N. Duddleston d/b/a Duddleston Welding Co.
Edgar F. Barnett, R. W. Farrar, Jr., for Houma Well Service, Inc. and Aetna Cas. and Sur. Co.; Hall, Raggio, Farrar & Barnett, Lake Charles, La., of counsel.
Edward S. Bagley, Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., for Crown Petroleum Corp.
Before TUTTLE, WISDOM and IN-GRAHAM, Circuit Judges.
TUTTLE, Circuit Judge:
This appeal, accurately described by the trial court as “a multiple donnybrook” in which theories of initial, contingent and secondary liabilities abound, arose out of an explosion and fire which occurred on February 3, 1967 on an offshore stationary (fixed) drilling platform located in the Gulf of Mexico, on the Outer Continental Shelf. Multiple suits for damages for wrongful deaths, personal injuries and property damage growing out of the explosion were filed. Before discussing the merits of these suits, it is necessary briefly to set forth the facts involved and, in so doing, to delineate the relationships of the multiple parties involved.
I. FACTS
Prior to February 3, 1967, the date of the explosion, Houma Well Service, a drilling contractor under a written agreement with Continental Oil Company, the owner of the stationary platform involved, was drilling oil wells on the platform. The drilling rig utilized was owned by Houma, but prior to the accident, it was sold to Crown Petroleum Corporation.
On January 23, 1967, Continental hired an independent contractor to begin testing one of these wells. During these tests, water, gas and oil were produced. This product was run through a separator and thereby stripped of its liquids. These liquids, referred to as “condensate,” were highly volatile and unstable. Though there were various methods of disposing of the condensate, Continental directed that it be poured into a white tank located on the northeast corner of the platform. This tank was normally used for storing diesel fuel, which is not highly volatile, and the record reveals that all those working in the general area thought the tank contained only diesel fuel. Indeed, prior to the explosion, condensate was never even stored on a drilling platform, much less in a “diesel” tank. The tank itself was not plugged and Continental’s representative told no one that it contained condensate.
While this testing was proceeding Continental hired a contract welder, Duddle-ston, to do some work on a rack on which a Schlumberger unit was to be placed. Pursuant to this agreement, Jim Dud-dleston, son of the owner of the welding operations, reported to the platform. One Harvey Herrington also came aboard. He was to act as a tool pusher for the new owner of the rig, Crown Petroleum. On February 2nd, while testing was still in progress, Donald Ray Smith, the foreman for Continental and their only representative on the platform, called together both Herrington and Jim Duddleston to tell them they were to install the rack. Smith testified that this conversation occurred at about 7:00 a. m. on February 2nd. He also testified that later that morning — about 10:00 a. m. — he noticed that the four inch bull plug was not in the top of the white tank and asked Herrington to find it and put it on. He also said that he wanted no drilling done on the rack while the plug was missing, but never told anyone just what the tank contained nor how dangerous it really was. Smith also testified that at no time did he think that there would be cutting done with a cutting torch above the white tank. He left the platform around noon on February 3rd, leaving Herrington in charge. At about 3:45 that afternoon, while Dud-dleston was welding over the white tank, the explosion occurred. A bucket which one of Herrington’s workers had placed over the hole, apparently disappeared and the trial court found that there was no covering over the hole from 11:30 a. m. until the time of the explosion.
All plaintiffs, except those in the Dud-dleston case, an entirely separate issue to be dealt with infra, named as original defendants, Continental Oil Company and Duddleston Welding Company. Continental has, in turn, filed third party demands and/or cross claims against Crown Petroleum Corporation, Insurance Company of North America, Dud-dleston and Houma Well Service, Inc. These parties have also cross-claimed but we will deal first with the issues raised by the original plaintiffs and defendants.
Of the six plaintiffs in this case, five —Joyce A. Clark, Esta Faye Bishop, Ruth Clark, Lula Mae Taylor, and Shirley Hester — are appealing from what they consider inadequate and erroneous damage awards for wrongful death; the sixth, William Ernest Dickerson, appeals from his award for personal injuries on the ground of inadequacy. In addition, while agreeing with the trial court’s finding that the negligence of Donald Ray Smith, Continental’s drilling foreman, was a proximate cause of the accident, they also maintain that the trial court erred in failing to impose liability on James Duddleston, the welder. They argue that welding over the open tank made him a joint tort feasor; it was a contributing cause to the explosion but was not such as to insulate Continental from liability. We will deal first with these latter contentions, and then exam-me the individual damage awards of the plaintiffs.
II. APPLICABLE LAW
In Rodrigue v. Aetna Casualty and Surety Company, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360, the Supreme Court held that fixed platforms on the Outer Continental Shelf were “artificial islands.” They were to be treated as federal enclaves within a state, and were to be governed by the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1331 et seq., which incorporated and federalized the law of the adjacent state where not inconsistent with federal law. In determining liability and the amount of. damages to be awarded in this case the law of Louisiana thus applies.
III. CONTINENTAL’S LIABILITY
We begin with the liability of Continental. The trial court found that the negligence of Continental was “clear, convincing and gross.” Specifically Continental was negligent in the following particulars which proximately caused the explosion:
(a) In failing to provide safe storage for liquids and gases with highly volatile properties;
(b) In causing or permitting said liquids and gases to be stored in a tank which was being used for diesel fuel and liquids of less dangerous properties;
(c) In permitting welding operations in an area containing an explosive atmosphere nearby;
(d) In failing to post signs and otherwise warn workmen that the storage tank contains highly volatile liquids and gases; and
(e) In storing condensate on board a platform at sea when safer alternatives were available.
We agree with these findings and the conclusion of the trial court.
It is Continental’s view, however, that the trial court held it liable primarily on the basis of a failure to warn the plaintiffs that condensate had been placed in the tank and that it was highly volatile, This, they feel, was not a substantial cause of this accident, particularly when taken in connection with other facts found by the trial court. For example, it notes the finding that had the four-inch opening on the top of the tank been closed in a proper manner, the accident probably would not have occurred.
The Louisiana courts have generally defined proximate cause as being:
Any cause which is natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred; and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary prudence in the exercise of ordinary care that the injury complained of, or some similar injury, would result therefrom as a natural and probable consequence. Sumrall v. Aetna Casualty and Surety Company, 124 So.2d 168, 176 (La. App.1960). See also, Ardoin v. Williams, 108 So.2d 817 (La.App.1959); Harvey v. Great American Indemnity Company, 110 So.2d 595 (La.App. 1959).
Applying this standard to the case at bar, we have no trouble agreeing with the trial court’s conclusion.
In addition to arguing that it was not liable, Continental also contends that the trial court erred in failing to find Duddleston also negligent, thereby at least making him a joint tort feasor and at best, an intervening cause insulating Continental from all liability. We have already dealt with Continental’s liability and have concluded its negligence was a proximate cause of the accident. Regarding Duddleston, we again agree with the trial court and hold that he was not a joint tort feasor.
It is argued, however, that if Duddle-ston, who was cutting with his torch on a piece of pipe directly above the opening of the tank, had merely stepped down and checked its contents by smell, he would have realized that it contained condensate. It is also noted that he failed to place any wet sack or material beneath him to protect this area from fallen molten material. In addition, it is contended that the doctrine of Res Ipsa Loquitur applies and, in any event, that liability may be found under Article 2315 of the Louisiana Civil Code.
Once again, we agrée with the conclusion of the trial court. Failure to check the tank below or take any extra precautions is excusable in light of the fact that everyone involved thought that only diesel fuel, a nonvolatile substance, was in the tank. Further, the record reveals that when Duddleston came aboard and began his job, the regular rig welder had already been working in that general area for six days. Finally, as emphasized above, no warning whatsoever was given regarding the contents of the white tank.
We also hold that the doctrine of Res Ipsa Loquitur does not apply. The trial court based its holding on Fidelity and Casualty of New York v. Funel, 383 F.2d 42 (5th Cir. 1967). Plaintiffs and Continental, however, argue that Moak v. Link Belt Company, 229 So.2d 395 (La. App.1969) compels a contrary result. We feel neither case applies.
As stated in Moak, supra, res ipsa loquitur simply means:
“That the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant's duty.” Id. at 406.
The res ipsa argument advanced in this case is that Duddleston was in control of a dangerous instrumentality, a welding torch, and that he was using it over an open tank. This does not fit the res ipsa doctrine outlined above. “The thing which caused the injury” was the open tank. This was the dangerous instrumentality involved in the accident, not the torch. Duddleston had no control over it and no knowledge whatsoever as to its explosive contents. Further the circumstances of this accident are not of such a character that “the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty.” We have already delineated what we feel to have been the proximate cause of this tragic event. The fact that Duddleston innocently lit the fuse of Continental’s unmarked time bomb does not invoke the doctrine of res ipsa loquitur, nor does it impose liability upon him.
It is also argued that Duddleston is liable under Article 2317 of the Louisiana Civil Code. Regarding this point, we agree with the reasoning of the trial court. Article 2317 does not impose absolute liability for damages caused by one’s property, but rather a refutable presumption of negligence. Dupre v. Travelers Insurance Company, 213 So.2d 98 (La.App.1968). In effect, it may be equated with res ipsa loquitur. In so doing, we reach, of course, the same conclusion as stated above.
IV. DAMAGE CLAIMS
Each plaintiff argues that the amount he or she received in damages is insufficient. Before examining the individual claims of the plaintiffs, we will first deal with an issue common to all.
It is argued that in fixing the awards, the trial court did not act independently, but rather seemed constrained by Louisiana jurisprudence in that it seemed bound by a system of “standard or uniform awards.” Though little monetary distinction was made between the widows and surviving children, we do not feel that this was due to the fact that the trial judge was failing to exercise his discretion, or indeed, that he felt constrained by Louisiana jurisprudence. The trial court explicitly stated:
Damages in cases such as this cannot be computed by mathematical formulae nor derived from fixed principles susceptible, of being programmed into a computer * * * The simple truth is that there are too many variables. None of us can devine the future. Here, we are governed by Louisiana. The Supreme Court of that state had categorically rejected the use of mathematical formulae in awarding damages. McFarland v. Illinois Central Railroad [241 La. 15], 127 So.2d 183; Pennington v. Justiss-Mears Oil Company [242 La. 1], 134 So.2d [53] 59. The amount to be fixed in each case calls for the independent judgment of an independent judge, (emphasis added).
The fact that the trial judge was aware of this leads us to the conclusion that even though some of the awards were similar, they were, nonetheless, arrived at by the exercise of the court’s discretion.
We now examine the individual claims of the plaintiffs.
(a) Joyce A. Clark. Mrs. Clark received a total of $146,521. It was itemized in three items: 1. For the loss of support, contributions, or, as sometimes stated, pecuniary loss for Mrs. Clark and her three children; 2. for the loss of society, love and companionship of deceased and anguish of beneficiaries, (i. e., Mrs. Clark and the same three children) ; 3. funeral expenses.
Although Mrs. Clark claimed an item of pain and suffering of the deceased prior to his death, the trial court made no finding with respect to whether such pain and suffering was actually experienced by Mr. Clark, and included no item of pain and suffering in the aggregate arrived at in favor of Mrs. Clark.
With respect to the claim of Mrs. Lulu Mae Taylor, whose husband also died, the trial court itemized the damages in the same manner as in the Clark case, but it also added an item for “conscious pain and suffering of decedent prior to his death,” amounting to $10,000.
In the cases of persons who filed claims for personal injuries, but who were not killed, the trial court made plain in each instance that the aggregate sum allowed included all elements of injury, including pain and suffering. It seems, therefore, to be apparent that had the trial court intended to make an allowance for Mrs. Clark with respect to pain and suffering of her husband during the short time before he died, it would have done so as a separate item and would not have lumped it into any of the other items constituting the award. Mrs. Ulark claims that under the Louisiana cases the element of pain and suffering must be expressly itemized in a finding of fact. See Hall v. State through Department of Highways, 213 So.2d 169 (La.App. 3 Cir., 1968), and also contends that this is required by Federal Rules of Civil Procedure 52(a).
Whether or not the Federal rule requires a separate itemization (it is the Federal Rules that would apply to the matter of findings by a trial court in this federal trial), it seems clear to us that the trial court simply failed to make a finding with respect to a claimed item and with respect to which there was some evidence. We are, therefore, without the guidance of the trial court’s determination as to whether the evidence warranted the making of such an award.
The essential facts concerning what happened to the decedent are not in dispute. At the time of the explosion he went overboard and into the ocean. The coroner testified that death was from drowning, and in response to the inquiry as to “interval between onset and death” he had entered the notation “immediate.” He had second and third degree burns of the face. The coroner testified in response to question from appellant’s counsel as to what he meant by “immediate,” as follows: “Immediate from asphyxiation from drowning would mean that the time actually it would take him to drown, which could be of varying period of time, from five to ten minutes.” The following question and answer then followed:
“Doctor, if we assume that both of these gentlemen had sustained burns while on a stationary platform and that subsequently they were found in the water, and their cause of death was found to be drawing, would it be probable, sir, that they, from a medical standpoint, that they experienced pain and suffering prior to their death?
A They would have some, yes.”
Although it does not appear from the record that the decedent was conscious while in the water, neither does it appear that he was unconscious. If the former, then it must be without dispute that he did suffer some pain, not only from the burns but also from the anguish of struggling against drowning. See Hall v. State through Department of Highways, supra.
Upon remand, the court should make findings with respect to whether, on the undisputed facts of this case, the judgment in favor of Mrs. Clark should include an award for pain and suffering.
(b) Shirley Hester. Mrs. Hester received a total of $91,623.40. She too argues that a finding regarding the pain and suffering endured by her husband prior to his death should have been made. Since her situation is precisely the same as Mrs. Joyce Clark’s, we reverse this portion of the case for further consideration by the trial court.
In addition, it is also argued that Mrs. Hester’s award for “loss of support” is unduly low. It is felt that she and her children were penalized and the only thing of record that could account for this was the fact that in July, 1965 she and her husband had been informally separated. She argues that though the marriage was “stormy” at the outset, it had developed into a harmonious marriage.
We do not doubt that a reconciliation took place, but in putting money values on essentially priceless relationships, no hard and fast rules can apply. Since we feel there has been no abuse of discretion on the part of the trial court, we affirm this part of the award. See, Neal v. Saga Shipping Company, 407 F.2d 481 (5th Cir. 1962); Ohio Barge Line, Inc. v. Oil Transport Company, 280 F.2d 448 (5 Cir. 1960).
(c) Esta Faye Bishop. Mrs. Bishop received a total award of $95,919.95. She too argues that, because of Mr. Bishop’s fine character, good job and the happy, and successful marriage they had, she should have been awarded a larger sum for the death of her husband. For the reasons stated above, we affirm the judgment of the trial court.
Mrs. Bishop also argues that recovery should have been allowed for the five children in their family. Mr. Bishop had two children by his first marriage but both were grown and not dependent upon him for support at the time of the filing of the claim. Subsequent to filing this claim, Rodrique was decided which, plaintiff contends, by making Louisiana law applicable, gave these two children a claim. A motion was filed to amend the complaint, but it was denied by the trial court as having been filed more than a year after the death and thus beyond the Louisiana prescription date. It is argued that Huson v. Chevron Oil Co. v. Otis Engineering Corporation, 430 F.2d 27 (5th Cir. 1970) compels a different result. We disagree. This case specifically states that “unlike death actions for which Art. 2315 prescribes both the right and time, non-death rights created by Art. 2315 find their time restrictions in Art. 3536.” Because of this, the court held that the one year limit did not apply to non-death rights. Here, we deal with a claim made under Article 2315 for wrongful death. The one year limit thus applies.
It is also contended that three minor children of a former marriage of Mrs. Bishop ought to recover. These children, however, were not adopted by Mr. Bishop. We feel compelled to agree with the trial court.
“It is true that the Supreme Court of the United States in Levy v. Louisiana, 391 U.S. 68 [88 S.Ct. 1509, 20 L.Ed.2d 436], faulted the Louisiana courts for holding that the word ‘child’ in Article 2315 meant ‘legitimate’ child. The Supreme Court conceded that Louisiana had a broad power to make classifications, but emphasized that it had no right to draw a line which constituted an invidious discrimination against a particular class. It was, added the Court, invidious discrimination to construe the word child so as to deny recovery under Article 2315 by illegitimate children. This cases is not Levy. Here, there is neither a biological nor legal relationship between Mrs. Bishop’s children and the deceased. These children do not fit within the classes of persons to whom Louisiana has accorded a right of action for death of another.”
(d) Mrs. Ruth Clark. Mrs. Clark also argues that amendment of her complaint to include her two major children should have been allowed. For the reasons stated above, we disagree. She also contends that the trial court did not properly apply the law to the evidence in awarding pecuniary loss and loss of love, affection and companionship. Again, not finding that this award was clearly erroneous, we affirm its judgment.
(e) Lula Mae Taylor. Mrs. Taylor attacks only the adequacy of the award of the trial court to her and her five year old son. She was awarded $140,791.25. As with the other plaintiffs, we do not feel the trial court abused its discretion and therefore, affirm.
(f) William Ernest Dickerson. Dickerson argues that the $50,000 award he received for the personal injuries he sustained was inadequate. Though the award may be on the conservative side, we cannot find it to be clearly erroneous.
Intervention of Insurance Company of North America
Since, as noted above, Crown Petroleum Corporation purchased the drilling rig involved prior to the explosion, it was the statutory employer of most of the employees whose deaths or injuries precipitated this litigation. INA was the insurance carrier for Crown covering all risk to the drilling rig. As stated by the trial court:
“The rig was appraised as having a ‘sound insurable value’ of $421,873. After the fire, the rig was sold back to Crown for salvage of $60,000. INA paid on the face amount of its policy $402,000 plus $3,000 sue and labor charges. Deducting the salvage, INA claims a net loss of $345,000. By virtue of its payment of $345,000 to Crown, INA is legally subrogated to all of the rights which its insured had against Continental.”
INA thus brought suit against Continental and Duddleston to recover the $345,000. The trial court, however, denied his claim on the grounds of the contributory negligence of the Crown tool pusher, Herrington. Although Crown was not made a defendant in the suits brought by its employees and the representatives of its deceased employees, this holding, INA argues, coupled with the holding that Rodrigue demanded application of the doctrine of contributory negligence, defeated their damage claim against Continental in its entirety. Thus, at issue is whether Rodrigue compels application of this doctrine and if so, whether Herrington was negligent.
V. RODRIGUE v. AETNA CASUALTY COMPANY
Rodrigue involved the death of two men who were killed while working on artificial island drilling rigs located on the Continental Shelf more than a marine league from the Louisiana coast. Suit was brought under the Death on the High Seas Act and under Louisiana law which, it was argued, was made applicable by the Outer Continental Shelf Lands Act. The District and Appellate Courts held that the Seas Act was the exclusive remedy. The Supreme Court reversed, stating:
“The purpose of the Lands Act was to define a body of law applicable to the seabed, the subsoil, and the fixed structures such as those in question hereon the outer Continental Shelf. That this law was to be federal law of the United States, applying state law only as federal law and then only when not inconsistent with applicable federal law, is made clear by the language of the Act. * * *
******
However, for federal law to oust adopted state law federal law must first apply. The court below assumed the Seas Act did apply, since the island was located more than a marine league off the Louisiana coast. But that is not enough to make the Seas Act applicable. The Act redresses only those deaths stemming from wrongful actions or omissions ‘occurring on the high seas,’ and these cases involve a series of events on artificial islands. Moreover, the islands were not erected primarily as navigational aids, and the accidents here bore no relation to any such function. Admiralty jurisdiction has not been construed to extend to accidents on piers, jetties, bridges, or even ramps or railways running into the sea. To the extent that it has been applied to fixed structures completely surrounded by water, this has usually involved collision with a ship and has been explained by the use of the structure solely or principally as a navigational aid. But when the damage is caused by a vessel admittedly in admiralty jurisdiction, the Admiralty Extension Act would now make available the admiralty remedy in any event.
The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, it was an island albeit an artificial one and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers.”
We feel Rodrigue compels the application of Louisiana’s doctrine of contributory negligence in this case. Though maritime law utilizes a doctrine of comparative negligence, the events in question here, as in Rodrigue, all occurred on the platform. As the Supreme Court stated, “for federal law to oust adopted state law federal law must first apply.” Since that court has decided that accidents which occur on such platforms have “no more connection with the ordinary stuff of admiralty than do* accidents on piers,” we are compelled to agree that Louisiana law applies.
VI. HERRINGTON’S NEGLIGENCE
We now turn to the alleged contributory negligence of Crown employee, Herrington. The trial court found Herrington negligent in the following particulars :
(a) In failing to properly supervise the work that was being done at the time of the fire and explosion;
(b) In failing to cover the four-inch opening when he knew that welding was to be performed over it and when he knew or should have known that condensate was in the tank. For Her-rington to permit welding above the tank without having a plug put in the four-inch hole, as he had told Smith, the Continental pusher, that he, Her-rington, would do, and then not to make sure that it was done is negligence of the grossest kind.
INA, however, argues that the trial court’s conclusion that Herrington “knew or should have known” there was condensate in the tank cannot be justified. They note that Smith, Continental's tool-pusher, testified that he told no one that condensate was in the tank. They also contend that the trial court’s exclusion of evidence attempting to prove that Herrington, in fact, thought that only diesel fuel was in the tank was erroneous and, in short, reversible error. Finally, they contend that Herrington was the borrowed servant of Continental and even if he were negligent, that negligence ought to be imputed to Continental.
We do not feel that even assuming that Herrington thought that only diesel fuel was in the tank, that that fact alone exonerates him from fault. Smith not only specifically directed him to find a bull plug for the tank, but warned that he wanted no welding done in that area until one was found. Surely, this should have alerted Herrington that at least the possibility of danger existed or, in other words, that something other than diesel fuel may have been in the tank. Further, Herrington was left in charge of the platform. He was being depended upon by Smith to take care of the tank. He assumed this responsibility and regardless of his knowledge of its contents, the fact he failed to carry out this duty was negligence which, we find, proximately contributed to the tragedy that occurred.
INA also argues that even if Herring-ton is found to be negligent, this negligence should be imputed to Continental. The trial court, however, found that:
“* * * Herrington, the tool pusher for Crown, was in charge at the time of the explosion. He was in the course and scope of his employment with Crown pursuant to Houma’s contract with Continental.”
We feel there is sufficient evidence to support this finding. Here the matter rests.
Having dealt with the issues raised by the original plaintiffs and defendants in this suit, as well as the intervention of INA, we now turn to the cross claims.
VII. CONTINENTAL v. HOUMA WELL SERVICE and AETNA
Houma Well Service and its insurer, Aetna, are third party defendants. Continental filed a third party complaint against Houma, seeking indemnification for any sums which Continental might be liable for. The basis of this claim is found in the indemnity provisions of the drilling contract between Continental and Houma, which was signed on August 15, 1966. Houma argues that it should not be held to this agreement since it sold its rig on January 24, 1967 to Crown. It is contended that this sale was, in effect, a novation which relieved Houma of its contractual obligations with Continental. Thus, these obligations were taken over by Crown, all with the knowledge and assent of Continental.
The trial court found to the contrary and we ágree:
“There is considerable factual dispute as to the relationship of Houma and Crown, but no formal notice of the sale of the rig was ever given to any authorized official of Continental, and never was there any written notice of any kind to Continental, either by Houma or Crown. Nor was there any written assignment of the contract so as to relieve Houma of its liability, as called for by Article 16 of the contract.”
Houma also argues, however, that even if the indemnification agreement is in effect, its pertinent provisions are invalid for they are against public policy. Paragraph 15 of the agreement states that Continental is to be indemnified against any and all claims of any employee of Houma, even though the claim is occasioned by the negligence of Continental. In Bisso v. Inland Waterways Corporation, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_oththres | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" 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".
George DUCKETT and Delores Duckett, Plaintiffs-Appellants, v. Eve SILBERMAN, Defendant-Appellee.
No. 31, Docket 77-7164.
United States Court of Appeals, Second Circuit.
Argued Sept. 15, 1977.
Decided Jan. 6, 1978.
James I. Meyerson, New York City (Nathaniel R. Jones, Thomas Hoffman, and N. A. A. C. P., New York City, on the brief), for píaintiffs-appellants.
Gerald Murray, Jamaica, N. Y., for defendant-appellee.
Before MANSFIELD and TIMBERS, Circuit Judges, and DOOLING, District Judge.
Hon. John F. Dooling, Senior United States District Judge, Eastern District of New York, sitting by designation.
TIMBERS, Circuit Judge:
On this appeal from an order entered after a bench trial in the Eastern District of New York, Thomas C. Platt, District Judge, which dismissed an action for declaratory and injunctive relief plus damages brought by plaintiffs who alleged violation of their constitutional and civil rights resulting from defendant’s refusal to sell her house to plaintiffs assertedly because of plaintiffs’ race, the issue is whether the district court was clearly erroneous in finding that defendant refused to sell her house to plaintiffs for reasons unrelated to race and that plaintiffs were not willing to purchase it on the terms specified by defendant. We hold that the district court’s findings of fact were not clearly erroneous. We affirm.
I.
In October 1974 defendant, Mrs. Eve Silberman, a white citizen, decided to sell her one-family house in the Kew Garden Hills section of Queens, New York. She and her daughter, Mrs. Ravelle Brickman (the “sellers”), engaged a realtor, Peter Smetana, who stated that he could get at least $60,-000 for the house. Subsequently Mrs. Silberman went to live in Wisconsin with her son, whereupon Mrs. Brickman assumed responsibility for selling the house. Thereafter the sellers received several offers ranging from $40,000 to $50,000, all of which were rejected. In February 1975 the asking price was reduced from $60,000 to $55,-000, but no acceptable offers within this range were received. The house remained vacant after Mrs. Silberman left for Wisconsin, until eventually a buyer was found.
In late June 1975 plaintiffs Mr. and Mrs. George Duckett, a black couple, conferred with Smetana about purchasing a house. He informed them of the availability of the Silberman house and arranged for them to see it. Smetana pointed out that certain plumbing repairs were necessary. He told the Ducketts that the price had been reduced from $60,000 to $55,000. Early in July, after obtaining an appraisal of their own, the Ducketts offered $42,000 for the house. Smetana promised to inform the sellers of this offer.
About two weeks later, having heard nothing from Smetana, the Ducketts asked him if their offer was acceptable. Smetana told them that in response to their offer the asking price had been reduced to $49,000. Smetana testified that Mrs. Brickman had asked him whether the prospective buyers were Jewish. Smetana responded that they were not but that they were black. According to Mrs. Brickman, she told Smetana that it would be nice to have a black family in the neighborhood.
On July 26, the day after their conversation with Smetana referred to above, the Ducketts raised their offer to $44,000. Shortly thereafter they made a final offer of $45,000. This offer was communicated to the sellers. At this point Mrs. Brick-man’s brother in Wisconsin (son of Mrs. Silberman) asked Smetana to delay acting on the Ducketts’ offer to see if any better offer could be obtained. On August 19, however, the sellers agreed to accept the Ducketts’ offer of $45,000, this being $10,-000 less than the price originally asked of the Ducketts. Mrs. Brickman testified that the price was reduced upon the understanding that the Ducketts would accept the house “as is”.
Gerald Murray, Esq., the sellers’ attorney, was out of the country when the agreement was reached. Upon his return he drafted a contract of sale. On September 2 he discussed the terms of the contract with Thomas Hoffman, Esq., the Ducketts’ attorney. Hoffman requested that the sellers repair the bathroom and kitchen plumbing; that they assume the risk of unintentional damage to the house from the date of the contract to the date of closing; and that the appliances be delivered in working condition. On behalf of the sellers Murray rejected these conditions and told Hoffman that the deal was off. Hoffman asked Murray to discuss the conditions with his clients before cancelling the agreement.
Hoffman contacted Murray several times after their September 2 conversation, but Murray had not received a response from his clients. In the meantime the Ducketts instructed Hoffman to withdraw the proposed conditions in order to facilitate the contract signing. On September 19 Hoffman informed Murray by telephone that the Ducketts’ were prepared to sign the contract at the agreed price of $45,000 without the proposed conditions. Murray said that he would discuss this with his clients.
Not having heard from Murray after their September 19 conversation, Hoffman called Murray again on October 3 to determine the status of the Ducketts’ offer. Murray informed him that another person was interested in buying the house. Hoffman responded that he was authorized to match any bona fide offer, although he later conceded that at that time he did not have a power of attorney to make such an offer. On the same day Hoffman sent Murray a letter formally withdrawing the conditions and stating that his clients “would like the right of first refusal on any bona fide offer.”
On October 9 Murray informed Hoffman that on the previous day, October 8, Mrs. Silberman had entered into a contract to sell the house for $46,000 to a white couple, Mr. and Mrs. Menahem Medel Beer (the “buyers”). This was $1,000 more than the Ducketts had offered to pay. Moreover, since no realtor was involved in the sale to the Beers, the sellers saved $2,000 in brokerage fees. At the signing of the Silberman-Beer contract the buyers requested the sellers to make repairs, as the Ducketts had, but did not insist on them when the sellers objected. For aught that appears in the record, at no time during the SilbermanBeer negotiations did the buyers ask the sellers to guarantee the appliances or to bear the risk of damage to the property between the date of the contract and the date of closing. Nevertheless, although the contract of sale provided that the premises were sold “as is”, it also specified that the appliances were to be in operating condition and that the sale price was to be reduced if the premises were damaged prior to the date of closing.
The Silberman-Beer closing took place on April 8, 1976.
II.
The instant action was commenced October 20, 1975 — eight days after the contract of sale was signed and almost six months before title was closed.
The gravamen of the Ducketts’ complaint was that, because of their race, they were denied equal access to and an opportunity to pursue to completion the purchase of the Silberman house. They alleged violations of their constitutional and civil rights, including violations of the Thirteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. §§ 3601-31 (1970). They sought declaratory and injunctive relief, plus damages.
Simultaneously with the commencement of the action, plaintiffs by an order to show cause sought a preliminary injunction, pursuant to Fed.R.Civ.P. 65, to bar the proposed sale of the Silberman house to other persons pending the outcome of the litigation. Defendants cross-moved for summary judgment, pursuant to Fed.R.Civ.P. 56, or for dismissal of the complaint for failure to state a claim on which relief could be granted, pursuant to Fed.R.Civ.P. 12(b)(6).
Following a hearing on these motions in November 1975 (at which plaintiffs called as witnesses, realtor Smetana, George Duckett and attorney Hoffman), the court filed an opinion on January 26, 1976 denying plaintiffs’ motion for a preliminary injunction under the settled law of this Circuit and also denying defendant’s cross-motion for summary judgment on the ground that factual issues remained for trial.
Thereafter the court decided the case on the merits in an opinion filed March 15, 1977. In addition to the record which was before the court on the earlier motions, the decision on the merits was based on a stipulation of facts and three depositions taken by plaintiffs. The court ordered that the action be dismissed essentially on the grounds that plaintiffs had failed to establish that “there [was] no apparent reason for the refusal of the defendant to [sell] the property to the [plaintiffs] other than [plaintiffs’] race” or that "the [plaintiffs were] willing to purchase the property on the terms specified by the owner” before a new purchaser had agreed to pay more for the property, citing Bush v. Kaim, 297 F.Supp. 151, 162 (N.D.Ohio 1969); Fred v. Kokinokos, 347 F.Supp. 942 (E.D. N.Y.1972).
From the order of March 15,1977 directing that the action be dismissed, the instant appeal has been taken.
III.
We hold that the district court correctly followed the now generally accepted conditions set forth in Bush v. Kaim, supra, 297 F.Supp. at 162; and further that the court was not clearly erroneous in finding that defendant refused to sell her house to plaintiffs for reasons unrelated to race and that plaintiffs were not willing to purchase it on terms specified by defendant.
The record amply supports the court’s finding that plaintiffs were unwilling to purchase on the terms specified by defendant. It was important to defendant that the house be sold “as is”. It had been vacant for some time. Numerous repairs were necessary. The kitchen and bathroom plumbing leaked. The garage door was dilapidated. At the time of the negotiations with plaintiffs, defendant was preparing to live in a rest home. Her son and daughter were not well situated to handle repairs. The evidence established that the asking price was reduced from $60,000 to $45,000 upon the condition that the buyer would accept the house “as is”. According to Mrs. Silberman’s daughter, at $45,000 “not a screw was to be changed” for plaintiffs.
On appeal plaintiffs point out that two of the other terms proposed by them were included in the contract with the Beers, the ultimate white buyers. True, that contract did provide that the appliances were to be turned over to the buyer in “operating” condition. But it is not clear that this amounted to the “guarantee” of appliances requested by plaintiffs. Nor was the Silberman-Beers clause providing for reduction of the purchase price if the premises should be damaged prior to closing clearly what plaintiffs had requested. It referred only to immaterial damage which might occur between the date of the contract and the date of the closing. Plaintiffs had requested that defendant bear the risk of any unintentional damage to the house prior to the closing. In view of plaintiffs’ injection of conditions despite defendant’s reduction of the sale price and her specification of terms, the record supports the finding that as of September 2 plaintiffs were not willing to purchase on defendant’s terms.
Plaintiffs argue that when their conditions were withdrawn on September 19 defendant was under a duty to renew negotiations with plaintiffs. We disagree. Under the circumstances it would be unreasonable to hold that defendant was precluded from seeking another buyer after September 2. The house was vacant and, as such, a substantial liability. It was reasonable for defendant to have had second thoughts about a sale price of $45,000. At the outset the realtor had told her that he could get at least $60,000 for the house. At one point she received an offer of $50,000, but rejected it. In view of plaintiffs’ initial refusal to take the house “as is” at $45,000 it was reasonable for defendant to assume that plaintiffs would not make a better offer and still accept the house in its then condition. Plaintiffs’ injection of conditions contrary to defendant’s offer amounted to nothing more than a counteroffer. Defendant was under no duty to accept it.
This does not end our inquiry. We turn to the other branch of the district court’s finding, namely, that plaintiffs failed to establish that there was no apparent reason for the refusal of defendant to sell to plaintiffs other than the latter’s race.
At the outset, it is undisputed that there was no evidence that race actually was considered a factor by the seller. In the only relevant testimony, Smetana, the realtor, stated that Mrs. Brickman had asked if the Ducketts were Jewish; and Mrs. Brickman stated that Smetana volunteered the information that the Ducketts were black. This certainly is a far cry from establishing that defendant’s refusal to sell to plaintiffs was race-related.
Moreover, in view of our holding above, it follows that we believe there was substantial evidence to support the finding that defendant acted for reasons unrelated to race in selling to the Beers rather than to plaintiffs. Significant among such evidence was defendant’s lowering of the offering price after learning of plaintiffs’ race and Beer’s firm offer of a substantially higher price. As pointed out above, even if we were to accept arguendo plaintiffs’ contention that all obstacles to a sale to them at $45,000 had been withdrawn on September 19 before the new buyer was found, the record justifies an inference that by that time, because of plaintiffs’ addition (and withdrawal) of conditions, defendant was having doubts about whether plaintiffs would go through with the transaction and decided to look for a better offer. And, of crucial significance, where credibility as to the September 19 withdrawal is an important factor, we decline to second-guess the findings of the trial judge in a case which is essentially factual. He was there. We were not.
Affirmed.
. Apparently no judgment was ever entered here, although the court’s decision of March 15, 1977 expressly so directed. We recently have indicated our displeasure with such practice. Mallis v. Federal Deposit Ins. Corp., 568 F.2d 824, 827 n. 4 (2 Cir. 1977), cert. dismissed, - U.S. - (1978). We renew our criticism here.
Indeed, the appendix furnished to us in the instant case does not comply with F.R.A.P. 30. Aside from omitting the unfiled judgment, it does not contain the complaint despite the heavy reliance upon its allegations in the court’s opinions and in the briefs on appeal.
We think this Court deserves better of counsel.
. On this branch of the district court’s finding, we have carefully considered such cases as Jones v. Alfred H. Mayer, 392 U.S. 409 (1968); Burris v. Wilkins, 544 F.2d 891 (5 Cir. 1977); Moore v. Townsend, 525 F.2d 482 (7 Cir. 1975); Williams v. Mathews Co., 499 F.2d 819 (8 Cir.), cert. denied, 419 U.S. 1021, 1027 (1974); United States v. Pelzer Realty, 484 F.2d 438 (5 Cir. 1973), cert. denied, 416 U.S. 936 (1974). Upon the facts of the instant case, however, and especially in the light of our essential holding that the district court’s findings of fact were not clearly erroneous, we believe that the cases cited above are inapposite.
Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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".
UNITED STATES of America, Petitioner-Plaintiff-Appellee, v. 63.04 ACRES OF LAND, MORE OR LESS, SITUATE AT LIDO BEACH, NEAR CITY OF LONG BEACH, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, State of NEW YORK, and Irving A. Nemerov et al., Defendants-Appellants.
No. 251, Docket 24886.
United States Court of Appeals Second Circuit.
Argued March 14, 1958.
Decided June 24, 1958.
Paul Windels, Brooklyn, N. Y., for defendants-appellants. (On the brief: Nathan D. Shapiro, Brooklyn, N. Y., for Bessie N. Shapiro, Samuel Kresberg and Benjamin Kresberg; Jacob Patent, Brooklyn, N. Y., for Gilbert D. Paisner et al.; Leonard R. Fisher, New York City, for Irving A. Nemerov; Isidor E. Leinwand, New York City, for Sam H. Lipson, Trustee in Bankruptcy for William T. Nemerov and Joseph Margolis.)
Harry T. Dolan, Sp. Asst, to Atty. Gen., for petitioner-plaintiff-appellee. (On the brief: Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis and Elizabeth Dudley, Attorneys, Department of Justice, Washington, D. C.)
Before CLARK, Chief Judge, HINCKS, Circuit Judge, and BRENNAN, District Judge.
PER CURIAM.
Shortly after the remand of this condemnation case as ordered in our earlier opinion, 245 F.2d 140, Chief Judge Inch, who had served as trier at the first trial, assigned the case for prompt hearing and announced that he construed the appellate order to require only a reopening of the judgment and of the record already made to permit of the introduction of evidence of the September 1954 sale, the exclusion of which had been the only ground of reversal. We think this interpretation not unreasonable: it is consistent with procedure sanctioned when a trial judge grants a “motion for a new trial” under Rule 59(a), Federal Rules of Civil Procedure. Even though the opinion several times spoke of a “new trial” and remanded “for a new trial on the valuation of the condemned property,” it also noted that the “new trial” was necessary only because of the exclusion of the September sale and thus might be deemed to imply that the proceedings on remand need go no further than to expand the record by proofs as to the September sale and a redetermination of the value on the record thus enlarged. This interpretation was obviously in harmony with considerations of expedition and of economy in judicial administration. Cf. United States v. City of New York, 2 Cir., 165 F.2d 526. And the practice which it envisaged had previously been utilized in this circuit. United States v. Brooklyn Union Gas Co., 168 F.2d 393 ; United States v. 25.4 Acres of Land, D. C., 83 F.Supp. 433; Gulbenkian v. Gulbenkian, 147 F.2d 173; Riordan v. Ferguson, 147 F.2d 983. If the defendants, when first informed of the Judge’s ruling, had promptly applied to the panel of this court which had handed down the former opinion for a clarification, cf. National Comics Publications v. Fawcett Publications, 2 Cir., 198 F.2d 927, it is highly likely, especially in view of the cases just above cited, that Judge Inch’s interpretation of the mandate would have been approved. In view of all the foregoing, we dispose of the defendants’ principal ground of appeal by sustaining Judge Inch’s action in limiting the scope of the proceedings on remand.
Other grounds of appeal are still less tenable. In view of the limited scope of the proceedings, we think the celerity with which the hearing was scheduled and held was not improper. The denial of the motion for trial by jury first made after the remand was not erroneous. And we find no error in denying on July 3, 1957 the other requests in the defendants’ motion of June 28, 1957.
Affirmed.
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_casetyp1_9-3 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "miscellaneous".
UNITED STATES of America, Appellee, v. Thomas Robert HOSMER, Defendant, Appellant.
No. 7639.
United States Court of Appeals, First Circuit.
Dec. 4, 1970.
U. Charles Remmel, II, Portland, Me., by appointment of the Court, with whom Thompson, Willard, Hewes & Smith, Portland, Me., was on brief for defendant-appellant.
Roy R. Bartlett, Associate Gen. Counsel, Selective Service System, with whom Clarence R. Harris, Asst. Gen. Counsel, Selective Service System, Washington, D. C., and Peter Mills, U. S. Atty., Portland, Me., were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
Defendant was convicted of refusing to submit to induction into the armed forces of the United States in violation of 50 U.S.C. App. § 462(a) (1964). He had duly registered with his local draft board in Kennebunk, Maine, on August 29, 1961, shortly after his eighteenth birthday. From January 1964 until August 1968 he held a student deferment, except for a brief period during the winter of 1964-65 when he was reclassified I-A apparently because he had dropped out of college. On September 30, 1968, the local draft board ordered him to report for induction on October 23. But upon learning that he had obtained employment as a teacher at the Hampshire Country School in Rindge, New Hampshire, the board postponed his induction until June 1, 1969.
On May 6,1969, defendant was ordered to report for induction on June 19. Three days later he wrote to the local board claiming a recurrence of a past knee injury, which he substantiated by letters from two doctors. On June 11 the board arranged for defendant’s knee to be examined by an orthopedic specialist in Portland, Maine. Subsequent to that examination, he “fled” to Canada for two weeks and failed to report for induction on June 19. On June 30 he appeared at the local board office and informed the clerk that he had “evaded the draft.” Upon his request for a new induction date, he was ordered to report on August 27. Defendant was notified on July 1 that the Portland physician had found him physically qualified to serve in the armed forces, and on August 26 he wrote to the Surgeon General’s office in Hampton, Virginia, complaining that he had not been properly examined. He reported for induction on August 27, was found qualified but, after all of the proper warnings, refused to step forward.
On September 17 defendant was interviewed by a Special Agent of the Federal Bureau of Investigation. He was arrested on October 14, prior to which time he had consulted a Portland and also a Boston attorney. On October 24 he wrote the local board, “I believe that I am a Conscientious Objector.” The board promptly mailed him SSS Form 150, the “Special Form for Conscientious Objectors,” which he filled out and returned. In that form defendant stated that, although he practiced no religion at all, his beliefs in non-violence were “sincere and meaningful” so as to meet the test, as explained to him by his lawyer, laid down in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). He took the position that he had not been a conscientious objector prior to his arrest, explaining “My beliefs were dormant as far as having the depth of conviction I now feel which probably were (sic) catalyzed into deep conviction as a result of my refusal to be inducted and subsequent indictment.” On December 29, the local board granted defendant a “courtesy appearance” but denied a request by his Portland attorney to be present. On January 6 the board wrote the defendant as follows:
“As a result of a courtesy appearance on December 29, 1969, and having carefully examined all evidence in support of your claim of conscientious objector, the local board determined not to reopen your classification, inasmuch as there have been no circumstances beyond your control which arose since you were mailed an order to report for induction on September 30, 1968.”
Defendant’s principal argument can be summarized as follows: (1) Upon his submission of the SSS Form 150, the local board was required to reopen his classification; or, alternatively, even if not required to do so, the board did reopen his classification de facto at his “courtesy appearance.” (2) The reopening of his classification cancelled his Order to Report for Induction. 32 C.F.R. § 1625.14 (Supp.1970). (3) He cannot be convicted of refusing to submit to an induction order that has been cancelled. Assuming, for the moment, that the first two points of this argument are correct, the third clearly is not. Defendant does not contend that the induction order was defective at the time he refused to submit to it. On the contrary, he claims that his conscientious objection “crystallized” after that date. Cf. United States v. Stoppelman, 406 F.2d 127, 131 n. 7 (1st Cir.), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969); United States v. Stafford, 389 F.2d 215, 218 (2d Cir. 1968). As we said in United States v. Powers, 413 F.2d 834 (1st Cir.), cert. denied, 396 U.S. 923, 90 S.Ct. 923, 24 L.Ed.2d 205 (1969), “once a valid order to report for induction has been wilfully disobeyed, a crime has been committed, and ‘[w]hat occurs after refusal * * * is not relevant to that issue.’ ” Id. at 838. Accord, United States v. Stoppelman, supra, at 406 F.2d 131-133; Palmer v. United States, 401 F.2d 226 (9th Cir. 1968); United States v. Stafford, supra (by implication); Davis v. United States, 374 F.2d 1, 4 (5th Cir. 1967). Thus, even if defendant is correct that his induction order should have been cancelled in January 1970, he would still be guilty of refusal to submit to induction in August 1969 when his induction order was admittedly valid.
Moreover, we conclude that defendant’s contention that his induction order should have been cancelled in January 1970 is also incorrect. Because defendant has raised some important questions about the meaning of Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), and other recent court cases, we will review this issue briefly. In doing so, we conclude that defendant’s local board acted properly in every respect.
Defendant bases his contention that the local board was required to reopen his classification on Mulloy v. United States, supra. In that case the Supreme Court held that a local board is required to reopen a registrant’s classification if he presents a prima facie case for reclassification which is not “plainly incredible, or * * * conclusively refuted by other information in the applicant’s file.” Id. at 418 n. 7, 90 S.Ct. at 1772. The government contends that the Mulloy ruling does not apply to a request for reclassification made after the registrant’s induction order has been issued, citing Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). We note that most courts that have been faced with this issue have not followed Paszel, concluding instead that a modified version of the Mulloy rule applies during the period after the induction order has been issued but prior to the induction date itself. See note 3 supra. Nevertheless, we see no indication in Mulloy that we should overturn the well settled rule that a registrant’s right to have his classification reconsidered ceases after he refuses to submit to induction. See United States v. Powers, supra, and cases cited with it.
In view of our conclusion that defendant’s claim, even if proved, would not constitute a defense to the crime charged, we see no need to reach the other arguments he has raised.
Affirmed.
