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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 v. MESSINGER.
No. 3526.
Circuit Court of Appeals, Fourth Circuit.
Jan. 4, 1934.
Okey P. Keadle, Asst. U. S. Atty., of Huntington, W. Va. (David D. Ashworth, U. S. Atty., of Beckley, W. Va., and Thomas E. Walsh, Chief Atty., U. S. Veterans’ Administration, of Washington, D. C., on the brief), for the United States.
Samuel Biern, of Huntington, W. Va., for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal in a war risk insurance ease in which there was a verdict and judgment for the plaintiff. Insured was discharged from the Army in 1919 and paid premiums on his policy until March, 1920. ■ He had had attacks of pneumonia and influenza while in the Army, and was unquestionably suffering from pulmonary tuberculosis at the time of his discharge. He died of tuberculosis in 1931. The question in the case was whether the disease had reached such stage at the time insured stopped paying premiums on the policy as to constitute total and permanent disability within the meaning of its terms. The appeal presents only two points of substantial merit: (1) The contention that there was not sufficient evidence of total and permanent disability to take the case to the jury; and (2) that the court erred in. a portion of the charge dealing with the testimony as to the ability of insured to do light work under favorable conditions.
On the first question, we think that the evidence as to total and permanent disability was sufficient to present a jury question. There was evidence that in 1919 and 1920 insured had tuberculosis and was advised to go to a dry climate for his health; that he acted upon this advice, and in 1921 sold a share of property which he had inherited and went to New Mexico, where he stayed for a number of months; that the disease remained active, notwithstanding the efforts of insured to effect a cure, and grew gradually worse until it resulted in his death; and that, while he did some work from time time, he was at no time able to work without material injury to his health. Taking this evidence in the light most favorable to plaintiff, it tended to show that, at the time insured stopped paying premiums, his disease constituted total disability and was based upon conditions rendering it reasonably certain that this disability would continue throughout life. Carter v. United States (C. C. A. 4th) 49 F.(2d) 221. There was no such work record in the case as to completely negative the existence of total and permanent disability as in United States v. Harrison (C. C. A. 4th) 49 F.(2d) 227 or United States v. Diehl (C. C. A. 4th) 62 F.(2d) 343. And the testimony of .physicians to the effect that the disease was continuously active and disabling, taken with the ineffectual efforts to effect a cure by going to a favorable climate and otherwise, distinguish the case from such cases as United States v. Stack (C. C. A. 4th) 62 F.(2d) 1056, where it was merely shown that insured had tuberculosis at the time of the lapse of the policy, with nothing to show that it had reached such stage or was of such character as to render it reasonably certain to be disabling throughout life.
But, while there was evidence for the consideration of the jury to the effect that insured was totally and permanently disabled when he ceased paying premiums, there was a strong showing by the government that he was not so disabled; and we think that the government was denied the full benefit of this defense as a result of the portion of the court’s charge of which complaint is made. An examination of insured made in New Mexico in April, 1921, showed that his tuberculosis was incipient and inactive, and that, while he had' more than 10 per cent, disability, he was able to resume his pre-war occupation of laborer. An examination made by Dr. W. W. Point in July, 1922, showed that insured had incipient pul-’ monary tuberculosis which had been arrested, that the prognosis was good, and that his mental and physical condition was such that vocational training was feasible “away from gases, fumes, dust, excessive labor, heat or cold.” Dr. Point testified that in his .opinion a man with arrested tuberculosis could work without impairing his health, and that insured could do almost any kind of work except such as would expose him to the things mentioned in his report of examination, viz., “gases, fumes, dust, excessive labor, heat or cold.” Dr. E. E. Rose, who examined him in October, 1923, found him suffering with arrested tuberculosis, and testified that he could have done any light outside work or light farm work.
The learned trial judge, after charging on the general principles of law applicable, charged specifically on insured(s contention that he was not to be denied recovery merely because he had worked, if in fact he was not able to work, reading at length from the opinion of this court in the Carter Case, which was perfectly good law as applied to that aspect of the case. When, however, he came to the government’s contention that the insured was not totally and permanently disabled because his tuberculosis was of such a character that it was possible to arrest it, and that it was arrested and he was able thereafter to do light work under proper conditions, this aspect of the case was treated in a very different manner. The law properly applicable thereto was not charged, the defense itself was subjected to ridicule, and the jury were told in effect that it amounted to nothing. The portion of the charge relating thereto, being the portion to which exception was taken, is as follows:
“I cannot help but smile at my good friend Dr. Point’s statement of what a man in MeComas’ condition could do. As he puts it down on this piece of paper he says he should work ‘away from gases, fumes, dust, excessive labor in heat or cold.’ Now where in the world are you going to work? It is positively amusing to me to hear people talk about ‘light farm work,’ for there never was any'such thing as ‘light farm work’ if you really work on a farm. There might be loafers on the farm, probably are, the same as any place else. I have known some myself, but there is no such thing as farm work being light if it is real farm work. Nobody could call it ‘light farm work’ if you drive a plow, hit a stump in the field and have the plow throw you over on your head. At least, that wouldn’t be ‘light’ in my opinion. Nor would ,1 call it ‘light farm work’ to hoe com all day or to pull weeds. Try it. No, I do not think there is any such thing as ‘light’ work on a farm. I am the owner of four farms and have paid a good many hands, but I would never hire any man for ‘light farm work,’ for there simply is no such animal and you know it as well as I do. Returning to this proposition of working away from gases, fumes, dust, excessive heat or cold: Is there any such work as that up G-uyan Valley? I do not know where it is. You could not work in the mines, you could not work on the roads and you could not work on a farm. Where would you work? That is for such consideration as you care to give it. That is what Walter Point said, and what he put on this paper that he could do when he said he had a case of arrested tuberculosis. He said he could work at that sort of work. That is the testimony of the government’s doctor, who is an awfully nice fellow, I will say,. one of the best I know, and he states the facts as he sees them and there they are.”