. A “courtesy appearance-’ is authorized by 32 C.F.R. § 1625.1(c) (Supp.1970) and is to be distinguished from a “personal appearance” to which defendant would have been entitled had the board decided to reopen his classification. See 32 C.F.R. §§ 1625.13 and 1624.1 (Supp. 1970).
. The board applied the standard set out in 32 C.F.R. § 1625.2, which provides that “the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”
. Relying on 32 C.F.R. § 1625.2 (Supp. 1970), quoted note 2 supra, Paszel held that, after the induction order has been issued, the local board cannot reopen a classification until it has reviewed the entire case on its merits. Under the Paszel rule, a decision to reopen would require the same quantum of evidence as a decision to reclassify. Id. at 1174. This holding would appear to conflict with dictum in Mulloy v. United States, supra, in which the Supreme Court stressed that “evaluative” issues, such as registrant’s demeanor and sincerity, should be reviewed after his case has been reopened so that he can be accorded the rights of personal appearance and appeal, 32 C.F.R. § 1625.13 (Supp.1970). Id. 398 U.S. at 416, 417, 90 S.Ct. 1766. The requirement that the board must find a “change in circumstances” before reopening a post-induction order case (32 C.F.R. § 1625.2) and the Mulloy dictum were reconciled by the Tenth Circuit in United States ex rel. Brown v. Resor, 429 F.2d 1340 (10th Cir. 1970). See also Lubben v. Selective Service System, Local Board No. 27, 316 F.Supp. 230 (D.Mass.1970); Lane v. Local Board No. 17, 315 F.Supp. 1355 (D.Mass.1970).
Question: What is the specific issue in the case within the general category of "miscellaneous"?
A. miscellaneous interstate conflict
B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)
C. attorneys (disbarment; etc)
D. selective service or draft issues (which do not include 1st amendment challenges)
E. challenge to authority of magistrates, special masters, etc.
F. challenge to authority of bankruptcy judge or referees in bankruptcy
G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law
H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights)
I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act)
J. Indian law - federal regulation of Indian land and affairs
K. Indian law - state/local authority over Indian land and affairs
L. Indian law - tribal regulation of economic activities (includes tribal taxation)
M. other Indian law
N. international law
O. immigration (except civil rights claims of immigrants and aliens)
P. other
Q. not ascertained
Answer: |
songer_respond2_7_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 second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
Gene ALBRIGHT and Bettie J. Page, Plaintiffs-Appellees, v. The GOOD SHEPHERD HOSPITAL, dba Good Shepherd Medical Center and The Board of Trustees of the Good Shepherd Hospital, Defendants-Appellants.
No. 89-2279
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 16, 1990.
John M. Smith, Harbour, Smith, Harris & Cammack, Longview, Tex., Erin E. Lunee-ford, Wood, Luckinger & Epstein, Houston, Tex., Hugh M. Smith, Glen Rose, Tex., for defendants-appellants.
Larry R. Daves, San Antonio, Tex., for plaintiffs-appellees.
Before REAVLEY, KING and JOHNSON, Circuit Judges.
PER CURIAM:
Defendants The Good Shepherd Hospital and its Board of Trustees (collectively “Good Shepherd”) appeal a judgment awarding attorney’s fees and expenses to plaintiffs Gene Albright and Bettie J. Page under 42 U.S.C. § 1988. We vacate the award and remand.
I.
Albright initiated this case by suing Good Shepherd under 42 U.S.C. § 1983 for damages resulting from his termination as Personnel Director of Good Shepherd and his subsequent arrest by the Longview Police Department for distributing leaflets on hospital property. His claims were consolidated with those of Page, who sought damages under state law, Title VII, and 42 U.S.C. § 1981 for her alleged wrongful termination from Good Shepherd. A jury returned a verdict and an award of damages for each plaintiff. Additionally, the district court found that Good Shepherd had discriminated against Page on the basis of race, in violation of section 1981 and Title VII, and awarded back pay, reinstatement, and accommodations at work for a shoulder injury. Albright v. Longview Police Dep't, 884 F.2d 835, 837-38 (5th Cir.1989). The district court subsequently awarded Page and Albright, who were represented by the same attorney, $74,012.95 in attorney’s fees and $2,342.01 in expenses, as prevailing parties under 42 U.S.C. § 1988. The award did not delineate which portion was attributable to each plaintiff’s case.
On appeal of the merits, a Fifth Circuit panel reversed the judgment for Albright’s section 1983 claim and remanded for consideration of Albright’s false arrest claim under state tort law. Id. at 841-43. However, the panel affirmed the judgment for Page on her state and federal claims. Id. at 844. Good Shepherd now appeals the award of attorney’s fees and costs, pointing out that to recover attorney’s fees under section 1988 one must prevail under an applicable federal statute. Since Albright’s section 1983 claim was reversed, Good Shepherd contends that he is no longer entitled to attorney’s fees and that the award must be vacated and remanded for apportionment. We agree.
II.
The Civil Rights Attorney’s Fee Statute provides in relevant part:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.
42 U.S.C. § 1988. To obtain attorney’s fees under this statute, a litigant must be a “prevailing party.” Davis v. West Community Hosp., 755 F.2d 455, 468 (5th Cir.1985). Although qualification is not contingent upon prevailing on all claims, see Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983), a litigant must “receive at least some relief on the merits of his claim before he can be said to prevail,” Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654 (1987).
Albright clearly does not meet this requirement. Judgment on his federal claim has been reversed and therefore cannot support the award. See Harris v. Pirch, 677 F.2d 681, 689 (8th Cir.1982). His only possible basis for recovery is state tort law, which cannot provide grounds for a section 1988 attorney’s fee award when all federal claims have been rejected on the merits. McDonald v. Doe, 748 F.2d 1055, 1057 (5th Cir.1984); cf. Heath v. Brown, 807 F.2d 1229, 1233 (5th Cir.1987) (pendent state law claims can support the recovery of attorney’s fees under section 1988 when the court has avoided a substantial constitutional claim in the ease). Accordingly, the attorney’s fee award must be adjusted to reflect the fact that Page was the sole plaintiff to prevail under federal law.
Plaintiffs seek to avoid apportionment by pointing out that the Supreme Court does not require a fee reduction merely because all claims are not successful. See Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. They then claim that the entire award should be affirmed on the ground that their claims “involve[d] a common core of facts.” Id. Plaintiffs seek to establish factual commonality by pointing to (1) the joinder of the two cases; and (2) Albright’s assertion that he was fired for assisting a group of nursing supervisors, including Page, in filing grievances against Good Shepherd regarding racial discrimination.
At the outset, we point out that fee entitlement for unsuccessful claims does not rest solely upon a commonality of facts or legal theories. Rather, the relevant inquiry is the success achieved in a lawsuit and the reasonableness of time expended in relation to that success. Plaintiffs obtaining excellent results are entitled to recover full compensation, even if they do not prevail on every contention. Id. However, those achieving limited or partial success may recover only that which is reasonable in light of the relief obtained. Id. at 436, 103 S.Ct. at 1941. In a case involving limited success, such as this, joinder alone cannot support full recovery of attorney’s fees.
Additionally, while Albright’s assistance regarding grievance filings may indicate some overlap between the cases, it cannot justify recovery of all fees incurred in pursuit of his claims. Evidence of Albright’s grievance activity may well have added fuel to Page’s section 1983 and racial discrimination claims. However, that was not the sum total of Albright’s case; his claim regarding the arrest represented a substantial portion. The arrest claim was unrelated to those of Page and did not aid her victory. Counsel is therefore not entitled to recover for services on that claim. Id. at 435, 103 S.Ct. at 1940.
The difficulty here is determining which costs may be charged fairly to counsel’s pursuit of the Page case. In the hearing on attorney’s fees, plaintiffs’ counsel stated that the proof, discovery, and research regarding Page’s and Albright’s claims overlapped to the point of being unseverable. However, to serve the overriding goal of compensating counsel in light of the “results obtained,” the fees must be apportioned. Id. at 434-36, 103 S.Ct. at 1939-41. The manner of determining the award and its ultimate amount are committed to the discretion of the district court. See id. at 436-37, 103 S.Ct. at 1941; Gilbert v. City of Little Rock, Ark., 867 F.2d 1063, 1066-67 (8th Cir.) (sustaining fifteen percent reduction for fee award due to the fact that only four of thirteen original plaintiffs obtained relief), cert. denied, — U.S. -, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989). We therefore VACATE the award and REMAND for proceedings not inconsistent with this opinion.
. The record indicates that the court upheld Page's section 1983 claim. However, it is unclear whether she recovered any damages on this claim.
. Although Hensley was decided with regard to a single plaintiff, we see no reason for adopting a different rule in cases involving more than one plaintiff.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
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
In re Weiner MERCHANT, Debtor. ANDREWS UNIVERSITY, Plaintiff-Appellant, v. Weiner MERCHANT, Defendants Appellee.
No. 90-1969.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 16, 1991.
Decided March 11, 1992.
Robert A. Yingst, Holly F. Underwood (argued and briefed), Boothby, Ziprick & Yingst, Berrien Springs, Mich., for plaintiff-appellant.
Weiner Merchant, pro se.
Before KEITH and NORRIS, Circuit Judges, and JOHNSTONE, District Judge.
The Honorable Edward H. Johnstone, United States District Judge for the Western District of Kentucky, sitting by designation.
JOHNSTONE, District Judge.
Andrews University appeals from an order of the United States District Court for the Western District of Michigan holding in a chapter 7 bankruptcy proceeding that (1) an educational bank loan guaranteed by a private educational institution is discharge-able, (2) a private educational institution’s extensions of credit for educational expenses are dischargeable, and (3) a prepetition creditor violates 11 U.S.C. § 362 by withholding the transcript of a debtor-student. For the reasons given, the order of the district court is reversed in part and affirmed in part.
I.
, Weiner Merchant, a citizen of Great Britain, came to the United States to attend Andrews University. Merchant received a loan from Michigan National Bank to pay a portion of her educational expenses. The Bank made the loan in connection with a student loan program arranged with the University. The program included a provision to give the Bank full recourse against the University in the event a student defaults on the debt.
In addition to the Bank loan, Merchant received assistance for educational expenses which are evidenced by promissory notes payable to the University.
After graduation, Merchant defaulted on both her obligations to the Bank and the University. The University, pursuant to the guaranty agreement, paid the Bank, took assignment of the note, and became the sole student loan creditor for Merchant’s educational expenses.
One year after graduation, faced with $28,892.40 in debts, of which $23,614.00 was attributable to these educational loans, Merchant filed a chapter 7 bankruptcy. Soon thereafter, in an effort to gain citizenship, Merchant asked the University for a copy of her academic transcript. When her request was refused she filed an adversary proceeding against the University claiming its refusal violated the automatic stay provision, 11 U.S.C. § 362(a). The University claimed that both the educational loan and credit extensions are excepted from discharge under 11 U.S.C. § 523(a)(8) and thus it had a right to withhold the transcript.
The bankruptcy court held that neither the Bank loan nor the extensions of credit fall within the exceptions to discharge under 11 U.S.C. § 523(a)(8) and that the University violated 11 U.S.C. § 362(a) by withholding the transcript. On appeal, the district court affirmed.
Three issues are raised in this appeal. First, whether educational loans, made by commercial lenders and guaranteed by private educational institutions, are discharge-able under 11 U.S.C. § 523(a)(8). Next, whether extensions of credit for educational expenses are dischargeable under 11 U.S.C. § 523(a)(8). Finally, whether a school may withhold the transcript of a student who has defaulted on educational loans and filed for bankruptcy under chapter 7.
II.
Under In re Vause, 886 F.2d 794, 798 (6th Cir.1989), the court applies a de novo standard of review in determining Congress’ intent when enacting 11 U.S.C. § 523(a)(8). This statute provides:
(a) A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt—
(8) for an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution....
To ascertain the Congressional intent we review the language of the statute together with the design and policy underlying the overall statutory scheme. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988); Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990).
The Bankruptcy Code was drafted to provide a discharge procedure that enables insolvent debtors the ability to reorder their affairs and enjoy “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Grogan v. Garner, — U.S. —, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). Congress elected to exclude certain obligations from the general policy of discharge based upon the conclusion that the public policy in issue, availability and solvency of educational loan programs for students, outweighs the debtor’s need for a fresh start.
The legislative history of the 11 U.S.C. § 523(a)(8) teaches us that the exclusion of educational loans from the discharge provisions was designed to remedy an abuse by students who, immediately upon graduation, filed petition for bankruptcy and obtained a discharge of their educational loans. This was due to the fact that unlike commercial transactions where credit is extended based on the debtor’s collateral, income, and credit rating, student loans are generally unsecured and based solely upon the belief that the student-debtor will have sufficient income to service the debt following graduation. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 466-75 reprinted in 1978 U.S.Code Cong. & Admin.News 5787.
As stated by Senator DeConcini on the floor of the Senate:
Section 523(a)(8) represents a compromise between the House bill and the Senate amendment regarding educational loans. This provision is broader than current law which is limited to federally insured loans. Only educational loans owing to a governmental unit or a nonprofit institution of higher education are made non-dischargeable under this paragraph.
124 Cong.Rec. S33998 (daily ed. Oct. 5, 1978) (statement of Sen. DeConcini).
Thus, Congress decided that many student loans should not be dischargeable in bankruptcy. With this background we turn to examine the statutory language addressed in the issues raised on this appeal.
A.
The district court correctly found that (1) the University is a nonprofit institution, and (2) a student loan program existed between the University and the Bank. However, we reject its finding that the University did not “fund in whole or in part” an educational bank loan.
The district court reasoned that a nonprofit institution funds an educational bank loan when they agree to purchase every loan and that the University did not fund the educational loan because it purchased such loans only in the event of default. We are of the opinion that this narrow construction of the discharge provision failed to give proper weight to the design and policy underlying the overall statutory scheme of the educational loan exception to discharge.
In summary, the University, a nonprofit educational institution, processed and submitted Merchant’s student loan application to the Bank. Upon default, the Bank had full recourse against the University for the balance due on the note. The University’s participation in the student loan program was crucial to Merchant receiving money to fund a portion of her education. We hold that Merchant’s obligation to the Bank was funded, in part, by the University and that the loan is not dischargeable under 11 U.S.C. § 523(a)(8).
B.
The district court found that credit extensions in favor of Merchant as evidenced by the promissory notes payable to the University were beyond the scope of the definition of a “loan” as found in 11 U.S.C. § 523(a)(8). We disagree.
The term “loan” is not defined in the Bankruptcy Code; therefore, the court must infer that Congress intended for the term “loan” to be construed in accordance with its established meaning. NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2793, 69 L.Ed.2d 672 (1981). While this Circuit has not defined the term “loan” other circuits have adopted the following definition:
[A] contract whereby, in substance one party transfers to the other a sum of money which that other agrees to repay absolutely, together with such additional sums as may be agreed upon for its use. If such be the intent of the parties, the transaction will be considered a loan without regard to its form.
In re Grand Union Co., 219 F. 353 (2nd Cir.1914). See also United States Dept. of Health and Human Services v. Smith, 807 F.2d 122, 124 (8th Cir.1986); United Virginia Corp. v. Aetna Casualty and Surety Co., 624 F.2d 814, 816 (4th Cir.1980); Calcasieu-Marine Natl. Bank v. American Employer’s Insurance Co., 533 F.2d 290, 296-7 (5th Cir.1976) (using Grand Union’s “classic definition of a loan”).
Notwithstanding this broad definition, both the district court and the bankruptcy court determined that the University’s credit extension was not within the 11 U.S.C. § 523(a)(8) exception to discharge.
The district and bankruptcy courts rejected the reasoning of In re Hill, 44 B.R. 645 (Bankr.D.Mass.1984). The Hill court found that the term “loan” under section 523(a)(8) included extensions of credit when the following factors are present: (1) the student was aware of the credit extension and acknowledges the money owed; (2) the amount owed was liquidated; and (3) the extended credit was defined as “a sum of money due to a person”. We find the Hill analysis persuasive.
In this case Merchant signed forms evidencing the amount of her indebtedness before she registered for classes. She received her education from the University by agreeing to pay these sums of money owed for educational expenses after graduation. The credit extensions were loans for educational expenses.
Following the Hill analysis we hold the credit extensions are not dischargeable under 11 U.S.C. § 523(a)(8).
C.
The final issue presented in this appeal is whether in refusing to provide a student-debtor their educational transcript because they are in default on a prepetition debt, a school violates the automatic stay provision, 11 U.S.C. § 362. This section states:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of ... (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case....
We held in In re Smith, 876 F.2d 524 (6th Cir.1989), that this provision was to be broadly interpreted and that it is self executing. Thus it automatically takes effect when a petition is filed in bankruptcy.
Various courts have found that the withholding of a debtor’s transcript or the refusal to issue a transcript until a debtor pays a prepetition debt is an act to collect, assess, or recover a prepetition debt and thus a violation of section 362(a)(6). See In re Gustafson, 111 B.R. 282 (Bankr. 9th Cir.1990), rev’d. on other grounds 934 F.2d 216 (9th Cir.1991); In re Watson, 78 B.R. 232 (9th Cir.BAP 1987) (creditor may proceed with an action to hold its debt non-dischargeable without violating 362 and, after a finding of non-dischargeability, may attempt to collect the debt); In Re Parham, 56 B.R. 531 (Bankr.E.D.Va.1986); In re Reese, 38 B.R. 681 (Bankr.N.D.Ga.1984); In Re Ware, 9 B.R. 24 (Bankr.W.D.Mo.1981); In re Heath, 3 B.R. 351 (Bankr.N.D.Ill.1980); In re Howren, 10 B.R. 303 (Bankr.D.Kan.1980).
We follow the reasoning of these decisions and hold a violation of 11 U.S.C. § 362(a) arises when a prepetition creditor withholds a student-debtor's transcript. Given this determination, we must now determine if Congress made it an exception to the automatic stay provision.
Section 362(b) sets forth the exceptions. While many of the exceptions to discharge found in 11 U.S.C. § 523 are exceptions from the automatic stay found in 11 U.S.C. § 362(b), educational loans are not. Thus, the automatic stay applies to creditors of education loans and remains in effect until (1) the case is closed, (2) the case is dismissed, or (3) a discharge is granted or denied. 11 U.S.C. § 362(c)(2)(C).
Merchant filed a petition for bankruptcy under chapter 7 and later the University failed to turn over her transcript. Although there is a presumption that the educational debts are not dischargeable, as stated above, they are not listed within the exceptions to the automatic stay found in 362(b). Accordingly, the University violated section 362(a). Having found the student loan debt excepted from discharge, the stay will terminate when the district court enters an order consistent with this opinion. See 11 U.S.C. § 362(c)(2)(C).
We affirm the Bankruptcy Court and District Court in finding the University in violation of 11 U.S.C. § 362(a)(6). As the violation was not willful, sanctions are not merited.
CONCLUSION
In summary, Congress enacted 11 U.S.C. § 523(a)(8) in an effort to prevent abuses in and protect the solvency of the educational loan programs. The transactions in issue here were educational loans funded in whole and in part by Andrews University, a nonprofit educational institution. The financial assistance programs made possible by the University enabled Merchant to obtain an education which she might otherwise have been denied. Congress, by excepting educational loans from discharge, has determined that the continued solvency of educational funding and financial aid programs override the need to provide debtor’s with a fresh start in their financial affairs. Congress, however, has not excepted educational loans from the automatic stay provision.
Accordingly, the judgment of the district court holding the indebtedness dischargea-ble is reversed. The judgment of the district court refusing to hold the appellant in contempt is affirmed. This case is remanded to the district court for entry of judgment in compliance with this opinion.
. The statute was amended November 29, 1990. The following language was added, "or for an obligation to repay funds received as an educational benefit, scholarship, or stipend_” While this section is not to be considered with cases commenced before November 29, 1990, it does strengthen the court’s interpretation of Congress’ intent.
. This is further supported by In re Shipman, 33 B.R. 80 (Bankr.W.D.Mo.1983), which held that the "central issue in determining dischargeability is whether the funds were for educational purposes, not whether the funds constituted a loan.”
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_treat | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
ALEXANDRINE v. COE, Commissioner of Patents.
Patent Appeal No. 6107.
Court of Appeals of the District of Columbia.
Argued April 3, 1934.
Decided May 14, 1934.
Maurice Leon, of New York City, and Edmund H. Parry, Jr., of Washington, D. C., for appellant.
T. A. Hostetler, Solicitor of the Patent Office, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRO-NER, Associate Justices.
ROBB, Associate Justice.
Appeal from a decree in the Supreme Court of the District dismissing appellant’s bill to enjoin the Commissioner of Patents from canceling appellant’s trade-mark No. 206729, for gloves, registered December 8, 1925, and consisting of a fanciful design with the word “Alexandrine” across it.
in August, 1928, Marshall Field & Co., an Illinois corporation, applied for the registration, under the 10-year clause of section 5 (b) of the Trade Mark Act of 1905 (33 Stat. 724, 725), as amended (section 85 (b), tit. 15, U. S. C., 15 USCA § 85 (b), of the name “Alexandre” for gloves. Thereupon interference was declared between the two marks and, after due proceedings, priority was awarded to Marshall Field & Co., as a result of which registration was granted to that company.
In December, 1931, Marshall Field & Co. instituted proceedings in the Patent Office for the cancellation of appellant’s trademark. The application was sustained by the Examiner of Interferences, and on October 18, 1932, was affirmed by the Commissioner. Thereupon, on December 5, 1932) appellant filed this bill under section 4915, R. S., as amended (section 63, tit. 35, U. S. C., 35 US CA § 63). On December 7, 1932, due notice was given Marshall Field & Co. The court below ruled that Marshall Field & Co., being an adver'se party in the Patent Office, is an indispensable party to this suit and that the Commissioner of Patents is neither a necessary nor a proper party.
The answers to the questions involved are to be found in United States ex rel. Baldwin Co. v. Robertson, 265 ü. S. 168, 44 S. Ct. 508, 68 L. Ed. 962. The Baldwin Company filed a bill in the Supreme Court of the District against the Commissioner of Patents to enjoin that officer from canceling two registered trade-marks claimed by it. The Howard Company intervened and resisted the injunction to prevent the cancellation. The Commissioner of Patents filed an answer denying the right of the Baldwin Company to the relief sought.
The court said (265 U. S. at page 177, 44 S. Ct. 508, 509, 68 L. Ed. 962) that the main question to be considered was whether “by the statutes applicable to procedure in settling controversies over the registration of trade-marks in interstate and foreign trade, a remedy by bill in equity to enjoin the Commissioner of Patents from canceling a registered trade-mark is given to the owner of the trade-mark so registered.” The court further said (page 179 of 265 U. S., 44 S. Ct. 508, 510): “The defeated party in the hearing before the Commissioner is not asking registration of a trade-mark, but is seeking to prevent the cancellation of trade-marks already registered. * * * It seems clear that the complainant below was a dissatisfied party to an application for the cancellation of the registration of a trade-mark. We think that both the applicant for cancellation and the registrant opposing it are given the right of appeal to the District Court of Appeals under that section [section 9 of the Trade Mark Act; section 89, tit. 15, U. S. C., 15 USCA § 89]. The next inquiry is whether in addition to such appeal and after it proves futile, the applicant is given a remedy by bill in equity as provided for a defeated applicant for a patent in section 4915, R. S. We have in the cases cited [American Steel Foundries v. Robertson, 262 U. S. 209, 43 S. Ct. 541, 67 L. Ed. 953; Baldwin Co. v. Howard Co., 256 U. S. 35, 39, 41 S. Ct. 405, 65 L. Ed. 816; Atkins & Co. v. Moore, 212 U. S. 285, 29 S. Ct. 390, 53 L. Ed. 515] given the closing words of section 9 [of the Trade Mark Act] a liberal construction in the view that Congress intended by them to give every remedy in respect to trade-marks that is afforded in proceedings as to patents, and have held that under them a hill of equity is afforded to a defeated applicant for trade-mark registration just as to a defeated applicant for a patent. It is not an undue expansion of that construction to hold that the final words were intended to furnish a remedy in equity against the Commissioner in every case in which by section 9 an appeal first lies to the Court of Appeals. This necessarily would give to one defeated by the Commissioner as a party to an application for the cancellation of the registration of a trade-mark * * * a right to resort to an independent bill in equity against the Commissioner to prevent cancellation. * * * The applicants in section 9 wore of four kinds and to each of them were intended to be accorded the same resort to the Court of Appeals and the same remedy in equity as to the applicant for a patent in section 4915.” (Italics ours.)
There, as here, it was contended that section 9 of the Trade Mark Act should not bo held to authorize the use of a suit in equity for all of the four eases in which appeals were provided to the Court of Appeals (now to the Court of Customs and Patent Appeals) because by section 22 of the Trade Mark Act (section 102, tit. 15, U. S. C., 15 USCA § 102) there was a special provision for remedy in equity where there were interfering registered trade-marks. The court rejected the contention, saying (265 U. S. at page 181, 4.4 S. Ct. 508, 510): “Section 9 of the Trade-Mark Act is wider than section 22 in its scope. It includes one who applies for registration of an unregistered trade-mark which interferes with one already registered.” See, also, Corning Glass Works v. Robertson, 62 App: D. C. 130, 65 F.(2d) 476, certiorari denied 290 U. S. 645, 54 S. Ct. 63, 78 L. Ed.-.
In the present case appellant was the unsuccessful party in a cancellation proceeding, and elected to proceed under section 4915, R. S., as amended, instead of appealing to the United States Court of Customs and Patent Appeals under section 9 of the Trade Mark Act, as amended (15 USCA § 89).
The Commissioner points out that in the Baldwin Case the adverse party intervened and that in the present ease it has not. A bill under section 4915, while a proceeding de novo, “intends a suit according to the ordinary course of equity practice and procedure, * * yet the proceeding is, in fact and necessarily, a part of the application for the patent.” Gandy v. Marble, 122 U. S. 432, 439, 7 S. Ct. 1290, 1293, 30 L. Ed. 1223; American Steel Foundries v. Robertson, 262 U. S. 209, 213, 43 S. Ct. 541, 67 L. Ed. 953; Lucke v. Coe, 63 App. D. C. 61, 69 F.(2d) 379. Marshall Field & Co., having initiated and prosecuted the cancellation proceeding, is in no position to complain because appellant has filed a bill in equity against the Commissioner, which is necessarily a part of the proceeding in the Patent Office. Under the provisions of section 9 of the Trade Mark Act, as amended, and section 4915, R. S., as amended, appellant in the cancellation proceeding, had it so elected, might have prosecuted an appeal to the United States Court of Customs and Patent Appeals. Marshall Field & Co. would necessarily have been a party to that appeal. The filing of a bill in equity is an alternative remedy and, under the authority of the Baldwin Case, properly may be brought against the Commissioner here.
The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
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).
Darrell G. NIMNICHT, Plaintiff-Appellant, v. DICK EVANS, INC., et al., Defendants-Appellees.
No. 72-3125
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 19, 1973.
Darryl J. Tschirn, C. T. Williams, Jr., New Orleans, La., for plaintiff-appellant.
John O. Charrier, Jr., New Orleans, La., for defendants-appellees.
Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
This is a seaman’s action for damages for personal injuries sustained while working on a barge off the coast of Louisiana.
Darrell G. Nimnicht was employed by Dick Evans, Inc. on Lay Barge No. 23 owned by J. Ray McDermott and Company, Inc. On February 13, 1970, Nimnicht was assigned to remove a small hand-operated hydraulic pump from a gondola cart on a total saturation diving system aboard Barge No. 23. The diving system was owned by Evans. This gondola cart was used to move a diving bell into position so that the divers could be transferred from the system to the bell and vice-versa. While in the process of removing this pump, Nimnicht sustained an injury to his back.
Alleging the unseaworthiness of the barge and negligence of his employer, Nimnicht filed suit under the Jones Act and General Maritime Law against Evans, McDermott, and McDermott’s insurer, Travelers Insurance Company. The case was submitted to the jury on interrogatories.
On the special interrogatories submitted to it, the jury found that Nimnicht was a seaman but that his employer was not negligent and that the barge was not unseaworthy. Nevertheless, in response to another interrogatory pertaining to compensatory damages, the jury entered an award of $13,500. In addition, the jury made certain findings regarding maintenance and cure which are not on appeal here. The relevant interrogatories answered by the jury are as follows:
1. Was plaintiff, Darrell G. Nimnicht, injured aboard McDermott Barge #23 on February 13, 1970?
A. Yes.
2. Was plaintiff a seaman or a member of the crew of Mc-Dermott #23?
A. Yes.
3. Was the barge McDermott #23 unseaworthy ?
A. No.
5. Did Dick Evans own, operate, control or have an operational interest in the barge in question?
A. Yes.
6. Was the defendant, Dick Evans, Inc., through its employees, negligent ?
A. No.
9. Was the plaintiff, Darrell Nimnicht, negligent?
A. No.
11. Without any reduction for negligence on the part of the plaintiff, if any, what amount do you find will fairly and adequately compensate plaintiff for the damages he sustained ?
A. $13,500.
After receiving the verdict responding to the interrogatories, the trial court pointed out to the jury that finding no negligence or unseaworthiness on the part of appellees there was no party which could be held liable to pay the damage award. Then, the Court, acting on the authority of Rule 49(b) F.R.Civ.P., entered judgment for appellees. Appellant moved for a new trial on the ground that the inconsistent verdicts evinced confusion on the part of the jury. Motion denied. He appeals. We affirm.
There was no objection to the form of the interrogatories as propounded to the jury. It, therefore, is too late to complain on appeal, Wyoming Construction Company v. Western Casualty & Surety Company, 10 Cir., 1960, 275 F.2d 97, cert. denied 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011, Halprin v. Mora, 3 Cir., 1956, 231 F.2d 197.
This leaves only the question of whether the trial court proceeded correctly in entering judgment for the appellees, notwithstanding the response to Interrogatory 11. For the answer to this we look to Rule 49(b), F.R.Civ.P., which provides:
“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in 'accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.”
This case presents a situation in which the answers to the special interrogatories were consistent with each other but inconsistent with the findings as to the quantum of damages. Under Rule 49(b) the trial court had three alternatives: (1) to enter judgment in accordance with the special answers, notwithstanding the general verdict, (2) to return the jury for further deliberation, or (3) to order a new trial. The trial court chose the first alternative, holding, in effect, that the answers to the special interrogatories inexorably negated the award of damages.
We are of the opinion that those findings left the District Court with no room to adopt any other course. In the absence of unseaworthiness or negligence, damages could not be awarded. The jury should not have responded to Interrogatory No. 11. The fact that it mistakenly did so could not change the answers to the prerequisite questions, upon which any damages at all had to live or die.
The judgment of the District Court is
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_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.
MINE HILL & SCHUYLKILL HAVEN R. CO. v. SMITH.
Nos. 10171, 10172.
United States Court of Appeals Third Circuit
Argued June 9, 1950.
Decided Oct. 4, 1950.
Morse Garwood, Philadelphia, (Harold Evans, Philadelphia, Pa., MacCoy, Evans & Lewis, Philadelphia, Pa., on the brief), for appellant.
Harry Baum, Sp. Asst, to Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst, to Atty. Gen., and Gerald A. Gleeson, U. S. Atty., and Thomas J. Curtin, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for appellee.
Before MARIS, GOODRICH and KALODNER, Circuit Judges.
KALODNER, Circuit Judge.
These are appeals from judgments f&r the defendant entered by the District Court in two actions brought by the Mine Hill & Schuylkill Haven Railroad Company (“taxpayer”) for the recovery of income taxes.
The cases involve a common question, but different tax years. They were consolidated for trial in the Court below and for argument in this Court.
The facts as stipulated and found by the District Court may be summarized as follows :
Taxpayer owns certain railroad lines in eastern Pennsylvania which are leased to the Reading Company under a 999 year lease entered into in 1896. The lease required the Reading Company to maintain the lines in good order and repair, but expressly excepted from this requirement any lines or portions thereof “which are or may be from time to time used exclusively by any one colliery which is now or may hereafter be abandoned, or the working thereof may be discontinued, or which does not furnish and supply sufficient traffic to pay the needful repairs and expenses of the portion of said railroad leading to said colliery.”
No. 10,171
In 1941 taxpayer and the Reading Company jointly filed an application with the Interstate Commerce Commission for a certificate of public convenience permitting taxpayer to abandon certain branch lines of a total distance of 5.89 miles. The application and Return to Questionnaire stated that these lines had not been operated or maintained since 1933, that practically all the ties were decayed and a substantial part of the rails and track materials had been stolen, that there had been no train service or traffic over them for many years, and that the collieries which these lines were constructed to serve had been abandoned for some years.
In 1942 the Interstate Commerce Commission granted the application on the grounds requested and issued a certificate of convenience authorizing taxpayer and the Reading Company to abandon the lines.
In its income tax return for 1942 taxpayer claimed a loss deduction of $95,078.05, on the theory that the lines had been abandoned in that year. The amount of loss claimed represented taxpayer’s investment in the lines less salvage value. The Commissioner disallowed the claim. The taxpayer then paid the resulting deficiency and when its claim for refund was rejected brought suit in the District Court.
No. 10,172
In 1943 taxpayer and the Reading Company jointly filed another application with the Interstate Commerce Commission for a certificate of public convenience permitting taxpayer to abandon a certain branch line of a total distance of 2.06 miles. The application and Return to Questionnaire stated that the line had not been operated or maintained for the past 12 years, the track proposed to be abandoned was in a poor state of maintenance with some of the rails and ties missing, that there had been no train service or traffic over it for many years, and that the colliery served by it 'had long since been abandoned.
Within the same year the Interstate Commerce Commission granted the application on the grounds requested and issued a certificate of convenience authorizing taxpayer and the Reading Company to abandon the line.
In its income tax return for 1943 taxpayer claimed a loss deduction of $69,324.28, on the theory that the line had been abandoned in that year. The amount of loss claimed represented taxpayer’s investment less estimated salvage value. Actual salvage exceeded the estimated salvage, reducing the claimed loss to $68,060.22. The Commissioner disallowed the loss. Taxpayer paid the resulting deficiency and when its claim for refund was rej ected, brought suit in the District Court.
Discussion
The crux of the issue presented to the District Court was when the losses resulting from the abandonment of the branch lines involved actually occurred. The taxpayer claimed that they occurred in the years in which the Interstate Commerce -Commission issued certificates of convenience authorizing taxpayer and the -Reading Company to abandon the lines.- The District Court subscribed to the prior determination of the Commissioner of Internal Revenue that the lines were actually abandoned in years preceding the action of the Interstate Commerce Commission.
Applicable to.the issue are the following well-settled principles;
To be deductible losses of the type asserted by the taxpayer must have been sustained in fact during the taxable year; determination of the year of loss calls for “a practical, not a legal, test”.and requires a consideration of all pertinent facts and circumstances, regardless of their objective or subjective nature; the standard for determining the year fo-r the deduction of a loss “is a flexible one, varying according to the circumstances of each, case” ; the taxpayer’s conduct and attitude are to be considered but they are not decisive; the taxpayer has the burden of establishing that a claimed deductible loss was sustained in the taxable year; the question as to the year when the loss was ‘sustained is purely one of fact to be determined in the first instance by the trier of the facts; the circumstance that the facts are stipulated does not make the issue any less factual in nature; the trier of the facts is entitled to draw whatever inferences and conclusions it deems reasonable from such facts; it is immaterial that different conclusions might fairly be drawn from the undisputed or stipulated facts and the appellate court is limited to a consideration whether the fact finding was “clearly erroneous” and the decision of the trial court was “in accordance with law”; and finally, the requirements of the interstate Commerce Act, 49 U.S.C.A. § 1 et seq., are not determinative of liability under the Revenue Act.
We must immediately note, in applying the principles stated to the situation here, that it is our function merely to determine whether the District Court erred as a matter of law and whether its fact-finding was “clearly erroneous”.
The substance of the taxpayer’s position is (1) the taxpayer had no knowledge that the branch lines in question were not being maintained; (2) there was nothing in the record to sustain the District Court’s finding that the taxpayer or its lessee intended to abandon prior to the Interstate Commerce Commission proceedings; (3) there must be a coincidence of intention to abandon with the act of abandonment and proof of non-use is not alone sufficient; and (4) there could not have been a lawful abandonment of the branch lines without the permission of the Interstate Commerce Commission under the terms of the Interstate Commerce Act as amended by the Transportation Acts of 1920 and 1940, and consequently the years of abandonment were the years in which the Commission granted its permission.
As to taxpayer’s first point it is only necessary to stale that under the principles cited its lack of knowledge, assuming it to he so, was not decisive on the question of abandonment. As to its second point, which demonstrates disagreement with the District Court’s fact finding, we need only state that we do not find such finding “clearly erroneous” in view of the disclosure in the record that the rail lines had not been used for many years following abandonment of the collieries which they had served; that the railroad ties were decayed and a substantial part of the rails and track materials had been stolen. As to taxpayer’s third and fourth points, which are based on its view of the law, we need only state as to the former that under Boehm v. Commissioner of I. R., cited in Footnote 7, there need not he a coincidence of intention of abandonment with the act of abandonment and that the act alone is sufficient, and as to the fourth point, that under Old Colony R. Co. v. Commissioner of 1. R. and Kansas City Southern Ry. Co. v. Commissioner of I. R. cited in Footnote 8, the requirements of the Interstate Commerce Act are not, as previously pointed out, determinative of liability under the Revenue Act.
In sum, upon consideration of the record, the District Court’s findings of fact and its clear and exhaustive discussion of the testimony and applicable law, we are of the opinion that the taxpayer has failed to establish either error of law or such clear error of fact as would require reversal.
For the reasons stated the judgments of the District Court will be affirmed.
. The application set forth the following reasons for requesting the certificate:
“(a) As shown in answer to Question No. 2, the branches and portions of branches involved in this application were constructed and have been used exclusively to serve anthracite collieries and washeries which have been abandoned for some years. * * *
“(b) No train service has been operated for the past seven to thirteen years over the lines of railroad which applicants here seek to abandon, and no need for future train service over these lines is anticipated.
“(c) Applicants desire to salvage the rails and other track materials remaining on the lines of railroad in question before they are stolen.”
(file Return to Questionnaire stated in reply to Question 4 (Exhibit 3): “Practically all the ties on the portions of line here sought to be abandoned are decayed and a substantial part of the rails and track materials has been stolen.”
. The certificate recited that: “The collieries located on the segments have been abandoned for many years. The last train movement over any portion of the lines sought to be abandoned was more than seven years ago. Since discontinuance of service, maintenance has been neglected, practically all the ties have decayed, and a substantial part of the rail and track material has been stolen. The total net salvage value of the recoverable material is estimated by the applicants to be $5,096. There are no stations on the lines, and few, if any, inhabitants in the territories tributary thereto.”
. The application set forth the following reasons for requesting the certificate:
“Applicants desire to abandon the line since it no longer serves any industry, train service has not been operated there-over within the last twelve years, and applicants desire to salvage the rails and other track materials remaining in the line so as to put the same to economic use and to prevent theft thereof.”
The Return to Questionnaire stated in reply to Question 4 (Exhibit 3): “The track proposed to be abandoned is in a poor state of maintenance with some of the rails and ties missing.”
, The certificate recited that: “The anthracite colliery formerly served long since has been abandoned, and no trains have operated over the line for at least 12 years. Few, if any, inhabitants reside in the tributary territory, and no one is dependent upon the line for transportation service. In its isolated location the track materials are subject to theft, and the applicants desire to salvage such rails and fastenings as may still remain for use on other parts of their system or for scrap purposes,”
. The opinion of the District Court in No. 10,172 is .reported at 88 F.Supp. 803. The opinion in.No. 10,171 is not reported.
. Section 23(f) of the Internal Revenue Code, 26 U.S.C.A. § 23 authorizes a deduction from gross income of “losses sustained during the taxable year and not compensated for by insurance or otherwise.”
' Section 29.23 (e)-l of Treasury Regulations lll’p'rovidcs that the-loss must be “actually sustained during the taxable pe=riod for which allowed”, and “substance and not mere form will govern in determining taxable loss”.
Section 29.23(e)-3 of the Regulations provides that in the case of “Doss of Useful Value” of business assets, the difference between the basis, of the property and its salvage value may be claimed for the year in which the loss occurs, “When, through some change in business conditions the usefulness in the business of some or all of the capital assets is suddenly terminated, so that the taxpayer discontinues the business or discards such assets permanently from use in such business.”
Section 29.2,3 (f)-l makes the relative provision of Sec. 29.23(e) applicable to corporations as well as individuals.
. Boehm v. Commissioner I. R., 1945, 326 U.S. 287, 292, 293, 66 S.Ct. 120, 124, 90 L.Ed. 78, 166 A.L.R. 708, rehearing denied, 326 U.S. 811, 66 S.Ct. 468, 90 L.Ed. 495; Lucas v. American Code Co., 1930, 280 U.S. 445, 449, 50 S.Ct. 202, 74 L.Ed. 538, 67 A.L.R. 1010; Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 394, 395, 68 S.Ct. 525, 92 L. Ed. 746; United States v. Yellow Cab Co., 1949, 338 U.S. 338, 341, 342, 70 S.Ct. 177.
. Old Colony R. Co. v. Commissioner I. R., 1932, 284 U.S. 552, 562, 52 S.Ct. 211, 76 L.Ed. 484; Kansas City Southern Ry. Co. v. Commissioner of I. R., 8 Cir.; 1931, 52 F.2d 372, certiorari denied 284 U.S. 676, 52 S.Ct. 131, 76 L.Ed. 572.
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_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.
Eda Mae PAGE, Plaintiff-Appellant, v. BARKO HYDRAULICS, Defendant-Appellee.
No. 80-3642.
United States Court of Appeals, Fifth Circuit.
April 16, 1982.
Frank S. Thackston, Jr., Greenville, Miss., for plaintiff-appellant.
Butler, Snow, O’Mara, Stevens & Cannada, Walter G. Watkins, Jr., Roger C. Land-rum, Jackson, Miss., for defendant-appellee.
Before CLARK, Chief Judge, THORN-BERRY and GARZA, Circuit Judges.
CLARK, Chief Judge:
Rufus Page, an employee of the City of Greenville, Mississippi, died in the course of his employment when he was engulfed in flames while operating a hydraulic knuckle-boom loader manufactured by Barko Hydraulics, Inc. His mother, Eda Mae Page, administratrix of her son’s estate, brought a wrongful death action in the Circuit Court of Washington County, Mississippi against Barko and the City on theories of strict liability in tort and negligence. Page settled with the City and thereafter Barko removed the case to the United States District Court claiming diversity jurisdiction. At the conclusion of the evidence the district court directed a verdict for Barko on the strict liability claim. The negligence claim was permitted to' go to the jury, which returned a verdict for Barko. Applying Mississippi law, we affirm the jury’s verdict, but reverse the directed verdict and remand for a new trial on the issue of strict liability.
The limb loader, as it is called by the parties, is a machine designed to be mounted on a truck. It has hydraulically powered arms located at the end of a boom which can pick up felled tree limbs and load them onto the bed of the truck for removal and disposal. The limb loader in question was sold to the City by one of Barko’s dealers, Tri-State Equipment Company of Memphis, Tennessee. City of Greenville employees originally mounted the limb loader on one of the city’s trucks. After that vehicle was involved in a minor accident the limb loader was removed and mounted on a second city truck. The proof at trial demonstrated that the method of mounting on both trucks conformed to Barko’s instructions.
The parties stipulated in the pre-trial order that the day prior to the fatal fire, August 16, 1978, there were two fires on the limb loader, and that Rufus Page reported these fires to the city maintenance shop. A city mechanic, Eugene Watson, went out to where Page was working and determined that a hose coupling known as the Aeroquip 90° coupling, or swivel, was leaking hydraulic fluid. Watson brought the swivel back to the city shop for repair. He took it apart and then consulted with his superior, Oscar Worbington. Together, they discovered that the leak resulted from two worn “0” rings in the swivel. Lacking identical replacement parts, Watson and Worbington proceeded to insert four smaller “0” rings into the space provided for the original two. They then reconnected the parts of the swivel and used the original snap ring to lock them back together. Watson reattached the swivel onto the limb loader, and then watched the machine operate for several minutes without incident. Watson testified that he returned that afternoon to where Page was operating the limb loader and once again found no leaking from the repaired swivel.
The fatal fire occurred the next morning approximately thirty minutes after Page began operating the limb loader. The parties stipulated that the Aeroquip swivel separated, allowing hydraulic fluid to spew onto the truck’s hot exhaust manifold which caused it to ignite. The manifold was hot because the truck’s engine had to be running for the limb loader to operate. Page suffered second and third degree burns over eighty-seven percent of his body. He was hospitalized for eighteen days, during which’ time he suffered excruciating pain, and then died.
The parties disagree as to what caused the swivel to separate. Did Watson’s installation of four incorrect “0” rings in the space where two were designed to fit have anything to do with the swivel’s coming apart? Did Watson correctly replace the snap ring holding the swivel together? Was the snap ring as designed by Barko sufficient to hold the swivel under stress? Did the hydraulic oil surging through the swivel cause it to knock repeatedly against the truck frame resulting in separation?
I. Strict Liability
Ultimately, the precise cause of the swivel’s separation is immaterial to plaintiff’s primary theory of recovery, which pertains to the overall design configuration of the loader. This theory is based on the fact that in Barko’s approved mounting of the limb loader on the truck, the operator is positioned directly over a number of hydraulic hoses, couplings and valves. These hoses and couplings are in turn positioned directly over the truck’s necessarily hot exhaust manifold. The hoses and couplings, including the Aeroequip 90° swivel, were admitted by Barko to be normal “wear” items not intended to be permanent. Thus, when one of them inevitably failed and leaked, its direct position over the hot, unshielded manifold could result in a fire which would endanger the life of the operator. Page claims that (1) the operator’s seat should have been shielded, or (2) a shield should have been placed over the exposed manifold, or (3) the manifold should have been rerouted. She argues that lacking any such safety features, the limb loader was defectively designed and unreasonably dangerous within the meaning of section 402A. Alternatively, she claims that since Barko knew the swivel would eventually wear out, and admitted that nine out of ten mechanics couldn’t properly repair it, the machine was rendered unreasonably dangerous because of Barko’s failure to warn would-be repairmen to replace the swivel with a new one instead of attempting to repair it. These same allegations were also framed in terms charging Barko with negligent'product design, and negligent failure to warn.
Barko’s defense rested primarily on the incorrect repair job done by the City repairmen. Barko argued that the repair constituted a substantial change in the product so as to defeat one of the elements of strict liability. See Fruehauf Corp. v. Trustees of First United Methodist Church, 387 So.2d 106, 109 (Miss.1980). The improper repair was asserted to be an unforseeable misuse of the product which placed no duty on Barko. See Ford Motor Company v. Matthews, 291 So.2d 169, 174-75 (Miss.1974). Furthermore, Barko offered proof that Watson never consulted the repair manual, so that any warning not to attempt to repair the swivel was irrelevant.
The jury was told that the incorrectly done repair constituted the sole proximate cause of the fire. The defense argued that this machine and many others like it had operated hundreds of hours without a single incident of this type. This not only inferred reasonableness of design, Ward v. Hobart Manufacturing Co., 450 F.2d 1176, 1182 (5th Cir. 1971), but also, since the first fire of this magnitude on the Greenville truck occurred almost immediately after the misrepair, it created an inference that the misrepair alone caused the fatal fire.
Barko asserted for purposes of defeating both the strict liability and negligent design theories that any danger here was open and obvious. See Ward v. Hobart Manufacturing Co., 450 F.2d at 1182. They claimed that in light of the previous day’s fires, Page couldn’t have been told anything more than he already knew — that something was wrong with this machine, and that this machine could burn.
The district court directed a verdict on strict liability in part because the plaintiff had failed to offer the requisite proof that there had been no substantial change in the physical parts making up the limb loader since its manufacture. The colloquy between plaintiff’s counsel and the court concerning this point reveals that the district court correctly and explicitly distinguished the two different theories of strict liability potentially involved here, one being defective manufacture or design of such component parts as the swivel and snap ring, and the other being a defective overall design configuration as described above.
Insofar as the plaintiff sought to prove that some physical part was defective, we agree with the trial judge that in light of the evidence adduced of changes made to the limb loader, the plaintiff’s failure to rebut that proof by showing the allegedly defective physical articles had remained substantially unchanged was fatal to that aspect of their case. See Fruehauf Corp. v. Trustees of First United Methodist Church, 387 So.2d at 109.
As the trial court acknowledged, the plaintiff’s primary theory was based on a defective overall design configuration and not a defect in a component part. However, the court’s directed verdict made no exception for that theory, although the court did recognize that the plaintiff had met her burden of proving that the allegedly defective overall design configuration had remained unchanged. See Ford Motor Co. v. Matthews, 291 So.2d at 173. Rather, the court’s ruling as to defective overall design was limited to three grounds: 1) that the evidence showed all limb loaders were so designed, 2) that this equipment was not the type of product which would bring section 402A liability into play because the hazard of hydraulic oil leaking out and catching on fire if exposed to a manifold was open and obvious and 3) that use of this equipment did not pose the type of inherently dangerous situation of which a consumer like the City of Greenville would be unaware.
The first of these grounds, while relevant to negligence, Ward v. Hobart Manufacturing Co., 450 F.2d at 1182, is clearly an incorrect legal standard in strict liability. For purposes of determining whether a product is defective and unreasonably dangerous within the meaning of section 402A, industry custom is inconclusive. An inquiry concerning industry custom obscures the fundamental difference between strict liability and negligence because finding that a product conforms to industry practice necessarily infers the reasonableness of the manufacturer in designing its product. But in strict liability the focus is on the safety of the product itself. See Early-Gary, Inc. v. Waiters, 294 So.2d 181, 186 (Miss.1974). The question is whether the product meets the reasonable expectations of the ordinary consumer as to its safety, id.; State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 120-21 (Miss. 1966), irrespective of all the care that the manufacturer might have put into making it. Id.; W. Prosser, Handbook of the Law of Torts, § 103 at 672 (4th ed. 1971). Accordingly, the fact that all machines might be made by a common dangerous design would not preclude a finding that a particular brand of limb loader did not meet the reasonable expectations .of the ordinary user as to its safety.
The second enumerated basis for the directed verdict on strict liability, that the danger here was open and obvious, is a finding that, on this record, should have been left for the jury. That hydraulic fluid will ignite is like the meatgrinder which injured the hand inserted into it in Ward v. Hobart Manufacturing Co., 450 F.2d at 1186-87. That sort of danger is open and obvious. But. here the danger consisted of an unusual chain of events: hydraulic fluid spewed out of a closed system that should have contained it, it fell upon an exhaust manifold which happened to be directly below, and the resulting inferno engulfed an operator who was located well above the entire apparatus. We cannot say that reasonable minds could not differ as to whether such a danger was open and obvious.
The third ground for the directed verdict was that this type of equipment did not pose a danger to which a consumer like the City of Greenville would be unaware. However, the court incorrectly focused on the City, rather than Rufus Page. Because strict liability creates a duty to any foreseeable user of the product, obviousness of danger must likewise be measured in reference to all foreseeable users. See Gordon v. Niagara Machine & Tool Works, 574 F.2d 1182, 1189 (5th Cir. 1978). Reasonable minds could differ that the danger here was obvious to Rufus Page.
The evidence showed that Barko approved the design configuration of the limb loader, and that the allegedly defective configuration remained unchanged through the date of the accident. See Ford Motor Co. v. Matthews, 291 So.2d at 173. Because the evidence was of such quality and weight that reasonable jurors could differ, the court erred in directing a verdict that the limb loader was not defective and unreasonably dangerous. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969).
On remand the defendants may still seek to disprove that the limb loader was defective and may seek to prove that the City’s repair was the sole proximate cause of the fire. But based on this record, these issues are for the jury to resolve. “Whether a product is reasonably safe or not is a flexible standard responsive to the facts of each case. It is a question of fact whether the particular article involved was reasonably safe when it left the control of the manufacturer.” State Stove Manufacturing Co. v. Hodges, 189 So.2d at 121.
II. Negligence
As to negligence, the jury’s verdict must be permitted to stand because it has sufficient evidence to support it. Mary S. Krech Trust v. Lake Apartments, 642 F.2d 98, 103 (5th Cir. 1981). The jury could permissibly have found that Barko was not negligent because it exercised a reasonable standard of care in designing this product which conformed to general industry standards. See Ward v. Hobart Manufacturing Co., 450 F.2d at 1182. The jury could have found the city’s repair constituted an unforeseeable misuse of the product, relieving Barko of any liability. Ford Motor Company v. Matthews, 291 So.2d at 174. Finally, it might have found the repair to be a superseding and sole proximate cause. Id. at 176.
The plaintiff advances three evidentiary points on appeal which assertedly mandate reversal of the jury’s verdict. The first point pertains to the exclusion of expert testimony by Dr. Courtney Busch, whose ballpeen hammer testing procedures assertedly proved that the swivel separated as a result of knocking against the truck frame. The court excluded Dr. Busch’s testimony because he was unable to quantify the hammer force applied in his attempt to simulate the knocking of the swivel against the truck frame.
A trial court has wide discretion to admit or exclude expert testimony, and only if we determine that a ruling is manifestly erroneous may we find that discretion abused. Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529, 535 (5th Cir. 1974). Dr. Busch persuasively asserted that it was unnecessary to quantify the force he applied in order for his ultimate conclusions to be relevant. However, we find no abuse by the district court in excluding this testimony. Because he did not duplicate the actual mechanics involved, permitting a jury to consider his experiments, and counsel’s inevitable criticism of the methods utilized, could have been more confusing than helpful.
The second evidentiary point relates to the exclusion of rebuttal testimony by Oscar Worbington, Watson’s superior, to the effect that he had read the Barko manual, and found no warnings therein concerning the danger of attempting to. repair, rather than replace, the Aeroquip swivel. The plaintiff offered this testimony to rebut the defendant’s proof that Watson had not consulted the repair manual, thereby making immaterial Barko’s failure to warn. The district judge acknowledged the relevance and importance of this testimony. However, he declined to permit plaintiff’s lawyers to remedy what he perceived to be a defect in their case-in-chief through rebuttal testimony. The conduct of a fair trial is a matter within the trial judge’s discretion. Excel Handbag Co. v. Edison Brothers Stores, Inc., 630 F.2d 379, 388 (5th Cir. 1980). The judge had forewarned all counsel that he intended to be strict in his rulings on rebuttal testimony. We find no abuse of discretion here.
The final evidentiary ruling presents a more difficult question. The court admitted, over plaintiff’s strenuous objection, Eda Mae Page’s deposition testimony recalling a conversation between herself and Rufus Page several days after the accident. This conversation took place while Rufus was in the hospital. Mrs. Page testified in this deposition that Rufus said to her: “Mamma, I’m ruint, ain’t I? I’m ruint for life. I’m burnt. This didn’t have to happen. [I] asked them to put new lines on the truck.”
Plaintiff’s counsel made a hearsay objection. In response the defendant was unable to establish any other basis for admission of this statement other than the residual, or “catch all”, exception to the hearsay rule provided by the Federal Rules of Evidence 803(24). After hearing extensive arguments from counsel on this point, the district court concluded that all the elements of the rule were present and admitted the testimony.
The most troubling aspect of admitting this testimony is subpart (B) of the Rule— that the offered statement is more probative on the point for which it is offered than other evidence which the proponent can procure. Rufus Page was suddenly engulfed in flames and thereafter died. He could not see what caused the fire which severely burned him. He knew only that in response to the previous day’s fires, the City had repaired the Aeroquip swivel. He did not see Watson repair the swivel. His statement to his mother, which was intended to convince the jury that the city’s failure to repair caused the accident, was speculation which had little probative value. Compare Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979). It was most surely cast in an emotional and potentially prejudicial setting.
A trial court’s rulings on relevancy and materiality of evidence will not be disturbed absent a clear showing of abuse of discretion. Richardson v. McClung, 559 F.2d 395, 396 (5th Cir. 1977). So too, a district court has considerable discretion in applying the residual exception to the hearsay rule which a court of appeals will not disturb absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors. Huff v. White Motor Corp., 609 F.2d at 291. The defendants had other witnesses whose testimony was far more probative, and direct, as to the cause of the fire than the statement attributed to Rufus Page. Compare Huff v. White Motor Corp., 609 F.2d at 295. Unquestionably, their testimony was far less prejudicial. In our opinion it would have been a more precise application of Rule 803(24), and would have best served the interests of justice, Rule 803(24)(C), to exclude the offered statement. However, our standard of review requires more than a judgment that we would have ruled differently and so we decline to hold that the statement’s admission was reversible error.
Because these evidentiary issues will probably recur on retrial, though not in precisely the same context, we emphasize that our rulings today are not precedent for that time. The district court will be free to reconsider these issues anew.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
. Mississippi has adopted section 402A of the American Law Institute’s Restatement of Torts (Second) as the appropriate standard of strict liability for product manufacturers. State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 118 (Miss. 1966), cert. denied 386 U.S. 912, 86 S.Ct. 860, 17 L.Ed.2d 784 (1967).
Section 402A provides:
Special Liability of Seller of Product for Physical Harm to User or Consumer—
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
. Rule 803(24) provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence ...
Rule 804(5), which relates to a situation such as is present here where the declarant is unavailable, is identical to Rule 803(24).
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_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.
REPUBLIC OF FRANCE and Compagnie Generale Transatlantique, Appellants, v. UNITED STATES of America et al., Appellees.
No. 18064.
United States Court of Appeals Fifth Circuit.
Aug. 24, 1962.
Edwin Longcope, New York City, Clarence S. Eastham, Houston, Tex., for appellants.
John R. Greene, Asst. U. S. Atty., Houston, Tex., Samuel D. Slade, Carl C. Davis, Alan S. Rosenthal, Edward A. Groobert, Dept. of Justice, Washington, D. C., Preston Shirley, Galveston, Tex., for appellees.
Before TUTTLE, Chief Judge, and HUTCHESON, RIVES, CAMERON and JONES, Circuit Judges.
PER CURIAM.
In entering the judgment in this ease pursuant to the opinion reported at 5 Cir., 290 F.2d 395, certiorari denied 369 U.S. 804, 82 S.Ct. 644, 7 L.Ed.2d 550, no express provision was made as to costs. The petitioners-appellants, Republic of France and Compagnie Generale Trans-atlantique, present their bill of costs, the correctness of which is not questioned, as follows:
"1. Clerk’s docketing fee $ 25.00
“2. Clerk’s charges for printing record on appeal 9,024.25
“3. Printing brief on appeal $ 75.00
“4. Proctor’s fee on appeal 100.00
“5. Transcript of oral argument on appeal 261.30
$9,485.55”
Petitioners-appellants concede that costs are not taxable against the United States, but, under New Orleans Coal & Bisso Towboat Co. v. United States, 5 Cir., 1937, 89 F.2d 967, move for an order allowing recovery to them of one half of the costs aforesaid from the claimant-ap-pellee, Texas City Terminal Railway Company.
Texas City Terminal, on its part, “has no quarrel with the total amount of costs listed by appellants in their motion,” “does not here contest the ruling in New Orleans Coal & Bisso Towboat Co. v. United States, et al.,” and “recognizes that it is responsible for some of the costs in this Court.” It states its position as follows:
“(1) Reconstruction Finance Corporation, as a separate corporate entity, filed its claim contesting the limitation proceedings and continued to do so (R. 114, 119 and 188). Under the authority of R. F. C. v. [J. G.] Menihan, 312 U.S. 81 [61 S.Ct. 485, 85 L.Ed. 595], it should bear its proper proportion of the costs.
“(2) As a prerequisite for assessing costs, Appellants must show who were and who were not Appellees and under the record in this case, it appears that there may be numerous Appellees who under the prior rulings of this Court would also share in the cost assessment.”
Position (2) may be quickly disposed of by noting that the only appellee other than the United States was the Texas City Terminal Railway Company. As said in our original opinion:
“The claims of all persons who made assignments to the United States were dismissed on January 27, 1958. Many persons who had not made assignments to the United States thereafter voluntarily withdrew their claims. The only remaining claimant, other than the United States, is the Texas City Railway Terminal Co. That Company did not file under the Texas City Relief Act because it was not willing to assign an uninsured loss of nearly five million dollars for the $25,000.00 maximum allowed under the Relief Act. In addition to its assigned claims, the United States filed a claim in the amount of $350,000, as successor to the Reconstruction Finance Corporation, for the loss of goods in a warehouse awaiting loading on another vessel.”
Republic of France v. United States, 5 Cir., 1961, 290 F.2d 395, 396.
Thus, as the issue remains, the petitioners-appellants contend that Texas City Terminal should be assessed one half of the taxable costs. Texas City Terminal, on the other hand, relying upon R. F. C. v. J. G. Menihan, supra, insists that the United States as successor to R. F. C. should bear one third of the costs.
The United States, on its part, points out:
“In R. F. C. v. [J. G.] Menihan, 312 U.S. 81 [61 S.Ct. 485, 85 L.Ed. 595] (1940), the R. F. C., which was then in active operation, brought in its own name and in its corporate capacity an unsuccessful suit for trade-mark infringement, and the question arose as to whether it was subject to costs. The Court considered the question by reference to the essential nature of the Government corporation and also the intent of Congress with respect to the taxation of costs. The Court pointed out that the R. F. C., like any other corporate entity, had the power to sue and be sued in its corporate capacity. Accordingly, the Court reasoned that there was nothing in the statute suggesting any intention of Congress that in suing and being sued the R. F. C. should not be subject to the ordinary incident of unsuccessful litigants in being liable for the costs which might properly be awarded against a private party in a similar case.
“However, the Congressional intent that the Supreme Court failed to find in the original Reconstruction Finance Corporation Act, namely that R. F. C. should not be liable for costs, was supplied in the amendment to the Reconstruction Finance Corporation Act (15 U.S.C. 601 et seq.) by the Act of May 25, 1948, Chapter 334, 62 Stat. 261, in which section 3(a) had the following language inserted, ‘The corporation shall be entitled to and granted the same immunities and exemptions from the payment of costs, charges and fees as are granted to the United States pursuant to the provisions of law, codified 543, 548, 555, 557, 578 and 578(a) of Title 28 United States Code, 1940 Edition.’ ”
Of the cited sections, Section 543 dealt with costs in the then Circuit Couirt of Appeals. Immunity was granted to the R. F. C. from such costs. True, a month later, on June 25, 1948, the new Judicial Code was adopted, Act of June 25, 1948, Chapter 646, 62 Stat. 868, and by that Act, Section 543 and certain other sections referred to in the R. F. C. Act of May 25, 1948, were repealed. The immunity of the United States was more comprehensively stated in Section 2412 (a) of the new Judicial Code, as follows: “(a) The United States shall be liable for fees and costs only when such liability is expressly provided for by Act of Congress.” 28 U.S.C.A. §'2412(a). There is thus no indication that Congress intended by the repeal of Section 543 to destroy the immunity granted to the R. F. C. by the Act of May 25, 1948. It results that no costs can be assessed against the United States as successor to the R. F. C. One half of the taxable costs as hereinabove listed are therefore taxed against Texas City Terminal Railway Company, the other one half of such costs to be not taxed at all. The judgment herein will be amended accordingly,
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_origin | H | 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.
COCHRAN v. COMMISSIONER OF INTERNAL REVENUE.
No. 9386.
Circuit Court of Appeals, Third Circuit.
Argued June 4, 1947.
Decided July 9, 1947.
Rehearing Denied Aug. 19, 1947.
Morse Garwood, of Philadelphia, Pa. (Shippen Lewis and MacCoy, Brittain, Evans & Lewis, all of Philadelphia, Pa., on the brief), for petitioner.
Louise Foster, of Washington, D. C. (Sewall Key, Acting Asst. Atty. Gen., and George A. Stinson, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before McLAUGHLIN and O’CONNELL, Circuit Judges, and LEAHY, District Judge.
O’CONNELL, Circuit Judge.
In 1925, petitioner inherited real estate valued at $67,000 in the decedent’s estate tax return. In 1927, she sold the property. The sale price was $97,500, of which $27,-500 was paid in cash and the remaining $70,000 was covered by a purchase money bond and mortgage bearing 6% interest. She did not report the taxable gain in either her 1927 or any subsequent income tax return.
In 1932, on the due date of the mortgage, the purchaser defaulted. Petitioner agreed to let the purchaser remain on the property in return for the payment of the 6% interest as it accrued. This arrangement continued until 1936, when the interest rate was reduced to 3%.
In 1941, the purchaser failed to pay the interest and asked that the mortgage be reduced from $70,000 to $5,000. This request was refused. Petitioner investigated the' purchaser’s financial condition, as a result of which she concluded that the mortgage debt, over and above the value of the collateral, was uncollectible. She thereupon instructed her agent to write off on the agent’s records the difference between $70,-000 and $26,800, the value of the property at that time. Entry on the agent’s records-was made accordingly, and petitioner claimed on her 1941 return the difference, $43,200, as a partial bad debt deduction. Respondent, disallowing most of that deduction, determined a deficiency in petitioner’s 1941 tax return.
In an unreported memorandum opinion, the Tax Court held that petitioner was entitled to claim a partial bad debt in 1941, since that was the date when “she ascertained * * * that the debtor had no assets other than the property in question from which she might reasonably have expected to make any substantial recovery on the indebtedness.” The Tax Court further held, however, that petitioner had erred in computing the deduction. It said, “No evidence was offered by petitioner as to the value of the note as of the date of ■sale in 1927. The only evidence in the case •as to such value is the determination by the respondent fixing said value at $37,238.75 * * *.” Petitioner was accordingly held entitled to a deduction of only $10,438.75.
Petitioner urges that the purchase money bond and mortgage in 1927 was worth its face value, $70,000. The Tax 'Court finding is alleged to be wrong on two grounds: (a) petitioner did introduce evidence of the value of the note, in that the sale price of $97,500 was evidence that the note was worth face value, and (b) respondent’s “deficiency letter is not evidence before the Tax Court, unless it is stipulated to be,” and consequently respondent’s valuation of $37,238.75 “was not in evidence at all.”
There can be no doubt that the value of the note in 1927 — be it $70,000, $37,238.75, or some third figure — as well as the value of the property itself, are purely questions of fact. See Mistrot v. Commissioner, 5 Cir., 1936, 84 F.2d 545, and Maxfield v. United States, 9 Cir., 1945, 152 F.2d 593. If there is any evidentiary basis for the Tax Court’s finding, therefore, it is equally clear that this court may not substitute its own evaluation for that of the Tax Court. See Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248; John Kelley Co. v. Commissioner, 1946, 326 U.S. 521, 527, 66 S.Ct 299, 90 L.Ed. 278. The deficiency letter of the Commissioner was part of the record before the Tax Court, by virtue of Rule 6(i) of the Rules of Practice Before the Tax Court of the United States, revised August 1, 1946, 26 U.S.C.A. Int.Rev.Code, following section £012, which rule is authorized by Section 1111 of the Internal Revenue Code, 26 U. S.C.A. Int.Rev.Code, § 1111, as amended by Section 504 of the Revenue Act of 1942, October 21, 1942, 56 Stat. 798, 26 U.S.C.A. Int.Rev.Code, § 1100. Consequently, whether or not the deficiency letter was stipulated is immaterial; and, even if we were to assume arguendo that the evidence of the 1927 sale was also evidence of the fair value of the property and note, petitioner’s position at best would be to allege that her basis of computation was more sound than that of respondent. In such reweighing of factual evidence we may not indulge. “The Tax Court has the primary function of finding the facts in tax disputes, weighing the evidence, and choosing from among conflicting factual inferences and conclusions those which it considers most reasonable. The Circuit Courts of Appeal have no power to change or add to those findings of fact or to reweigh the evidence. And when the Tax Court’s factual inferences and conclusions are determinative of compliance with statutory requirements, the appellate courts are limited to a determination of whether they have any substantial basis in the evidence. The judicial eye must not in the first instance rove about searching for evidence to support other conflicting inferences and conclusions which the judges or the litigants may consider more reasonable or desirable. It must be cast directly and primarily upon the evidence in support of those made by the Tax Court. If a substantial basis is lacking the appellate court may then indulge in making its own inferences and conclusions or it may remand the case to the Tax Court for further appropriate proceedings. But if such a basis is present the process of judicial review is at an end. [Citing cases.]” Commissioner v. Scottish American Co., 1944, 323 U.S. 119, 123, 124, 65 S.Ct. 169, 171, 89 L.Ed. 113.
Accordingly, we need not review defenses of respondent directed to the merits of the case at bar.
The decision of the Tax Court will be affirmed.
Respondent arrived at this figure by subtracting from $67,000, the value at inheritance, (1) $2,261.25, depreciation at 2% for the two-year period during which she owned the property, and (2) $27,500, the cash payment made at the time of sale.
The burden of proving respondent’s determination invalid was, of course, upon petitioner. Rule 32, Rules of Practice Before the Tax Court of the United States; and see Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623.
Pertinent portions of the rule are as follows:
“Rule 6. * * * The Petition shall be complete in itself so as fully to state the issues. It shall contain:
* * * ❖ * * *
“(i) A copy of the notice of deficiency (or liability, as the case may be), shall be appended to the petition. If a statement has accompanied the notice of deficiency, so much thereof as is material to the issues set out in the assignments of error likewise shall be appended. * * * ”
We point out in passing that petitioner’s evaluation depends upon a note being worth its face value, a conclusion on which a difference of opinion is by no moans unlikely.
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_r_subst | 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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In the Matter of JERSEY CITY MEDICAL CENTER, Debtor. Appeal of FINCH FUEL OIL COMPANY. Appeal of FINCH FUEL OIL COMPANY, a general unsecured creditor in the above designated bankruptcy proceeding.
No. 86-5408.
United States Court of Appeals, Third Circuit.
Argued Jan. 23, 1987.
Decided May 4, 1987.
George B. Gelman (Argued), Philip L. Guarino, Gelman & McNish, Hackensack, N.J., for appellant.
Sheldon Schachter, Kleinberg, Moroney, Masterson & Schachter, Millbum, N.J., Jack M. Zackin (Argued), Ravin, Greenberg & Zackin, P.A., Roseland, N.J., for appellee.
Before SEITZ, BECKER, and MANSMANN, Circuit Judges.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
This matter comes before us on appeal from an order of the district court, which affirmed a bankruptcy judge’s order confirming the debtor’s modified plan for the adjustment of its debts under Chapter 9 of the Bankruptcy Code. We possess jurisdiction pursuant to 28 U.S.C. § 158(d) (Supp. II 1984). Because the debtor proposed the plan lawfully and in good faith, and since the plan permissibly classified the claims of the debtor’s various unsecured creditors, we will affirm the judgment of the district court.
I.
The Jersey City Medical Center (“JCMC” or “the debtor”) is a public municipal hospital which, since 1936, has provided health care for the Hudson County, New Jersey community, including a substantial number of indigent patients. The plaintiff, Finch Fuel Oil Co. (“Finch”), is a general unsecured creditor to which (according to Finch) JCMC became indebted in the amount of $408,339.40.
In January of 1982, after the State Commissioner of Health found JCMC “financially distressed,” then-Govemor Byrne appointed a reconstituted Board of Managers to replace JCMC’s Board. On December 29, 1982, JCMC filed a petition under Chapter 11 of the Bankruptcy Code, which the bankruptcy judge dismissed on the ground that JCMC was a municipal corporation and was, therefore, ineligible for Chapter 11 reorganization.
On February 10, 1983, JCMC filed a petition for the adjustment of the debts of a municipality under Chapter 9 of the Bankruptcy Code. 11 U.S.C. §§ 901-946. The Official Unsecured Creditors’ Committee objected to the petition because the City of Jersey City allegedly remained liable for the debtor’s debts. The bankruptcy judge denied the committee’s motion to dismiss the petition, and the district court affirmed that judgment.
Following extended negotiations, JCMC on March 29, 1985 filed a plan for the adjustment of its debts along with a disclosure statement. In May of 1985, Finch and the Unsecured Creditors’ Committee filed objections to the disclosure statement, insisting that the debtor possessed funds sufficient to satisfy 100% of all creditors’ claims by virtue of the reimbursement of JCMC’s pre-petition costs from the State Department of Health, and contending that the City of Jersey City was responsible for JCMC’s debts. The bankruptcy judge, however, approved the disclosure statement as amended.
It is instructive to note that, prior to the confirmation of JCMC's Chapter 9 petition, Finch filed suit in state court against the City of Jersey City seeking a declaration that the city was liable for JCMC’s outstanding debts. Yet the trial court entered summary judgment in favor of the city and against Finch. The appellate division affirmed that judgment and the New Jersey Supreme Court denied Finch’s petition for certification.
On June 4, 1985, the debtor submitted a modified plan. That plan provides that priority claims (designated “Class One” under the plan) will be paid on the plan’s effective date. Claims of governmental units will be satisfied within six years from the date of their assessment, with interest at the prevailing rate established by Internal Revenue Service regulations. The court will disburse costs, expenses, and fees by order.
Furthermore, the plan divides the debt- or’s unsecured creditors into four additional classes. “Class Two” creditors — physicians with claims arising out of agreements with the debtor for indemnity against medical malpractice awards — will receive 100% of their claims as finally allowed. “Class Three” creditors — holders of pre-petition medical malpractice claims against JCMC— will get 30% of their claims. Both “Class Two” and “Class Three” payments will come directly from the Jersey City Insurance Fund Commission which, on July 30, 1985, entered into a contract with the debt- or to that effect.
“Class Four” creditors — employee benefit plan non-priority claims — and “Class Five” claimants — general creditors — will obtain 30% of their claims on the effective date of the plan. Disputed claims from these classes will be paid upon the entry of non-appealable orders of the court. Classes Four and Five also will receive pro rata shares from a “surplus fund” and from a pool consisting of 50% of the debtors’ excess 1984 gross revenues.
Notably, the modified plan preserved the creditors’ rights to recover the rest of their debts from third parties, including the City of Jersey City. The ballot for approval of the plan provided:
The acceptance and/or rejection by the undersigned creditor of the Debtor’s Modified Plan of Reorganization does not constitute a waiver or release of any rights to seek recovery of the creditor’s debt in excess of the dividend under the Modified Plan of Reorganization against third parties or other entities liable by contract or as a matter of law for said obligation.
On July 25, 1985, Finch — the only dissenting member of the general unsecured creditors’ committee — filed objections to the modified plan.
The bankruptcy judge held a lengthy hearing on August 6, 1985. Following the hearing, the attorney for the debtor reported to the judge which classes of claimants had accepted the plan and which had rejected it, according to 11 U.S.C. § 1126. The ballots indicated that Classes Three and Four rejected, and that “Class Five” accepted, the plan. Members of “Class Two” did not vote, apparently since the plan left their claims unimpaired. See 11 U.S.C. § 1126(f). The bankruptcy judge found that the plan comported with the bankruptcy code and with the best interests of the creditors. The district court entered an order affirming the bankruptcy judge’s order confirming the debtor’s plan, and this appeal followed.
II.
A.
Finch presses two issues on appeal. First, it argues that the bankruptcy judge erred in confirming the debtor’s modified plan for the adjustment of its debts since the plan violates the requirement in 11 U.S.C. § 1129(a)(3) that “[t]he plan [must have] been proposed in good faith and not by any means forbidden by law.” Finch cites three instances of JCMC’s alleged bad faith. Finch complains: (a) that the debtor has failed to pursue a claim against the city supposedly arising when the debtor surrendered its right to occupy certain city properties without paying rent; (b) that JCMC by virtue of the state’s rate-setting procedures, had recouped its pre-petition costs— including all debts owing to the general unsecured creditors — in full; and (c) that the debtor misappropriated funds allocated by law for pre-petition debts in order to improve its facilities.
Second, Finch contends in its points of error that the bankruptcy judge erroneously confirmed the debtor’s plan, since the disparate treatment of “Class Two” and the other general unsecured creditors allegedly contravenes the provision in § 1129(b) that the plan must not discriminate unfairly with respect to each class of impaired, dissenting claimants.
B.
Oh review, the bankruptcy judge’s factual findings should stand unless clearly erroneous. In re Morrissey, 717 F.2d 100, 104 (3d Cir.1983); Bankr.R. 8013, 11 U.S.C. (Supp. II 1984). We independently determine questions of law. See Universal Minerals v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981).
III.
The bankruptcy judge found that the debtor’s plan for the adjustment of its debts satisfied the statutory requirement that “[t]he plan [be] proposed in good faith and not by any means forbidden by law.” 11 U.S.C. § 1129(a)(3). The bankruptcy judge’s findings of fact in support of this conclusion are not clearly erroneous.
A.
We find devoid of merit Finch’s complaint that the debtor failed to obtain remuneration, from the City of Jersey City allegedly owing from the debtor’s surrender of city premises which it occupied rent-free. Although the record indicates that the city plans to convert the former JCMC buildings into a residential condominium complex, Finch offers neither a factual basis nor a legal theory to support its argument that the debtor deserves compensation as a former gratis tenant.
B.
Similarly, there is no evidence that JCMC, by virtue of the state’s rate-setting procedures, had recouped its pre-petition costs in full. We cannot label clearly erroneous the bankruptcy judge’s factual finding that JCMC’s modified plan distributes all funds available as a result of JCMC’s 1982 rate adjustment. The record directly belies Finch’s assertion that “thirteen million dollars has been awarded [JCMC] to cover its 1982 costs.”
Concededly, JCMC’s disclosure statement reported that funds available to creditors pursuant to the plan represented a portion of a $13,000,000 rate adjustment authorized by the State Department of Health. As JCMC Executive Director Harvey Holzberg and Chief Financial Officer Ronald DiVito testified, however, JCMC historically collected only about 65% to 75% of its billings, due to its substantial number of indigent patients. Thus, JCMC’s accounts receivable always exceeded actual receipts by 25% to 35%.
The following exchange between counsel for Finch and the bankruptcy judge emphasizes that the debtor had collected far less than $13,000,000:
MR. GELMAN: And, I think I am trying to show, in my own humble way, that in point of fact the Medical Center which claims its bankruptcy was precipitated by the failure of the State to fund its operations fully in 1982, has collected some thirteen million dollars on account of the — wait a minute, Judge. On account of the 1982 deficiency.
# * * * * *
THE COURT: If you are going to tell me that’s the testimony of either of the two witnesses before me, I’m going to tell you if that is what you are relying on, you haven’t even come close, because maybe I am ignorant both of accounting and of Chapter 9, but I have heard this witness.
I think I have a pretty good idea of the way the State operates, and to make a statement of collecting thirteen million dollars as having come from the cross-examination of these two witnesses is totally, Mr. Gelman, off base.
It bears no relationship to what they have said. This witness has very carefully tried to differentiate his testimony in response to your questions, and I think very frankly he has done an excellent job of explaining the State system, which I happen, by reasons of some other experience of my own, have some vague understanding of.
And, there is just simply no statement before me that says that they have collected thirteen million dollars of these back charges.
Furthermore, the bankruptcy judge found “deceptive” the subsequent testimony of Finch's witness, Ronald Hibbs (a rate setting analyst with the State Department of Health), who attempted to rebut the testimony of both Holzberg and DiVito.
The record nowhere evinces that the debtor had collected revenues by means of its 1982 rate adjustment sufficient to increase payments to Finch and to the other general unsecured creditors under the modified plan.
C.
Moreover, we agree with the bankruptcy judge that JCMC acted properly in expending funds to improve its facilities and in depreciating its property for rate determination purposes. Indeed, it appears from the testimony of Finch’s own witness, Hibbs, that state regulations provide that amounts taken for depreciation expenditures should be used for capital improvements.
In sum, we hold that the bankruptcy judge correctly found that the debtor proposed its plan lawfully and in good faith and, thereby, satisfied 11 U.S.C. § 1129(a)(3).
IV.
We turn next to Finch’s argument that the debtor’s plan discriminates unfairly among the general unsecured creditors and that, therefore, confirmation of the plan was error.
A.
At the outset, nothing in the Bankruptcy Code precludes the debtor from variously classifying the unsecured claims here.
Title 11 U.S.C. § 1122 governs the classification of claims or interests in Chapter 9 plans:
(a) Except as provided in subsection (b) of this section, a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class.
(b) A plan may designate a separate class of claims consisting only of every unsecured claim that is less than or reduced to an amount that the court approves as reasonable and necessary for administrative convenience.
The express language of this statute explicitly forbids a plan from placing dissimilar claims in the same class; it does not, though, address the presence of similar claims in different classes. Although the legislative history behind § 1122 is inconclusive regarding the significance (if any) of this omission, it remains clear that Congress intended to afford bankruptcy judges broad discretion to decide the propriety of plans in light of the facts of each case. Cf. In re U.S. Truck Co., Inc., 800 F.2d 581, 584-86 (6th Cir.1986) (discussing the legislative history of § 1122).
Accordingly, we agree with the general view which permits the grouping of similar claims in different classes. See In re U.S. Truck Co., Inc., 800 F.2d at 587; Matter of LeBlanc, 622 F.2d 872, 879, reh’g denied, 627 F.2d 239 (5th Cir.1980); Barnes v. Whelan, 689 F.2d 193, 200-01 (D.C.Cir.1982). See also In re AOV Industries, Inc., 792 F.2d 1140, 1150 (D.C.Cir.1986) (requiring an objecting creditor to show not only that similar claimants appear in different classes, but also that those in its class have disparate claims); 5 Collier on Bankruptcy ¶ 1122.03[l][b] at 1122-7 (15th Ed.1986) (noting that § 1122 “does not require that all claims that are substantially similar be placed in the same class”).
In addition, however, the authorities recognize that the classification of the claims or interests must be reasonable. As the Court of Appeals for the Sixth Circuit has observed:
[Tjhere must be some limit on a debtor’s power to classify creditors in such a manner [to assure that at least one class of impaired creditors will vote for the plan and make it eligible for cram down consideration by the court]. The potential for abuse would be significant otherwise. Unless there is some requirement of keeping similar claims together, nothing would stand in the way of a debtor seeking out a few impaired creditors (or even one such creditor) who will vote for the plan and placing them in their own class. [Footnote omitted.]
In re U.S. Truck Co., Inc., 800 F.2d at 586. The court in Matter of LeBlanc likewise found that a plan should not “arbitrarily” designate classes. 622 F.2d at 879. JCMC’s plan passes muster under these standards.
We immediately note the reasonableness of distinguishing the claims of physicians, medical malpractice victims, employee benefit plan participants, and trade creditors. We additionally recall that JCMC’s unsecured trade creditors overwhelmingly favored the plan. This fact commends the plan’s classification scheme, at least insofar as it affects Finch. See id., citing In re Palisades-on-the-Desplaines, 89 F.2d 214 (7th Cir.1937). Further, we find nothing to show arbitrariness toward Finch as a member of “Class Five”; indeed, the general unsecured creditors’ committee points out in its brief that both “Class Five” and “Class Four” ultimately will receive 30% of their claims on the effective date of the plan.
Moreover, the separate classification of trade creditors like Finch does not alone insure judicial approval of the debtor’s plan. It still must “provide the same treatment for each claim or interest of a particular class....” 11 U.S.C. § 1123(a)(4). Yet, as the Court of Appeals for the Ninth Circuit has noted, “[Section 1123(a)(4) ] only requires equality of treatment of ‘claims’ or ‘interests’ placed in the same class.” In re Acequia, Inc., 787 F.2d 1352, 1363 (9th Cir.1986). See 5 Collier on Bankruptcy ¶ 1123.01[4] at 1123-8-1123-9. JCMC’s plan satisfies that requirement.
B.
Finally, Finch insists that JCMC’s plan fails to satisfy the “cram down” provisions of 11 U.S.C. § 1129(b)(1). That section comes into play only “if all of the applicable requirements of subsection (a) of this section other than paragraph (8) are met with respect to a plan....” 11 U.S.C. § 1129(b)(1) (emphasis added). Section 1129(a)(8) provides:
(a) The court shall confirm a plan only if all of the following requirements are met:
(8) With respect to each class of claims or interests—
(A) such class has accepted the plan; or
(B) such class is not impaired under the plan.
Here, since “Class Five” (to which Finch belongs) has accepted JCMC’s plan, see supra note 4, § 1129(b)(1) affords Finch no protection. We, therefore, need not address whether the plan satisfies the “cram down” provision.
V.
The bankruptcy judge properly concluded that the debtor proposed its plan lawfully and in good faith. The plan, as well, permissibly classified the claims of JCMC’s various unsecured creditors. The judgment of the district court affirming the bankruptcy judge’s order confirming the debtor’s modified plan for the adjustment of its debts will, accordingly, be affirmed.
. The modified plan defines “surplus fund” as "the difference between $4,619,200[,] the Debt- or’s estimate of priority claims, exclusive of administration fees and expenses, and the total amount of priority claims allowed herein exclusive of administration fees and expenses, together with 30% of the difference between $7,820,-125, the Debtor’s estimate of Class Four and Five claims and the total amount of Class Four and Five claims allowed herein."
. The original plan defined “excess 1984 gross revenues” as "the amount, if any, by which unrestricted cash received by and credited to the Debtor in calendar year 1984 exceeded the sum of $64,336,000.00." The modified plan fixed that amount at $120,000.
. 11 U.S.C. § 1126(c) provides:
A class of claims has accepted a plan if such plan has been accepted by creditors ... that hold at least two-thirds in amount and more than one-half in number of the allowed claims of such class held by creditors ... that have accepted or rejected such plan.
. "Class Three" cast one vote for and twenty-five against the plan; the ballots stated claims in the amount of $32,400,000. "Class Five" voted 251 to 10 in favor of the plan. The ten dissenting claimants held claims totaling just $462,874 out of an aggregate $4,970,000.
The “Class Four" ballots showed that 274 of 344 claimants opted to accept the plan, but that their claims represented only $445,934 or approximately 54 percent of the $820,888 owing to "Class Four." However, one dissenting class member asserted a claim exceeding $100,000 for vacation and holiday pay which had accrued 180 days prior to the debtor’s bankruptcy petition. This ballot seemed patently erroneous. The bankruptcy judge, nonetheless, assumed that "Class Four” had rejected the plan. Although the debtor reserved the right to defer consideration of the plan and to poll "Class Four" again, no party on appeal has contested the bankruptcy judge’s actions on this issue. Thus, we assume without deciding that “Class Four" rejected the plan.
. 11 U.S.C. § 901(a) makes various sections of the Bankruptcy Code at large applicable to the adjustment of the debts of a municipality pursuant to Chapter 9. Section 901(a) provides:
Sections 301, 344, 347(b), 349, 350(b), 361, 362, 364(c), 364(d), 364(e), 364(f), 365, 366, 501, 502, 503, 504, 506, 507(a)(1), 509, 510, 524(a)(1), 524(a)(2), 544, 545, 546, 547, 548, 549(a), 549(c), 549(d), 550, 551, 552, 553, 557, 1102, 1103, 1109, 1111(b), 1122, 1123(a)(1), 1123(a)(2), 1123(a)(3), 1123(a)(4), 1123(a)(5), 1123(b), 1124, 1125, 1126(a), 1126(b), 1126(c), 1126(e), 1126(f), 1126(g), 1127(d), 1128, 1129(a)(2), 1129(a)(3), 1129(a)(8), U29(a)(10), 1129(b)(1), 1129(b)(2)(A), 1129(b)(2)(B), 1142(b), 1143, 1144, and 1145 of this title apply in a case under this chapter.
. In its brief, Finch also complained that the plan does not take into account the averred liability of the City of Jersey City for JCMC’s debts. At oral argument, however, Finch conceded that issue.
When Finch filed its notice of appeal to our court, the New Jersey Supreme Court had yet to act upon Finch’s petition for certification in its action to determine the liability of the City of Jersey City for JCMC’s debts. (The state Supreme Court subsequently denied the petition.) Thus, Finch apparently believed that the decision of the appellate division lacked finality, at least so long as the petition for certification remained pending.
We emphasize, however, that 28 U.S.C. § 1738 requires federal courts to afford state court judgments the same preclusive effect which would exist in the rendering state. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). See Migra v. Warren City Dist. Bd. of Educ., 465 U.S. 75, 80-81, 104 S.Ct. 892, 895-96, 79 L.Ed.2d 56 (1984). New Jersey law recognizes a judgment as "final” for res judicata purposes, even though it is pending on appeal. See, e.g., Gregory Marketing Corp. v. Wakefern Food Corp., 207 N.J.Super. 607, 504 A.2d 828, 836 (1985).
Since the New Jersey Supreme Court has now denied the petition for certification, there is no question that the judgment is now final for res judicata purposes as Finch concedes.
. Although "Class Three” similarly will obtain 30% of its claims, additional sums apparently will pass through "Class Two" to “Class Three.” We, therefore, refrain from comparing "Class Three" to Classes Four and Five.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer: |
songer_appnatpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William L. COMER Family Equity Pure Trust; Myra L. Comer, Trustee; William L. Comer & Myra, T.R.Y.E.-A. Trust; William L. Comer, Trustee, American Way Trust; Myra L. Comer, Trustee, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 86-1738.
United States Court of Appeals, Sixth Circuit.
Submitted Sept. 17, 1987.
Decided Sept. 9, 1988.
William L. Comer, Myra L. Comer, Clare, Mich., pro se.
Jean Owens, Acting Counsel, IRS, William F. Nelson, Chief Counsel, I.R.S., Michael L. Paup (Lead Counsel), Roger M. Olsen, Tax Div., Dept, of Justice, Washington, D.C., Robert S. Pomerance, for respondent-appellee.
Before ENGEL, Chief Judge , RYAN, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.
The Honorable Albert J. Engel assumed the duties of Chief Judge effective April 1, 1988.
RYAN, Circuit Judge.
After successfully resisting the government’s efforts to assess deficiency penalties against them, petitioners sought reasonable litigation costs pursuant to 26 U.S. C. § 7430. The Tax Court denied the petitioners’ motions as untimely or, alternatively, for lack of evidence that the respondent acted unreasonably after the petitions were filed. Petitioners appeal. On review we find that the motions were timely. We also conclude that the government’s pre-litigation and in-litigation conduct must be evaluated to determine whether the position of the United States was unreasonable for the purposes of an award pursuant to § 7430. Therefore, we reverse the Tax Court’s order dismissing the petitioners’ motions for litigation costs, and remand for consideration of whether the government’s pre-litigation position was unreasonable.
I.
Petitioners Myra and William Comer are husband and wife. Mr. Comer established three trusts of which he and Mrs. Comer are trustees. In January 1983, Mr. Comer was notified that the trusts were to be audited for the 1981 tax year. The affidavit supported allegations detailing the subsequent conduct of the IRS agents are troublesome, to say the least. One example of the contrived theories concocted by the respondent’s agents in their attempt to win deficiency assessments against the petitioners is the Commissioner’s claim, in the deficiency assessment against the Comers, that the trusts are shams and their income taxable to the Comers. In contrast, in the deficiency assessments against the trusts, the Commissioner claimed the trusts are valid entities taxable in their own right.
The petitioners received four notices of deficiency totaling about $18,000 and assessing interests and costs. One notice was for the Comers’ joint return and the other three notices were directed to the three trusts: the Comer Family Equity Pure Trust; the American Way Trust; and the T.R.Y.E-A. Trust. Upon receiving these notices, Mr. Comer requested a meeting with an appeals officer. He received no response. Thereafter, in June of 1985, he filed four petitions in the Tax Court.
The petitions were docketed for trial on May 12,1986. A pretrial stipulation settlement conference was held for two and one-half days in early April. This conference produced the parties’ stipulated agreement adopted by the Tax Court in its decisions entered by May 27, 1986. The agreement declared that the petitioners were not liable for any deficiencies, penalties, or interest with respect to the 1981 tax year. Although the petitioners’ original petitions sought litigation costs, the stipulated agreement was silent on this matter and does not indicate whether the silence was intended or due to oversight.
On May 30, 1986, petitioners filed motions for litigation costs pursuant to 26 U.S.C. § 7430. Reasonable litigation costs are awardable in a civil tax proceeding brought against the United States in the Tax Court if the taxpayer has “substantially prevailed with respect to the amount in controversy,” § 7430(c)(2)(A)(ii)(I) and “establishes that the position of the United States in the civil proceeding was unreasonable.” § 7430(c)(2)(A)(i) (1982). The Tax Court denied the motions on June 19, 1986, on two grounds. First, the motions were “untimely” because they had not been filed prior to the Tax Court’s decisions, and second, there was no evidence of unreasonable behavior by the government after the filing of the petitions, that is, when the controversy became a lawsuit. Subsequently, petitioners filed a motion to vacate the Tax Court’s May decisions in the four petitions solely to enable the petitioners to file timely motions for costs. The motions to vacate were denied on July 2, 1986. Because the petitions raised similar issues they were consolidated.
II.
First, we address the Tax Court’s determination that petitioners’ motions for reasonable litigation costs, filed three days after the Tax Court’s decision incorporating the stipulated agreements was filed, were untimely. Although § 7430 establishes the availability of costs, it does not detail the procedural path to be taken to obtain them. The only part of § 7430 remotely relevant to this inquiry is subsection (e) which states:
(e) Right of appeal. An order granting or denying an award for reasonable litigation costs under subsection (a), in whole or in part, shall be incorporated as a part of the decision or judgment in the case and shall be subject to appeal in the same manner as the decision or judgment.
26 U.S.C. § 7430(e).
But the plain meaning of § 7430(e) does not mandate that a motion for costs be filed before the entry of a decision. The focus of subsection (e) is the appealability of an order granting or denying costs, not the time for filing a motion for costs. The subsection simply provides that if an order on costs exists when the decision is reached, it “shall be incorporated as a part of the decision” and is thus appealable. It does not mandate when the motion for such an order should be made.
Since the plain meaning of the statute’s language sheds no light as to its meaning, the Congressional intent must be gleaned from other sources. The Commissioner cites the House Report explaining that Congress
expect[ed] the courts to develop procedures or take action, by court rules or otherwise, concerning the time and manner in which taxpayers’ claims for awards of litigation costs are to be made.
H.R.Rep. No. 97-404, 97th Cong., 1st Sess. 12 (1982). As a result, the Tax Court enacted Tax Court Rules of Practice and Procedure 281.
Rule 231(a)(2) speaks to cases in which all issues other than litigation costs have been settled. Its language describes the situation in this case:
Rule 231. CLAIMS FOR LITIGATION COSTS
(a) Time and Manner of Claim:
(2) Unagreed Cases: Where a party has substantially prevailed and wishes to claim reasonable litigation costs, and there is no agreement as to that party’s entitlement to such costs, a claim shall be made by motion filed&emdash;
(i) Within 30 days after the service of a written opinion determining the issues in the case;
(ii) Within 30 days after the service of the pages of the transcript that contain findings of fact or opinion stated orally pursuant to Rule 152 (or a written summary thereof); or
(iii) After the parties have settled all issues in the case other than litigation costs. See paragraphs (b)(2) and (c) of this Rule regarding the filing of a stipulation of settlement with the motion in such cases.
Tax Court Rule of Practice and Procedure 231(a)(2). Rule 231(a)(2) provides three alternative times for filing a motion for litigation costs. If subsection (a)(2)(i) of the rule applies to this case, clearly the petitioners’ motions were timely because they were filed within thirty days of the Tax Court’s written order. But respondent argues that (i) applies to non-settled cases in which the Tax Court writes a decisional opinion and is, therefore, inapplicable to this case which the parties settled. If so, then it is clear that (iii) of the subsection applies, which provides that a motion for costs “shall be made by motion filed ... (iii) [a]fter the parties have settled all issues in the case other than litigation costs.” Respondent argues, however, that under (iii), the motion must be “made ... [a]fter the parties have settled....”, but before the Tax Court’s final decision in the case is rendered, so that the decision on the motion for costs may be “incorporated in the decision itself.”
The short answer to that contention is that (iii) states only that the motion must be made after the settlement is reached. It imposes no limitation relative to the time the settlement agreement is memoralized in a Tax Court order.
The respondent cites Sanders v. Commissioner, 813 F.2d 859 (7th Cir.1987), in support of his view. We do not believe, however, that this case is controlled by Sanders. There, the taxpayer’s deficiency action was dismissed pursuant to the taxpayer’s own motion to dismiss for lack of jurisdiction, due to the lack of a valid deficiency notice. Id. at 861. Thereafter, the taxpayer filed a motion for costs under § 7430. The Seventh Circuit held that once the deficiency action was dismissed, the Tax Court had no jurisdiction to hear the petition for costs. Id. at 862 (citing Fuller v. Commissioner, 51 T.C.M. 336 (1986)). However, the Tax Court subsequently overruled the Fuller decision in Weiss v. Commissioner, 88 T.C. 1036, 1039 (1987). Thereafter, the Weiss decision, allowing a motion for costs pursuant to § 7430 to be filed within thirty days of the dismissal of the case due to lack of jurisdiction, was upheld by the Ninth Circuit in Sponza v. Commissioner, 844 F.2d 689, 690 (9th Cir.1988).
The Seventh Circuit was convinced that “in enacting § 7430, Congress did not provide a time limit that would allow litigants to file for fees after a final disposition of a tax case.” Sanders, 813 F.2d at 862. The court arrived at this conclusion after observing that the “Equal Access to Justice Act, on which Congress expressly relied on in enacting § 7430,” explicitly provides that a party may file for fees within thirty days after the final disposition of the case. Id. However, in his concurring opinion, Judge Reynolds noted that:
The suggestion in this case that the taxpayer’s motion for fees and costs could have been saved had he submitted the request simultaneously with his motion to dismiss for lack of jurisdiction might make sense as a matter of convenience, but it is certainly not required by either the statute or as a matter of logic.
Id. at 863 (Reynolds, J., concurring).
We are unwilling to infer from Congress’ silence the intent to preclude motions for costs being filed after a final decision. Moreover, Tax Court Rule of Practice and Procedure 231 provides simply that a motion for costs shall be filed “[ajfter the parties have settled all the issues in the case.” We note also that the Tax Court has decided at least one case contrary to the position the government is espousing. In Minahan v. Commissioner, 88 T.C. 516 (1987), a petitioner was permitted to file a motion for costs after the entry of a stipulated decision incorporating the parties’ stipulated agreement. Id. at 517. This was apparently so routine that it received no discussion and was merely reported in the facts of the case.
Pursuant to these stipulated decisions, the parties agreed that no deficiencies in Federal gift tax are due from, or over-payments due to, petitioners_ Petitioners thereafter moved this Court to award litigation costs pursuant to section 7430 and Rule 231.
Id.
In sum, we see no language in § 7430(e) or in Rule 231(a)(2)(iii) requiring motions for costs pursuant to § 7430 to be filed prior to the filing of the Tax Court’s decision. Therefore, because petitioners’ motions were filed within the limitations described by Rule 231(a)(2)(i), we believe the Tax Court incorrectly dismissed the motions as untimely. Therefore, we must address the Tax Court’s alternative ground for dismissal.
III.
The Tax Court declared that even if the petition had been timely, the petitioners were not entitled to an award of reasonable litigation costs because there was “no evidence the respondent acted unreasonably after the petitions were filed.” (Emphasis added.) This finding was consistent with the Tax Court’s position, announced in Baker v. Commissioner, 83 T.C. 822 (1984), that § 7430 permits the court to consider only the government’s conduct during litigation in determining the reasonableness of the “position of the United States in the civil proceeding.” The petitioners, however, contend that the inquiry should extend to the government’s conduct which compelled them to file their petition in the Tax Court.
This issue of statutory construction is one of first impression in this circuit, and it is one which has split other circuits. The District of Columbia, Eighth, Tenth, and Eleventh Circuits have held that only the government’s in-court litigation position is relevant. Wickert v. Commissioner, 842 F.2d 1005 (8th Cir.1988); Ewing and Thomas, P.A. v. Heye, 803 F.2d 613 (11th Cir.1986); Baker v. Commissioner, 787 F.2d 637 (D.C.Cir.1986), aff’g, 83 T.C. 822 (1984); United States v. Balanced Fin. Management, Inc., 769 F.2d 1440 (10th Cir.1985). However, the First, Fifth, and Ninth Circuits permit the inquiry to extend to the government’s pre-litigation conduct. Sliwa v. Commissioner, 839 F.2d 602 (9th Cir.1988); Powell v. Commissioner, 791 F.2d 385 (5th Cir.1986); Kaufman v. Egger, 758 F.2d 1 (1st Cir.1985). Because we find the latter view more attuned to the remedial and deterrent purposes of § 7430, we adopt it for this circuit. The Ninth Circuit has aptly summarized the First and Fifth Circuits’ interpretation of § 7430.
In Kaufman v. Egger, 758 F.2d 1 (1st Cir.1985), the First Circuit cited the legislative history of section 7430 in support of its broad reading of the statute. Noting that the intent of Congress in passing section 7430 was to “deter abusive actions and overreaching by the Internal Revenue Service and ... enable individual taxpayers to vindicate their rights regardless of their economic circumstances,” H.R.Rep. 97-404, 97th Cong., 2d Sess. 13 (1982), the Kaufman court determined that it would
frustrate the purpose of Section 7430 if [the court] were to interpret it in such a way that the IRS, after causing a taxpayer all kinds of bureaucratic grief at the administrative level, could escape attorney’s fee liability by merely changing its tune after the initiation of a suit by the taxpayer.
Kaufman, 758 F.2d at 4. The court therefore found that Congress intended the liability of the IRS to be triggered by unreasonable IRS conduct regardless of at which stage in the proceedings such conduct occurred, and that pre-litigation conduct could be relevant in determining liability. Id.
The Fifth Circuit reached the same conclusion in Powell v. Commissioner by analogy to the Equal Access to Justice Act (EAJA) and the legislative history of its amendments, noting the similarity of the intent behind and purposes of the two statutes. See generally, Powell, 791 F.2d 385 (5th Cir.1986). Like the Kaufman court, the court in Powell noted that the intent of the statute might be frustrated were the court not to examine conduct by the government in administrative proceedings before the onset of the litigation in its consideration of the reasonableness of the government’s position. (“If a taxpayer is forced to resort to litigation by an unreasonable IRS administrative position, § 7430 does not require the captious position to be ignored. The taxpayer must be the plaintiff in Tax Court proceedings. If the IRS takes an arbitrary position and forces a taxpayer to file a suit, then, after the papers have been filed, becomes sweet reason, the taxpayer should be permitted to recover the cost of suing”) 791 F.2d at 391.
Sliwa, 829 F.2d at 606. Thereafter, the Ninth Circuit reviewed the deterrent and remedial purposes of § 7430 and adopted the broader reading of “position of the United States in a civil proceeding.” Id. at 607. We too are convinced that the relevant inquiry extends to the reasonableness of the behavior which forced the taxpayer to incur the expenses related to the filing of a petition. Because the Tax Court did not make that inquiry, we remand this issue for determination.
IV.
Accordingly, we REVERSE the United States Tax Court’s order of dismissal and REMAND for a determination regarding the reasonableness of the government’s pre-litigation position and for further proceedings consistent with this opinion.
. This interpretation is consistent with the current version of § 7430, in particular § 7430(c) as amended by the Tax Reform Act of 1986. That subsection provides that, in civil actions commenced after December 31, 1985, ‘“position of the United States’ includes — (A) the position taken by the United States in the civil proceeding, and (B) any administrative action or inaction by the District Counsel of the Internal Revenue Service (and all subsequent administrative action or inaction) upon which such proceeding is based.” 20 U.S.C. § 7430(c)(4) (1988 Supp.). However, this definition is not dispositive of cases, such as this one, which were filed prior to December 31, 1985.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_r_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.
Esther KOSBERG, Administratrix, Estate of Roberta Ann Clark, Appellant, v. WASHINGTON HOSPITAL CENTER, INC., et al., Appellees.
No. 20792.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 15, 1968.
Decided April 18, 1968.
Mr. Philip Shinberg, Washington, D.C., for appellant.
Mr. John L. Laskey, Washington, D.C., for appellee, Washington Hospital Center.
Mr. Gerald W. Farquhar, Washington, D.C., for appellee, Klein.
Mr. J. Joseph Barse, Washington, D.C., for appellee, Rudnai.
Before Bazelon, Chief Judge, and Burger and Leventhal, Circuit Judges.
PER CURIAM:
This is a wrongful death, malpractice action. Decedent was a newly married, 22-year-old girl whose medical problems began with symptoms suggestive of pregnancy. She was successively treated by a series of three doctors: a general practitioner, a psychiatrist, and an internist. The general practitioner, a defendant here, treated decedent for “morning sickness” and malnutrition and, when she did not improve significantly, referred her to the psychiatrist for treatment of a suspected emotional problem. The psychiatrist, also a defendant here, hospitalized decedent in defendant hospital and gave her electroshock therapy preceded and followed by administration of the drug thorazine. Decedent’s condition thereupon became critical, and Dr. Schulman, the internist, was called in. He ordered various drugs for decedent, but she failed to respond and died two days after receiving the electroshock therapy.
Dr. Schulman was plaintiff’s expert witness, and his opinion as to the cause of death differed in certain respects from the inferences arising during his cross-examination and from the testimony of Dr. Edmonds, the head of the hospital’s autopsy service. At the close of plaintiff’s case the trial judge directed verdicts for all three defendants. We affirm as to the hospital and the general practitioner but reverse as to the psychiatrist.
A prima facie ease of medical malpractice must normally consist of evidence which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of. Plaintiff’s case against the hospital is deficient on all three of these particulars, while her case against the general practitioner is devoid of evidence on the third essential — assuming, without deciding, that the first two factors were present.
Evidence of a standard of care and its violation was also lacking in the case against the psychiatrist. But plaintiff was prevented from supplying these essentials when the trial judge ruled that Dr. Schulman was not qualified to testify concerning electroshock therapy. We think this was error. The fact that an internist is not a specialist in psychiatry or neurology does not preclude him from testifying about the physical effects of electroshock therapy and the ability of a person in decedent’s condition to withstand this treatment. See Baer-man v. Reisinger, 124 U.S.App.D.C. 180, 363 F.2d 309 (1966). Such testimony, if believed by the jury, might have established both the standard of care and its violation.
Moreover, on the third essential of plaintiff’s case against the psychiatrist — evidence of causation — we think there was sufficient proof in the present state of the record to go to the jury. Dr. Schulman testified that in his expert opinion the cause of death was the consecutive administration of thora-zine (a tranquilizer) and electroshock therapy to someone in decedent’s weak condition. Dr. Edmonds, who directed the autopsy, testified — in answer to questions by the judge — that in his view thorazine and electroshock standing alone would not have caused death, but that death was caused when this treatment was followed by administration of another drug, levophed, a combination that resulted in infarction of deceased’s bowels. Dr. Schulman contested that the levophed, which he himself had prescribed, contributed to death. Thus, there was a conflict in the testimony as to the cause of death. But conflicts in the testimony of witnesses, including expert witnesses, called by a party are not necessarily fatal to his case. The jury may assign a preference to one item of testimony over the other — a preference that may be based on differences in the hypothetical facts assumed by each expert and, in the last analysis, on depth and lucidity of expression.
Affirmed in part; reversed in part and remanded for a new trial.
. Rodgers v. Lawson, 83 U.S.App.D.C. 281, 282, 170 F.2d 157, 158 (1948) (doctor); Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 239, 204 F.2d 721, 725, 37 A.L.R.2d 1270 (1953) (hospital).
. Agency principles are of no help to plaintiff in establishing liability, since there is no suggestion in the record that any of the doctors involved was an agent of either the hospital or another of the doctors.
. Later Dr. Schulman attributed the cause of death to electrolyte imbalance, depression, and phenothiazine reaction. Appel-lees have failed to demonstrate that this testimony on causation was so inconsistent with the earlier testimony of Dr. Schulman as to render the whole testimony inconclusive and require removal of the case from the jury. Compare Quick v. Thurston, 110 U.S.App.D.C. 169, 290 F.2d 360, 88 A.L.R.2d 299 (1961) (en banc).
. It is by no means clear that Dr. Edmonds was invited to take into consideration what Dr. Schulman’s testimony assumed, namely, the already extreme condition of decedent at the time Dr. Schulman came on the case and prescribed levophed.
. See Diggs v. Lail, 201 Va. 871, 114 S.E.2d 743 (1960). Compare Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104 (1927). See generally Annot., 53 A.L.R.2d 1229 (1957).
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_fedlaw | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
R. Wayne JOHNSON, Petitioner-Appellant, v. O.L. McCOTTER, Director of Texas Department of Corrections, Respondent-Appellee.
No. 86-1219.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Oct. 31, 1986.
R. Wayne Johnson, pro se.
David B. Fannin, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before RUBIN, RANDALL and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
In 1978 Ronald Wayne Johnson was convicted of aggravated rape by a jury in Texas and was sentenced to serve ninety-nine years. On direct appeal, the Texas Court of Criminal Appeals affirmed his conviction.
In 1984 Johnson filed a pro se § 2254 petition alleging that (1) the evidence was insufficient to support his conviction; (2) the state court jury charge was fundamentally defective; (3) his court-appointed trial counsel was ineffective; and (4) his fourth amendment right to be free from unlawful search and seizure was violated. Johnson alleged his trial counsel was ineffective because he (1) failed to object to the allegedly defective jury charge; (2) failed to appeal the denial of his motion to suppress; (3) failed to argue on appeal that the evidence of his prior conviction was insufficient; and (4) failed to challenge the array of the jury. The district court denied Johnson’s petition.
In February 1985 Johnson filed the present pro se § 2254 petition alleging that his state court trial counsel was ineffective and that he was denied his constitutional right to represent himself at his state court trial. Specifically, Johnson claimed his counsel was ineffective because he (1) failed to conduct a proper pretrial investigation so as to present an insanity defense; (2) failed to file a motion for rehearing; (3) failed to present several witnesses; (4) failed to request a jury charge requiring the jury to disregard illegally obtained evidence; and (5) failed to request a jury charge that Johnson had a right to remain silent during the punishment phase of his trial. In his petition Johnson stated he did not present these grounds for his ineffective-assistance claim in his prior petition because he did not discover their legal significance until he performed legal research on September 1, 1984. Johnson also alleged he did not present his self-representation claim in his prior petition because he did not discover the legal basis for the claim until October 13, 1984, while in the Ector County Jail.
The state filed a motion to dismiss alleging that Johnson’s petition was an abuse of the writ. The state also filed an answer addressing the substantive merits of Johnson’s petition. Johnson filed responses in opposition to the state’s motion to dismiss and answer. After an evidentiary hearing was held on the substantive merits of Johnson’s petition, the district court dismissed Johnson’s petition. Johnson filed a timely notice of appeal.
I
Rule 9(b) of the Rules Governing § 2254 Cases, 28 U.S.C. foil. § 2254, provides:
Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
“The purpose of [Rule 9(b)] is to avoid piecemeal litigation, with petitioners advancing claims one at a time.” Hamilton v. McCotter, 772 F.2d 171, 176 (5th Cir. 1985) (quoting Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984)). A habeas petitioner abuses the writ by failing to raise his present claim in a previous habeas petition without legal excuse. Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir. 1985); Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984).
Abuse of the writ may be raised by the state or the district court sua sponte. Daniels, 763 F.2d at 707. Where, as here, the state raises the issue of writ abuse, it must recite petitioner’s writ history, specify new claims alleging writ abuse, and allege that it is not aware of any new facts or changes in the law that justify a new petition. Urdy v. McCotter, 773 F.2d 652, 655 (5th Cir.1985); Jones, 722 F.2d at 164. The burden then shifts to the petitioner to prove by a preponderance of the evidence that he has not abused the writ. Urdy, 773 F.2d at 655-6; Daniels, 763 F.2d at 707.
Although the state met its burden, the district court neglected to give Johnson notice that the court was considering dismissal of his petition as an abuse of the writ. In Urdy, this court held that a “petitioner must be given specific notice that the court is considering dismissal and given at least 10 days in which to explain the failure to raise the new grounds in a prior petition.” 773 F.2d at 656. The court should notify the petitioner (1) that dismissal is being considered; (2) that his petition will be dismissed automatically if he fails to respond; and (3) that his response should present facts rather than opinions or conclusions. Id.
Johnson was not provided with a Rule 9(b) form nor was he provided with other notice that satisfied these requirements. Although the state’s motion to dismiss put Johnson on notice that it considered his petition as an abuse of the writ, Johnson was not forewarned that his petition would be summarily dismissed if he failed to respond or that he should present facts, not legal argument. This court has strictly construed the notice requirement. See Urdy, 773 F.2d at 656-67; see also Soileau v. Blackburn, 789 F.2d 1209, 1210 (5th Cir.1986) (Rule 9(a)). Nonetheless, the district court’s failure to provide Johnson with notice was harmless, for the following reasons.
Despite the absence of notice, Johnson filed a response in opposition to the state’s Rule 9(b) motion. According to Johnson, he did not know he had a constitutional right to represent himself until he was in the Ector County Jail in October 1984. Johnson did not explain why he did not raise the present grounds for his ineffective-assistance claim in his prior petition.
II
“A claim of ineffective assistance of counsel, once raised, litigated and rejected at an earlier habeas proceeding cannot be raised in a later proceeding merely by varying the factors allegedly demonstrating incompetency.” McDonald v. Estelle, 590 F.2d 153, 155 (5th Cir.1979); Cunningham v. Estelle, 536 F.2d 82 (5th Cir.1976). Having claimed his trial counsel was ineffective in a prior petition, Johnson’s present ineffectiveness-claim was barred by Rule 9(b) even though he alleged additional grounds of ineffective assistance. Although the district court erred by not giving Johnson notice, this error was harmless since there were no facts that Johnson could have alleged to prevent his ineffective-assistance claim from being dismissed under Rule 9(b). Nor did we create a conflict with McDonald in our recent decision in Passman v. Blackburn, 797 F.2d 1335 (5th Cir. 1986) where we explained that “the only issue before us regarding the abuse of the writ doctrine is the standard for determining a petitioner’s knowledge of legal claims.” Id. at 1344 n. 11. (Emphasis supplied.) Judge Randall’s careful opinion in Passman did not address Johnson’s variation on a theme contention. He admittedly knew of his claim. Passman does not allow the reassertion of claims for the sole reason that petitioner has now thought of another argument in support of the same claim.
Ill
The district court also summarily dismissed Johnson’s self-representation claim. Johnson contends that this dismissal is error, as his constitutional right to self-representation was violated.
For the purposes of this analysis, Johnson’s allegations are taken as true. On December 27, 1977, petitioner wrote a letter to the state court judge in which he stated:
I’m requesting information concerning an attorney. Is it written in the law that I can not represent myself? You see, I would choose to represent myself, providing I had the proper equipment. Under the circumstances I don’t believe the court would assist me in my secretarial work.
By no means am I a thoroughly schooled lawyer, but I am a man who can ask simple logical questions, in my own behalf. Needless to say, a well educated lawyer isn’t needed for such questioning. Please understand, I do not need a lawyer to talk for me, or to question my witness.
It is said I will have to bare [sic] with the decision of the court and a court appointed attorney. If at any time, my attorney appears not to be representing me properly, I will have him removed from my case immediately!
Because the trial court did not respond to this letter, Johnson says he assumed that he did not have a right to represent himself.
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a constitutional right to self-representation in a state criminal case. Nonetheless, this court has held that the demand to defend pro se must be stated clearly and unequivocally. Lyles v. Estelle, 658 F.2d 1015, 1019 (5th Cir.1981); Chapman v. United States, 553 F.2d 886, 892-93 (5th Cir.1977). Moreover, “[e]ven after the defendant has unequivocally asserted the right to defend pro se, he may waive that right.” Chapman, 553 F.2d at 893 n. 12. Johnson did not unequivocally inform the trial court that he wished to defend himself.
In his letter, Johnson states that he would defend himself if he had the proper equipment but that he did not believe the court would provide him with the needed assistance. This statement is ambiguous at best. A fair reading of this statement is that Johnson did not wish to represent himself since he would not be provided with the proper equipment. This interpretation is buttressed by Johnson’s statement at the end of his letter that he would seek to have his counsel withdrawn if he became dissatisfied with counsel’s representation. The record evinces that Johnson did not clearly and unequivocally assert his desire to fore-go legal representation. See Moreno v. Estelle, 717 F.2d 171, 174-75 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984).
Alternatively, Johnson clearly waived his right to self-representation. Two days after his letter was received by the trial court, Johnson requested that counsel be appointed to represent him. His request was granted on January 6, 1978. A careful review of the state court record reveals that Johnson made no subsequent request to proceed pro se. Thus, the record shows that Johnson waived his right to self-representation. See Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir. 1982).
IV
Reversal is inappropriate if the ruling of the district court can be affirmed on alternative grounds. Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981). Although the district court erred by not giving notice of the Rule 9(b) dismissal, reversal would be inappropriate since Johnson’s petition lacked merit. See Manning v. Warden, Louisiana State Penitentiary, 786 F.2d 710, 711 (5th Cir. 1986).
AFFIRMED.
. Respondent concluded that Johnson has adequately exhausted his state remedies; the district court did not mention exhaustion in its memorandum opinion.
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_stpolicy | 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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure 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".
Alan ADAMS, Appellee, v. Roger AGNEW, et al., Appellants.
Nos. 88-7012, 88-7013.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 3, 1988.
Decided Oct. 28, 1988.
Harry F. Cole, Washington, D.C., for appellants.
Barry H. Gottfried, with whom Martin R. Leader and Andrew R. Polott, Washington, D.C., were on the brief, for appellees.
Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and POLLACK, Senior United States District Judge.
Of the United States District Court for the Southern District of New York, sitting pursuant to 28 U.S.C. § 294(d).
Opinion Per Curiam.
PER CURIAM:
Moana Kai Broadcasting Associates and Agnew-Sachs Broadcasting, both general partnerships, were competing applicants for a permit from the Federal Communications Commission (FCC or Commission) to construct an FM broadcast station in Honolulu, Hawaii. This case concerns the vitality of an agreement under which Agnew-Sachs would dismiss its permit application in exchange for payments from Moana Kai, personally guaranteed by George Kimble, one of Moana Kai’s principals. The district court, upon finding that the parties had reached an enforceable agreement, granted Moana Kai’s motion for a declaratory judgment.
We reverse. If indeed there was ever an enforceable agreement, a matter we need not and do not decide, the failure of Moana Kai promptly to demonstrate readiness to carry out its side of the bargain released Agnew-Sachs from its undertaking.
I.
The episode-in-suit opened when Moana Kai, Agnew-Sachs, and a third party, Alan Adams, filed mutually exclusive applications at the FCC for a permit to build and operate a new radio station in Honolulu. The FCC scheduled a comparative hearing for May 7, 1985. On May 6, Adams and Moana Kai agreed that Adams would dismiss his application in exchange for a 25 percent interest in Moana Kai and a payment of $15,000 by Moana Kai’s principals. Moana Kai and Agnew-Sachs, at that same time, were attempting to reach a settlement whereby Moana Kai would pay Agnew-Sachs to withdraw its application.
On May 7, the parties advised the FCC Administrative Law Judge (AU) of their negotiations and asked for additional time to complete them. The AU expressed concern, based on past experience with announced settlements that later fell apart; he therefore sought concrete assurance that the parties would reach a dispositive agreement. The next day, May 8, the parties submitted to the AU a Joint Motion to Suspend Hearing Dates (Joint Motion), reprinted in Appendix (App.) at 19-24, which set forth in some detail the terms that had been discussed and “agreed to in principle.” Id. at 1; App. at 19. According to the Joint Motion, Agnew-Sachs would dismiss its application in exchange for $35,000 in cash and a three-year promissory note for $65,000, paid in monthly allotments. The note was to be secured by “personal guarantees” of George Kimble, a Moana Kai principal, and Alan Adams. The Joint Motion also stated that the parties would proceed in good faith, and as diligently as possible, from “agreement-in-principle” to “final resolution and completion of the necessary documents.” Id. at 5; App. at 23. “[T]he final settlement agreement” and “all supporting documents” were to be submitted to the AU “within 21 days.” Id.
Based on these representations in the Joint Motion, the AU on May 13 granted the request for a twenty-one day continuance. On June 3, counsel for Agnew-Sachs, with the authorization of counsel for Moana Kai, requested a two-week extension, which expired on June 17. On June 18, counsel for Agnew-Sachs wrote to the AU, stating that the parties had reached an impasse on one aspect of the arrangement and were “presently unable to submit documents which represented a complete and mutually-agreeable settlement.” Letter from Mark A. Kirsch, Counsel for Agnew-Sachs, to AU John A. Conlin (June 18, 1985). Although the two-week extension had expired, the parties did not formally request additional time; counsel for Agnew-Sachs stated, however, that he would file a further status report with the AU on June 24. Id.
During their exchanges between May 8 and June 24, the parties wrangled over the terms of Kimble’s personal guarantee. Specifically, it appears that Agnew-Sachs wanted a firm “payment guarantee,” which would permit Agnew-Sachs to seek payment immediately from Kimble in the event of a default on the note, whereas Kimble considered “fairer” a diluted version, more in the nature of a “collection guarantee,” whereby Agnew-Sachs would first have to attempt collection on a judgment against Moana Kai before proceeding against Kimble. Thus, when Agnew-Sachs’ counsel on May 20 mailed to Kim-ble’s counsel a set of proposed documents which included a payment guarantee, Kim-ble’s counsel on June 10 sent back a set of revised documents which included a collection guarantee. On June 19, Agnew-Sachs’ attorney wrote what the parties now call the “ultimatum letter”; this communication advised Kimble and Moana Kai that Agnew-Sachs would accept only a payment guarantee. The letter, sent by overnight mail, enclosed the documents needed to fulfill the parties’ agreement and stated that there would be no further settlement discussions unless all the documents were executed and returned to Agnew-Sachs by June 21. Stipulation 49, Stipulated Facts in Adams v. Agnew, No. 85-2270 (D.D.C. Nov. 9, 1987) [available on WESTLAW, 1987 WL 20240].
Moana Kai returned executed copies of some of the documents on June 21 and June 24, but did not return an executed note or guarantee from Kimble. Because of Moana Kai’s failure to comply with the terms of the ultimatum letter, Agnew-Sachs notified Moana Kai and the AU on June 24 that a settlement of the case had not been achieved; accordingly, Agnew-Sachs reported to the AU that it was prepared to proceed with the comparative hearing. Letter from Mark A. Kirsch, Counsel for Agnew-Sachs, to AU John H. Conlin (June 24, 1985).
The comparative hearing took place on July 17, 1985, and on October 21 the AU granted Agnew-Sachs’ application and denied Moana Kai’s (Adams had withdrawn his application). The FCC Review Board affirmed the AU’s decision, Agnew-Sachs Broadcasting, 103 F.C.C.2d 899 (Rev.Bd. 1986), and the full Commission denied Moa-na Kai’s application for review. Agnew-Sachs Broadcasting, F.C.C. 86-506 (released Nov. 14, 1986).
Adams and Moana Kai then filed suit in the United States District Court for the District of Columbia alleging that Agnew-Sachs had entered into, and breached, a binding settlement agreement. The district court decided that there was a binding agreement as of May 8, 1985. The court considered it clear that the Joint Motion, corroborated by statements made before the AU, was a writing evidencing an agreement. With regard to Kimble’s guarantee, which proved to be the focus of contention after May 8, the court said that the term “personal guarantee,” as used in the Joint Motion, is a commercial term of art that unambiguously denotes a payment guarantee. Thus, the district court concluded, the parties’ subsequent dispute over the wording of the guarantee did not vitiate the agreement reached on May 8. Memorandum and Declaratory Order, Adams v. Agnew, No. 85-2270 (D.D.C. Nov. 9, 1987).
The district court, however, did not specifically advert to the question whether, assuming a May 8 agreement, Moana Kai’s failure to perform its obligation to execute conforming, formal settlement documents in a timely fashion released Agnew-Sachs from its obligation to dismiss its FCC permit application. We assume, without deciding, that there was a contract on May 8, but hold that Moana Kai’s delay and failure to return a payment guarantee by Kimble in compliance with Agnew-Sachs’ “ultima-turn letter” justified Agnew-Sachs’ refusal to negotiate further and its report back to the AU on the unsettled status of the case and its readiness “to go forward with the hearing.” See Letter from Mark A. Kirsch, Counsel for Agnew-Sachs, to AU John H. Conlin (June 24, 1985).
II.
Assuming a Moana Kai — Agnew-Sachs agreement on May 8 which included Kim-ble’s payment guarantee, the parties were obliged to submit the final documents by a certain time in order to cancel the comparative hearing. The AU several times voiced concern that he did not want to suspend the hearing date only to see the settlement fall through and the hearing placed back on track weeks later. See, e.g., App. at 14-15, 18, 29, 31. The Joint Motion itself stated that the parties would submit “the final settlement agreement” and “all supporting documents” within twenty-one days. Joint Motion at 5; App. at 23. (Both sides interpreted this to mean twenty-one days after the AU granted the Joint Motion to suspend the hearing, not twenty-one days after the filing of the Joint Motion.) Just before expiration of the suspension period, on June 3, the parties requested two weeks more to negotiate. By June 19, there still was no final agreement to present to the AU. At that point, given the prompting from the AU to submit settlement documents as undertaken in the Joint Motion or proceed with the hearing, and given that the time limit, even as extended, had expired, Agnew-Sachs had cause to demand that Moana Kai perform its contractual undertaking by returning the executed documents — including, particularly, Kimble’s payment guarantee — by June 21.
Under District of Columbia law, one party can unilaterally make performance on the date specified in the contract or some subsequent date a condition for'his own obligation, even if the contract does not specify that time is of the essence, by notifying the other party and giving that party reasonable time to perform. See Drazin v. American Oil Co., 395 A.2d 32, 35 (D.C.1978); see also 3A Corbin, Contracts § 723, at 382-84 (1960). The reasonableness of the time allowed depends on the character of the performance required and the surrounding circumstances. See Drazin, 395 A.2d at 35; 3A Corbin, supra, § 723, at 384.
In this case, the agreement embodied in the Joint Motion provided that all documents, in proper form, would be filed by June 3, a time limit then extended to June 17. Agnew-Sachs’ “ultimatum letter” on June 19 notified Moana Kai that time was of the essence, and gave Moana Kai until June 21 to execute and return documents then, for the most part, familiar to Moana Kai. Assuming that Moana Kai did not receive the documents, sent by overnight mail, until June 20, Kimble had only a brief turn around time to sign the papers and send them back by overnight mail. In light of the character of the performance required and the surrounding circumstances, however, Agnew-Sachs’ demand was not unreasonable. If, as appellees allege and the district court held, the parties had firmly agreed on May 8 to a payment guarantee, then all that was required of Kimble on June 20 was to acknowledge, at last, that that was indeed the quality of his undertaking and to act accordingly. Moreover, even if an objection to same day return might have been in order, Kimble failed to sign and mail the guarantee by June 24; four days was surely ample time to perform the modest task of signing and mailing documents, when the contents of those documents were, in the main, known weeks earlier.
Although Kimble might well have indicated his reluctance to furnish the guarantee the district court found he had promised, and, after May 8, might have sought modification of the arrangement, once Agnew-Sachs made time of the essence, Kim-ble was no longer free to resist performance. When Kimble then continued to hold back a guarantee of the quality the agreement necessitated, Agnew-Sachs was obliged to wait no longer and appellees could no longer claim entitlement to specific performance.
Although the district court did not address the issue whether Agnew-Sachs’ ultimatum letter made time of the essence and afforded Moana Kai and Kimble reasonable time, under the surrounding circumstances, for performance, we need not remand for findings on this question because our decision, as just recounted, is based on undisputed historic facts contained in the record. Cf. Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1138 & n. 11 (7th Cir.1986) (holding that, in interest of judicial economy, remand is unnecessary where issues are clear and turn on undisputed facts in record), cert. denied, — U.S. -, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988); Richmond Leasing Co. v. Capital Bank N.A., 762 F.2d 1303, 1313 (5th Cir.1985) (same); Shaw v. FBI, 749 F.2d 58, 63 (D.C.Cir.1984) (same); ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1578 (Fed.Cir.1984) (same); King v. Commissioner of Internal Revenue, 458 F.2d 245, 249 (6th Cir.1972) (same); McComb v. Utica Knitting Co., 164 F.2d 670, 674 (2d Cir.1947) (same).
Conclusion
For the reasons stated, we reverse the judgment of the district court and instruct the entry of judgment for Agnew-Sachs.
It is so ordered.
. See Transcript, May 7, 1985 Hearing Conference before Administrative Law Judge John H. Conlin, In the Matter of: Honolulu, Hawaii, FCC No. MM 84-985, reprinted in Appendix (App.) at 7-18.
. See App. at 29, 33.
.At the May 8 conference on the Joint Motion, the AU stated his understanding “that if, for some reason, the agreement doesn’t come about, we go back to [comparative] hearing in 21 days." Transcript, May 8, 1985, FCC No. MM 84-985, reprinted in App. at 29.
. See Deposition of George W. Kimble at 43 (deponent states he didn’t sign documents Agnew-Sachs sent because ”[w]e were still trying ta get a fairer personal guarantee agreement negotiated”).
. The settlement negotiations in May 1985 occurred in the District among counsel practicing here, and in the context of conferences with an FCC ALJ here. We therefore assume the application of District law, which no party has suggested should be displaced by any other regulating rule. See generally Restatement (Second) of Conflict of Laws §§ 6, 188, 194 (1971).
. We stress in this regard that Moana Kai and Kimble do not maintain that any of the documents dispatched by Agnew-Sachs on June 19, 1985 are out of accord with the parties’ agreement. Far from suggesting that another form of guarantee would be "fairer,” see supra note 4, they now agree with the district court that from the start the obligation to furnish a payment guarantee was unambiguous.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_casetyp1_1-3-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
Frank STEWART, Plaintiff-Appellant, v. Charles H. DAMERON, District Attorney ad hoc, East Baton Rouge Parish, et al., Defendants-Appellees.
No. 71-1483
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 16, 1971.
Benjamin E. Smith, New Orleans, La., for plaintiff-appellant.
Emile C. Rolfs, III, Baton Rouge, La., Durrett, Hardin, Hunter, Dameron & Fritehie, Baton Rouge, La., for Charles H. Dameron, Dist. Atty., Ad Hoc, defendant-appellee.
Cheney C. Joseph, Jr., Ralph L. Roy, Baton Rouge, La., for Sargent Pitcher.
Carlos G. Spaht, Baton Rouge, La., for John S. Covington,
Joseph F. Keogh, Baton Rouge, La., William M. Shaw, Homer, La., for Capt. Watson & Sargent Pitcher.
Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, 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.
INGRAHAM, Circuit Judge:
Plaintiff-appellant Stewart brought this action seeking injunctive relief and damages under the United States Constitution and 42 U.S.C. § 1983, against defendants-appellees, who are various law enforcement officers for the Parish and City of Baton Rouge, Louisiana. Plaintiff, a VISTA worker active in a black community in the Baton Rouge area, alleged that he was a victim of a police conspiracy to entrap him. Plaintiff sought to enjoin the defendants from further state court prosecution on a pending charge of conspiracy to commit murder.
The district court, after holding a hearing on the merits, denied the in-junctive relief sought and dismissed plaintiff’s suit, 321 F.Supp. 886. At this hearing the district court placed the burden of proof on the State to prove the good faith of its prosecution, and plaintiff Stewart was not allowed to put on any evidence concerning his allegations of bad faith prosecution and harassment. In essence, the court placed the entire burden of proof on the prosecution, a move to which both parties disagreed.
We hold that the district court erred by placing the burden of proof on the defendants. Accordingly, we vacate and remand for reconsideration in light of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed.2d 669 (1971), and for the appropriate evidentiary hearing required thereby, in which plaintiff shall be allowed to introduce evidence regarding his allegations of bad faith prosecution and harassment.
Vacated and remanded.
. The attorney for defendant Dameron told the court:
“My appreciation of the law, your Honor, is that in a matter such as this, the plain-
tiff would be required to put on any evidence that he may have with respect to improper motivation of the prosecuting attorney.”
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_treat | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
William Reece JOHNSTON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 622-69.
United States Court of Appeals, Tenth Circuit.
April 17, 1970.
William L. Panagulis for plaintiff-appellant.
Richard Oxandale, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for defendant-appellee.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.
Appellant Johnston was convicted in 1957 of bank robbery and the conviction was affirmed. Johnston v. United States, 10 Cir., 260 F.2d 345, cert. denied 360 U.S. 935, 80 S.Ct. 1454, 4 L.Ed.2d 1547. This is his seventh application for post-conviction relief.
The first was in 1960 on the ground that the trial judge was improperly assigned to the District of Kansas. It was denied and no appeal taken.
The second was in 1960 and alleged mental incompetency because of administration of drugs. After an evidentiary hearing, relief was denied and we affirmed. Johnston v. United States, 10 Cir., 292 F.2d 51, cert. denied 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100.
The third was in 1961 and was based on denial of the right of allocution. After a hearing, relief was denied and we again affirmed. Johnston v. United States, 10 Cir., 303 F.2d 343.
The fourth was in 1963 and claimed trial errors. It was denied without hearing and we affirmed. Johnston v. United States, 10 Cir., 331 F.2d 997.
The fifth was in 1965 and was based on the legality; a search of an automobile. An evidentiary hearing was held and relief denied. On appeal, we affirmed in an unreported decision based on Gaitan v. United States, 10 Cir., 317 F.2d 494. Certiorari was denied, Johnston v. United States, 384 U.S. 920, 86 S.Ct. 1371, 16 L.Ed.2d 441.
The sixth was in 1966 and complained of illegal surveillance of conversations between applicant and his attorney. The district court held an evidentiary hearing and denied relief. No appeal was taken.
The seventh, and pending, application for relief under 28 U.S.C. § 2255, was filed in 1969, and raises the question of the car search which was disposed of by the fifth application.
We again call to the attention of the district judges the decision in Sanders v. United States, 373 U.S. 1, 15-19, 83 S.Ct. 1068, 10 L.Ed.2d 148, which sets out the principles governing successive applications for post-conviction relief. The Court pointed out that a “judge is not required to limit his decision on the first motion to the grounds narrowly alleged” and “is free to adopt any appropriate means for inquiry into the legality of the prisoner’s detention in order to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief.” Ibid at 22, 83 S. Ct. at 1081. One method of meeting the problem is described in the article “PreTrial Suggestions” by Judge James M. Carter in 32 F.R.D. 391.
Counsel for the applicant says that the present application is made in changed circumstances because of the 1969 decision in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227, which holds that a claim of an unconstitutional search and seizure is cognizable in a § 2255 proceeding. That principle is not new in this circuit. We held to the same effect in our 1963 Gai-tan decision. See Kaufman, supra, at 221, n. 4, 89 S.Ct. 1068. .
The facts are not in dispute. Johnston and a companion were arrested on September 28, 1957, by a Milwaukee traffic officer who observed that the car in which they were riding was covered by a pickup order. He commandeered a private car, gave chase, and when the other car was stopped by a traffic light, he arrested the two occupants. He frisked them for weapons, observed a bag on the floor of the passenger’s side of the front seat, was joined by motorcycle officers, and forced the car’s occupants to drive to the police station about a mile and a half away. They were there searched, and substantial amounts of money were found on their persons. The traffic officer and others then went to the car and retrieved the bag which contained two loaded guns and a substantial amount of currency. There was no search warrant for the ear. There was no evidence that federal officers participated, directly or indirectly, in the arrest, the search, or the seizure or that any of those acts were for the benefit of the United States. At the trial evidence of the search was received without objection. There was testimony that the guns appeared similar to those used by the two bank robbers. A particular one-dollar bill was identified as having come from the robbed bank.
By its 1960 decisions in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, and Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, the Supreme Court overturned the silver platter doctrine, which permitted the use in federal court of evidence obtained by state officers in an unlawful search. In Gaitan, supra, we considered a § 2255 proceeding where the question was the retroactivity of Elkins. We held that the decisional change made by Elkins and Rios should not be applied retrospectively.
In the case before us, the arrest, the search, the seizure, the trial, and the decision on appeal all preceded Elkins and Rios. The 1964 decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, is not pertinent. There the arrest and the search occurred in 1961. See United States v. Sykes and Preston, 6 Cir., 305 F.2d 172, 174. The Court had no concern with the silver platter doctrine.
The important consideration is not the retroactivity of Preston but rather the retroactivity of Elkins and Rios. In Gaitan we declined to apply those decisions retroactively. We believe that bur action finds support in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601. The Court was there concerned with the retroactivity of the rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that evidence seized in violation of the Fourth Amendment could not be used in state courts. The Court held that the exclusionary rule did not apply to convictions which had become final before the Mapp decision. In the case at bar the conviction was final before Elkins and Rios were decided. The Linkletter reasoning against retroactivity applies with equal force to the instant case. We are not constrained to reexamine our Gaitan decision, and we remain convinced, as we were in 1965, that Gaitan controls and forecloses the relief requested.
Affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
songer_district | 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".
James W. PRICE, Appellant, v. FRANKLIN INVESTMENT COMPANY, INC., et al.
No. 76-1022.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 1977.
Decided Feb. 23, 1978.
Al J. Daniel, Jr., Washington, D. C., for appellant.
Charles R. Donnenfeld, Washington, D. C., with whom Cameron M. Blake, Washington, D. C., Dennis A. Davison and Bernard D. Lipton, Silver Spring, Md., were on the brief for appellee, Franklin Inv. Co., Inc.
Stanley M. Karlin, Silver Spring, Md., for appellee, Center Motors, Inc.
Before MacKINNON, ROBB and WILKEY, Circuit Judges.
Opinion for the court filed by Circuit Judge MacKINNON.
MacKINNON, Circuit Judge:
The principal question raised by this appeal is whether, on the facts of this case, a finance company that purchased a consumer installment contract from an automobile dealer shared the dealer’s liability for violations of the Truth in Lending Act, Title I of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-66 (1970 & Supp. V 1975), and the Federal Reserve Board’s Regulation Z, 12 C.F.R. §§ 226.1-.1002 (1977). The district court, in granting summary judgment in favor of the finance company, answered this question in the negative. We reverse on this issue, but affirm the order of the district court in other respects.
I.
The facts are substantially undisputed. On June 5, 1972, appellant, a District of Columbia resident, purchased a used 1971 Ford Pinto automobile from appellee Center Motors, Inc. (Center), an automobile dealer located in Maryland about a mile outside the District of Columbia. On November 5, 1973, appellant traded the Pinto in to Center on a used 1972 Ford Torino. In each case, appellant signed a “Conditional Sales Contract” filled out by Center. While Center was denominated in the contracts as the lender, the contract forms were supplied by appellee Franklin Investment Company, a financial concern whose sole office was located in the District of Columbia and the forms provided that payments were to be made not to Center but to the “assignee.” Center and Franklin enjoyed a close and long-standing relationship. Center normally did no credit investigation of its own, and admittedly did no such investigation in connection with either advance of credit to appellant. Franklin financed at least a portion of Center’s car inventory on a “floor plan” basis (App. 286-87) and purchased at a discount a substantial percentage of Center’s loan contracts. From 1970 to 1973 not less than 16% of the total conditional sale contracts purchased by Franklin were acquired from Center (App. 257). On each assignment, $25 was placed into a “reserve account” available to compensate Center for its liabilities on contracts sold with recourse or repurchase rights.
The loan contract on the Pinto was assigned to Franklin on the day of the sale. When appellant traded in the Pinto, Center initially wrote the conditional sales contract for the Torino to require payment in a lump sum on the following day, and then on November 7, 1973, substituted a rewritten contract providing for installment payment. Franklin had apparently reapprovéd appellant’s credit during the interim, and the rewritten contract was then assigned to Franklin. Franklin subsequently sent appellant a coupon book and letters referring to him as its “customer” and soliciting his further business.
Soon after the trade-in, appellant had mechanical problems with the Torino.' Repairs by Center did not cure the problems, and Center refused to make further repairs. Appellant arranged for transmission repairs by a private shop and notified appellees of this fact, but declined to pay the repair charges or make any further payments on the contract. Franklin then repossessed the car from the repair shop, paying for the transmission repairs, and notified appellant that he could redeem the car by paying an amount totaling about $644. This sum consisted principally of the amount claimed to be due on the contract, the repair charges, and storage charges. Appellant did not redeem, and Franklin gave notice that the Torino would be sold at public sale. However, the car was apparently sold privately to Center, and a deficiency of about $351 was assessed against appellant.
On November 5, 1974, appellant filed suit in the district court against Center and Franklin, charging that the “Credit Sales Disclosure Statement” dated November 5, 1973 (App. 145) prepared by Center in connection with the Torino conditional sale contract contained violations of the Truth in Lending Act and Regulation Z, and that Center and Franklin were jointly liable to' him for these violations. Appellant also asserted a number of “pendent” state-law claims, including usury, “loan sharking,” and breach of warranty, arising out of both loans. He sought damages and injunctive relief on all claims on behalf of himself and a class of persons similarly situated. Appellant later amended his complaint, however, to omit all class action claims. Franklin counterclaimed for the deficiency allegedly due on the conditional sale contract.
The parties filed cross-motions for summary judgment and partial summary judgment. After a hearing the district court held that the Torino disclosure statement had violated the Truth in Lending Act and Regulation Z in several respects. Summary judgment was entered in favor of appellant against Center and Franklin’s counterclaim was dismissed. Appellant was awarded the maximum statutory penalty of $1,000 plus costs and attorneys’ fees, but no injunctive relief was ordered. The district court entered summary judgment against the appellant on his claims against Franklin and dismissed his state law claims against both defendants for lack of jurisdiction. On May 17, 1976, appellant demanded and received Center’s payment of the $1,000.00 penalty and court costs, but the amount of the reasonable attorneys’ fees still owing remains to be determined. Appellant now challenges the district court’s grant of summary judgment in favor of Franklin and its dismissal of the state claims, as well as the court’s refusal to enjoin further violations by the appellees. Neither Center nor Franklin has appealed.
II.
As a threshold issue, both appellees argue that this appeal became moot when appellant accepted Center’s tender of part payment of the judgment against it. Alternatively, they assert that this acceptance either waived appellant’s right to challenge the judgment or estops him from doing so. It is a settled rule of law that a litigant may not accept all or a substantial part of the benefit of a judgment and subsequently challenge the unfavorable aspects of that judgment on appeal. There is, however, a “firmly established exception that when a judgment or decree adjudicates separable or divisible controversies, the appealing party may accept the benefit of the separable or divisible feature in his favor and challenge the feature adverse to him...” Luther v. United States, 225 F.2d 485, 497 (10th Cir. 1955), and cases cited therein.
In the present case, two reasons suggest that the claims against Center and Franklin are sufficiently “separable” that an appeal is not foreclosed despite appellant’s acceptance of Center’s payment. First, on appeal, since Franklin and Center occupy a different status, the statute might be construed to allow a separate statutory recovery against each defendant. Second, even if the statute is construed to allow only a single penalty, the two appellees might be held to be jointly liable. Such a determination would be relevant on remand, as the amount of the reasonable attorneys’ fees still owing will vary depending on whether or not appellant is deemed to have been successful against Franklin so as to merit an award of court costs and fees attributable to this part of its action under the Act. The Act clearly intends that the award of fees and costs is at least as important a part of a plaintiff’s potential recovery as the small statutory penalty it establishes. Thus, issues affecting the determination of - these fees have an independent significance and should be appealable under the Luther standard. Having determined on this basis that the case before us is not moot, we proceed to the merits of the appeal.
III.
As to the federal claims, the district court’s amended order contained only the conclusion that Center violated the Act and Regulation Z in several respects, and the conclusion that Center alone was liable to appellant for the violations. The court made no summary of material facts not in issue, and did not offer any explanation of his conclusions of law. The review process therefore must begin with a reconstruction of the reasoning of the district judge.
The district court held, on the facts most favorable to Center, that Center was liable for violations of the Act and Regulation Z. This holding necessarily rests on the conclusion that Center was a “creditor,” and that as such “creditor” it was required to make the required disclosures. These holdings are not challenged by any party to this appeal.
Nor is there any challenge to the specific violations found by the district court. The district court concluded that the disclosure statement violated three parts of Regulation Z: (1) 12 C.F.R. §§ 226.4(a)(3), (2) 226.6(d), and (3) 226.8(b)(4). Section 226.-4(a) provides that the amount of any finance charge shall be computed to include “(3) Loan fee, points, finder’s fee, or similar charge.” Section 226.6(d) provides that “[i]f there is more than one creditor. in a transaction, each creditor shall be clearly identified....” Section 226.8(b)(4) requires the disclosure of “[t]he amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments.”
The principal issue raised in this appeal is whether the district court properly entered summary judgment in favor of Franklin on appellant’s claims. This is a question of first impression in this jurisdiction.
A
Franklin may be held liable under the Truth in Lending Act if it can be successfully characterized as a “creditor.” Section 121(a) of the Act, 15 U.S.C. § 1631(a), provides that “[e]ach creditor” shall make the required disclosures, and section 130(a) provides that “any creditor who fails to comply with any requirement imposed under this chapter with respect to any person is liable to such person..” in the sums specified in the statute. 15 U.S.C. § 1640(a) (emphasis added). The definition of “creditor” in both the Act and Regulation Z includes those who regularly “arrange for the extension of” credit as well as those who “extend” credit. The district court clearly considered that Franklin was a “creditor.” In concluding that Center had violated section 226.6(d), which requires the disclosure of the identity of “each creditor," — “if there is more than one creditor...” (emphasis added) — the district court necessarily concluded that both Franklin and Center were “creditors” on the Torino loan. No other possible “creditors” are involved. Moreover, the court’s finding that Center had failed to disclose a “[l]oan fee, points, [or] finder’s fee,” section 226.4(a)(3), presumably was based on the $25 rebate from Franklin to Center, and further suggests that the district court concluded that Franklin was a “creditor.”
Other courts have had no difficulty in concluding that under the Act and Regulation Z, a seller who arranges credit with a lender on behalf of a customer, but who does not himself become bound on the instrument, is nevertheless a “creditor” liable for failure to make required disclosures. A number of other courts have confronted the situation like that in the present case, in which a seller of goods executes a loan contract with the customer, and then immediately assigns the contract to a finance company. Based on the nature of the transaction and the relationship between the two defendants, virtually all of these courts have concluded that the seller acted as a “conduit” for the finance company and held that both were “creditors” liable for the failure to make disclosures required by the Truth in Lending Act and Regulation Z.
In each of these cases, the relationship between the seller and the finance company-assignee very closely resembled that between Center and Franklin in the present case. For example, in Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511 (5th Cir. 1976), Clearview, an automobile dealer, frequently took a financial statement from a prospective customer and submitted it to several credit institutions with which it regularly dealt.
If any one of the lenders approves the customer’s credit, Clearview completes the sale and immediately assigns the commercial papers to an approving lender. This practice of prearranging the assignment of commercial paper is a regular and essential part of Clearview’s business and is. tantamount to arrang-
ing for the extension of credit.. Consequently, in this factual setting, both appellants are “creditors” under the Act.
539 F.2d at 515. Both the dealer and the finance company were held to be “obligated to make the disclosures mandated by the Act and Regulations,” id., and both were held jointly and severally liable for the statutory penalties for noncompliance. Similarly, in Joseph v. Norman’s Health Club, Inc., 532 F.2d 86 (8th Cir. 1976), the health club sold “lifetime memberships” on an installment plan, immediately assigning the notes, at a prearranged discount, to one of several finance companies. The companies were alerted and did a credit check almost simultaneously with the execution of the note, and refused the assignment of only about five percent of the notes executed. 532 F.2d at 91. On the basis of these facts, the Eighth Circuit reversed the district court’s entry of judgment in favor of the finance companies, and remanded for further proceedings.
In entering summary judgment in favor of Franklin on appellant’s claims, the district court did not expressly conclude that on the facts most favorable to appellant, the relationship between Center and Franklin was distinguishable as a matter of law from the relationships between the “creditors” in Meyers, Joseph, and similar eases. Franklin argues that these cases are distinguishable from the present one because there is no evidence that Franklin dictated to Center “how the [conditional sales contract] forms were to be filled out or the terms of the transaction.” Franklin Brief 14. However, we disagree with Franklin’s analysis of the law. Cases such as Meyers and Joseph did not require that the assign-ee-finance company actually participate with the assignor-seller in drafting the price terms of the loan contract. Rather, it is sufficient under these decisions if the relationship between the defendants is sufficiently close to indicate that the seller was acting as the agent or “conduit” of the assignee in arranging the loan. “Where a finance company becomes an integral part of the seller’s financing program, the financing company must bear full responsibility for all disclosure required under the Truth in Lending Act,” Joseph, 532 F.2d at 92. The closeness of the parties here is strengthened by Franklin’s floor plan financing of Center’s cars and the provision for consignment of some cars (App. 286-87).
We do not, however, go quite so far as the Eighth Circuit in Joseph. The conclusion that Franklin was a “creditor” does not in our view require that it be held liable for all deficiencies in disclosure. Most of the courts that have considered the liability of multiple creditors under the Act have found them liable without fully addressing the effect of Regulation Z, § 226.6(d). That section provides:
If there is more than one creditor or lessor in a transaction, each creditor or lessor shall be clearly identified and shall be responsible for making only those disclosures required by this Part which are within his knowledge and the purview of his relationship with the customer or lessee. [2] If two or more creditors or lessors make a joint disclosure, each creditor or lessor shall be clearly identified. [3] The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. [4] Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8 or paragraph (b) of § 226.15.
(Bracketed numbers added).
There has been a split among the Circuits as to the proper construction of this regulation. The Third Circuit, in Manning v. Princeton Consumer Discount Co., 533 F.2d 102 (3d Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976), found that a transaction in which an automobile dealer arranged a loan for a customer with a finance company was in reality a “credit sale,” and that both the dealer and the finance company were “creditors” within the meaning of the Act and the Regulation. It held, however, that the duty of each to make the required disclosures, and the liability for failure to do so, was controlled by section 226.6(d). It noted that the first sentence of that section would require “each creditor” to make “those disclosures. which are within his knowledge and the purview of his relationship with the customer,” but concluded that the more specific language of the third sentence controls whenever a “seller... arranges credit.” By its terms, the Manning court held, the third sentence limits both the duty and the liability to the seller alone.
Three other courts have reached the opposite conclusion. In Hinkle v. Rock Springs Nat’l Bank, 538 F.2d 295 (10th Cir. 1976), the Tenth Circuit held that both a seller and the lender with whom the seller arranged consumer financing were liable for the failure to make required disclosures. It cited section 226.6(d) for the proposition “that when there are several ‘creditors’ they each shall be responsible for disclosures which are within the scope of its relationship with the consumer.. and of the data they possess.” 538 F.2d at 297. The Hinkle court thus relied upon the first, sentence of section 226.6(d) in assessing liability even though a seller had arranged the extension of credit. The view of the Hinkle court was elaborated and adopted in preference to that of Manning by district courts in Williams v. Bill Watson Ford, Inc., 423 F.Supp. 345, 354-357 (E.D.La.1976) and a similar result reached in Lipscomb v. Chrysler Credit, No. C72-792 (N.D.Ohio 1973).
We concur with the analysis presented in Hinkle. We are loathe in the absence of clearly compelling language to adopt a reading that would permit a finance company to escape all liability for nondisclosures by enlisting a seller of goods to arrange for an extension of credit. We are particularly reluctant to do so here because of the closely integrated relationship of Center and Franklin. To the extent that the finance company influences the conduct of the seller, the deterrent purpose of the liability provisions of the Act is advanced by interpreting the first sentence of section 226.6(d) to control liability for failure to make required disclosures. The limitation of “responsibility]” in the first sentence to disclosure of matters “within [the creditors’] knowledge and the purview of his relationship with the customer” confines multiple creditors’ potential liability to nondisclo-sures for which they are justifiably held responsible, and is the interpretation most consistent with sections 121(a) and 130(a) and the general purposes of the Act.
The “knowledge” and “purview” tests are not defined in the Act or Regulation Z. They appear to have independent significance primarily in cases involving co-extenders with differing relationships to the customer. In a “conduit” case like the present one, these two tests overlap to a considerable degree. The matters the Williams court found not to meet these tests were minor matters collateral to the contract and solely within the control of the seller. In contrast, the matters for which the finance company was held liable in Hinkle were essential terms of the contract. At a minimum, the holding that the seller arranged the extension of credit as the “conduit” of the assignee includes the conclusion that the assignee exercised sufficient control over the central terms of the contract to be held liable for their nondisclosure. In addition, the assignee may be charged with the nondisclosure of other matters over which it is shown to have exercised some control.
In the present case, Franklin’s identity as a creditor is a sufficient basis upon which to rest liability without placing any reliance upon Franklin’s apparent rebate of $25 to Center’s reserve account. Thus, as a matter of law, on the undisputed facts, Franklin is liable to appellant for the nondisclosure of its relationship.
B
The “conduit” theory of creditor’s liability under the Truth in Lending Act as it has been described above is applicable to those assignees whose dealings with the assignor were so close that the assignor in reality acted to “arrange for the extension of credit” on behalf of the assignee. In addition, the Act provides for proceedings “against any subsequent assignee,” including bona fide assignees, whether or not the primary creditor worked in league with them in obtaining the financing contract. As one would expect, however, Section 131 of the Act, 15 U.S.C. § 1641 (1970) provides for more limited liability for subsequent assignees than that established under the conduit theory. This section states that as to an assignee without knowledge, “written acknowledgement of receipt [of a disclosure statement] shall be conclusive proof of delivery thereof and, unless the violation is apparent on the face of the statement, of compliance with this part.” (Emphasis added). The clear implication of this language is that a loan customer may obtain a recovery directly from a person who takes assignment of a loan contract accompanied by a disclosure statement containing a “violation apparent on [its] face.” Thus, Section 131 provides an alternative basis for Franklin’s liability if Franklin can be shown to have taken the loan assignment under such a manifestly inaccurate disclosure statement.
Appellant contends that various violations were “apparent on the face of the statement” accepted by Franklin. In evaluating these contentions, we must be conscious of the underlying purpose stated in both the original Act and its 1974 Amendments, “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit...” Section 102, 15 U.S.C. § 1601 (Supp. V 1975). See Mourning v. Family Publications Service, 411 U.S. 356, 364-365, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). With this purpose in mind we turn to appellant’s first contention which is that the description of the collateral and the security interest was inadequate and thus in violation of section 128(a)(10) of the Act, 15 U.S.C. § 1638(a)(10), and Section 226.8(b)(5) of the Regulation. Both the Act and the Regulation require the disclosure of “a description of any security interest. to be retained.” The disclosure statement in the present case describes the collateral only as “1972 Ford.”
In evaluating the adequacy of this description in light of the Act’s purpose of providing for meaningful disclosure for credit customers, the reference to a “1972 Ford” seems clearly sufficient. There can be no question that in the setting in which the disclosure statement was prepared and given to appellant, this description fully identified the object of the security interest. It is not the intent of the Act that the disclosure statement be as detailed in all respects as the credit contract itself; this would defeat, rather than serve, the goal of providing usable information to the customer.
The adequacy of the description of the security interest in Center’s disclosure statement is a closer question than that of the sufficiency of the description of the collateral, but on balance we conclude that it also was sufficient. The language of the Act and Regulation Z differ somewhat in their statement of how technical a description is required. Section 128(a)(10) of the Act simply requires a “description of the security interest,” while the Regulation Z, § 226.8(b)(5) requires a “description or identification of the type of security interest” (emphasis added). In the latter, both “description” and “identification” could be read as modifying “type of security interest,” thus requiring disclosure in every case of the specific legal “type” into which the security interest falls. Cf. Regulation Z § 226.2(z).
The effect of the various “types” of security interests upon a credit customer, however, differs very little, and this information would be of relatively little use to him. Requiring the identification of the “type of security interest” would, accordingly, not comport with the statutory purpose of informing the consumer of his options. Furthermore, a comparison of section 226.8(b)(5) with the section of the Act itself upon which this regulation is based suggests that “description” and “identification of the type” are alternative modifications “of [the] security interest,” and under this reading, it would be sufficient if the creditor described the security interest, even though he did not place it in a legal category. The latter reading adequately serves the purposes of the Act and by avoiding excessive technicality, may actually better inform the consumer than a legally accurate description. The recitation in the disclosure statement that the “transaction is secured by a Security Agreement of even date herewith” was sufficient to put the appellant on notice of the existence of a security agreement and to direct him to the specific agreement, which was readily available for inspection by him prior to his purchase of the automobile. This was a sufficient “description... of the security interest” to comply with both the Act and the Regulation.
Other alleged inadequacies in the disclosure statement are the failure to disclose that (1) the contract provides for the payment of attorneys’ fees of 15 percent in the event the contract is placed with an attorney for collection, (2) that the contract contains an acceleration clause, and (3) that the creditor retains the right of self-help repossession. Appellant contends that these omissions were violations which were “apparent on the face of the statement.” In this respect, however, Section 128(a)(9), 15 U.S.C. § 1638(a)(9), and Regulation Z, § 226.8(b)(4), only require the disclosure of the “default, delinquency, or similar charges payable in the event of late payments.” A number of circuit courts have recently interpreted this language to apply only to charges automatically payable in the event of late payments or default. This view has been adopted by the Federal Reserve Board itself in interpretation letters. We find this authority persuasive, and accordingly conclude that the optional remedies in question here are not required to be disclosed by the Act or Regulation Z.
It is further obvious from such reading of the statute and Regulation Z, that neither the right of self-help repossession, nor the attorneys’ fees that might be due if the creditor elects to refer the past due account to an attorney for collection are “default, delinquency or similar charges” which must be disclosed, since these provisions are not automatically invoked. Similarly, the acceleration clause in the conditional sale contract provides: “In the event of death of any Purchaser, or in case of insolvency, bankruptcy, or failure of business, all amounts due hereunder shall at the option of the Seller or assigns become immediately due and payable in full without demand or notice.” (Emphasis added). This clause, although clearly optional presents a somewhat more difficult question than those providing for self-help or collection of fees, because some courts have held that acceleration represents a “charge” if the unearned prepaid finance charge is not rebated in an amount at least equal to the rebate the purchaser would receive in the event of voluntary prepayment. See, e. g., Johnson v. McCrackin-Sturman Ford, 527 F.2d 257, 264-69 (3d Cir. 1975); Black v. G. B. Enterprises, supra, mem. op. at 10-15 and cases cited therein. The contract in the present case does not contain an express provision for the rebate of unearned finance charges in the event of acceleration, but the District of Columbia and Maryland law both require such a rebate and that is sufficient to preclude characterizing the acceleration as a “charge.” In the present case, the District of Columbia had the “most significant contacts” relationship to the contract, and thus its law would apply and require a rebate of unearned finance charges, nor would the conclusion be different if Maryland law was applied. We therefore hold that the acceleration clause did not include a “default, delinquency, or similar charge[].”
Finally, appellant argues that a variation between the disclosure statement and the conditional sale contract runs afoul of the requirements of section 128(a)(9) and Regulation Z, § 226.8(b)(4), and is “apparent on the face of the statement.” The contract provides- that the purchaser “shall pay” a delinquency collection charge of five percent of each installment in default for ten days, while the disclosure statement indicates only that the purchaser “may be required to pay a delinquency and collection charge equal to 5% of each installment in default.” (Emphasis added). The disclosure statement leaves the impression that the default charge is discretionary with the creditor; the contract, on the other hand, leaves no doubt that these charges are automatic.
We agree with appellant that this inaccuracy was “apparent on the face of the statement.” Although the misstatement in question is not an obvious omission that would be “apparent” to one who had not examined the underlying contract, we conclude that if section 128(a)(9) is to provide consumers with the protection Congress intended, the assignee must be held to the knowledge of the underlying contract and of any inconsistency between its terms and the disclosure statement. We have no doubt that the inaccuracy in question is sufficiently serious to constitute a cognizable violation of the Act. As a matter of law, therefore, this variation between the contract and the disclosure statement is “apparent on the face of the statement,” and Franklin, as an assignee, is liable for this violation.
C
Since we hold that Franklin is liable to appellant as both a “creditor” and an assignee, it remains to determine the nature and extent of its liability. Appellant concedes that each violation does not give rise to a separate penalty, but contends that a separate statutory recovery may be obtained from each creditor. The difficulty with appellant’s position is that Franklin’s liability as a “creditor” is solely of a vicarious nature, based on the conclusion that Center acted to “arrange the extension of credit” to appellant on Center’s behalf. In similar factual situations, the courts have unanimously held that the two “creditors” are jointly liable for a single statutory penalty. A new section 130(g) was added by the 1974 amendments, codifying this result:
The multiple failure to disclose to any person any information required under this part to be disclosed in connection with a single account under [a]. consumer credit sale... shall entitle the person to a single recovery under this section but continued failure to disclose after a recovery has been granted shall give rise to rights to additional recoveries. (Emphasis added).
This amendment was expressly made applicable to all pending cases and limits the liability of persons held to have violated the Act either as “creditors” or “subsequent assignees.” The present case involves a failure to disclose in connection with a “single account” — the contract involving the 1972 Torino. It is therefore clear, both under the prevailing interpretation of section 130(a) and under the new section 130(g), that appellant is entitled only to a single award from the two appellees.
On remand, summary judgment will be entered against Franklin on appellant’s claims, and Franklin will be held jointly liable for the penalty assessed against Center. In awarding costs and attorneys’ fees, the district court should consider that appellant has been “successful” against both Franklin and Center, section 130(a)(3), 15 U.S.C. § 1640(a)(3). Since appellant does not challenge the district court’s conclusion that he suffered no “actual damage” com-pensable under section 130(a)(1), we do not disturb, that portion of the district court’s order.
IV. '
Appellant also argues that it was error for the district court to dismiss his state claims and deny summary judgment on Franklin’s counterclaim on the basis of a lack of jurisdiction.
Under the two-tiered test enunciated in United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), a federal court has power to determine “pendent” state-law claims if the “state and federal claims... derive from a common nucleus of operative fact” and “are such that [the plaintiff] would be expected to try them all in one proceeding.” In the present case, the Truth in Lending claims arose solely out of the transaction involving the Torino. The state usury and misrepresentation claims based on the earlier Pinto sale did not derive from a nucleus of operative fact common to the federal action, so it was not within the district court’s power to consider these claims to be pendent to the federal claims.
The local law claims arising out of the Torino transaction, on the other hand, were within the district court’s power to exercise pendent jurisdiction. But these claims would have required the resolution of complex choice of law and substantive questions involving the statutory and common law governing usury, loan sharking, and breach of warranty. All of these claims are completely unrelated to the Truth in Lending claims. Had the district court elected to retain the pendent claims, the result would have been virtually unmanageable for the courts and the parties. In addition, once the local law claims based on the Pinto sale were properly dismissed, the rationale for retaining jurisdiction over the remaining pendent claims became even weaker. Liberal joinder rules in both the District of Columbia and Maryland would probably permit all of these claims to be tried in a single proceeding, resulting in greater economy and convenience than would have resulted from the retention of jurisdiction over the local law claims based upon the Torino purchase alone. We conclude that the district court did not abuse its discretion in dismissing the pendent claims. For the same reáson it was proper to deny appellant summary judgment on Franklin’s counterclaim.
For the foregoing reasons, we vacate the district court’s order of summary judgment in favor of Franklin Investment Company and remand for entry of summary judgment against Franklin on appellant’s claims. Appellees Franklin and Center Motors, Inc., will be held jointly liable to appellant for a single statutory penalty under 15 U.S.C. § 1640(a)(2)(A), and costs and fees will be awarded on the basis that appellant has been “successful” against Franklin as well as Center, § 1640(a)(3). In all other respects, the amended order of the district court is affirmed.
Judgment accordingly.
. Center asserts it was its policy to deduct “$25.00 from the face value of each contract assigned to Franklin... ” (App. 280).
Franklin identified this $25.00 as a “payment.. for the assignment of the contract.. ” (App. 237) “... to reserve” (App. 256) a “dealer’s reserve.. ” (App. 258).
. Appellant contends that the disclosure statement executed at the time of the Pinto loan contained similar violations, but concedes that recovery for any such violations was barred by the one-year limitations period in section 130(e) of the Act, 15 U.S.C. § 1640(e) (1970).
. Section 130(a) of the Act, as amended in 1974, provides
Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part or part D of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of the failure;
(2) (A) in the case of an individual action twice the amount of any finance charge in connection with the transaction, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000; [and]
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.
15 U.S.C. § 1640(a) (Supp. V 1975). As it applies to the individual plaintiff in the present action, this language represents no substantial change over the original language of this section. We therefore need not determine whether damages in the present action are controlled by the pre-amendment or post-amendment language. Cf. notes 13 & 19 infra.
. See, e. g., Cherokee Nation v. United States, 355 F.2d 945, 949 (Ct.C1.1966); Luther v. United States, 225 F.2d 495, 497, 174 Ct.Cl. 131 (10th Cir. 1955); Stein v. Stein, 83 U.S.App.D.C. 286, 170 F.2d 162 (1948).
. Section 130(a)(3), 15 U.S.C. § 1640(a)(3) (Supp. V 1975). See-note 2 supra.
The award of attorneys’ fees alone will frequently exceed the statutory penalty of section 130(a)(2)(A). See, e. g., Manning v. Princeton Consumer Discount Co., 533 F.2d 102, 107 (3d Cir.), cert. denied
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_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".
UNITED STATES of America, Plaintiff-Appellee, v. GLEANERS AND FARMERS CO-OPERATIVE ELEVATOR COMPANY, Defendant-Appellant.
No. 72-1064.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 7, 1973.
Decided July 3, 1973.
Rehearing and Rehearing En Banc Denied July 31, 1973.
See, also, 314 F.Supp. 1148.
Victor John Roberts, Lowell, Ind., Charles W. Grubb, Cedar Lake, Ind., for defendant-appellant.
William C. Lee, U. S. Atty., Charles W. Larmore, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.
Before KILEY, PELL and STEVENS, Circuit Judges.
KILEY, Circuit Judge.
Plaintiff, United States, brought suit against defendant, Gleaners and Farmers Co-operative Elevator Company (Gleaners), for satisfaction of a lien on crops which Gleaners had purchased from borrowers of the United States who defaulted on their obligation to repay the loans. The district court, sitting without a jury, entered judgment for the United States in the amount of $1,920.18. Gleaners has appealed. We affirm.
On January 13, 1966, the United States Department of Agriculture made a loan of $12,000.00 to Donald and Judith Jurs (debtors) and in return accepted a promissory note executed on that date. To secure the indebtedness security agreements were executed in favor of the United States on April 10, 1967 and March 21, 1968 covering, inter alia, crops to be grown by the debtors. Financing statements were also signed by the parties and filed in the appropriate manner on March 24, 1965 and April 13, 1967. Subsequently, Gleaners, a grain elevator in the business of purchasing crops of farmers, purchased a large quantity of grain from the debtors’ 1968 crop which was subject to a security interest under the security agreement executed on March 21, 1968. Thereafter the debtors defaulted on their obligations under the promissory note and the litigation subject of this appeal followed.
The vital issue before us is whether the United States had a perfected security interest in the debtors’ crops which was effective against Gleaners as purchaser. It is undisputed that the United States is bound by Article IX of the Uniform Commercial Code (U.C.C.).
The U.C.C. as adopted by Indiana provides, in pertinent part: that a security interest does not attach to crops planted more than one year after the security agreement is executed, Burns Ind.Stats. § 19-9-204(4)(a), IC 1971, 26-1-9-204(4) (a); and that a financing statement must be filed to perfect a security interest, Burns Ind.Stats. § 19-9-302, IC 1971, 26-1-9-302, and must comply with the requirements enunciated in Burns Ind.Stats. § 19-9-402, IC 1971, 26-1-9-402. We decide the issue before us against this background.
It is conceded by Gleaners that there was a security interest in the 1968 crops between the United States and debtors as a result of the March 21, 1968 security agreement. Gleaners argues, however, that the security interest was never perfected so as to be effective against all subsequent purchasers and creditors claiming an interest in the subject security. Its argument is based on the proposition that the April 13, 1967 financing statement was ineffective to perfect a security interest in the crops which were the subject of the March 21, 1968 security agreement. It also argues that since no financing statement had been filed at the time of or subsequent to the March 21, 1968 security agreement, Gleaners did not have notice of the security interest in the 1968 crops and was not bound thereby.
Gleaners’ argument, that there was not a perfected security interest in the 1968 crops as a result of the failure to file a financing statement in 1968, ignores two sections of the U.C.C. which provide (1) that “[a] financing statement may be filed before a security agreement is made or a security interest otherwise attaches,” Burns Ind.Stats. § 19-9-402; and (2) that the filing of a financing statement is effective for a period of five years unless a shorter period is otherwise stated, Burns Ind. Stats. § 19-9-403, IC 1971, 26-1-9-403. Applying these sections to the facts before us, the April 13, 1967 filing of a financing statement was sufficient to satisfy the requirement necessary to perfect a security interest under the March 21,1968' security agreement.
Moreover, Gleaners does not argue that the April 13, 1967 financing statement was not broad enough to cover the March 21, 1968 security agreement. We, therefore, agree with the district court and hold that under present Indiana law, the United States was under no obligation to file a 1968 financing statement in order to perfect the security interest.
Our holding gains support from recent developments in pertinent U.C.C. sections. Since the adoption of the U.C.C. by the State of Indiana, which was in effect at times pertinent to this case, the American Law Institute and the National Conference of Commissioners on Uniform State Laws have given their attention to the official text of the U.C.C. A comprehensive revision of Article IX of the U.C.C. has resulted. The revisions have been published recently as the “1972 Official Text and Comments of Article 9 — Secured Transactions.” Since the promulgation of these comprehensive revisions to Article IX, most states, including Indiana, have had little or no time to amend their statutes. Nevertheless we are aided in our decision by these revisions and by the official comments on the issue before us.
The most significant revision for our purposes is to be found in § 9-204 which, inter alia, permits and regulates the right of a secured party to acquire a security interest in crops. The section, before revision, as adopted by Indiana and discussed, supra, provided that no security interest could attach in crops which became such more than one year after the security agreement was executed. This section was designed to protect against farmers who would encumber their crops for many years in the future and was in substantial conformity .with the Indiana Chattel Mortgage Law which the U.C.C. replaced. The revised § 9-204, however, no longer restricts a security interest from attaching to crops which become such more than one year after the execution of the security agreement but rather has eliminated that provision. In articulating reasons for the changes, the commentators state that the former § 9-204(2) and (4) (a), applying to crops, were unworkable and confusing. Therefore, in the revision, section (2) was “eliminated as unnecessary” and (4) (a) was redesigned and numbered (2). In explaining the problems with the former section the commentators expressed reasons applicable to the issue before us. Therefore, we find the following explanation by the commentators of the change in former § 9-204(4) (a) persuasive in support of our determination of the case before us:
The provision did not work because there was no corresponding limit on the scope of a financing statement covering crops, and under the Code’s notice-filing rules the priority position of a security arrangement covering successive crops would be as effectively protected by the filing of a first financing statement whether the granting clause as to successive crops was in one security agreement with an after-acquired property clause or in a succession of security agreements. On the other hand the clause did require an annual security agreement for crops even when the encumbrance on crops was agreed to as part of a long-term financing covering farm machinery and other assets. The provision thus appeared to be meaningless in operation except to cause unnecessary paperwork, but it did introduce some element of uncertainty as to its purpose.
For the foregoing reasons the judgment of the district court is
Affirmed.
. Federal jurisdiction rests on 28 U.S.G. § 1345.
. This was an operating loan made under the provisions of the Consolidated Farmers Home Administration Act of 1961. 7 U.S.C. § 1921 et seq.
. Burns Ind.Stats. § 19-9-101 et seq., IC 1971, 26-1-9-101 et seq.
. It is significant to note that the provisions of the U.O.C. make a distinction between the attaching of a security interest and its perfection. The concept of “attaching” refers to the creation of the security interest by virtue of the execution of a security agreement, while “perfection” is the additional step which makes the security interest effective against third parties by virtue of filing a financing statement.
. The U.C.C. was adopted by Indiana in 1968 and became effective on July 1, 1964.
. The revisions were originally drafted and recommended by the U.C.C.’s permanent Editorial Board and in 1971 approved and in 1972 published by the American Law Institute and the National Conference of Commissioners on Uniform State Laws.
. U.C.C. § 9-204, Burns Ind.Stats. 19-9-. 204. When Security Interest Attaches; After-Acquired Property; Future Advances.
(1) A security interest cannot attach until there is agreement (subsection (3) of Section 1-201) that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching.
(2) For the purposes of this section the debtor has no rights
(a) in crops until they are jdanted or otherwise become growing crops, in the young of livestock until they are conceived ;
(b) in fish until caught, in oil, gas or minerals until they are extracted, in timber until it is cut;
(c) in a contract right until the contract has been made;
(d) in an account until it comes into existence.
(3) Except as provided in subsection
(4) a security agreement may provide that collateral, whenever acquired, shall secure all obligations covered by the security agreement.
(4) No security interest attaches under an after-acquired property clause
(a) to crops which become such more than one year after the security agreement is executed except that a security interest in crops which is given in conjunction with a lease or a land purchase or improvement transaction evidenced by a contract, a mortgage or deed of trust may if so agreed attach to crops to be grown on the land concerned during the period of sucli real estate transaction;
(b) to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within ten days after the secured party gives value.
(5) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment.
. Revised § 9-204 provides:
(1) Noecept as provided in subsection (%), a security agreement may provide that any or all obligations covered by the security agreement are to be sectored by after-acquired collateral.
(2) No security interest attaches under an after-acquired property clause to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within ten days after the sectored party gives value.
(3) (5) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment (subsection (1) of Section 9-105).
Italicized portions indicates new language.
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_usc2 | 12 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES v. CONSOLIDATED GAS ELECTRIC LIGHT & POWER CO. OF BALTIMORE.
No. 4546.
Circuit Court of Appeals, Fourth Circuit.
Jan. 8, 1940.
Edward H. Hammond, Atty., Department of Justice, of Baltimore, Md. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Norman D. Keller, and Stephen J. Angling, Sp. Assts. to Atty. Gen., and Bernard J. Flynn, U. S. Atty., and G. Randolph Aiken, Asst. U. S. Atty., both of Baltimore, Md., on the brief), for appellant.
Edwin M. Sturtevant, William C. Baxter, and Clyde T. Warren, all of Baltimore, Md., for appellee.
Before PARKER and SOPER, Circuit Judges, and DOBIE, District Judge.
SOPER, Circuit Judge.
Certificates of indebtedness were issued to depositors of the Baltimore Trust Company, an insolvent banking institution of the City of Baltimore, on August 4, 1933, in accordance with a plan of reorganization which became- effective on that date. The certificates represented the unpaid balances due the depositors, plus accrued interest. Consolidated Gas, Electric Light & Power Company of Baltimore, a Maryland corporation, received a certificate in the face amount of $1,031,094.48, which was subsequently reduced to $825,523.58 by a partial distribution of the bank’s assets. On November 12, 1935, the Gas Company sold and assigned the certificate for $257,-976.12 to the Federal Water Service Corporation, but no revenue stamps were affixed to the certificate or to any of the transfer papers. In January, 1938, the Commissioner of Internal Revenue made an assessment against the Gas Company in the amount of $330.24, representing the stamp tax alleged to be due on the trans fer; and on March 17, 1938, the Gas Company paid the tax and filed its claim for refund on the ground that the tax had been wrongfully collected. The claim was rejected and the pending suit was filed, resulting in a judgment for the taxpayer.
The statutes, under which the tax in suit was imposed, are § 800, Schedule A (1) of Title VIII of the Revenue Act of 1926, 44 Stat. 9, 99, 101, and the amendment thereof by § 724 of the Revenue Act of 1932, 47 Stat. 169, 274, 26 U.S.C.A. § 900 note. They are as follows:
Revenue Act of 1926, c. 27, 44 Stat. 99. Title VIII, Stamp Taxes:
“Sec. 800. On and after the expiration of thirty days after the enactment of this Act there shall be levied, collected, and paid, for and' in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in Schedule A of this title, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, are written or printed, by any person who makes, signs, issues, sells, removes, consigns, or ships the same, or for whose use or benefit the same are made, signed, issued, sold, removed, consigned, or shipped, the several taxes specified in such schedule. The taxes imposed by this section shall, in the case of any article upon which a corresponding stamp tax is now-imposed by law, be in lieu of such tax.
* *
“Schedule A,- — Stamp Taxes
“1. Bonds of indebtedness: On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities, on each $100 of face value or fraction thereof, 5 cents * * *.”
Revenue Act of 1932, c. 209, 47 Stat. 169:
“Sec. 724. Stamp Tax on Transfer of Bonds, etc.
“(a) Schedule A of Title VIII of the Revenue Act of 1926 is amended by adding at the end thereof a new subdivision to read as follows:
“9. Bonds, etc., sales or transfers. On all sales, or agreements to sell, or memoranda of sales or deliveries of, or transfers of legal title to any of the instruments mentioned or described in subdivision 1 and of a kind the issue of which is taxable thereunder, • whether made by any assignment in blank or by any delivery, or by any paper or agreement or memorandum or other evidence of transfer or sale * * ”
It is manifest from an examination of these sections that the instruments, whose transfer is taxable under the quoted section of the amendatory Act of 1932, are the kind of instruments whose issue is taxable under Schedule A(l) of the Act of 1926. We inquire, therefore, whether the certificates of indebtedness of the Baltimore Trust Company were taxable under the last mentioned section when they were issued as above described. It is stipulated that subsequent to the issuance of the certificates the Commissioner of Internal Revenue made an assessment upon the Trust Company on account of stamp taxes alleged to be due thereon under the statute; that the tax was paid on March 17, 1934 and a claim for refund was_ filed on November 9, 1936 on the ground that certificates of indebtedness issued by an insolvent bank are exempt from tax under § 22 of the Act of March 1, 1879, 20 Stat. 351, 12 U.S.C.A. § 570. This section provides in substance that no tax shall be assessed or collected or paid on account of any bank that has ceased to do business by reason of insolvency, which tax will diminish the assets necessary for th'e full payment of depositors. For a consideration of this statute, see United States v. Sterling, Receiver, 4 Cir., 106 F.2d 178. The Commissioner agreed to the refund after a review of the facts and the law contained in an opinion of January 4, 1937 of the Chief Counsel of the Bureau of Internal Revenue which is filed as part of the record in the pending case. The Chief Counsel reached the conclusion that the certificates of the Trust Company were not taxable because it had ceased to do business by reason of insolvency on March 17, 1934 when the certificates were issued. The refund was made on March 29, 1937. This action of the Commissioner, in our opinion, was a correct application of the statutory exemption provided by the Act of March 1, 1870 and thereby the freedom of the certificates from taxation at the time of issuance was established. It follows that the transfer of the certificates by the Gas Company on November 12, 1935 was not covered by § 724 of the Revenue Act of 1932 supra, which ■ imposes a stamp tax upon the transfer of only that kind of instrument which is subject to tax when issued.
Having reached this conclusion, it is unnecessary to consider the additional contention of the taxpayer, also made in United States v. Sterling, Receiver, supra, that certificates of indebtedness issued by an insolvent bank are not corporate securities in the common understanding of that term, and that only such instruments as are generally known as corporate securities or investment securities were intended to be taxed by the Revenue Acts of 1926 and 1932.
The judgment of the District Court is affirmed.
No attempt was made to collect the issue tax from the transferee of the bank because of the ruling contained in Cum. Bull. (1932) Vol. XI-2, p. 542 (S.T. 547) which states: “The conclusion has been reached that the taxes in question, although imposed on the transferee as well as the transferor, and on the grantee as well as the grantor, are without application where the transferor or grantor is relieved from liability therefor by § 22 of the Act of March 1, 1879. This conelusion is based on the view that the statutory provision referred to is remedial in character and is to be liberally construed. Its manifest purpose is to relieve depositors from the burden of the tax. To tax the transferee or grantee in such case would be in effect, through the shifting of the burden of the tax to the transferor or grantor, to tax the insolvent bank and thus defeat the purpose of the statute”.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_sentence | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" 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".
KING v. UNITED STATES.
Circuit Court of Appeals, Sixth Circuit.
April 5, 1928.
No. 4889.
1. Criminal law <@=>l 129(1)— Sufficiency oí journal record of trial court is not open for consideration by appellate court, in absence of assignment (Circuit Court Rule 11).
Under Circuit Court Rule Tl, sufficiency of journal record of trial court is not open for consideration by appellate court, in absence of assignment, except that appellate court may, at its option, notice a plain error.
2. Criminal law <@=>262 — Defendant’s proceeding to trial without objection for lack of formal arraignment and failure to plead to indictment implied waiver (Jud. Code, § 269 [28 USCA § 391]).
Defendant’s proceeding to trial without raising objection to lack of formal arraignment or fact that he had not pleaded to indictment implies waiver thereof, or at least did not constitute such formal defect as would be prejudicial within meaning of Judicial Code, § 269 (28 USCA § 391), so as to authorize reversal in absence of assignment of error thereto.
3. Criminal law <@=>977(3) — Sentence may be postponed pending decision on motion for new trial.
Trial court may properly postpone sentence pending decision on motion for new trial.
4. Criminal law <§=»950 — Successor to trial judge, dying after verdict, was competent to pass on new trial and allow bill of-exceptions (28 USCA § 776).
Under 28 USCA § 776, successor in office to trial judge who died after verdict was returned was competent to pass oh motion for new. trial and to allow bill of exceptions.
5. Criminal law <@=>1144(15) — Publication of newspaper article while jury was separated for night held not to show error;-there being no assumption jury were not admonished.
Failure of trial court to declare mistrial because of publication, on morning after jury had been permitted to- separate for the night, of article relative to defendant’s arrest on another charge, held not error, in absence of showing in record of exception and as to whether inquiry had been made of jury relative to reading article and jury thereafter cautioned against allowing such to influence the verdict, since it cannot be assumed, in absence of affirmative showing, that jury was not so admonished.
6. Post office <@=>50 — Complicity' of defendant in mailing letters pursuant to scheme to defraud by inducing addressees to ship goods on credit held for jury (Pen. Code, §§ 215, 332 [18 USCA §§ 338, 550]).
In prosecution under Penal Code, § 215 (18 USCA § 338), for placing various letters in mails pursuant to a scheme to defraud by inducing addressees of letter to ship goods on credit, evidence of complicity on part of the defendant held, sufficient to require submission of ease to jury, in view of section 332 (18 USCA § 550).
7. Criminal law <@=>564(3) — Venue, held sufficiently proven by circumstances in prosecution for mailing letters pursuant to scheme to defraud (Pen. Code, § 215 [18 USCA § 338]).
In prosecution under Penal Code, § 215 (18 USCA § 338), for placing various letters in mails pursuant to scheme to defraud by inducing addressees to ship goods on credit, venue held sufficiently proven, at least circumstantially.
8. Post office <@=>48(8) — Failure to prove alleged corporate -capacity of victims of fraud under scheme by use of mails in inducing addressees to ship goods on credit held immaterial (Pen. Code, § 215 [18 USCA § 338]).
In prosecution under Penal Code, § 215 (18 USCA § 338), for placing various letters in the mails pursuant to scheme to defraud by inducing addressees to ship goods on credit, failure to prove corporate capacity of alleged victims of fraud as alleged in indictment held, immaterial, since gravamen of offense constituted misuse of the mails, and’ fact that intended vietims were partnerships and individuals rather than corporations was not such a variance as would justify a reversal.
9. Post office ¡©=348(8) — Proof of participation and complicity in misuse of mails supporting indictment for conspiracy held not fatal variance (Pen. Code, § 215 [18 USCA § 338]).
In prosecution under Penal Code, § 215 (18 USCA § 338), for placing various letters in the mails pursuant to scheme to defraud by inducing addressees to ship goods on credit, fact that proof of participation and complicity in misuse of mails might also have supported indictment for conspiracy held not such variance as would support a judgment of reversal.
10. Criminal law ¡8=>1167(2)— Failure of proof as to certain counts did not justify reversal, where sentence was justified under conviction on another count.
Failure of proof as to certain counts of indictment, even if apparent, does not justify reversal, where only sentence imposed was justified under conviction on another count amply supported by evidence.
In Error to the District Court of the United States for the Western District of Tennessee; Harry B. Anderson, Judge.
Fred W. King was convicted for placing in the United States mails various letters pursuant to a scheme to defraud, and ho brings error.
Affirmed.
L. H. Graves, of Memphis, Tenn., for plaintiff in error.
Herbert L. Harper, Asst. U. S. Atty., of Memphis, Tenn. (Lindsay B. Phillips, U. S. Atty., and Arthur G. Brode, Asst. U. S. Atty., both of Memphis, Tenn., on the brief), for the United States.
Before DENISON, Circuit Judge, and TUTTLE and HICKENLOOPER, District Judges.
HICKENLOOPER, District Judge.
Tbe plaintiff in error complains of a sentence pronounced June 2, 1926, upon a verdict of guilty returned June 3, 1925. Tbe ease was tried at the May, 1925, term of tbe District Court at Memphis; that is to say, on June 1, 2, and 3, 1925. The district attorney did not move for sentence immediately, and no action was taken upon the verdict prior to the death of the trial judge, which occurred July 9, 1925. The November term commenced November 23,1925, and motion to set aside the verdict and for a new trial was duly filed November 20, 1925, being thus within term.
The indictment contained four counts, each charging a violation of section 215 of the Penal Code (18 USCA § 338) by placing in the United States mails at Memphis, Tenn., the various letters made the bases of the several counts. Each count submitted to the jury is founded upon correspondence with a separate alleged victim of the scheme to defraud. This scheme is alleged to have consisted of the making by tbe defendant of willfully false statements of the financial condition of the Contractors’ Mill & Lumber Company, of which the defendant was the acting president, for the purpose of inducing the addressees of the letters there set forth “to ship to defendant’s said company the goods referred to in said letters, on credit, and thus to assume a greater risk of loss of the value of said goods than the said letters indicated.” The second count was withdrawn from the consid oration of the jury at the close of the evidence, and a verdict of guilty under the first, third, and fourth counts was returned.
The record is in exceedingly poor shape, and a motion to reverso and dismiss is made upon two grounds: (1) That there is no minute entry upon the records of the District Court showing that the defendant was ever arraigned for trial or entered a plea to the indictment, that there is not shown any list of names of the trial jurors, and that no minute entry of trial or verdict appears; and (2) that an entire term of court intervened between the trial and verdict and the entry óverruling the motion for a new trial and imposing sentence, the court thereby losing jurisdiction in the matter.
This motion to reverse and dismiss must be denied. If the sufficiency of the journal record of the District Court is itself attacked, that question is not now open for consideration under Rule 11 for want of assignment, except that the court may, at its option, notice a “plain error,” and under this optional power we decline to notice errors not real and vital. Counsel for the defendant below prepared a bill of exceptions in which they incorporated, as an integral part thereof, not only the entire evidence in verbatim form, but also recitals of the impaneling of the jury, of proceeding to trial, and of the return of the verdict, a copy of the verdict, the motion for a new trial, the motion and affidavit for a mistrial, and the minute entry overruling the motion for a new trial and imposing sentence. While those things which should appear by the journal of the court have no proper place in a bill of exceptions, yet we must assume that tbe events recited did take place.' Except as to arraignment and plea, the recitals in the bill of exceptions show that, in any event, tbe record omissions, if any, are those which can ordinarily be supplied nune pro tunc; and, even though the defendant had not been formally arraigned, or had not pleaded to the indictment, his proceeding to trial without raising this objection would imply a waiver, or at least the formal defect would not be prejudicial. Garland v. State of Washington, 232 U. S. 642, 34 S. Ct. 456, 58 L. Ed. 772. Under these circumstances, we think that the alleged record omissions, if they exist, are defects which, giving effect to Judicial Code section 269 (28 USCA § 391), we ought not to regard as ground for reversal when err'or thereon is not assigned.
In arguing that the court lost jurisdiction by reason of the November, 1925, term intervéning between verdict and sentence, counsel for the defendant fails to distinguish between postponing sentence pending the decision of a motion for a new trial and indefinitely deferring sentence, thus in effect suspending sentence or condoning the offense. The cases cited by plaintiff in error all relate to the latter aspect’at a time when the District Courts were not expressly authorized to suspend sentence. It is clearly competent for the trial court to postpone sentence pending decision of the motion for a new trial as was here done. Ormsby v. U. S., 273 F. 977 (C. C. A. 6). The trial judge having died after verdict, it was , also competent for his successor in office to pass upon the motion for a new trial and to allow the bill of exceptions. The conditions enumerated in R. S. § 953, as amended June 5, 1900, c. 717, § 1, 31 Stat. 270 (Comp. Stat. § 1590 [28 USCA § 776]), are all present in the case at bar.
The next contention seriously urged is that the court erred in not granting the motion of the defendant to declare a mistrial. The jury was charged on the afternoon of June 2d, and, having failed to agree by the usual time for adjournment, were permitted to separate for the night, reconvening the next morning. As the defendant left the federal building on the evening of June 2d, he was arrested by two state officers on a charge of being a fugitive from justice from the state of Mississippi. This arrest was apparently made with the knowledge of the district attorney and without any remonstrance or objection upon his part. The fact of the arrest received publicity in the only morning newspaper published in Memphis, which carried an article headed in large type “■Another Warrant is Served on Fred King.” The article itself merely stated the facts.of the arrest and the giving of a bond, which facts, however, could not have been admitted in evidence and may have been prejudicial in the eyes of the jury. ’The bill of exceptions contains a copy of the affidavit and motion for a mistrial stated to have been filed on June 3d, the same day the verdict was returned. From its tenor it would seem that this motion was filed before the return of the verdict, although it does not appear whether it was specifically called to the attention of the court or what action was ■ taken thereon by the court. If properly called to the attention of the court,' denied by the court, and exception to such ruling duly reserved, such action might very properly constitute error. U. S. v. Marrin, 159 F. 767 (D. C. Pa.); Mattox v. U. S., 146 U. S. 140, 150, 13 S. Ct. 50, 36 L. Ed. 917; Harrison v. U. S., 200 F. 662 (C. C. A. 6). If called to the attention of the court, however, inquiry made of the jury as to whether the article had been read, and the jury clearly and emphatically cautioned against allowing such article to influence their verdict, it is at least doubtful whether failure to declare a mistrial would constitute error. This is the more apparent if, upon the trial, the defendant were content that the deliberations of the jury should continue under such instructions and reserved no exceptions. We cannot assume upon the present record that the jury was not so admonished. The record does not affirmatively disclose any error in this particular.
It is further objected that the record does not contain any substantial 'evidence establishing venue, viz. that the offending letters were mailed in the Western district of Tennessee, and that the defendant’s connection with the writing of the letters was not sufficiently ghown, that the letters themselves were improperly admitted in evidence. These two contentions are best considered to-gether. As to both matters we think the evidence was sufficient. While the evidence that the defendant participated in the writing of the letters forming the bases of counts 3 and 4 is weak, there was substantial evidence as to the identity of the signature to all the letters with the signature of the defendant. Furthermore, the letters supporting the allegations of the first count were not included in the motion of the defendant to exclude, and in substance the defendant admitted his connection with, this correspondence to both the post office inspector and the credit manager of the addressee. While engaged principally in outside work and at the mill, the defendant was the president.of the Contractors’ Mill & Lumber Company, active in its affairs, and in and out of the office, and there is persuasive evidence in the record that he was fully conversant with the correspondence and co-operating in carrying it on. Under these circumstances, we think that there was sufficient evidence of complicity upon the part of the defendant to take the ease to the jury, in view of the provisions of section 332, Penal Code (18 USCA § 550), certainly as to count 1.
Upon the question of venue, there is no direct, affirmative evidence that the letters forming the basis of the first count were mailed in Memphis or were in fact ever transmitted through the mails. There is substantial evidence, however, that the defendant was present and engaged in corporate affairs in the city of Memphis at the time these letters were written; that the corporation maintained an office in that city, where the company’s letters were transcribed; that it was the duty of the stenographer to post sreh letters at the close of each business day; that the letters of the second count, the third count, and the principal letter of the fourth count were received through the mails; and that the letters of the first count, of practically the same tenor as the others, found their way to Louisville, Ky., on the days following their dates. The envelopes were not saved or produced. There is no scintilla of suggestion that they were not mailed or that 'they were mailed elsewhere than in the city of Memphis. In the absence of any such suggestion, and merely by reason of the bare possibility that after transcription they were personally delivered, or taken to some other state or district for -mailing, we are of the opinion that venue as to letters of the first count, as well as of the third and fourth counts, was sufficiently proved, at least circumstantially. A reasonable conclusion to be drawn logically from the evidence is that, having been prepared in Memphis, under office routine which contemplated mailing in Memphis, and having been received at destination either through the mails or within the usual time for transmission by mail to a distant city, all the letters were in fact mailed in the city at which they were dated, in the Western district of Tennessee.
Lastly, it is objected that there was no proof of the corporate capacity of the alleged victims of the fraud, the indictment averring that all such victims were corporations but the proof 'being silent as to such corporate capacity. The fact that the business of such victims was carried on under the names alleged in the indictment sufficiently appears, and is not disputed. The fact that the victims were corporations, as -distinguished from partnerships or individuals carrying on their business m the several names given, was a wholly immaterial averment, and failure of proof in this particular insufficient to justify the granting of a new trial. The gravamen of the offense was the misuse of the mails, and, had it affirmatively appeared that the intended victims of the fraud were partnerships or individuals of the same or closely similar names, there would he no such variance as would justify reversal. Beavers v. U. S., 3 F.(2d) 860 (C. C. A. 6); Kasle v. U. S., 233 F. 878 (C. C. A. 6); Bennett v. U. S., 227 U. S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531. Nor was there any such variance as would justify reversal because the proof of participation and complicity in the misuse of the mails might also have supported an indictment for conspiracy to so misuse the mails, which latter charge was not included in the indictment.
Defectively prepared as the record is, the evidence is amply sufficient to support a verdict of guilty as to the first count, and possibly as to the third and fourth counts also. However, failure of proof as to the third and fourth counts, even if apparent, would not justify reversal, since only such sentence was imposed as was justified by the hypothesis of guilt of the crime charged in the first count.
The judgment of the court below is affirmed.
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_appnatpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SANTA CRUZ OIL CORPORATION v. ALLBRIGHT-NELL CO.
No. 7195.
Circuit Court of Appeals, Seventh Circuit.
Nov. 1, 1940.
George I. Haight and Fred Gerlach, both of Chicago, 111., for appellant.
Franklin M. Warden and F. Allan Minne, both of Chicago, 111., for plaintiff-appellee.
Before SPARKS and MAJOR, Circuit Judges, and BRIGGLE, District Judge.
MAJOR, Circuit Judge.
This is an appeal from a judgment entered November 16, 1939, in the amount of $59,038.26, plus interest in the amount of $23,615.30. The suit was instituted by complaint filed February 24, 1930, to-recover damages for an alleged breach of contract wherein the defendant, under date of March 4, 1925, acquired from the plaintiff the exclusive license to manufacture and sell products (presses and apparatus used in the extraction by pressure of oil products from meat) for which an application for a patent was pending. The interlocutory decree found the patent valid and infringed, awarded an accounting for the sums due under the contract, an injunction against infringement after the date of filing of the suit, and an accounting for such infringement.
On appeal (hereinafter referred to as Appeal No. 4995) this court (Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392) affirmed the finding that the contract remained in force until the suit was filed and the award of an accounting on the contract, and reversed that part of the decree which held the patent valid and infringed on the theory that its validity or infringement was not in issue.
In conformity with that part of the District Court decree affirmed by this court, the Master proceeded to a hearing on the account ordered to be stated. During such hearing the District Court sustained a ruling by the Master that the defendant could not introduce evidence to prove a mutual agreement as to the selling price at variance with that contained in the original contract. A petition for writ of mandamus was applied for by defendant in this court (hereinafter referred to as No. 5470) to require the District Court to receive such evidence. On June 15, 1935, this court ordered the District Court to instruct the Master accordingly. In re AllbrightNell Co., 7 Cir., 78 F.2d 430.
The proceedings before the Master were resumed, and the correspondence between the parties, which was in the record before this court on Appeal No. 4995 concerning the selling price, was supplemented by additional correspondence and oral testimony.
The nature of the agreement in suit is described in the former opinions referred to and need not be repeated.
This controversy, however, revolves largely around Paragraphs 4 and 8, which we set forth in a footnote.
The Master filed a report June 21, 1937, and found that “the parties, subsequent to the execution of the written contract, entered into a mutual agreement, by which they agreed to sell the Hiller press at approximately the same price as the Anderson press of similar type, size, and capacity.” Sixty-eight presses were sold. The gross income received by the defendant from the sale of said presses, its manufacturing cost, plaintiff’s one-half share of profit with interest thereon, together with certain other minor adjustments, are shown in the Master’s summary.
Plaintiff filed exceptions to the Master’s report, fixing the damages on the basis of the actual selling prices and for the allowance to defendant of a credit of $1000 advanced to the plaintiff for the completion of a press which it had contracted to furnish at the time of entering into the license agreement. Defendant filed exceptions to the report because it included profits on an auxiliary driving mechanism sold with the presses, interest on unliquidated damages, the disallowance of credits for goods which defendant claimed it delivered to plaintiff and certain other allowances. It will be observed that the Master’s statement of account is predicated upon the theory that the parties, by mutual agreement entered into subsequent to the execution of the license agreement, determined a price at which the presses were to be sold and that, therefore, the language of Paragraph 4, “such sale price shall be not less than twice the actual cost of such articles * * * ” was not to be applied.
The District Court, in response to plaintiff’s exceptions to the report, reversed the Master’s finding that the selling price was agreed upon by the parties and, in effect, directed the Master to state the account in accordance with the court’s holding that the selling price had not been modified or changed. The effect of the court’s holding in this respect, as construed by the Master on the order of re-reference, was to order the Master to compute -the damages on the double-cost basis. The court affirmed the allowance by the Master to defendant of the credit for $1,000, but apparently made no ruling upon other exceptions to the report.
Subsequently, the Master filed a second report similar in most respects to his first, except that in compliance with the court’s order on re-reference, plaintiff’s damages were computed and reported upon a selling price of double the cost. Under this theory, defendant’s gross revenue was $253,834.65, factory cost $128,418.87, leaving a net profit of $125,415.78. Certain other minor adjustments were made in the account, reducing the amount due plaintiff to $59.038.26, which, plus interest, totals $81,653.56, the amount awarded plaintiff. This report was approved by the court and judgment entered from which this appeal is taken.
It is thus apparent that the question of prime importance on this appeal is whether plaintiff was entitled to a judgment in conformity with the Master’s first, or second report. This involves the propriety of the action of the District Court in sustaining exceptions to the first report, In other words, was the court justified in its refusal to accept findings of fact as made by a Master? Rule 53(e), Paragraph (2), of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides : “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” The language thus employed leaves no room for argument that the District Court is bound by such findings “unless clearly erroneous.” The rule binds the District Court to accept findings of a Master just as Rule 52(a) binds this court to accept findings of a District Court. In fact, the language of the two rules is quite similar. The latter rule provides: “Findings of fact shall not be set aside unless clearly erroneous.” These rules promulgate no new principle of procedure, as such principle has long been recognized by the courts. It was aptly stated in Adamson v. Gilliland, 242 U.S. 350, on page 353, 37 S.Ct. 169, 170, 61 L.Ed. 356, where the court said: “ * * * the case is preeminently one for the application of the practical rule that so far as the finding of the master or judge who saw the witnesses ‘depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.’ * * * ” Other cases where similar rules and statutes have been thus construed are: Davis v. Schwartz, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289; In re Mendota Building Co., 7 Cir., 92 F.2d 644, and Carter Oil Co. v. McOuigg, 7 Cir., 112 F.2d 275.
We can recall to mind no case where this rule may be more appropriately applied than in the instant situation. Here we have a difficult and involved proceeding in accounting. In compliance with the Master’s subpoena, an account was stated by the defendant. Much labor and thought was given to the matter by an experienced Master, as is amply disclosed by a study of the first report rendered by him. He heard, saw and observed the witnesses and was in a better position to judge of their credibility and the weight to be given their testimony than either the District Court or this court, neither of which has. had such an opportunity. To set aside his findings “unless clearly erroneous” is not only contrary to the rule quoted and the accepted practice, but amounts to a trial de novo by the reviewing court with no assurance that any better or more accurate results could be achieved.
That brings us to the question as to 'whether the findings of the Master were “clearly erroneous.” A careful examination of the oral testimony, in addition to the mass of documentary evidence, -convinces us not only that the findings of the Master were not “clearly erroneous” but that they were well grounded. It would prolong this opinion unduly to relate in detail the material testimony in this respect, but we will summarize what appears to us to furnish abundant support to the findings as made by the Master.
As stated, the license agreement in question was entered into March 4,-1925. At that time, as well as prior and subsequent thereto, defendant was engaged in furnishing substantially complete rendering * equipment for meat packers, an essential part of which was what is designated as the screw press. Prior to the date of the license agreement, the press sold by defendant was what is known as the Anderson Screw Press, purchased by the defendant from the Anderson Press Company. There was nothing in the agreement which precluded the defendant from the use of the Anderson Press and, as a matter of fact, it used such press in some of its sales subsequent to the execution of the license agreement. There is some -controversy as to who initiated the negotiations which culminated in the license agreement, as well as the representations made by the plaintiff with reference to the character of work which plaintiff’s press was capable of performing. We do not regard any controversy in this respect as material to the question now under con■sideration. Regardless of what happened prior to the execution of the agreement, the question remains as to whether the selling price as fixed by the agreement was •changed by mutual action of the parties as found 'by the Master. A study of the correspondence which passed between the parties is, we think, convincing that the parties modified the provision of the agreement that the press was to be sold on the so-called double-cost basis. July 11, 1925, plaintiff wrote defendant as follows: ■“ * * * Also, you have never furnished us with any data as to what the price will be on this equipment, (press) We wish you would furnish us with the sales price, together with full information regarding commission.” It will be noted that this letter was written about four months after the license agreement had been entered into. July 28, 1925, defendant wrote in reply: “In regard to the selling price and commission on the Hiller Press, the writer is not entirely familiar with just what we are doing on this, but he believes that up to the present time we have been maintaining our selling price the same as for the Anderson Expeller.”
October 17, 1925, plaintiff wrote as follows : “As soon as possible, please give us figures on the cost and selling prices on the Press as we are interested, as you know, in handling this for the fish business and we have been awaiting the. time when the machine would be successful and when you would be able to furnish us proper costs so we can figure on our work accordingly.”
October 22, 1925, defendant replied:
“As far as sales price goes, we have adopted the policy of making the price the same as Anderson’s for the time being.
“Of course, the first press was very expensive on account of changes and the experimental work we had to do. These next two presses, however, are being built without changes, and we hope to have a good line’on costs.”
December 4, 1925, defendant wrote: “Our contract calls for us to charge double our cost in order to make sales price. Of course you know that is impossible, but I wish to refer to it so that it does not miss your attention, but please let me know that you are satisfied with the prices as made at present. These prices are the same as Anderson’s, and that is all we can expect to get until we have got a record of service and know to what extent our press is superior to the Anderson.”
On the same date defendant wrote plaintiff :
“Presume you- know that Anderson’s prices are as follows:
“Anderson Expeller, belt drive.. $2410.00
“Arranged for Motor Drive but without motor ............. 2610.00”
December 14, 1925, plaintiff wrote:
“Besides this, some day we hope to have some commissions coming to us.”
February 28, 1926, defendant reported to plaintiff concerning the sale of three presses, in which report was itemized the cost of material as to each press, and disclosed a selling price of $2,410. Plaintiff acknowledged receipt of this report and replied that he would come to Chicago, which he did, and a conference was had on March 30, 1926, attended by plaintiff and three of defendant’s representatives. What was said at this conference is a matter of dispute. Defendant’s witnesses testified before the Master to the effect that plaintiff agreed to a selling price the same as that of Anderson’s, while such an agreement is disputed by plaintiff. July 21, 1926, after this conference, plaintiff wrote: “ * * * We feel that we can make a press of the same capacity as Anderson’s that will sell a little cheaper. * * * In turn, we must sell at the same price, owing to the fact that we only make one machine. Thus we feel that we will give Anderson a great deal' more of a rub than he ever is dreaming of.”
August 27, 1926, defendant again reported to plaintiff concerning the first eight presses sold, showing the selling price of each to be $2,410. December 1, 1926, defendant reported the sale of eighteen presses, with the same selling price as Anderson’s. Concerning this report, plaintiff, December 24, 1926, wrote:
“We are not going to comment on this at the present time as we are not in possession of enough facts regarding the cost of this equipment. We note, however, that the costs have not decreased at all— in fact we might say increased.
“We had hoped by this time that you would be in position to materially cut these costs. However, we will leave this matter totally in your hands for the present at least to see how this matter is going to work out.”
March 4, 1927, plaintiff forwarded to defendant photographs of a press which he had built, and the manufacture of which he was contemplating, with a view of having defendant sell them. In this letter, plaintiff stated: “Can you sell these presses for single Laab’s installations at $1875.-00 each. Our cost is approximately $1,-200.00, and we will split fifty-fifty same as all other arrangements with you.”
Again, on May 28, 1928, defendant reported the sale of forty-eight presses at a selling price substantially the same as Anderson’s. A number of other exhibits, mostly letters passing between the parties, are in evidence, and at no time did plaintiff object to the price at which the press was being sold, and we think that the exhibits clearly disclose an acquiescence on his part. His chief complaint was the high cost of manufacture. As aptly pointed out by the Master: “ * * * The most reasonable, in fact almost unavoidable, inference to be drawn from the correspondence of the parties is that the controversy between them revolved around manufacturing costs, rather than selling price. From the cost controversy itself, there is a strong implication that defendant was not to account for twice the factory cost; for if that were Hiller’s understanding, he would not have objected to the high cost, because his returns would increase in a direct ratio with an increase in costs. On the other hand, if Hiller did not regard the defendant obligated to pay twice the cost his returns would decrease with increase of cost; hence, his objection to the costs reflects his realization that there was an agreed price. * * * ”
It appears to be the contention of the plaintiff that the question as to whether the contract selling price was changed by mutual agreement of the parties has heretofore been decided by this court, and quotes the following paragraph from our opinion in Appeal No. 4995. Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392, 394: “After the contract was signed the parties communicated by letter relative to the manufacture and marketing of the presses. There was some reference in the correspondence to the sale price of the presses, but we are satisfied that the correspondence never ripened into an agreement which changed the original contract.”
In Appeal No. 5470, however (In re All-bright-Nell Co., 7 Cir., 78 F.2d 430, 431), we disclaimed the language used in the former opinion, and said: “ * * * Hence, whether the correspondence ever ripened into an agreement which changed the original contract was not before us. * $ * «
It may also be pointed out that there was introduced in evidence before the Master correspondence in addition to that contained in the records formerly presented to this court.
Plaintiff also contends that the modification of the original contract as to the fixing of a selling price by an oral agreement was in contravention of the Statute of Frauds. We think this contention is not sound for two reasons: First, the contention was waived by a failure of plaintiff to except to the Master’s report on the grounds now- alleged. It is true, no doubt, as stated by plaintiff, that the question was presented in its written argument to the District Court. That argument, however, is no part of the record here and, so far as appears from the “memorandum on exceptions” entered by the District Court, that question was not considered. The exceptions to the Master’s report were sustained according to this memorandum for the reason that the court did not believe the oral testimony of the witnesses, and upon the reasoning that it was unbelievable that business men would thus change the selling price without reducing the agreement to writing. Second, and a better reason why plaintiff’s- contention in this respect must be denied is that the Master’s finding was not based upon oral testimony alone, but such testimony was considered in connection with the letters and other written evidence bearing upon the question. We think the written evidence alone is'sufficient to sustain the Master’s finding, and if so, it becomes unnecessary to determine to what extent, if any, the original contract could have been modified by parol evidence.
It is therefore our conclusion that the findings of the Master in this respect are supported b.y the record and that the court erred in sustaining plaintiff’s exceptions thereto.
Plaintiff urgently insists that even though there was an agreement to sell at the Anderson’s price that the record fails to disclose what that price was, as well as the price at which defendant actually sold the press to its customers. In discussing this question, the Master said: “The difficulties in ascertaining defendant’s selling price are due primarily not to deficiencies in the defendant’s accounting methods, but to the defendants practice in making sales. The transactions, almost without exception, involve blanket prices for a large amount of equipment; that is, if ten articles were sold, the price of each article was not specified in the contract, but a price was stated for the entire order. * * $ ’>
The Master found, however, and we think properly so, that the Anderson Press, prior to May 28, 1928, was listed at $2,400 and the motor mount and chain drive at $200. It will be remembered that $2,410 was the price reported to plaintiff by the defendant as that of the Anderson Press. The Master, in computing the price of the presses sold by defendant prior to May 28, 1928, with some slight exceptions not now important, charged the defendant $2,610 per press. Defendant excepted to the Master’s report as to $200 of this charge. This amount represented the price of a silent chain transmission which defendant argues was not covered by plaintiff’s patent, was open to the public, and that the defendant had a right to furnish it with any presses sold, whether plaintiff’s or otherwise. We do not think defendant’s position is tenable in this respect. The press driver was a necessary part of the press. It was delivered in connection with plaintiff’s press so that the same was complete and ready to be connected with the motor. It is hardly conceivable that the parties, when they agreed to a modification of the Selling price as fixed in the original agreement, contemplated that that price should be Anderson’s price merely for the naked press without any means of operation. There is no question involved as to whether the press drive is covered by plaintiff’s patent. Assuming it was not, it was attached to, made and sold as a part of, the apparatus covered by the license agreement, and we are of the opinion that defendant was chargeable with such price and that the Master was correct in so determining.
May 28, 1928, defendant gave notice to plaintiff that the press had been redesigned and that subsequent presses would not embody any features of plaintiff’s patent rights,, and that it would not regard the future presses as coming within the contract. After the giving of this notice it appears that the presses were sold for the sum of $2,860, and this was the amount generally charged to defendant by the Master.' It appears that about the time this notice was given, the price of the Anderson press was increased to this amount so that defendant’s selling price remained substantially on a level with that of Anderson’s. Defendant, however, contends that it should not be required to account for any sales made' after the giving of the notice referred to for the reason that the press, as manufactured and sold, does not come within the terms of plaintiff’s patent, and defendant devotes considerable argument in an effort to demonstrate that such is the case. We do not regard this argument as pertinent. In the first place we think it has been decided adversely to defendant’s contention in Appeal No. 4995 (Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392, 393). In the second place, as already pointed out, this is not a suit for infringement or an accounting for infringement, but upon a contract. Paragraph 1 of the contract in this regard, provides: “Nothing herein contained shall be construed as vesting in Second Party any title to any of said patents and that all improvements, and changes in designs, in the apparatus, machinery or equipment herein dealt with, whether patented or not, shall belong to First Party.”
We think the Master correctly concluded that defendant should account for all presses sold prior to the institution of suit.
Defendant also contends that it was entitled to a credit for certain items the total amount of which is $3648.97. The Master regarded these items as a claim for set-off and refused to allow them for the reason that the defendant had failed to file a counterclaim in compliance with Federal Equity Rule 30, 28 U.S.C.A.- following section 723. We approve the Master’s action in this respect. See Williams v. Bank of America Nat’l Ass’n, 2 Cir., 55 F.2d 884, 889. In this connection, the Master allowed defendant credit for a loan in the sum of $1000 made to plaintiff and expended by it in connection with the manufacture of one of its presses prior to the time the manufacture of such presses had been taken over by the defendant. We think this item was properly allowed.
The Master, in his first report, as well as in the second, allowed plaintiff interest on the amount found owing it. In the first report the interest was calculated at 5% from February 24, 1930, the date the complaint was filed, but omitted one year for a portion of the time spent in litigation. Defendant contends that it is not liable for interest until plaintiff’s damages are liquidated. We do not think it is necessary to review the numerous authorities cited by defendant in support of its contention. They have to do largely with accountings for patent infringement and suits for the recovery of unliquidated damages. This is a suit on a written contract, and we think is governed by Section 2, Chapter 74 of the Revised Statutes of the State of Illinois. Under numerous holdings of this court, we think plaintiff clearly was entitled to interest as allowed by the Master. Morrison v. Rieman, 7 Cir., 261 F. 355, 356; Sanford Coal Co. v. Wisconsin Bridge & Iron Co., 7 Cir., 293 F. 735, 736; McGuire-Cummings Mfg. Co. v. United States Alloy Steel Corp., 7 Cir., 292 F. 832, 837.
We have carefully read the numerous briefs and reply briefs filed by the respective parties and are willing to concede that there are a number of questions argued, especially by the plaintiff with apparent plausibility, but which a careful study discloses are without basis. It would serve no useful purpose for us to prolong this opinion in an effort to discuss and dispose of them. We think we have decided the essential questions in controversy. We are convinced that the Master’s first report came as near doing justice between the parties as could reasonably be hoped for considering the complicated and confused situation with which he was presented.
We conclude that the District Court erred in sustaining plaintiff’s exceptions to that report. Therefore the judgment appealed from is reversed with directions to vacate the court’s order of re-reference and the Master’s second report, to overrule all exceptions to the Master’s first report and to enter judgment in favor of the plaintiff in conformity with said report. The costs of this appeal shall be shared equally by the parties thereto.
“(4) It is understood and agreed that the selling price for all such machinery, equipment and apparatus shall be fixed by mutual agreement between the parties hereto, but in the event of any such agreement not being reached, such sale price shall be not less than twice the actual cost of such articles as the same may be shown by such books and records of Second Party; and the fixing of such prices, if by agreement, shall be in writing and may be changed from time to time in a similar manner.”
“(8) Second Party shall pay to First Party, when and as received by said Second Party on each sale, one-half of the actual net selling price thereof, after first deducting and retaining the actual net cost to it of such article; that is to say, that from the first proceeds from the sale of each article manufactured by Second Party hereunder, it shall first deduct and retain the actual net cost of all labor and material, including overhead properly chargeable to the manufacturing cost of each article, but exclusive of any advertising or sales cost, and all excess of such selling price therefrom shall be divided equally between the parties hereto, collected by Second Party, and one-half thereof paid to First Party when as the same is received, including interest on any deferred or installment payments.”
Gross Income on tlie Hiller Press $173,917.72
Extra Income on the Hiller Press 1,282.05
Total Income ...................... 175,199.77
Total Costs Allowed............... 138,485.65
Profit .............................. 36,714.12
Hiller’s one-half share of profit.. 18,357.06
Interest due on Hiller’s share at 5% from 2/24/30 until 2/24/37, excluding one year of litigation... 5,507.12
Interest due Hiller on deferred payments ........................ 500.00
Total due Hiller on presses as of February 24, 1937................. 24,364.18
Net Total due Hiller as of February 24, 1937, after deducting $1,-000 for Hiller loan._.............. 23,364.18
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_geniss | G | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
STITZEL-WELLER DISTILLERY v. WICKARD, Secretary of Agriculture, et al.
No. 7642.
United States Court of Appeals for the District of Columbia.
Decided Feb. 3, 1941.
George R. Beneman and Norman J. Morrison, both of Washington, D. C., for appellant.
Edward M. Curran, U. S. Atty., John L. Laskey, Asst. U. S. Atty., John S. L. Yost, Sp. Asst, to Atty. Gen., and Melva M. Graney, all of Washington, D. C., for appellees.
Before GRONER, Chief Justice, and VINSON and EDGERTON, Associate Justices.
GRONER, C. J.
This is a suit against the Secretary of Agriculture, the Secretary of the Treasury, and the Treasurer of the United States, officially and individually, to obtain the distribution of a fund in excess of a million dollars, now in the United States Treasury and earmarked — “Proceeds, distilled spirits industry, parity payments”. The fund was accumulated under the following circumstances. In 1933 Congress passed the Agricultural Adjustment Act, 48 Stat. 31, in a declared effort to raise the prices of farm products and re-establish at the 1909-14 level their purchasing power with respect to the articles that farmers buy. The plan contemplated the reduction of the planted acreage of certain basic crops by agreement, the avoidance thereby of surplus production, and the payment to farmers of rentals and benefits based upon the acreage withdrawn from cultivation. The Act further authorized the Secretary of Agriculture to enter into marketing agreements with processors, and to issue licenses permitting them to engage in the handling of any agricultural commodity or product thereof, or any competing commodity, in the current of interstate or foreign commerce.
When the Eighteenth Amendment was repealed a few months later, this Act created various problems for distillers. Whiskey is made more largely of corn than of any other grain, though rye, barley, and wheat are used in certain types. The use of corn and wheat subjected distillers to a processing tax under the Act which might be as great as the difference between the current average farm price and “the fair exchange value” of the commodity, which was defined as the price that will give the commodity the same purchasing power, with respect to the articles that farmers buy, as such commodity had in the pre-war period, August 1909-July 1914. The use of rye and barley was not subject to the tax, nor was molasses, sugar cane, or sugar beets, which could be used to make beverage alcohol for the manufacture of blended whiskey, gin, cordials, and liqueur. The cost of producing whiskey from beverage alcohol or molasses is less than from corn or rye, though the quality of the latter is superior. Presumably, therefore, distillers of grain whiskey had good reason, in order to avoid disorderly marketing conditions, to enter into a marketing agreement under the terms of the Act. In any case most, if not all, of the distillers did make such an agreement with the Secretary of Agriculture. They promised to use only cereal grains in the manufacture of distilled .spirits, except under special permits to use other materials in limited amounts. They also agreed to pay the “fair exchange value” for all cereal grains used. Whenever the current average farm price, plus the unit processing tax, was less than the fair exchange value, they would pay the difference into the Treasury of the United States (or other depositary designated by the Secretary), to be “utilized for rental or benefit payments or other disbursements under the Act with respect to grain.” The total amount of this “difference” between December 10, 1933, and April 18, 1934, when the agreement terminated, was in excess of a million dollars. The money was deposited in the United States Treasury, but was never used for the purpose intended. After certain provisions of the Agricultural Act were declared unconstitutional in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, the Comptroller General ruled that the money could not be so used, but should be kept in the Treasury. 15 Dec.Comp. Gen. 681. Subsequently Congress appropriated money to carry out the Secretary’s agreements for payments to farmers who had' complied with the provisions of the Act and regulations of the Secretary, and payments were made accordingly. 49 Stat. 1109, 1116, 1117.
Appellant is one of the contracting distillers and brought this suit on behalf of itself and all others similarly situated, to obtain the appointment of a receiver to take possession of the fund and distribute it to the contributors as their interests might appear. The District Court granted a motion to dismiss the complaint.
Appellant insists that the marketing agreement created a trust for the benefit of farmers complying with the Act, and the trust having failed, the Secretary as trustee should be required to return the money to the contributors, and that the United States are not necessary parties because the federal officers are acting solely as custodians of the fund. Appellant insists that the agreement exceeds the statutory authority of the Secretary of Agriculture as an officer of the United States, and on this premise argues that the Secretary must be considered as having acted in a private capacity and hence must be considered as trustee of a trust created by private parties entirely apart from governmental matters. The references in the •agreement to the provisions of the Act are explained simply as the incorporation of statutory terms by reference into a private contract. We do not think the agreement can be explained in this manner. Article I states clearly that the parties “desire to enter into a marketing agreement under the provisions of Section 8 (2) of the Act” •and therefore “agree as follows: * * * ”. This and other language of the agreement, taken in its ordinary sense, indicates that the distillers and the Secretary contemplated an agreement in accordance with a law enacted by Congress, and that the Secretary was to receive the money in his capacity as a government officer, not for the use of any particular parties but for use in a general purpose which the government had expressed in the Act, including administrative expenses. Furthermore, the agreement contained an application for a license for the distilling industry, and the -appellant correctly says this was an administrative or regulatory matter.
In our opinion this and the fact that the money sued for is now in the Treasury and that the United States have not consented to be sued, makes unnecessary any inquiry as to how it' got there. In this view, we need not consider the validity of the marketing agreement or the authority of the Secretary to contract for and receive the payments. It is sufficient that the Secretary and the distillers voluntarily entered into the agreement under the provisions of the Act, and that the distillers received a license pursuant to its terms, whether or- not the Act authorized it, of which they had 'the benefit during the period when the contract was in effect, and that the payment of the money was made, by the express declaration of the parties, under the provisions of the Act, and was deposited in the Treasury of the United States. We have many times decided that in such circumstances an Act of Congress is necessary for its withdrawal. Haskins Bros. v. Morgenthau, 66 App.D.C. 178, 85 F.2d 677, certiorari denied 299 U.S. 588, 57 S.Ct. 118, 81 L.Ed. 433; Cummings v. Hardee, 70 App.D.C. 18, 102 F.2d 622, certiorari denied Hardee v. Murphy, 307 U.S. 637, 59 S.Ct. 1033, 83 L.Ed. 1518; Farley v. Albers, 72 App.D.C. 136, 112 F.2d 401, certiorari denied 61 S.Ct. 37, 85 L.Ed. -.
In the Haskins Bros. case we said [66 App.D.C. 178, 85 F.2d 681]:
“In the instant case it is therefore of no consequence whether the act under which the tax was collected be constitutional or unconstitutional. The fact that the tax has been collected and deposited in the treasury by the collecting officials of the government renders the custodian of the fund impotent to withdraw the money and disburse it unless and until directed to do so by an act of Congress or until the United States shall submit to be sued to determine its disposition.
“It is equally of no consequence that the bill alleges that the fund belongs to appellant and others similarly situated. It. is not in the hands of the officers but in the treasury, and though earmarked as a special or trust fund, has been mingled with the moneys of the United States. The purpose of the bill, therefore, is to coerce the United States, through their officers to pay out money in the treasury as to which Congress has limited the power of withdrawal to the payment to the Philippine government. To permit this, would be to usurp the legislative function of appropriation, to substitute a court for the executive officers of the government, and to supplant by an order of court the duty and obligations imposed upon them by their oaths of office. It is therefore of no moment whether the United States have the use of this money as they do the ordinary revenues of the government or whether the money represents a trust fund created by Congress and earmarked for a specific purpose. In either case it is money in the Treasury of the United States as to which the United States had and have the power of control and disposition.”
And there is nothing in Thompson v. Deal, 67 App.D.C. 327, 92 F.2d 478, to the contrary. In that case no interest of the United States was involved and the government officers themselves asserted that the United States had no proprietary interest in the fund. The officers held the money purely as .stakeholders for transactions between determinable private parties, and not, as here, for the express purpose of using it for obligations which the government had undertaken.
This brings us to appellant’s second point, which is that Congress has provided for the withdrawal of this money and its distribution to the distillers.
In 1934 Congress passed the Permanent Appropriation Repeal Act. It was the result of certain rulings of the Comptroller General directing the deposit of money in checking -accounts of officials into the Treasury in order that its disbursement should be subject to audit. The effect of the Comptroller’s action was to permit the withdrawal of the moneys by the particular officers, after deposit in the Treasury, without express appropriation. Congress objected to the method but not the purpose, and the Committee Report accompanying" H. R. 9410, 73d Cong., 2d Sess., recommended and Congress enacted that all moneys held by officers of the government by reason of their official capacity should be covered into the Treasury and that any subsequent disbursement be made only as the result of appropriation. Section 19 of the Act was intended to accomplish legally what Congress thought the ■ ruling of the Comptroller General would have accomplished illegally, and was in this language: “That donations, quasi-public and unearned moneys carried in official checking accounts of disbursing officers and of others required to account to the Comptroller General (including clerks and marshals of the United States District Courts), administered by officers of the United States by virtue of their official capacity, shall be deposited similarly into the Treasury as trust funds and are hereby appropriated and made available for disbursement under the terms of the trust.”
Section 20 contained a list of 91 such funds. The distillers’ parity payment fund was not among those enumerated, but appellant explains that the Department of Agriculture had not catalogued its trust funds and therefore the Committee had no notice of them.
Appellant’s position is that since the quoted provision directs disbursement of the fund according to the “terms of the trust”, and since, as it thinks, the terms of the trust created by distillers’ payments under the agreement include terms inferred as well as expressed, there was an implied direction that if the money paid in by distillers was not used as agreed, it was to be given back and that, the purpose having failed, there is no discretion left in the Secretary and he must refund the money. . We think this does not follow. As we have already seen, the distillers and the Secretary entered into a contract reciting that its purpose was to correct conditions existing and likely to exist after the repeal of the Eighteenth Amendment in the marketing o'f domestic agricultural commodities ordinarily used in the distilled spirits industry, and to effectuate the declared policy of the Agricultural Act. To this end, the contracting distillers agreed to pay into the Treasury or such other depositary as should be designated by the Secretary the difference between the then market price of grain, plus the processing tax, and its fair exchange value, the amount so paid in to be utilized for rental or benefit payments to farmers- or for other disbursements under the Act made with respect to grain. In other words, the United States, having agreed with farmers, under Section 8 (1) of the Act, for the reduction in grain acreages and being under obligation to pay the agreed benefits and having appropriated one hundred million dollars in aid of that purpose, anticipated through the agreement with the distillers, through processing taxes, and the payment of the additional agreed amounts, to have on hand a fund sufficient for the payments to farmers as well as for other disbursements proper under,the Act. After the Butler case was decided, the moneys received from processing taxes and the distillers’ fund were presumably held in a state' of suspense in the Treasury. Congress by a subsequent appropriation, 49 Stat. 1116, carried out the contracts with farmers, and by Act of June 3, 1937, 50 Stat. 246, 249, 7 U.S.C.A. § 672, ratified and confirmed all marketing agreements, licenses, orders, regulations, and provisions made by the Secretary under the Act.
The above facts show, then, that the distillers contracted to pay to the United-States certain amounts of money and to receive from the United States a license authorizing them to engage in handling distilled spirits in interstate and foreign commerce. It is enough, we think, that the distillers voluntarily entered into the agreement, and received something from the United States which they considered then, if not now, a quid pro quo. In the circumstances, they certainly have no claim against the agent of the government through whom they contracted. Nor is their complaint framed on the theory of a wrongful act on his part. They seek no personal recovery from him. Instead, they claim under the contract in asking that he exercise powers which they say are conferred upon him by the Permanent Appropriation Repeal Act to withdraw the money from the Treasury. We are of opinion that the Act does not confer this authority, for there is certainly nothing in Section 19 of the Act which can be said specifically to declare the purpose of Congress to appropriate the sum in issue here for repayment to the distillers; and without such “specific” appropriation, there can be no withdrawal of the money. Nor is it any clearer that repayment to the distillers is a “term of the trust”. It is quite true that there is a general doctrine of equity that where a trust fails, the trustee will be compelled to return the money or property to the creator of the trust. Hopkins v. Grimshaw, 165 U.S. 342, 17 S.Ct. 401, 41 L.Ed. 739; Restatement of Trusts, Sec. 411. And appellant cites cases in which the rule has been treated as one of implied intention. Be that as it may, we do not think that Congress intended an appropriation to be made in this roundabout manner, namely that the money in this so-called “trust fund” was to be paid to the distillers in the face of an express provision in the marketing agreement that it was to be uséd for other purposes. We need not and do not express any opinion whether Section 19 even includes this fund or provides. for its disposition in any particular manner. We hold only that it does not appropriate it for the refund to appellant and others in the same position.
While the case has been pending in this court, Henry A. Wallace has been succeeded in the office of Secretary of Agriculture by Claude R. Wickard. The name of the latter was substituted as a party, in his official capacity, without objection. Some doubt was expressed at the oral argument, however, on the propriety of the substitution insofar as the suit was originally filed against Wallace as an individual. Since in our opinion Henry A. Wallace was acting only in his official capacity in receiving this fund and depositing it in the Treasury, and the case is controlled by this point, we need not pass on the question thus raised. The complaint states no cause of action against either Wallace or Wickard as individuals.
Aside from the matters we have discussed, appellant’s real position in this controversy is that it is inequitable and unfair for the government to use for general expenses a fund which the contracting distillers contributed in good faith to carry out a particular program which has since been declared unconstitutional and inoperative. This may well be true, but in seeking judicial enforcement of whatever equities may exist, appellant is met by a more important constitutional rule that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations. made by Law”. Const, art. 1, § 9, cl. 7. Relief must, therefore, be sought from Congress before the courts may act.
Affirmed.
“Sec. 8. In order to effectuate the declared policy,- the Secretary of Agriculture shall have power—
******
“(2) To enter into marketing agreements with processors, associations of producers, and others engaged in the handling, in the current of interstate or foreign commerce of any agricultural commodity or product thereof, after due notice and opportunity for hearing to interested parties. The making of any such agreement shall not be held to be in violation of any of the antitrust laws of the United States, and any such agreement shall be deemed to be lawful: Provided, That no such • agreement shall remain in force after the termination of this Act. For the purpose of carrying out any such agreement the parties thereto shall be eligible for loans from the Reconstruction Finance Corporation under section 5 of the Reconstruction Finance Corporation Act. Such loans shall not be in excess of such amounts as may be authorized by the agreements.
“(3) To issue licenses permitting processors, associations of producers, and others to engage in the handling, in the current of interstate or foreign commerce, of any agricultural commodity or product thereof, or any competing commodity or product thereof. Such licenses shall be subject to such terms and conditions, not in conflict with existing Acts of Congress or regulations pursuant thereto, as may be necessary to eliminate unfair practices or charges that prevent or tend to prevent the effectuation of the declared policy and the restoration of normal economic conditions in the marketing of such commodities or products and the financing thereof. The Secretary of Agriculture may suspend or revoke any such license, after due notice and opportunity for hearing, for violations of the terms or conditions thereof. Any order of the Secretary suspending or revoking any such license shall be final if in accordance with law. Any such person engaged in such handling without a license as required by the Secretary under this section shall be subject to a fine of not more than $1,-000 for each day during which the violation continues.” 48 Stat. 34, 35.
“See. 9 * * * (b) The processing tax shall be at such rate as equals the difference between the current average farm price for the commodity and the fair exchange value of the commodity; except that if the Secretary ha? reason to believe that the tax at such rate will cause such reduction in the quantity of the commodity or products thereof domestically consumed as to result in the accumulation of surplus stocks of the commodity or products thereof or in the depression of the farm price of the commodity, then he shall cause an appropriate investigation to be made and afford due notice and opportunity for hearing to interested parties. If thereupon the Secretary finds that such result will occur, then the processing tax shall be at such rate as will prevent such accumulation of surplus stocks and depression of the farm price of the commodity. In computing the current average farm price in the case of wheat, premiums paid producers for protein content shall not be taken into account.
“(c) Eor the purposes of part 2 of this title, the fair exchange value of a commodity shall be the price therefor that will give the commodity the same purchasing power, with respect to articles farmers buy, as such commodity bad during the base period specified in section 2; and the current average farm price and the fair exchange value shall be ascertained by the Secretary of Agriculture from available statistics of the Department of Agriculture.” 48 Stat. 36.
“Sec. 2 (1) * * * The base period in the case of all agricultural commodities except tobacco shall be the prewar period, August 1909-July 1914.” 48 Stat. 32.
48 Stat. 1224, 31 U.S.C.A. § 725 et seq.
Act of June 30, 1903, section 9: “No Act of Congress liereafter passed shall be construed to make an appropriation out of the Treasury of the United States * * * unless such Act shall in specific terms declare an appropriation to be made * * 34 Stat. 764, 31 U.S.C.A. § 627.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_district | F | 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".
Charles F. HANOVICH, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Respondent-Appellee.
No. 15895.
United States Court of Appeals Sixth Circuit.
March 3, 1965.
James W. Halloran (Court Appointed), Cincinnati, Ohio, for appellant.
Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, William B. Saxbe, Atty. Gen., John Cianflona, Asst. Atty. Gen., Columbus, Ohio, on brief, for appellee.
Before WEICK, Chief Judge, O’SULLIVAN, Circuit Judge, and McALLIS-TER, Senior Circuit Judge.
PER CURIAM.
Appellant, Charles F. Hanovich, was convicted of first degree murder in the Court of Common Pleas of Cuyahoga County, Ohio, in the year 1929. Upon a recommendation of mercy by the jury, he was sentenced to life imprisonment. We are advised that he is now at liberty on parole. No appeal was taken from his conviction, which followed a trial at which he was represented by competent counsel of his own choosing.
Appellant’s first effort to attack his conviction was in 1960 and his then original application to the Supreme Court of Ohio for a writ of habeas corpus was denied. Hanovich v. Alvis, 170 Ohio St. 360, 164 N.E.2d 739 (1960). Certiorari was denied by the United States Supreme Court, 363 U.S. 851, 80 S.Ct. 1630, 4 L.Ed.2d 1733 (1960). Application for delayed appeal was denied by the Court of Appeals and the Supreme Court of Ohio, and certiorari was again denied by the United States Supreme Court, Hano-vich v. Ohio, 372 U.S. 923, 83 S.Ct. 740, 9 L.Ed.2d 728 (1963). A motion for leave to file a petition for habeas corpus in the United States Supreme Court was also denied. Hanovich v. Maxwell, 373 U.S. 930, 83 S.Ct. 1556, 10 L.Ed.2d 701 (1963). Other efforts to attack appellant’s conviction need not be detailed.
In 1961 this Court affirmed dismissal of an application of appellant for habeas corpus made to the United States District Court for the Southern District of Ohio. Hanovich v. Sacks, 290 F.2d 798 (CA 6, 1961), cert. denied, 368 U.S. 863, 82 S.Ct. 109, 7 L.Ed.2d 61 (1961). The opinion sets forth various procedures employed by Hanovich to obtain release from prison. His chief contention in that habeas corpus action was that the grand jury which indicted him was not composed as required by Ohio law. We held that under Ohio law “[wjhere the accused enters a plea to the indictment and proceeds to trial without raising any question concerning defects in the indictment he is deemed to have waived them.” 290 F.2d 799.
Following our above decision, Hanovich filed a new habeas corpus application in the District Court. He made the same attack upon the indictment as had been found without merit by our above mentioned decision. He added allegations to the effect that in the course of his various legal actions in the state and federal courts, agents of the State of Ohio had altered court records and committed perjury. Although lacking in clarity, such allegations must be fairly read as relating to efforts by Ohio to support the regularity of its indictment. Hanovich complains here that the District Court should have held a hearing upon which he could prove such allegations. Our previous holding that his indictment is not now subject to attack obviated the necessity of taking such proofs.
The District Judge dismissed the instant habeas corpus application without hearing, holding that it presented the same question as had been disposed of by the order of the District Court which had been affirmed by this Court in Hanovich v. Sacks, supra, 290 F.2d 798. We agree that the present application “presents no new ground not theretofore presented and determined.” 28 U.S.C.A. § 2244. We are of the opinion that the ends of justice would not be served by further inquiry into appellant’s claims. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
Appellant further attacks the District Court order on the ground that prior to its entry Hanovich had filed an affidavit of prejudice against District Judge Underwood, who entered the order. We find this contention without merit in view of our holding that upon its face and upon the record of his previous application, appellant’s petition was groundless as a matter of law. The District Judge was of the view that the grounds of his dismissal order rendered the matter of his disqualification moot.
Judgment affirmed.
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_const1 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Susan P. DALTON, and Bob Warren, Appellants, v. UNITED STATES of America, Appellee.
No. 85-2225.
United States Court of Appeals, Fourth Circuit.
Argued July 16, 1986.
Decided Sept. 17, 1986.
Rehearing and Rehearing En Banc Denied Oct. 30,1986.
Bob Warren and C. Frank Goldsmith, Jr., Marion, N.C., for appellants.
James H. Love (Roger M. Olsen and Glenn L. Archer, Jr., Asst. Attys. Gen., Michael L. Paup, Chief Appellate Section, Tax Div., Gary R. Allen, Tax Div. Washington, D.C., on brief), for appellee.
Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
BUTZNER, Senior Circuit Judge.
Susan P. Dalton appeals from a summary judgment entered for the United States denying her a refund of a $500 penalty imposed pursuant to 26 U.S.C. § 6702(a) (1982) for filing a frivolous income tax return in which she claimed a credit for federal military expenditures to which she objected. Bob Warren, the taxpayer’s attorney, appeals a judgment imposing sanctions on him of $613.22 pursuant to Fed.R. Civ.P. 11 to reimburse the government for its expense in defending the taxpayer’s action. The government questions the jurisdiction of the district court. We hold that the district court had jurisdiction and affirm both judgments.
I
The government asserts that the district court lacked subject matter jurisdiction because the taxpayer did not comply with 26 U.S.C. § 6703(c)(2) (1982) by bringing this action within 30 days after her claim for refund of the penalty was denied. The taxpayer contends that the 30-day provision of section 6703(c)(2) pertains only to collection of the penalty and that in any event the Internal Revenue Service extended the time for bringing suit.
The record discloses that the chief of the examination branch of the Memphis Service Center wrote the taxpayer on January 22, 1985, that her claim for a refund of the penalty had been denied and that she could bring suit to recover it within 30 days from the date of the letter. Telephone conversations and correspondence between the taxpayer’s attorney and officials at the Center culminated in a letter dated March 11, 1985, from the manager of an examination unit granting an extension “to reply to the frivolous assessment” to March 22, 1985. On March 22, the taxpayer filed this action.
The district court held that failure to file an action within 30 days from the denial of the refund did not deprive the court of jurisdiction. It construed section 6703(c)(1) and (2) to provide only that the government could collect the penalty if suit were not brought within 30 days. Accord Beard v. Internal Revenue Service, 624 F.Supp. 646, 647 (E.D.Tenn.1985).
We cannot concur in the district court’s construction of section 6703(c)(1) and (2). In our view the 30-day requirement for bringing suit is a limitation on the right to seek judicial review of the penalty. It does not pertain merely to the government’s right to collect the penalty.
In Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), the Court held that full payment of a tax assessment is a jurisdictional prerequisite to a suit for a refund in the district court. Congress, however, relaxed the full payment requirement by enacting section 6703(c)(1), which permits a taxpayer to contest a penalty imposed by section 6702 by bringing a refund suit after paying only 15% of the penalty. By analogy to Flora, payment of the 15% is jurisdictional. See Thomas v. United States, 755 F.2d 728 (9th Cir.1985).
Section 6703(c)(2) provides that if the taxpayer fails to comply with the 30-day requirement “paragraph (1) shall cease to apply____” Under these circumstances the taxpayer cannot proceed by paying merely 15% of the penalty. The taxpayer must pay the full amount to satisfy the jurisdictional prerequisite recognized in Flora. Consequently, we conclude that the 30-day requirement of § 6703(c)(2) is a limitation on the taxpayer’s right to seek judicial review by paying only 15% of the penalty.
We agree with the district court that the 30-day requirement in section 6703(c)(2) is not jurisdictional. Again, we turn to the law pertaining to refund suits in general to ascertain the intent of Congress with respect to the 30-day requirement for refund suits brought pursuant to 6703(c)(2). Statutes pertaining to refund suits in general provide that six months after paying an allegedly erroneous assessment in full and filing an administrative claim, a taxpayer may bring a suit in the district court for a refund. See 26 U.S.C. §§ 6511, 7422, and 6532 and 28 U.S.C. § 1346(a)(1). The taxpayer’s action must be filed within two years from the date the Service mails a notice of disallowance unless the notice is waived or the time extended. See 26 U.S.C. § 6532(a). This two-year requirement is a period of limitation.
Because § 6532(a) is a statute of limitations, the government may be precluded from relying on it in extraordinary circumstances. In Miller v. United States, 500 F.2d 1007 (2d Cir.1974), the court allowed a taxpayer to proceed with his refund suit when the Commissioner inadvertently sent a notice that led the taxpayer to believe the two-year deadline had been extended. Similarly, the Court of Claims allowed a refund suit to proceed when the taxpayer, acting reasonably, was “understandably confused” by a second notice of disallowance that inadvertently extended the period of limitations. Southeast Bank of Orlando v. United States, 230 Ct.Cl. 277, 676 F.2d 660, 664 (1982).
The construction placed on § 6532(a) as a statute of limitations and the principles explained in Miller and Southeast Bank afford sound precedent for allowing the taxpayer to maintain her action. In all three cases the government explicitly extended the time to a date certain in which the taxpayer could act.
We caution that the 30-day limitation in section 6703(c)(2), like the 2-year limitation in § 6532(a) cannot be lightly breached. The taxpayer’s inadvertence, neglect, or application for reconsideration of an administrative disallowance will not toll the statute. Moreover, the Service’s reconsideration and affirmance of a disallowance will not suffice to extend the time. Compare § 6532(a)(4).
We hold only that when an official of the Service explicitly extends the time to a date certain in which the taxpayer can act, the taxpayer’s suit is not barred for lack of subject matter jurisdiction. Although our reasoning differs in part from that of the district court, we conclude that it did not err by denying the government’s motion to dismiss.
II
Section 6702(a) of Title 26 U.S.C. imposes a penalty on a person who files a tax return that facially indicates that the self-assessment is substantially incorrect due to a position that is frivolous. Congress envisioned “a ‘war tax’ deduction under which the taxpayer reduces his taxable income or shows a reduced tax due by that individual’s estimate of the amount of his taxes going to the Defense Department budget” as frivolous within the meaning of section 6702(a). See S.Rep. No. 494, 97 Cong., 2d Sess. 278, reprinted in 1982 U.S.Code Cong. & Admin.News 781, 1024.
The taxpayer filed a return in which she claimed a credit for a portion of her tax that she computed would be spent for the military. After receiving notice of the assessment of a penalty for filing a frivolous return, she filed an amended return reflecting the proper tax. The district court found that her advocacy of peace and her opposition to military expenditures are sincere. Nevertheless, for reasons adequately explained by the district court, we con-elude that the Internal Revenue Service properly imposed the penalty specified in section 6702(a). We recently upheld the imposition of a penalty under substantially similar circumstances in McKee v. United States, 781 F.2d 1043 (4th Cir.1986). The principles explained in McKee govern the taxpayer’s case and fully sustain the judgment of the district court.
Ill
We also conclude that the district court properly exercised its discretion in imposing sanctions on the taxpayer’s attorney. Sanctions are authorized by Fed.R.Civ.P. 11, which was amended in 1983 to emphasize the responsibilities of an attorney and to reinforce “those obligations by the imposition of sanctions.” See Fed.R.Civ.P. 11 advisory committee note. Rule 11 provides in part:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his 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.
If this provision of the rule is violated, the court “shall impose ... an appropriate sanction.” The drafters explain that the standard for determining whether an attorney has discharged the affirmative duty imposed by the rule is “one of reasonableness under the circumstances.” It is a standard more stringent than good faith. See advisory committee note; Indianapolis Colts v. Mayor of Baltimore, 775 F.2d 177, 181 (7th Cir.1985); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir.1985).
Section 6702(a) clearly established that the taxpayer’s return warranted a penalty. Any doubt an attorney harbored about the nature of her war tax credit could be quickly dispelled by reading the legislative history. Moreover, as the district court pointed out, imposition of the penalty had been sustained in a number of cases.
The advisory committee note admonishes:
The rule is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted.
This cautionary note affords no shield to the taxpayer’s attorney. The theories he advanced were not creative. They had been uniformly rejected. It was not reasonable to believe that the taxpayer’s position was plausible.
IV
For reasons stated in Part III we grant the government’s motion for sanctions against the taxpayer and her attorney for prosecuting this frivolous appeal of the judgment denying a refund of the penalty imposed by section 6702(a). See Fed.R. App.P. 38. The government does not seek sanctions on account of the appeal brought by the taxpayer’s attorney to reverse the judgment imposing Rule 11 sanctions. Consequently, the government’s expenses must be prorated.
We remand the case to the district court for determination of the amount to be awarded as sanctions. The government shall recover its costs as taxed by the clerk of this court. The judgments of the district court are affirmed.
. The district court’s opinion is reported as Dalton v. United States, 56 AFTR 2d 85-6306 (W.D.N.C.1985).
. 26 U.S.C. § 6703(c)(1) and (2) provides:
Extension of period of collection where person pays 15 percent of penalty.—
(1) In general. — If, within 30 days after the day on which notice and demand of any penalty under section 6700, 6701, or 6702 is made against any person, such person pays an amount which is not less than 15 percent of the amount of such penalty and files a claim for refund of the amount so paid, no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun, or prosecuted until the final resolution of a proceeding begun as provided in paragraph (2)----
(2) Person must bring suit in district court to determine his liability for penalty. — If, within 30 days after the day on which his claim for refund of any partial payment of any penalty under section 6700, 6701, or 6702 is denied (or, if earlier, within 30 days after the expiration of 6 months after the day on which he filed the claim for refund), the person fails to begin a proceeding in the appropriate United States district court for the determination of his liability for such penalty, paragraph (1) shall cease to apply with respect to such penalty, effective on the day following the close of the applicable 30-day period referred to in this paragraph.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer: |
songer_genresp1 | 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.
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.
SPARTACUS, INC., a Pennsylvania Corporation, Marcia Lynn Poslik, Maureen Bottles, Patricia Ann Herd, April Mancini, Regina Golden, Sandra Blake and Janet Iverson, and Jane Does v. BOROUGH OF McKEES ROCKS, a Municipal Corporation, Thomas Connolly, Mayor of the Borough of McKees Rocks and individually, Ronald Panyko, Donald Panyko, Lou White and John Does, police officers of the Borough of McKees Rocks and as individuals, Spartacus, Inc., Appellant.
No. 82-5312.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Oct. 26, 1982.
Decided Dec. 10, 1982.
Rochelle S. Friedman, Pittsburgh, Pa., for appellant.
Samuel J. Pasquarelli, Jubelirer, Pass & Intrieri, P.C., Pittsburgh, Pa., for appellee.
Before ADAMS, HUNTER and GARTH, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
Appellants are Spartacus, Inc., a corporation doing business in the Borough of McKees Rocks, Pennsylvania, and the individuals who work at Spartacus. Appellees are the Borough, its mayor, and some of its police officers. Borough Ordinance No. 1343 requires that health clubs and massage technicians must obtain licenses. Failure to obtain a license is a summary offense carrying a fine of up to $300 or, if the fine goes unpaid, thirty days imprisonment. After Borough police had repeatedly inspected the premises of Spartacus and issued citations to appellants for failing to obtain the required licenses, appellants brought suit against appellees in the United States District Court for the Western District of Pennsylvania. Appellants claimed that, because the ordinance either did not apply to them or was vague, the frequent issuance of citations violated their rights under the first, fourth, fifth, and fourteenth amendments to the United States Constitution. Pursuant to 42 U.S.C. § 1983 (1976), appellants sought declaratory relief, damages, and also temporary and permanent injunctions against the enforcement of the ordinance.
Appellants moved for the issuance of a preliminary injunction. On April 12, 1982, the district court issued an order denying the motion. In its oral opinion the court found that the ordinance did apply to appellants, was not vague, and did not violate appellants’ constitutional rights. The court also found that appellants had failed to demonstrate irreparable harm “in the equitable sense” because they had failed to apply for licenses. App. at 195. Appellants then filed this appeal.
An appellant challenging the denial of a preliminary injunction “bears a heavy burden.” Chesimard v. Muleahy, 570 F.2d 1184, 1187 (3d Cir.1978) (citations omitted). As we stated in Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir.1982) (en banc):
A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party “will be irreparably injured pendente lite if relief is not granted.” Id. at 136; Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir.1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir.1972). Consequently, the scope of appellate review of a trial court’s ruling is narrow. Unless the trial court abused its discretion, or committed an error in applying the law, we must take the judgment of the trial court as presumptively correct. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (3d Cir.1980).
Id. at 443.
In this appeal appellants raise only two issues. First, they argue that the evidence at trial was insufficient to sustain their convictions under the ordinance. Second, they urge that the ordinance is void for vagueness. Both arguments go only to appellants’ likelihood of success on the merits.
Appellants fail to ask us to review the district court’s finding of no irreparable harm. To justify reversal of the trial court’s determination, however, appellants must demonstrate that the district court abused its discretion not only in holding that they had no reasonable probability of success on the merits, but also in holding that they would not be irreparably harmed. Chesimard, 570 F.2d at 1188. They have not done so.
Accordingly, the order of the district court will be affirmed.
. Appellants have since been convicted upon the citations before a magistrate. In a trial de novo, the Court of Common Pleas of Allegheny County, Pennsylvania, reversed the convictions of the individual appellants and affirmed the convictions of Spartacus, Inc. The appeal of Spartacus is still pending.
. Appellants also have filed a Complaint in Equity in the Court of Common Pleas of Allegheny County seeking an injunction against further enforcement of the ordinance. That complaint was dismissed and the proceeding is no longer pending. Appellees contended below that the proceedings in the court of common pleas constituted the final adjudication of the issues now before us. Because appellees do not renew that contention on appeal, we do not address it.
. The district court also queried but did not determine whether injunctive relief was improper under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970). Although the appeal of Spartacus, Inc., is still pending, see note 1, we conclude that Younger does not bar injunctive relief in the instant case because appellants state that their complaint should be read to seek injunctions against only future citations and prosecutions under the ordinance. See Wooley v. Maynard, 430 U.S. 705, 709-711, 97 S.Ct. 1428, 1432-1433, 51 L.Ed.2d 752 (1977); Doran v. Salem Inn, 422 U.S. 922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975); Conover v. Montemuro, 477 F.2d 1073, 1080 (3d Cir.1973).
. Appellants and appellees state that our appellate jurisdiction arises under 28 U.S.C. § 1291 (1976). The order of the district court is not a final decision within the meaning of that section, however. Instead, our jurisdiction arises under 28 U.S.C. § 1292(a)(1) (1976), which permits an appeal from the interlocutory order of a district court refusing to issue a preliminary injunction.
. Of course, a United States Court of Appeals does not sit as a Pennsylvania appellate court to review the sufficiency of the evidence before the Pennsylvania Court of Common Pleas. We read appellants’ brief as inartfully arguing that appellants do not fall within the statute.
. We agree with the concerns raised by the dissent. Although we have decided not to dismiss the appeal in this case, our opinion should not be read as approving in any way the submission of deficient briefs or appendices. Attomeys jeopardize their clients’ cases as well as their own professional standing by failing to comply with the Federal Rules of Appellate Procedure and the Rules of this Circuit.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_appel1_7_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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the citizenship of this litigant as indicated in the opinion.
Dona H. SLY and Joann E. Sly, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.
No. 86-7773.
United States Court of Appeals, Eleventh Circuit.
Feb. 2, 1988.
Dona H. Sly, pro se.
Joann E. Sly, pro se.
John T. Robertson, Gadsden, Ala., for plaintiffs-appellants.
Frank W. Donaldson, U.S. Atty., Caryl Privett, Asst. U.S. Atty., Birmingham, Ala., Michael L. Paup, Roger Olsen, U.S. Dept, of Justice, Gilbert S. Rothenberg, Tax Div., U.S. Dept, of Justice, Janet A. Bradley, Washington, D.C., for defendant-appellee.
Before ANDERSON and EDMONDSON, Circuit Judges, and CARR , District Judge.
Honorable George C. Carr, U.S. District Judge for the Middle District of Florida, sitting by designation.
ANDERSON, Circuit Judge:
This appeal presents the narrow issue of whether a tax is “paid” at the time the taxpayer’s real property is seized by the Internal Revenue Service (“IRS”) for collection of the tax or at the time of the sale of such property. We conclude that the tax is not “paid” until the seized property is sold.
I. FACTS
On March 4, 1981 and October 16, 1981, the IRS filed tax liens in the total amount of $3006.61 against two parcels of real property owned by appellants Dona and Joann Sly. The tax deficiency was from appellants’ 1976 tax year. On March 12, 1982, the IRS filed a notice of levy on the real property and on April 19, 1982, filed a notice of seizure.
The Slys filed a refund claim on June 7, 1982. The IRS made two unsuccessful attempts to sell the property and thereafter determined that its value was insufficient to justify the cost of a sale. Consequently, the IRS returned the real property to the Slys on August 3, 1982. The IRS denied the Slys’ refund claim on October 26, 1983.
The Slys’ outstanding tax liability was satisfied in full on March 25, 1983, following the IRS’ seizure and sale of the Slys’ automobile. The Slys then filed an amended refund claim on April 26, 1985, which the IRS denied on August 27, 1985. The Slys commenced this action for a refund on October 25, 1985, in the U.S. District Court for the Northern District of Alabama.
At trial, the court granted a directed verdict in the government’s favor. The basis for the court’s decision was that neither of the Slys’ refund claims was filed within the applicable statute of limitations. 26 U.S.C. § 6511. Section 6511 requires that a taxpayer must file a refund claim either within three years following the date on which the return is filed or within two years after the tax is paid.
The Slys assert that the tax was “paid” when the real property was seized on April 19, 1982; and therefore that their June 7, 1982 claim, filed less than two months after the seizure, was timely. The district court concluded, however, that seizure of property did not constitute payment of the tax and that payment was not made until the Slys’ automobile was seized and sold on March 25, 1983. Consequently, the Slys’ initial refund claim, filed on June 7, 1982, was premature and their second claim, filed on June 26, 1985, was outside the two-year statute of limitations by one month.
II. DISCUSSION
The sole issue raised on appeal is whether seizure of the Slys’ real property constitutes payment of the tax for the purposes of triggering the two-year statute of limitations of 26 U.S.C. § 6511(a). We conclude that a tax is not “paid” until the seized property is sold.
This court has never explicitly addressed this issue. However, in Clark v. Campbell, 501 F.2d 108, 126 (5th Cir.1974), the former Fifth Circuit, in anther context, implied that a tax is not “paid” until property is seized, sold, and the proceeds applied to the tax liability. Accord Kabbaby v. Richardson, 520 F.2d 334, 335 n. 8 (5th Cir.1975) (“We indicated in Clark that seizure does not equal payment.”).
The Supreme Court’s decision in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), also supports our conclusion that seizure does not constitute payment. The issue in Whiting was whether property seized by the IRS prior to the taxpayer’s declaration of Chapter 11 bankruptcy was part of the reorganization estate and thereby subject to the automatic stay provisions of the Bankruptcy Code which prohibited sale or disposition of the reorganization estate’s assets by a secured creditor. The court concluded that because the IRS’ seizure of property did not divest the taxpayer of his ownership of that property, the IRS was subject to the bankruptcy stay and could not sell the seized property to satisfy the tax liability. The court noted that ownership of the seized property did not transfer to the IRS until the property was sold at a tax sale. 462 U.S. at 209-12, 103 S.Ct. at 2316-17.
Period of limitation on filing claim. Claim for credit or refund of an overpayment of any tax imposed by this Title in respect of which the taxpayer is required to file a return shall be filed by the taxpayer within three years from the time the return was filed or two years from the time the tax was paid, whichever of such periods expires the later....
By analogy, if ownership of property is not transferred from the taxpayer to the IRS when the latter seizes property pursuant to a tax lien and levy, it is impossible for the seizure to constitute payment. Payment only could occur when the IRS becomes the “owner” of the property, which under Whiting does not occur until the property is sold. Consequently, “payment” of a tax is concurrent with the IRS’ sale — not its seizure — of a taxpayer’s property.
Our conclusion also is supported by policy considerations. The rule urged by the taxpayer here would introduce unnecessary uncertainty into an area where certainty is important. Unless there is a measure of certainty and predictability surrounding the two-year time period for filing a claim for refund, unwary taxpayers will fall into the trap of having the time period expire and be barred by the statute of limitations. Because the precise value of property seized often will be uncertain at the time of seizure, it will often be unclear whether such value equals the full amount of the tax due. Thus, it would be difficult for the taxpayer to know whether the tax has been paid in full and therefore whether the two-year time for claiming the refund has been triggered.
For the foregoing reasons, the decision of the district court is
AFFIRMED.
. The parties agree that the three-year statute of limitations expired before the Slys’ initial claim was filed. They filed their 1976 tax return on April 11, 1977, thus the statute of limitations expired on April 11, 1980. Their first refund claim was not filed until June 7, 1982.
. Section 6511(a) provides as follows:
. The Slys’ argument is premised on the assumption, which we must accept in this directed verdict posture, that the jury reasonably could have concluded that the value of the real property on the seizure date was greater than or equal to the tax liability so that the tax would have been paid in full.
. This case was decided prior to the close of business on September 30, 1981, and is binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).
. Also, the taxpayer's position would create an administrative problem. The IRS cannot know how much to credit the deficiency owed by the taxpayer until the sale fixes the value of the amount to be credited to the tax.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the citizenship of this litigant as indicated in the opinion?
A. not ascertained
B. US citizen
C. alien
Answer: |
songer_app_stid | 33 | 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 task is to identify the state of the first listed state or local government agency that is an appellant.
GREENE COUNTY PLANNING BOARD, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Power Authority of the State of New York, Intervenor.
No. 137, Docket 74-2638.
United States Court of Appeals, Second Circuit.
Argued Oct. 1, 1975.
Decided Dec. 22, 1975.
Robert J. Kafin, Glens Falls, N. Y. (Neil E. Needleman, Kafin & Needle-man, Glens Falls, N. Y., of counsel), for petitioner.
Philip R. Telleen, Atty., Federal Power Commission (Drexel D. Journey, Gen. Counsel, Federal Power Commission, John R. Staffier, Atty., Federal Power Commission, of counsel), for respondent.
Scott B. Lilly, New York City (Morgan, Lewis & Bockius, Washington, D. C., of counsel), for intervenor.
Before WATERMAN, OAKES and MESKILL, Circuit Judges.
OAKES, Circuit Judge:
This is a petition by Greene County Planning Board (the Planning Board), a municipal body which has been in this court previously in connection with transmission lines, to review a final order and Permit of the Federal Power Commission (FPC), both issued on September 13, 1974, permitting the construction of a 765,000 volt (765 kv) facility by the Power Authority of the State of New York (PASNY). The construction project approved by the Commission is for the bulk transmission of electric energy at the United States-Canadian boundary in the town of Fort Covington, Franklin County, New York. The project consists of a single circuit tower with supporting structure, land and facilities, which is to be connected with a similar circuit suspended from a similar tower on the Canadian side of the border. The purpose of the connection is to allow PASNY to import Canadian electric power to help meet New York demands. The FPC denied a petition for rehearing on October 25, 1974. The petition to review was then brought pursuant to § 313(b) of the Federal Power Act, 16 U.S.C. § 8257(b), and the Administrative Procedure Act, 5 U.S.C. §§ 701-06.
The Planning Board has petitioned this court to reverse the order and revoke the permit issued by the FPC. The Board requests that we order the FPC to comply with NEPA and the Federal Power Act by conducting interdisciplinary consideration of all relevant environmental factors before issuing this construction permit. The respondent FPC argues that we do not have jurisdiction over this petition under the Federal Power Act. The Commission argues that its actions in this case were not “under” the Federal Power Act, but rather were pursuant to § 7(d) of the Energy Supply and Environmental Coordination Act of 1974 (ESECA), 15 U.S.C. § 793(d), and the provisions of Executive Order No. 10485, 3 C.F.R. 970 (1949-53 Comp.), dated September 3, 1953. The Commission’s position is that there is no statutory provision for review of actions taken under ESECA and Executive Order No. 10485, and, therefore, that we lack jurisdiction over the matters raised in the petition. PASNY makes the same arguments as does the FPC but also argues, first, that the petition for review must be dismissed for lack of standing because the Planning Board alleges no injury in fact from the issuance of the permit and, second, that the petition for review presents a nonjusticiable political question, viz., whether the permit was issued in accordance with the proper conduct of the foreign relations of the United States.
We agree with the petitioner that it has standing to bring this petition for review. We agree with the FPC, however, that there is no jurisdiction under the Federal Power Act for us to review the order or permit issued by the Commission in this case. Lacking jurisdiction, we need not reach the political question point raised by PASNY. We accordingly deny the petition.
I. PROCEEDINGS BELOW
PASNY applied to the Commission on September 21, 1973, for authority to construct and operate the international connection facility at Fort Covington, Franklin County, New York. Since the application involved an international connection, PASNY requested that a Presidential Permit be issued to it pursuant to Executive Order No. 10485. The Greene County Planning Board filed a petition to intervene on October 16, 1973, claiming that the international connection was part of a “comprehensive integrated plan” — a plan which includes the Blenheim-Gilboa and Breakabeen hydroelectric projects (Commission Project Nos. 2685 & 2729) as well as other generating and transmission facilities in and about Greene County — and that this wider plan ultimately will harm the environment of Greene County. The Planning Board sought a consolidated consideration of the instant proceedings with the proceedings involving the Blenheim-Gilboa and Breakabeen projects. The contentions of the Planning Board are based on the view that the ultrahigh voltage transmission facilities here under consideration will make vast amounts of Canadian hydroelectric power available at the New York state border and that power will necessarily be transmitted eventually through Greene County. This, they argue, will require the construction of immense transmission lines in Greene County. The Planning Board points out, and PASNY concedes, that the power will be transmitted south via Massena to Marcy, near Edic, New York, in the vicinity of Utica, by way of a 765 kv line which PASNY has proposed to construct. (An application for construction of that line is now pending before the New York State Public Service Commission.) The Planning Board suggests that the power would then be transmitted to Gil-boa, where PASNY has already constructed, under an FPC license, the one million watt Blenheim-Gilboa pump storage hydroelectric project and has evidently applied to the FPC for authorization to build another. The Planning Board then suggests that a 765 kv transmission line would enter Greene County from Gilboa and travel eastward across Greene County for some 35 miles to Leeds. Authorization for this transmission corridor across the county is sub judice before the FPC at this time, after twice having been involved in litigation in this court. See note 1, supra. From Leeds, the Planning Board contends that the 765 kv transmission line would leave Greene County, cross the Hudson River and turn south to Pleasant Valley and eventually connect to New York. PAS-NY contends that the Planning Board’s contentions are merely speculative, and that a transmission line across Greene County might never be constructed since it is only one of several possible methods of “strengthening the statewide interconnecting transmission system in that area of the state.”
While the Commission was considering PASNY’s application and the petition to intervene, which included a request for an environmental impact study under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., Congress enacted ESECA, § 7(d) of which specifically related to the border crossing facilities here at issue. It provides that the Commission is
authorized and directed to issue a Presidential permit pursuant to Executive Order 10485... for the construction... of facilities for the transmission of electrical energy at the borders of the United States without preparing an environmental impact statement pursuant to [42 U.S.C. § 4332] for facilities for the transmission of electric energy between Canada and the United States in the vicinity of Fort Covington, New York.
15 U.S.C. § 793(d). Accordingly, the Commission, in its authorization of this project, was proceeding solely under Executive Order No. 10485 and not under the terms of the Federal Power Act. Pursuant to the requirements of the Executive Order the Commission obtained recommendations of the Secretary of State and the Secretary of Defense pertaining to the proposed connection at Fort Covington and the contract between PASNY and Hydro-Quebec, the Canadian authority. On September 13, 1974, the FPC issued an order granting intervention for the Planning Board but denying its request for a hearing and for consolidation of the Fort Covington connection into the other proceedings affecting Greene County. It found that petitioner’s participation “may be in the public interest” and therefore granted the petitions to intervene but held that pursuant to ESECA the requests for a hearing and environmental impact statement and a consolidation of proceedings should be denied. It forthwith issued the Permit accompanied with a finding that it was in the public interest, as required by the Executive Order.
The Commission subsequently issued an order denying a rehearing on October 25, 1974, which indicated the Commission’s belief that Congress intended all of the provisions of NEPA to be inapplicable to the Fort Covington action. The Commission rejected the contention that the Fort Covington application was subject to the provisions of the Federal Power Act either as a “project” within the meaning of § 3(11) of the Act, 16 U.S.C. § 796(H), or as part of a “comprehensive plan” within the meaning of § 10(a) of the Act, 16 U.S.C. § 803(a). It claimed that its licensing jurisdiction under Part One of the Act does not extend either to the border facilities or to related facilities which are part of the border connection project. Beyond this the Commission denied a public hearing on the basis that § 7(d) of ESECA clearly indicated a sense of urgency. The Commission stated that it had considered the petitioner’s objections, but concluded that an evidentiary hearing was not necessary or appropriate, pointing out that the petitioner represents interests in a county some 180 miles south of the border crossing point, and that no resident or public official or agency of Franklin County where the facilities in question are to be located had raised any objection. Thereafter the Planning Board filed this petition for review.
II. STANDING
PASNY relies on Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), for its argument that petitioners lack standing in this case. It contends that because the facilities here in question are located miles from Greene County the Planning Board cannot show any injury-in-fact from the granting of the Fort Covington Permit. PASNY points out that even if the remainder of the line connecting these facilities with midstate New York is built to Utica (or Edic) it will still be 72 miles from Greene County. Our own Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972) (Greene County I), and Greene County Planning Board v. FPC, 490 F.2d 256 (2d Cir. 1973) (Greene County II), involved proposed 765 kv transmission lines crossing Greene County from Gilboa to Leeds. The Planning Board urges that a connecting facility from Edic to Gilboa will have vast consequences on the proposed transmission corridor and the environment of Greene County. In Greene County I this court stated that the FPC could not “disregard impending plans for further power development” and that the court could not “tolerate the Commission cutting back on its expanded responsibility by binding itself to potential developments..” 455 F.2d at 424. As Judge Mansfield also commented in dissent in Greene County II, “[o]ur earlier opinion scored the FPC for its failure to consider impending plans for further power development when it was analyzing a project likely to be influenced by such future development.” 490 F.2d at 261. These opinions indicate that it may well be artificial to separate portions of an integrated plan and allow only those persons physically located near each segment of the plan to challenge that particular portion of the unified scheme. When we are considering a unified transmission plan, those affected adversely by any particular portion may well be injured by approval of another portion of the plan by way of commitment of resources or otherwise, at least where the approved segment as here has no independent utility.
PASNY concedes that, at the very least, it will construct a 765 kv line to its proposed Massena substation and from there to a proposed substation at Marcy. The Marcy substation will be adjacent and connected to the Niagara-Mohawk Power Corporation Edic substation in the vicinity of Utica. “From that point the power will be transmitted over existing lines to load centers throughout the interconnected system including lines to the Consolidated Edison Company system facilities at Pleasant Valley and from there on its lines to New York City.” Intervenor’s brief at 7. PASNY also concedes that the initial decision on the Gilboa-Leeds line provided that the line as constructed should be able to be upgraded to 765 kv. PASNY is already seeking FPC approval for immediate construction of a 345 kv line from Gilboa to Leeds and for a second 345 kv line from Breakabeen to Leeds. It is further conceded as it has to be that to some degree power from Canada will flow over an interconnected circuit system which includes these two 345 kv lines. See note 9 supra. Thus, at the very least, PASNY admits that a 765 kv line from Marcy-Edic to Gilboa and through Greene County “is one of several possible alternatives that would be available if there arose a need to strengthen the proposed 765 kv statewide transmission system.” They merely state that this will not be needed, if at all, until the 1980s.
In an area where long-range planning is essential, see Cook, The Flow of Energy in an Industrial Society, Scientific American (Sept. 1971) 135, 144, it would border on the absurd to assert that a statutorily constituted county planning agency, in a county which has a real probability of being affected by transmission corridors in the future, would lack standing to raise the claim that is here made. The original petition to intervene argues that additional transmission corridors and lines in the county will be inconsistent with the historic, social and economic and cultural qualities of Greene County, and will cause environmental damage therein. It also objects that a piecemeal approach is employed by PASNY and the Commission which will deprive concerned parties of the opportunity for an overall evaluation. Cf. Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 934-35 (2d Cir. 1974), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975) (in light of Pub.L. No. 94-83 and Aberdeen & Rockfish Railroad v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975)); Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1085-92 (1973). While it may be true that any number of other persons who live in assorted other areas of New York State could claim standing similar to those of Greene County, the Supreme Court has made it clear that standing is not to be denied because many people suffer the same injury. United States v. SCRAP, 412 U.S. 669, 686-87, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). “To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.” Id. at 688, 93 S.Ct. at 2416. See also id. at 689 n. 14, 93 S.Ct. 2405. The Greene County Planning Board is surely as greatly aggrieved as the Scenic Hudson Preservation Conference was in the original Storm King case, even though the threat here is one somewhat further in the future. See Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 616 (2d Cir. 1965) (injury to aesthetic, conservational and recreational interests alleged), cert. denied, Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Wilderness Society v. Morton, 150 U.S.App.D.C. 170, 463 F.2d 1261 (1972). We reject the argument that petitioner lacks standing to challenge the Commission’s action in this case.
III. APPLICABILITY OF THE FEDERAL POWER ACT
Part One of the Federal Power Act § 3(11), 16 U.S.C. § 796(11), note 13 supra, defines a hydroelectric project, and § 4(e), 16 U.S.C. § 797(e), confers jurisdiction on the Commission to license such projects. Petitioner claims that the Fort Covington permit awarded by the Commission was a portion of such a project, and that the award was therefore made “under” the Federal Power Act. Orders made by the Commission “under” the Federal Power Act are reviewable in the courts of appeals. 16 U.S.C. §§ 8251(a), (b).
The only way in which jurisdiction could obtain here would be if the transmission line facilities at issue were “the.primary line or lines transmitting power [from the hydroelectric project] to the point of junction with the distribution system or with the interconnected primary transmission system....” 16 U.S.C. § 796(11), note 13 supra. However, there is no hydroelectric project within the Commission’s jurisdiction which is involved here (the Canadian generating facilities are not subject to FPC licensing), and hence the border crossing facility cannot conceivably be a “primary line” for such a project.
Petitioner also claims we have jurisdiction to review the Commission’s order as a component of a “comprehensive plan.” Section 10(a) of the Act, 16 U.S.C. § 803(a), note 14 supra, does impose upon the Commission a duty to develop a “comprehensive plan,” but this duty arises only in connection with projects over which it has licensing jurisdiction. The condition of conformance to a comprehensive plan relates only to “[a]ll licenses issued under this Part....” See note 14 supra. However much we might agree with the petitioner that there may be great need for a single regulatory body having planning responsibility over various aspects of electric generation and transmission, the FPC does not have such responsibility.in this situation, see FPC v. Louisiana Power & Light Co., 406 U.S. 621, 635-36, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), for it is clear that these facilities are not subject to Commission regulations under the provisions of Part One of the Act. The argument advanced by petitioner is one for Congress, not the courts.
Nor is Part Two of the Federal Power Act here involved. The Planning Board argues that the power contract between PASNY and Hydro-Quebec provides for the possible exportation of power by PASNY, and that PASNY is therefore required by § 202(e) of the Act, 16 U.S.C. § 824a(e), to obtain formal FPC authorization for the contract. This argument was, however, not made in the application for rehearing. Therefore we have no jurisdiction to entertain it for the first time here. 16 U.S.C. § 8257(b); FPC v. Colorado Interstate Gas Co., 348 U.S. 492, 75 S.Ct. 467, 99 L.Ed. 583 (1955); Rhode Island Consumers Council v. FPC, 164 U.S.App.D.C. 134, 504 F.2d 203 (1974). Even if we did have jurisdiction over this claim, we would have to reckon with the Commission’s administrative determination that for purposes of the exportation control authority under § 202(e) of the Act, state agencies such as PASNY which fall within the definition of municipalities in § 3(7) of the Act, 16 U.S.C. § 796(7), are not required to obtain export authorizations under § 202(e). See Lubeck (Maine) Water and Electric District Permit, FPC Docket No. E7527 (Aug. 21, 1970).
It is, to the contrary, clear that Executive Order No. 10485, note 5 supra, delegates an executive function to the FPC, a function rooted in the President’s power with respect to foreign relations if not as Commander in Chief of the Armed Forces. Its predecessor, Executive Order No. 8202, 3 C.F.R. 560 (1938-43 Comp.), issued July 13, 1939, had called for the Commission to receive permit applications but then only to make recommendations to the President. The President retained power to grant permits and to impose conditions thereon. See generally United States v. La Compagnie Francaise des Cables Telegraphiques, 77 F. 495 (S.D.N.Y.1896); 30 Op.Att’y Gen. 217 (Aug. 14, 1913); 22 Op.Att’y Gen. 13, 25, 26, 27 (Jan. 1898). While Executive Order No. 10485 refers to § 202(e) of the Federal Power Act in its preamble, it does so simply to explain why the President delegated the duty to issue international connection permits. The preamble does not suggest that the Act is the basis for Executive Order No. 10485.
Thus, it is clear that we lack jurisdiction under the Federal Power Act to review the Commission’s authorization of the border-crossing facilities at Fort Covington, New York. Petitioner has suggested that even though we lack jurisdiction under the Federal Power Act, the Administrative Procedure Act may provide jurisdiction in this case for the review of the order and Permit as “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. See also 5 U.S.C. § 702. This court does not appear to have decided the much debated question whether the Administrative Procedure Act (APA) confers jurisdiction for review of all final agency action. See Aguayo v. Richardson, 473 F.2d 1090, 1101-02 (2d Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974). Compare Bradley v. Weinberger, 483 F.2d 410, 413 (1st Cir. 1973) (APA confers jurisdiction), with Chaudoin v. Atkinson, 494 F.2d 1323, 1328-29 (3d Cir. 1974) (APA does not confer jurisdiction), and Bramblett v. Desobry, 490 F.2d 405, 407 (6th Cir.) (same), cert. denied, 419 U.S. 872, 95 S.Ct. 133, 42 L.Ed.2d 111 (1974). Assuming, however, that the APA independently establishes jurisdiction for the review of agency action, we need only point out that such jurisdiction would lie originally in the district courts and not in the courts of appeals. See Bradley v. Weinberger, supra; Rettinger v. FTC, 392 F.2d 454, 457 (2d Cir. 1968). See generally Note, Jurisdiction to Review Federal Agency Action: District Court or Court of Appeals, 88 Harv.L.Rev. 980 passim (1975).
Petition dismissed for lack of jurisdiction.
See Appendix Aon next page.
APPENDIX A
. See Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Greene County Planning Board v. FPC, 490 F.2d 256 (2d Cir. 1973).
. The Agreement basically provides for the sale by Hydro-Quebec to PASNY of 800 MW of electric power and 2.14 billion kilowatt hours of energy in June-October of 1977 and 800 MW of power and 3 billion kwh of energy in April-October from 1977-1996. Under the agreement, PASNY also undertakes to sell energy during the winter months to Hydro-Quebec, under certain conditions.
. Section 313(b) of the Federal Power Act, 16 U.S.C. § 8251 (b), provides in pertinent part:
Any party to a proceeding under this [Act] aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part... No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do. The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.
. 15 U.S.C. § 793(d) provides:
In order to expedite the prompt construction of facilities for the importation of hydroelectric energy thereby helping to reduce the shortage of petroleum products in the United States, the Federal Power Commission is hereby authorized and directed to issue a Presidential permit pursuant to Executive Order 10485 of September 3, 1953, for the construction, operation, maintenance, and connection of facilities for the transmission of electric energy at the borders of the United States without preparing an environmental impact statement pursuant to section 102 of the National Environmental Policy Act of 1969 (83 Stat. 856) for facilities for the transmission of electric energy between Canada and the United States in the vicinity of Fort Covington, New York.
. Executive Order No. 10485 [3 C.F.R. 970 (1949-53 Comp.)] provides in pertinent part:
WHEREAS section 202(e) of the Federal Power Act, as amended, 49 Stat. 847 (16 U.S.C. 824a(e)), requires any person desiring to transmit any electric energy from the United States to a foreign country to obtain an order of the Federal Power Commission authorizing it to do so;
SECTION 1. (a) The Federal Power Commission is hereby designated and empowered to perform the following-described functions:
(1) To receive all applications for permits for the construction, operation, maintenance, or connection, at the borders of the United States, of facilities for the transmission of electric energy between the United States and a foreign country.
(3) Upon finding the issuance of the permit to be consistent with the public interest, and, after obtaining the favorable recommendations of the Secretary of State and the Secretary of Defense thereon, to issue to the applicant, as appropriate, a permit for such construction, operation, maintenance, or connection. The Commission shall have the power to attach to the issuance of the permit and to the exercise of the rights granted thereunder such conditions as the public interest may in its judgment require.
SEC. 5. Executive Order No. 8202 of July 13, 1939, is hereby revoked.
DWIGHT D. EISENHOWER,
The White House
September 3, 1953.
. Blenheim-Gilboa has been licensed by the Commission and the pump storage project, but - not the approved transmission lines, built. Breakabeen is pending.
. Application of PASNY, N.Y.S. P.S.C. Case No. 26529.
Section 2.3 of the agreement between PAS-NY and Hydro-Quebec refers expressly to “60 hertz alternating current” transmission facilities from Massena “to a point of major connection with [PASNY’s] own system near Utica, N. Y.”
. The current proposal is only for a 345 kv line from Gilboa to Leeds, but such a line would evidently be upgradeable to 765 kv.
. The Planning Board has attached to its brief a diagram which it claims is derived from Appendix C to the FPC Final Environmental Statement in FPC Project No. 2685 (GilboaLeeds) and the New York Power Pool 1974-1989 Plan filed by PASNY with the FPC on May 3, 1974. This diagram shows a 765 kv line crossing Greene County from Gilboa to Leeds. PASNY suggested at argument, however, that any 765 kv transmission would logically run over an existing 765 kv line from New Scotland in Albany County to Leeds (which, however, is in Greene County), barely touching and not crossing Greene County. Appended hereto as Appendix A is the Planning Board’s diagram with PASNY’s New Scotland line shown. We need not resolve the parties’ views on this matter since it is a scientific fact, conceded by PASNY at argument, that electrical energy flows through a system in a unitary fashion and “will flow to some degree over the line from Gilboa to Leeds.” See also Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 489 n. 20 (2d Cir. 1971) (Oakes, J., dissenting), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed. 2d 813 (1972). There is no real dispute that the power from Canada is intended to be transferred to New York City.
. See note 4 supra.
. The Department of State’s letter of August 22, 1974, “supports” the issuance of the permit. The Department of Defense letter of August 15, 1974, advises the FPC that the Department “is not aware of any existing reason to withhold approval of the request
. Conditions were attached to the Permit including inspection by the Corps of Engineers and a Commission representative, liability to third parties, non-assignability, removal of facilities upon termination of the Permit and United States possession for safety purposes.
. Section 3(11) of the Federal Power Act, 16 U.S.C. § 796(11), defines “project” as follows:
“[P]roject” means complete unit of improvement or development, consisting of a power house, all water conduits, all dams and appurtenant works and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit.
. Section 10(a) of the Federal Power Act, 16 U.S.C. § 803, provides:
All licenses issued under this Part shall be on the following conditions:
(a) That the project adopted, including the maps, plans, and specifications, shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of the plans and specifications of the project works before approval.
. But see note 9, supra.
. N. Y. General Municipal Law § 239-b (McKinney 1974). The Planning Board was established March 15, 1968, by the Greene County Legislature.
. It has recently been suggested that certain adverse environmental effects are likely to result from the enormous electrical currents passing through ultrahigh voltage lines. See N. Y. Times, Nov. 10, 1975, at 1, col. 6. Land condemnation is another principal concern of the Planning Board.
. See note 2 supra.
. Section 202(e) of the Federal Power Act, 16 U.S.C. § 824a(e), provides:
After six months from the date on which this Part takes effect, no person shall transmit any electric energy from the United States to a foreign country without first having secured an order of the Commission authorizing it to do so. The Commission shall issue such order upon application unless, after opportunity for hearing, it finds that the proposed transmission would impair the sufficiency of electric supply within the United States or would impede or tend to impede the coordination in the public interest of facilities subject to the jurisdiction of the Commission. The Commission may by its order grant such application in whole or in part, with such modifications and upon such terms and conditions as the Commission may find necessary or appropriate, and may from time to time, after opportunity for hearing and for good cause shown, make such supplemental orders in the premises as it may find necessary or appropriate.
. Section 3(7) of the Federal Power Act, 16 U.S.C. § 796(7), provides:
“[M]unicipality” means a city, county, irrigation district, drainage district, or other political subdivision or agency of a State competent under the laws thereof to carry on the business of developing, transmitting, utilizing, or distributing power.
. Petitioner has, of course, raised the objection that the FPC order fails to comply with the provisions of NEPA, 42 U.S.C. § 4332, other than that requiring an environmental impact statement. Our dismissal for lack of jurisdiction of this petition for review does not, of course, foreclose it from bringing action in the district court if it considers the argument meritorious, a matter on which we express no opinion. See Environmental Defense Fund, Inc. v. Corps of Engineers of United States Army, 470 F.2d 289 (8th Cir. 1972), cert. denied, 412 U.S
Question: What is the state of the first listed state or local government agency that is an appellant?
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_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".
K. Chandapillai SETH, Plaintiff, Appellant, v. BRITISH OVERSEAS AIRWAYS CORPORATION, Defendant, Appellee. BRITISH OVERSEAS AIRWAYS CORPORATION, Defendant, Appellant, v. K. Chandapillai SETH, Plaintiff, Appellee.
Nos. 6138, 6150.
United States Court of Appeals First Circuit.
Heard Oct. 9, 1963.
Decided March 23, 1964.
Daniel F. Featherston, Jr., Boston, Mass., with whom Stephen F. Ells and Choate, Hall & Stewart, Boston, Mass., were on brief, for K. Chandapillai Seth.
David H. Fulton, Boston, Mass., with whom Robert Fulton, Boston, Mass., was on brief, for British Overseas Airways Corp.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
WOODBURY, Chief Judge.
These are appeals from a judgment in the amount of $331.60 entered for the plaintiff in an action for the loss of two pieces of baggage.
The plaintiff below, Kunniparampil Chandapillai Seth, referred to hereinafter for convenience as either the plaintiff or Seth, is a citizen of India and a priest of the Episcopal Church. The World Council of Churches awarded him a year’s fellowship for advanced study at the Episcopal Theological Seminary in Cambridge, Massachusetts, and presented him with two airline tickets it had purchased in his name from British Overseas Airways Corporation, BOAC, hereinafter. One ticket entitled Seth to passage from Trivandrum to Cochin and from Cochin to Bombay by Indian Air Lines and from Bombay to Beirut to London by Middle East Airlines. The other ticket issued by BOAC for its own account entitled Seth to passage on one of its flights from London to Boston. Under both tickets Seth was entitled to 20 kilograms of checked baggage without additional charge.
Seth went by train from Trivandrum to Cochin, where, without declaring excess value, he checked his two bags weighing a total of 20 kilograms at the Indian Air Lines counter and departed on his flight to Bombay. At Bombay he presented the baggage checks he had received in Cochin, reclaimed his baggage, re-checked it with BOAC to London, receiving therefor two baggage claim tags in proper form, and passed his bags through customs. Seth has not seen them since. During a layover between planes at Beirut Seth inquired about his bags from BOAC employees who assured, him that his bags would be forwarded on his flight and that he could reclaim them by presenting his claim checks to BOAC in London. In London he presented his claim checks to BOAC, but his baggage could not be found.
The next morning he presented his claim checks to BOAC again, but his baggage still could not be found, and he boarded his flight to Boston with only his passport and an attache case containing toilet articles. Diligent efforts by BOAC to trace Seth’s bags have proved fruitless. Where they disappeared and under what circumstances remain a mystery.
Seth brought suit against BOAC in the United States District Court for the District of Massachusetts in three counts, each on a different theory, to recover the damage he alleges he sustained by the loss of his baggage, presumably, the court below found, in Beirut. The theory of the first count is that jurisdiction lies under Title 28 U.S.C. § 1331(a) because the suit is a civil action wherein the matter in controversy exclusive of interest and costs exceeds the sum or value of $10,000 and arises under a treaty of the United States, that is to say, the Warsaw Convention, so called, to be considered presently. The theory of the second count is that jurisdiction lies under Title 28 U.S.C. § 1337 because the suit is a civil action arising under an Act of Congress regulating commerce. The theory of the third count is that jurisdiction lies under Title 28 U.S.C. § 1350 because it is a civil action by an alien for a tort only committed in violation of a treaty of the United States.
The court below held that it had jurisdiction but only under § 1331(a) supra, and that the limitation of liability for loss of cheeked baggage of the Warsaw Convention applied since the flight from India to the United States, although by several successive air carriers, was one undivided transportation between the territories of adherents to the Convention. Article 1 of the Warsaw Convention, 49 Stat. 3014, 3015 (1929). Wherefore the court entered judgment for BOAC on counts 2 and 3 and on count 1 awarded damages to Seth in the amount of $331.60, that being the conceded equivalent in United States money to 250 French gold francs per kilogram of the lost baggage. Both parties appealed, BOAC on the ground that the court below lacked jurisdiction, Seth on the ground that the court below erred in holding that BOAC was entitled to avail itself of the provision of the Warsaw Convention quoted from hereinafter limiting its liability for the loss of checked baggage to the amount awarded.
We shall consider the contentions in the order stated.
By adhering to the Warsaw Convention the United States agreed to a treaty which in its Article 18(1) provides that the air carrier “shall be liable for damage sustained” in the event of the loss of checked baggage taking place “during the transportation by air” and in its Article 18(2) defined “the transportation by air” as comprising “the period during which the baggage” is “in charge of the carrier, whether in an airport or on board an aircraft.” Moreover, the Convention in its Article 30(3) provides that in the case of transportation by various successive carriers falling within the definition of one undivided transportation as defined in its Article 1(3), which Seth’s transportation undoubtedly was, the passenger entitled to delivery “shall have a right of action against the last carrier.” Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth’s action, therefore, seems clearly to be one arising under a treaty of the United States.
The question remains whether there is a sufficient amount in controversy to meet the jurisdictional requirement of § 1331(a).
Seth alleged generally in his complaint that his loss amounted to more than double the $10,000 necessary for jurisdiction under § 1331(a). This seems a high valuation for two bags of an Indian cleric. But we cannot say that it apears to a legal certainty,” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938), from the face of the complaint that Seth could not possibly recover the amount he claimed with the result that his claim must have been colorably made to confer jurisdiction. Seth’s claim of loss having been made in apparent good faith, his claim controls as to dismissal for want of jurisdictional amount, id. 303 U.S. at 288, 58 S.Ct. 586, 82 L.Ed. 845. But BOAC by pre-trial motion challenged jurisdiction on the ground that actually les? than the jurisdictional amount was involved. This put the value of Seth’s bags in issue, but it was not error for the court below to deny this motion and postpone decision of that issue until after trial, Food Fair Stores v. Food Fair, 177 F.2d 177, 182 (C.A. 1, 1949), for: “As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.” Gibbs v. Buck, 307 U.S. 66, 71, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939).
The only testimony introduced at the trial was Seth’s deposition. In it he testified that his lost bags contained miscellaneous articles of wearing apparel and books, which he valued at over $1,000, and the only copies in existence of manuscripts for two books which he valued at $10,000. Seth’s valuations may well be excessive. Indeed the court below found that they were. But we do not think it follows “to a legal certainty” from the plaintiff’s proofs that he never could have been entitled to recover the amount he claimed.
We think that manuscripts for religious treatises properly form part of the baggage of a cleric and scholar on his way to pursue advanced study. See Wood v. Cunard S.S. Co., 192 F. 293, 41 L.R.A.,N.S., 371 (C.A. 2, 1911), and cases cited. And although the manuscripts were unique, and in the case of an author without an established reputation manuscripts not accepted for publication are incapable of exact valuation in money, it does not follow that Seth’s manuscripts were worthless. They had value to Seth for the many hours of labor he said he had put into them, see Newman v. Clayton F. Summy Co., 133 F.2d 465, 466 (C.A. 2, 1943), and, as the court below found, value to him also in preparing academic theses, in earning higher academic degrees, in enhancing his professional reputation and in securing employment in his church. While Seth’s valuation may be excessive, we are not prepared to say “to a legal certainty” that his valuation was colorable in order to confer jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., supra, 303 U.S. 289, 58 S.Ct. 586, 82 L.Ed. 845. We hold that federal jurisdiction lies under § 1331(a) and therefore do not consider or need to consider whether federal jurisdiction might also be predicated upon § 1337 or § 1350, supra.
Seth’s principal contention as appellant in No. 6138 is that BOAC is not entitled to avail itself of the provisions of Article 22(2) of the Warsaw Convention limiting its liability for baggage checked without a special declaration of value to 250 gold French francs per kilogram for the reason that it failed to comply with the requirement of Article 4 of the Convention which so far as material provides:
“(1) For the transportation of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check.
* *****
“(3) The baggage check shall contain the following particulars: ******
“(f) The number and weight of the packages;
******
“(h) A statement that the transportation is subject to the rules relating to liability established by this convention.
“(4) * * * if the baggage check does not contain the particulars set out at * * * (f), and (h) above, the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability.”
We accept the decision and the reasoning of the court below as to compliance with sub-paragraph (f). That court said:
“Plaintiff has not proved that defendant failed to comply with sub-paragraph (f). Exhibit 1, the passenger ticket and baggage check covering all that part of Seth’s air journey from Trivandrum to London, explicitly stated that Seth had two pieces of baggage which weighed 20 pounds, [actually, but immaterially, 20 kilograms] That was a precisely correct statement of the number and weight of Seth’s packages when he left Trivandrum. Exhibit 2, the passenger ticket and baggage check covering the journey from London to Boston, did not show any baggage on that leg of the journey. But Seth has not shown that he had any baggage when he reached London or on the stage of the journey from London to Boston. Hence there is no reason to find that that ticket had an error or omission.” Seth v. British Overseas Airways Corp., 216 F.Supp. 244, 248 (D.Mass. 1963).
Seth’s main contention is that the statement on the passenger ticket that: “Carriage hereunder is subject to the rules and limitations relating to liability established by the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw, October 12,1929 (hereinafter called "the Convention’), unless such carriage is not ‘international carriage’ as defined by the Convention”, does not constitute compliance with sub-paragraph (h) of Article 4(3), supra, requiring: “A statement that the transportation is subject to the rules relating to liability established by this convention.” The argument in a nutshell is that the “unless” clause destroys what otherwise would constitute compliance with sub-paragraph (h) because considered as a whole the statement on the ticket does not categorically inform the passenger that his transportation is subject to the Convention.
We do not agree.
The statement on the ticket quoted above gives the passenger clear notice that limitations on the carrier’s liability for the loss of checked baggage are provided by the Warsaw Convention and that the carrier will avail itself of those limitations if it can. The ticket does not leave the passenger in the dark as to a hidden risk he might not appreciate. It gives him fair warning of the existence of limitations on the carrier’s liability which he can avoid only on showing that the carriage undertaken by the carrier is not “international carriage” as defined in the Warsaw Convention. This gives the passenger blunt warning to find out the nature of his carriage and if covered by the Warsaw Convention to declare excess value and pay the price for increased liability in the event his baggage is lost. We think this constitutes compliance with sub-paragraph (h) of Article 4 of the Warsaw Convention.
We are not aware of any precedent for this conclusion other than the decision of the court below nor are we aware of any precedent for the contrary conclusion.
Flying Tiger Line, Inc., v. United States, 170 F.Supp. 422, 145 Ct.Cl. 1 (1959), is not even analogous support for Seth’s position, for in that case there was nothing whatever in the bill of lading itself which could be deemed to be compliance with a sub-paragraph (q) of Article 8 which is identical with sub-paragraph (h) of Article 4 but applies to air waybills for goods. To find any possible compliance with the requirement for notice of limitation of liability in the Flying Tiger case reference was necessary to the Charter Agreement between the air line and the government, to a second document referred to in that agreement and then to a third document referred to in the second document. See page 424 of 170 F.Supp.
Nor is Westminster Bank, Ltd., v. Imperial Airways, Ltd., 55 Lloyd’s List L.R. 242 (K.B., 1936), also cited and relied upon by the plaintiff, an authority in his favor, for in that case the court held that the requirement of Article 8 (q), which as we have pointed out corresponds with subparagraph (h) of Article 4, was not satisfied by the statement on the back of a consignment note covering an air shipment of gold that: “The General Conditions of Carriage of Goods are applicable to both internal and international carriage. These General Conditions are based upon the Convention of Warsaw of Oct. 12, 1929, in so far as concerns international carriage within the special meaning of the said Convention.” Id. at 247-248. The court in reaching its conclusion did not mention the “in so far as” clause, which has relevance to the issue before us, but found the statement on the back of the shipping document insufficient because “a statement that the carriage is subject to certain general conditions of carriage of goods, which general conditions are based upon the Convention, is not a statement that the carriage is subject to the rules relating to liability established by the Convention. * * * To say that certain conditions are applicable to the carriage, which said conditions are based upon the Convention is, in my opinion, a very different matter than saying that the Convention governs the carriage.” Id. at 248. We are not persuaded by these authorities to disagree with the decision of the court below.
Judgments will be entered affirming the judgment of the District Court; no costs.
. BOAC issued this ticket as “agent only” for Indian Air Lines but as principal for its subsidiary Middle East Airlines.
. Officially the “Convention for the Unification of Certain Rules relating to letter-national Transportation by Air” done at Warsaw on October 12, 1929, and adhered to by the United States as of October 29, 1934. 49 Stat. Part 2, 3000. Subsequent citations are to the English translation commencing at 49 Stat. 3014.
. This testimony of the plaintiff clearly distinguishes this case from Panama Transport Co. v. Greenberg, 290 F.2d 125 (C.A.1), cert. denied, 368 U.S. 891, 82 S.Ct. 143, 7 L.Ed.2d 88 (1961), upon which counsel for BOAC relies.
. The “Conditions of Contract” on the ticket note that “ticket” means both “passenger ticket” and “baggage check.” Seth does not contend that the cheek may not be so incorporated into the ticket.
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_source | J | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
SMITH v. COMMISSIONER OF INTERNAL REVENUE.
No. 2669.
Circuit Court of Appeals, First Circuit.
May 31, 1932.
Lawrence E. Green (of Hale & Dorr) of Boston, Mass., for the petitioner for review.
J. Louis Monarch, Sp. Asst, to the Atty. Gen. (G. A. Youngquisf, Asst. Atty. Gen., Bewail Key, Sp. Asst, to Atty. Gen., and C. M. Gharest, Gen. Counsel, and Philip A. Bayer, Bp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for the Commissioner.
Before BINGHAM and WILSON, Circuit Judges, and MeLELLAN, District Judge.
BINGHAM, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals determining deficiency income taxes for the years 1925 and 1926 in the sum of $498.53 and $494.35 respectively under the provisions of section 219(g) of the Revenue Acts of 1924 (26 USCA § 960 note) and 1926 (44 Stat. 32), which, in the particulars here in question, are the same in both acts.
The petitioner, the wife of Emelins W. Smith, on December 26, 1924, created four trusts, one for each of her sons, Reginald Heber Smith, Cecil H. Smith, Harold C. Smith, and Kendall K. Smith. The trust agreements are the same except as to the name of the beneficiary, and each was accompanied by a schedule of property so given in trust. Two of the sons, Reginald and Cecil, were made trustees of each trust. In the trust to Reginald the income was payable to him during his life, and, on his death, it provided for the payment of the trust fund to his children if any survived him. It further provided:
“C. Upon the death of my said son leaving no issue him surviving the trustees shall distribute and pay over the remaining principal of the trust fund and any unpaid or accumulated income in equal shares to the trustees for my son Cecil H. Smith, my son Harold C. Smith, and my son Kendall K. Smith, under instruments of trust similar to this instrument and bearing even date herewith as aforesaid, except that so far as the trusts under any one or more of said instruments shall have come to an end by the death of the first life tenant without issue or by failure of his issue the distribution shall bo to the trusts for the other sons or son, and if when my said son dies without issue he has survived all'iny other issue then the trustees shall if T still survive repay to me said remaining principal and unpaid or accumulated income, or in ease I have died shall distribute said property to and among those persons who would have been entitled to take my personal estate under the Massachusetts statutes of distribution if I had died domiciled in Massachusetts immediately after the death of such child.”
Each trust agreement further provided:
“5. I hereby create in myself, my husband Emelins W. Smith, Reginald Heber Smith, Cecil II. Smith, and James Adams of Brook-line in (lie County of Norfolk, a joint power exercisable at any time or from time to time by any three of said persons by instrument or instruments in writing signed by said three and delivered to- any trustee hereunder who may be one of themselves:
“A. To remove any trustee hereunder.
“B. To appoint a successor to any trustee who dies, resigns, or is removed.
“C. To change and alter any of or all the trusts herein set forth and declare new trusts of the properly in any way or manner; also to terminate or modify the beneficial interests of any person, or class of persons and to name or appoint any other person or classes of persons as beneficiaries whether by way of addition or substitution; also to determine and alter the number of, the powers of, and the succession among the Committee. No exercise of this power shall exhaust it. It may, however, bo released, extinguished, or restricted by a like instrument so signed by any three of the Committee and delivered to a trustee as aforesaid. If either or both the powers to remove and appoint trustees shall have been released and/or extinguished, I reserve to myself acting alone and independent power to remove and appoint trustees in the manner aforesaid.”
The income of the four trusts amounted in 1925 to $5,353.47 and in 1926 to $11,679.-90. These amounts were added to the petitioner’s income for the respective years on the ground that the trusts were revokable. In each of the years the beneficiary under each trust received the income and returned it as his taxable income. The creator of the trust did not.
The Revenue Acts of 3924 and 1926 each contain the following provisions:
“Sec. 219. * * (g) Where the grantor of a trust has, at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to revest in himself title to any part of the corpus of the trust, then the income of such part of the trust for such taxable year shall be included in computing the net income of the grantor.
“(h) Where any part of the income of a trust may, in the discretion of the grantor of the trust, either alone or in conjunction with any person not a beneficiary of the trust, be distributed to the grantor or be held or accumulated for future distribution to him, or where any part of the income of a trust is or may be applied to the payment of premiums upon policies of insurance on the life of the grantor (except policies of insurance irrevocably payable for the purposes and in the manner specified in paragraph (10) of subdivision (a) of section 214), such part of the income of the trust shall be included in computing the net income of the grantor.”
In reaching the conclusion that,the income of each of the four trusts was properly taxable to their creator, the Board of Tax Appeals held: (1) That the words of the statute, “or in conjunction with any person not a beneficiary of the trust,” meant the same as though it read “in conjunction with any person or persons not a beneficiary or beneficiaries of the trust” (U. S. 0. title c. 1, § 1 [1 USCA § 1]); (2) that, while the two sons, Reginald and Cecil, named as members of the committee, were beneficiaries, Emelius W. Smith, the husband, 'and James Adams, were not, and therefore the creator of the trust had the power, in 'conjunction with Emelius W. Smith and James Adams, at anytime to revoke or change the trusts; and (3) that the statute, as thus construed and applied to the facts in this case, was constitutional.
The Board also took the view that the word “beneficiary” in section 219 (g) has reference “to a present beneficiary of a trust, not to one who has only a remote possibility of becoming a beneficiary in the future,” and because the likelihood of Emelius W. Smith, the husband, ever taking a vested interest under the trust was remote, he was not a beneficiary. It also .expressed the view that Emeli-us took, if at all, by virtue of the statute of distribution of Massachusetts. This manifestly is not so. The statute of distribution of Massachusetts, is made use of in the declaration of trust simply to define a class of persons, of which Emelius would be one, to whom the trust property would go upon the happening of a contingency named in the trust instrument. Then again in the trust •created for Reginald Heber Smith, Cecil H. Smith, one of the committee, is not a present beneficiary of that trust. His interest under that trust is conditional upon Reginald’s dying without issue surviving him, and his interest therein.may be greater or less, depending upon whether the other two brothers are then alive.. It is true that the possible vesting of his interest under that trust is less remote than that of Emelius, the father, but it is nevertheless contingent, not a present or fixed one. And .the same is true with reference to the interest of Reginald in the trust in which Cecil is the direct and immediate beneficiary. And, if the reasoning of the Board of Tax Appeals is correct — that the Revenue Act “has reference to a present beneficiary of a trust” — then neither Reginald, Cecil, nor the father, Emelius, would be a beneficiary under the other trusts created for Harold C. Smith or Kendall K. Smith, for their interests under each of those trusts are contingent.
It would seem that Congress did not intend, by the use of the term “beneficiary” in section 219(g) only a beneficiary having a present vested interest, but intended to include within that term a beneficiary or beneficiaries having contingent interests as well as those haying present or vested ones.
Undoubtedly Congress could have drawn a line between beneficiaries holding vested and contingent interests, or between those having contingent interests based on their respective degrees of remoteness, but it has done neither of these things. It is therefore far more reasonable to conclude that by the word “beneficiary” Congress intended to include persons or classes of persons designated, in the particular trust under consideration, entitled to take present or contingent interests thereunder.
If this is the correct construction and meaning of the Revenue Acts (and we think it is), Emelius is a beneficiary, and, aside from the creator of the trust, there is no member of the committee who is not a beneficiary except Mr. Adams. In this situation, under the terms of the power reserved, these two (the creator of the trust and Mr. Adams) c.ould not exercise it, and the creator of the trust, within the language of the statute, would not have the power to revoke the trust.
As the income was not taxable to Mrs. Smith within the meaning of the Revenue Acts, it is unnecessary to pass upon their constitutionality.
The decision of the Board of Tax Appeals is reversed, and the case is remanded to that Board for further proceedings not inconsistent with this opinion.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer: |
songer_r_fed | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MURARKA et al. v. BACHRACK BROS., Inc.
No. 262, Docket 22960.
United States Court of Appeals, Second Circuit.
Argued June 15, 16, 1954.
Decided Aug. 3, 1954.
Clarence P. Greer, New York City (Morris Einhorn, New York City, and Harold L. Flint, Great Neck, N. Y., on the brief), for plaintiffs-appellees-appel-lants, R. Murarka, R. F. Murarka, Kas-turi Bai, C. R. Agarwal, Mahanlal and Fatehchand, d/b/a Fatehchand Madan-gopol.
Benjamin Adler, New York City, for defendant - appellant - appellee, Bachrack Bros., Inc.
Before SWAN, MEDINA and HARLAN, Circuit Judges.
HARLAN, Circuit Judge.
The District Court in an action tried without a jury has held the defendant liable for breach of contract in the amount of $46,500, together with interest. The plaintiffs appeal, contending that the Court applied the wrong rule of damages and that their recovery should have been greater. The defendant cross appeals, arguing that the Court had no jurisdiction of the action, and that in any event it was not guilty of breach because of the plaintiffs’ failure to perform their obligations under the contract.
The facts surrounding the transaction, as found by the District Court are essentially these: On December 23, 1946 the plaintiffs, a partnership doing business in Delhi, India, contracted to purchase from the defendant, a New York corporation, 10,000 war surplus cargo rayon parachutes at $7.00 each, plus a commission for plaintiffs’ purchasing agent of 35 cents on each chute. The parachutes were to be shipped by steamer from New York and were deliverable •F.A.S. dockside New York upon receipt from the plaintiffs of irrevocable letters of credit covering the purchase price, freight, and insurance.
On January 7 and 8, 1947 two letters ,of credit, one for $64,000 and the other for $30,000, expiring February 10, 1947, were duly furnished by plaintiffs. On February 5, the defendant notified the pláintiffs that space had been procured for shipment of the parachutes on the “Steel Advocate” sailing February 15, 1947, and requested extension of the letters of credit for another 30 days. Actually the plaintiffs on February 3 had already set in motion extensions to February 28, which the defendant accepted, informing the plaintiffs that the parachutes would be shipped by the SS “Steel Director” on February 24.
Following this, the defendant’s shipping agents put in process the necessary papers for shipping the parachutes on the SS “Steel Director” to the plaintiffs at Delhi, via Karachi. However, on February 25 the defendant, without notice to the plaintiffs, sold the parachutes to another Indian concern at an advanced price, and shipped them to that concern, via Bombay, on the “Steel Director,” ,whose sailing date had been postponed to March 2. On March 4 the defendant received from plaintiffs’ New York bank an extension of the $64,000 letter of credit to March 15, which the defendant returned to the plaintiffs on March 5.
On these facts the Trial Court found that the defendant had breached its contract, and that the only question was one of damages. The defendant seeks to avoid the consequences of what it did on two grounds which we shall consider before coming to the plaintiffs’ contention that they were entitled to larger damages.
The first ground is that the District Court had no jurisdiction of the action under 62 Stat. 930, 28 U.S.C.A. § 1332(a) (2) giving the Federal Courts jurisdiction over civil actions between “Citizens of a State, and foreign states or citizens or subjects thereof”, where the jurisdictional minimum amount is involved, since there was a failure of proof that the plaintiffs were “citizens or subjects” of a foreign state.
Initially the complaint, which was filed on July 14, 1947, alleged, and the plaintiffs sought to prove, merely that each of them was “an alien and a subject of Great Britain,” and the District Court on December 1, 1952, dismissed the complaint without prejudice, for failure of such proof. Thereafter, on December 29, 1952, the Court granted the plaintiffs’ 'motion to reopen the case on the issue of jurisdiction, and on January 14, 1953, after the taking of additional evidence, the Court granted plaintiffs’ motion to amend their complaint so as to allege that “each plaintiff is an alien and a British Indian citizen.” After a trial on the merits in October 1953, the Court found that “each plaintiff was an alien, British Indian citizen and subject of Great Britain.’’
It is not altogether clear whether the finding that each plaintiff was a “British Indian citizen” was regarded by the Court as an alternative basis for jurisdiction, rather than merely the foundation for the finding that each was a “subject of Great Britain.” Be that as it may, the status of India at the time the complaint was filed (July 14, 1947), and certainly at the time of the amendment of the complaint (January 14, 1953), was such that in our opinion, the finding that each plaintiff was a “British Indian citizen,” if supported by the evidence, was a fully adequate basis for jurisdiction, even though in our view the evidence did not warrant the finding that each plaintiff was a “subject of Great Britain.” As to the latter finding, it is sufficient to say that British law was neither pleaded nor proved, see Chicago Pneumatic Tool Co. v. Ziegler, 3 Cir., 1945,151 F.2d 784, 793; United States ex rel. Zdunic v. Uhl, 2 Cir., 1943, 137 F.2d 858, 861; Iafrate v. Compagnie Generale Transatlantique, D. C.S.D.N.Y.1952, 106 F.Supp. 619, 622, that satisfactory evidence of the place of birth of the several plaintiffs was lacking, and that no other evidence that any of the plaintiffs was a British subject as a result of naturalization or otherwise was offered at the trial.
Our first inquiry must be as to the status of India at the time of the filing of the complaint and thereafter. We may take judicial notice of the essential historical facts. The long standing aspirations of both Hindus and Moslems in India to achieve political independence from Great Britain — seriously embarrassed by the internal divisions between them — are a matter of common knowledge. Following the end of World War II, the British Government made various efforts to bring the contending factions together. The report of the Cabinet (Cripps) Mission issued on May 16,1946, recommended the formation of an interim government to work out a constitution acceptable to both major political parties, looking toward the political separation of India from Great Britain. An Interim Government was formed on September 2, 1946. By February 20, 1947, it was apparent that the Interim Government was failing to achieve the hoped for unity between Hindus and Moslems, but the British Government nevertheless on that date announced its firm intention to transfer power to some Indian authority by June 1948. See Statement on Indian Policy delivered February 20, 1947, to Parliament by the Prime Minister.
The continued refusal of the Moslem political leaders to participate in the effort of the Constituent Assembly to draft a constitution led to the announcement by the British Government on June 3, 1947, that the Moslem areas of India would be given an opportunity to determine, by referendum, whether they would participate in the labors of the Assembly or whether they would work out their own constitution and become an independent nation separate from the rest of India. See Statement of Indian Policy delivered June 3, 1947, to Parliament by the Prime Minister.
Finally, on July 18, 1947, the British Parliament enacted the Indian Independence Act (10 & 11 Geo. VI, c. 30, Public General Acts of 1947, Vol. 1, p. 236) under which power would be transferred to two new Dominions — Pakistan (Moslem)* and the Union of India (Hindu), which included Delhi where the plaintiffs were engaged in business — on August 15,1947. On that date the Union of India became a self-governing member of the British Commonwealth of Nations. On November 26, 1949, the Union of India adopted a Constitution, effective January 26, 1950, under which it became a sovereign republic, but elected to continue as a member of the Commonwealth of Nations.
It appears from- a State Department communication which was before the lower Court that although our- Government did not formally recognize India as an independent nation until August 15, 1947, it took steps to recognize the Interim Government of India after its formation on September 2, 1946, by receiving in February 1947 India’s first ambassador, whose credentials were signed by the British Crown, and accrediting the first United States ambassador to India in April 1947.
The parties have not directed our attention to any further act of recognition which occurred after the exchange of ambassadors, and we view the statement in the State Department communication to the effect that India did not become independent until August 15, 1947, as being rather in the nature of a legal conclusion Which adds little more to the significance of the already existing relations between that Government and our own.
Whether the position of India be viewed as of July 14, 1947, when the complaint was filed, or as of January 14, 1953, when the complaint was amended, we think that at both times its international status was such as to give Indian citizens the right to sue in our Federal Courts. True, as of July 14, 1947 our Government had not yet given India'-de jure recognition, but its exchange of ambassadors in February and April 1947 certainly amounted at least to de. facto recognition, if not more. To all intents and purposes, these acts constituted a full recognition of the Interim Government of India at a time when India’s ties with Great Britain were in the process of withering away (see U. S: Foreign Relations 1913, p. 102), which was followed a month later, when partition took place between India and Pakistan, by the final severance of India’s status as a part of the British Empire. The significance of these events is not lessened by the fact that the credentials of the first Indian Ambassador to the United States were signed by the British Crown. We think that in its setting that act is more properly to be regarded as a mere expediency rather than as a significant act of sovereignty in the usual sense of that term. Unless form rather than substance is to govern, we think that in every substantial sense by the time this complaint was filed India had become an independent international entity and was so recognized by the United States.
If we are to look only to formalities, it is beyond dispute that India became fully independent on August 15, 1947, when its status as a part of the British Empire finally ended. This was one month after the complaint was filed and five and a half years before the complaint was amended on January 14, 1953. Had the complaint, as amended, been first filed on that date, there would have been no room for argument but that India had long since been recognized by the United States as an independent power in every sense of the term. Since the six-year New York statute of limitations, N.Y.Civil Practice Act § 48(1), which governed this cause of action, had not run at the date of the amendment — the defendant’s breach of the contract having occurred on February 25, 1947 — it is clear that the complaint, as amended, could have been filed originally at that time. And in view of the fact that the dismissal of the original complaint was “without prejudice,” rather than “with leave to amend,” we would in any event be disposed to treat the amendment as in effect the filing of a supplemental complaint on January 14,1953, at which time India was unquestionably an independent foreign power fully recognized by the United States. F.R.C.P. 15(d), 28 U.S. C. A.; see Genuth v. National Biscuit Co., D. C.S.D.N.Y.1948, 81 F.Supp. 213, 214, appeal dismissed for lack of jurisdiction, 2 Cir., 1949, 177 F.2d 962.
The remaining question as to jurisdiction relates to the sufficiency of the proof that the plaintiffs were citizens of India. This proof consisted of a certificate of the Indian Vice Consul at New York that the plaintiffs were “British India Citizens in July 1947 and are now Indian Citizens.” The issuance of this certificate was authorized by the Ministry of External Affairs of India, which in turn acted upon a certificate of the District Magistrate at Delhi, India.
Clearly this evidence, if competent, was sufficient to prove the Indian citizenship of the plaintiffs. And we think the evidence was competent. What was sought to be proved was not a foreign record, but a determination of the Indian Government, that the plaintiffs were Indian citizens. The requirements for proof of foreign public records contained in 28 U.S.C.A. § 1741 and §§ 329 and 398 of the New York Civil Practice Act have no application here. The Consular certificate was properly authenticated by the Vice Consul who made it, who also testified that he had acted under instructions from his Government. And the plaintiffs are entitled to the presumption of regularity which has long attached to the procedures of foreign governments and agencies. See United States v. King, 1845, 3 How. 773, 44 U.S. 773, 784-786, 11 L.Ed. 824; Boissonnas v. Acheson, D.C.S.D.N.Y.1951, 101 F. Supp. 138,153. It is the undoubted right of each country to determine who are its nationals, and it seems to be general international usage that such a determination will usually be accepted by other nations. See Convention on Certain Questions Relating to the Conflict of Nationality Laws, Signed at the Hague, April 12, 1930, Arts. 1 and 2; Briggs, The Law of Nations, pp. 458-60 (2d ed. 1952); Dept, of State Bull. XXII, No. 559, pp. 433-441 (March 20, 1950); Stoeck v. Public Trustee, 2 Ch. 67 (1921). While neither side has given us a judicial decision involving such proof of foreign citizenship as was made here, we entertain no doubt on principle that the proof was competent. Cf. Decision No. 1 of British-Mexican Claims Commission in Great Britain (Lynch Claim) v. Mexico, Decisions and Opinions of the Commissioners, October 5, 1929 to February 15,1930, pp. 20-23. Our statutes provide for the issuance of certificates of United States nationality to others than naturalized citizens, by the Secretary: of State, or by officials to whom he has dele gated such power, for use in foreign judicial or administrative proceedings, 8 U.S.C.A. §§ 1502, 1104, and we see no reason why our courts should not give presumptive credit to similar certificates of foreign governments. The defendant has cast no cloud on the validity or accuracy of the consular certificate itself.
We conclude that the District Court had jurisdiction over this action.
The defendant claims that its sale of the parachutes to the other Indian concern was not a breach — or at least was an excusable breach — because of the plaintiffs’ alleged anticipatory breach of the contract. The alleged breach on the part of the plaintiffs is their failure to procure an extension of either of the letters of credit until after the defendant had sold the parachutes to the other Indian concern. We see no merit whatever to this contention. The contract, as evidenced by the defendant’s own writings, called for “delivery at once, on receipt of letter of credit * * * ” While the defendant sought to prove what would amount to an oral modification of the contract to encompass an obligation by the plaintiff^ to keep on extending the letters of credit until shipment was made by the defendant, the lower Court made no such finding, and the record does not support any such alleged modification of the written understandings. The letters of credit were furnished on January 7 and 8, 1947, and when it developed that shipment would not be made before their expiration date, the plaintiffs on their own initiative procured extensions of the letters to February 28, which the defendant accepted. The defendant, without any notice to plaintiffs, sold the parachutes to others on February 25 — while the letters of credit were still in full force. We find nothing to support the defendant’s professions that it sold to others because of its concern lest the letters of credit be not extended until shipment could be made. Indeed, both the letters of credit and the plaintiffs expressly authorized partial shipments if full shipment could not be effected at one time, and the defendant received notice of extension of the larger letter of credit after the parachutes, without the plaintiffs’ knowledge, had been sold by it. In light of these facts, and the .evidence of the plaintiffs’ impatience at the delays in shipment, the contention as to the plaintiffs’ anticipatory repudiation of the contract is wholly implausible. We hold that the lower Court’s finding that “there is no question of the defendant’s breach of the contract” is fully supported by the evidence.
We come now to the plaintiffs’ contention that the District Court applied the wrong rule of damages. The Court found that prior to February 25, 1947, the date of the defendant’s breach, the plaintiffs had contracted to sell to four Indian concerns substantially all of the parachutes which they had purchased from the defendant. The Court further found that subsequent to the defendant's breach the plaintiffs made continuing efforts to purchase similar parachutes but were unsuccessful because none were available on the American market. Both findings are supported by the evidence. On the basis of these findings, plaintiffs contend that they were entitled to recover their loss of profits on the resale, and n*>t merely the difference between the price of the parachutes under their contract with the defendant and the price at which the defendant resold them. We think the plaintiffs are right.
There is no dispute but that the New York rules of damage apply, this being a diversity case. Emerman v. Cohen, 2 Cir., 1952, 199 F.2d 857, 858. In an action for failure to deliver goods the New York rules are these: If there is an available market for the goods in question, the measure of damages is the difference between the contract price and the market price, unless there are “special circumstances showing proximate damages of a greater amount” (the so-called “special damage” rule). N.Y.Personal Property Law, McK.Consol.Laws, c. 41, § 148(3). And in such instance the price received by a defaulting seller who has resold may not be used as evidence of market value — Latimer v. Burrows, 1900, 163 N.Y. 7, 57 N.E. 95, — in contrast to the situation where the buyer is in default, in which case the seller’s resale price may be so used. See N.Y.Personal Property Law, §§ 144 and 145; Van Brocklen v. Smeallie, 1893, 140 N.Y. 70, 35 N.E. 415.
But where, as here, there is no available market for the goods in question, the measure of damages “is the loss directly and naturally resulting in the ordinary course of events from the seller’s breach of contract”, N.Y.Personal Property Law, § 148(2); and it is well settled that such loss may be measured by the net profits, if not speculative, which the buyer would have earned had the seller performed. Orester v. Dayton Rubber Mfg. Co., 1920, 228 N.Y. 134,126 N.E. 510; Parrott v. Allison, 2 Cir., 1944, 145 F.2d 415; Emerman v. Cohen, supra. We think this was the rule of damages that should have been applied in this instance, since the Court found that there was no available market for parachutes, and the plaintiffs made specific proof of their loss of profits under their contracts of resale.
The opinion of the District Court shows that it refused to allow the plaintiffs their loss of profits because the defendant had no notice of the plaintiffs’ actual or contemplated resale contracts prior to the time it contracted with the plaintiffs. But that principle, exemplified by Czarnikow-Rionda Co. v. Federal Sugar Refining Co., 1930, 255 N.Y. 33, 173 N.E. 913, 88 A.L.R. 1426, on which the lower Court relied, is applicable only in a situation where there is an available market for the goods in question, and the suing party is seeking special damages under § 148(3). Here the plaintiffs’ loss of profits constituted general damages recoverable under § 148(2) because there was no available market. See Orester v. Dayton etc., supra, 228 N.Y. at pages 137-139, 126 N.E. 510.
Moreover, the Court was also in error in basing its calculation of damages upon the price received by the defendant on its wrongful resale. Where the § 148(3) “available market” or “special damage” rule applies, the seller’s resale price may not be taken into account. See Latimer v. Burrows, supra. Where the § 148(2) “no available market” rule applies, the seller’s resale price may be considered only in a situation where the buyer’s loss of profits is too speculative and there is no other way of measuring damages. See Murphy v. Lifschitz, 1944, 183 Misc. 575, 49 N.Y.S.2d 439, affirmed 1945, 294 N.Y. 892, 63 N.E.2d 26. Here the plaintiffs’ loss of profits was not speculative.
We think it evident from Judge Murphy’s opinion that his use of the defendant’s resale price was not intended as a repudiation of his finding that there was no available market for parachutes. Bather, it seems to have resulted from the mistaken view that § 148 allowed only two measures of damage — market price less contract price and special damages— and that since there was no showing either of an available market or that defendant had notice of possible special damage, the only alternative was to use the defendant’s resale price as an element in measuring recovery. But as we have shown, under the circumstances present here § 148(2) provides a third measure, i. e., loss of profits.
We regard as wholly untenable the defendant’s effort to impugn the bona fides of the plaintiffs’ resale contracts. Judge Murphy, who was made fully aware of the alleged irregularities in the depositions and the supposedly “incredible” circumstances attending the making of these resale contracts, found otherwise, and we are presented with nothing that moves us to disturb his finding.
We must reverse on the plaintiffs’ appeal and remand the case to the District Court for recomputation of the plaintiffs’ damages in accordance with this opinion. On the defendant’s cross appeal, we affirm.
. Italics throughout this opinion have been supplied.
. Favoring the view that the Court intended “British Indian citizen” as affording an independent ground of jurisdiction — i. e., that the plaintiffs were citizens of what was formerly known as British India — is the fact that plaintiffs’ counsel after first proposing to amend the complaint so as to allege that “each plaintiff is an alien and a Britain [sic] Indian citizen and a subject of Great Britain,” then stated that he wished to “omit the words, ‘and a subject of Great Britain’; because I am not sure of that status.” And further, the Trial Court found: “At the time the complaint was filed the Government of India was an interim one recognized as such, dy the United States with an ambassador to Washington whose credentials were signed by His Majesty, Bung George the Sixth of the United Kingdom.”,
. See British Nationality and Status of Aliens Act, 1914 (4 & 5 Geo. V, c. 3.7), 18 Chitty’s Statutes, p. 9 (6th ed., 1914-1916), as amended in 1938, 3922,1933 and 1943; for the status of subjects of the native Indian rulers, as distinguished from citizens of British India, see Jones, British Nationality Law and Practice, pp. 274, f. n. 1, 291 (1947), and Jones, Who Are British Protected Persons?, XXII British Year Book of International Law, pp. 322 et seq. (1945).
Since the defendant objected to our considering the certificate of the British Consul in New Xork, which plaintiffs’ counsel tendered at the oral argument of this appeal, to the effect that plaintiffs were British subjects on July 14, 1947, we have paid no attention to that certificate.
. The question as to whether plaintiffs’ loss of profits under their contracts for the resale of 8750 parachutes is a fair measure of their loss of profits on the full lot of 10,000 parachutes will be a matter for the District Court upon the recom-putation of damages.
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.
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