As stated above, this charge virtually amounted to an instruction to ignore the government’s defense. That defense was that, although insured had tuberculosis, the disease had been arrested, and insured was able to do light work amid favorable conditions, and therefore could not be said to be totally and permanently disabled. The court ridiculed the idea that any farm work could be light or that any place could be found in the valley where insured lived complying with the conditions prescribed by Dr. Point. Of course, the insured would not be deemed totally disabled merely because he could not do farm work or because he could not work in a particular valley. We know as a matter of common knowledge that many cases of tu-bereulosis are arrested, and that, after they are arrested, the patient can engage in many occupations, although he cannot ordinarily do heavy manual labor, nor can he work amid conditions tending to cause a recurrence of the disease, such as dust, extreme heat, or cold, etc. To say that a man who has an arrested case of tuberculosis, or a case which can be arrested with proper treatment, is totally and permanently disabled, because he cannot do heavy labor or work amid all eonditions, is to adopt a theory contrary to human experience and one which has been repudiated by the courts m a practically nnbroken line of decisions. See particularly Ivey v. United States (C. C. A. 4th) 67 F.(2d) 204; United States v. Diehl, supra; United States v. Rosborough (C. C. A. 4th) 62 F.(2d) 348; United States v. Stack, supra; Eggen v. United States (C. C. A. 8th) 58 F.(2d) 616, 620.
Instead of charging the jury as he did with respect to the defense of the defendant, which practically eliminated that detense from their consideration, the learned judge should have charged them that they should find in favor of the defendant if the tubereulosis with which insured was afflicted during the life of the policy was of such a character or had progressed only to such a stage that it was possible to arrest its progress and render him able again to engage in some substantially gainful occupation without material injury to his health, even though such occupation might involve only light labor and might be carried on only under conditions which would not cause a recurrence of the disease. And he should have charged them further that, in passing upon this question, they should give consideration to the testimony of the witnesses to the effect that the disease was in fact arrested during the years 1922 and 1923, and that defendant was then able to engage in light work without material injury to his health. Having charged nt length upon the theory of plaintiff and the law applicable thereto, he should have charged upon the principles applicable to the defense of the government. Quercia v. U. S., 289 U. S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321; Allison v. U. S., 160 U. S. 203, 16 S. Ct. 252, 40 L. Ed. 395; Pullman Co. v. Hall (C. C. A. 4th) 46 F.(2d) 399, 404; Weiss v. Bethlehem Iron Co. (C. C. A. 3d) 88 F. 23, 30; Hall v. Weare, 92 U. S. 728, 23 L. Ed. 500.
For reasons stated, the judgment appealed from will be reversed, and the case will be remanded for a new trial,
Reversed
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_casetyp1_7-2 | C | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Cathy A. WILLIAMS, Appellee, v. FORD MOTOR CREDIT COMPANY, Appellant, v. S & S RECOVERY, INC. Cathy A. WILLIAMS, Ford Motor Credit Company, Appellant, v. S & S RECOVERY, INC., Appellee.
Nos. 79-1911, 79-1947.
United States Court of Appeals, Eighth Circuit.
Submitted June 12, 1980.
Decided Aug. 12, 1980.
W. R. Nixon, Jr., Little Rock, Ark., for appellant, Ford Motor Credit.
Fines F. Batchelor, Jr., Van Burén, Ark., argued, for appellee, Cathy Williams.
Bradley D. Jesson, Hardin, Jesson & Dawson, Fort Smith, Ark., on brief, for S & 5 Recovery.
Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and HANSON, Senior District Judge.
William C. Hanson, Senior District Judge, Northern and Southern Districts of Iowa, sitting by designation.
LAY, Chief Judge.
Cathy A. Williams filed suit in state court against Ford Motor Credit Company (FMCC) alleging that it wrongfully repossessed an automobile in her possession which had been financed through FMCC. FMCC removed the case to federal court, answered and filed a third-party complaint against S & S Recovery, Inc. (S & S). The third-party complaint alleged that the seizure of Williams’ vehicle was made solely by S & S and that the manner and method used in the repossession was controlled by S 6 S.
A trial was conducted and at the conclusion of all the evidence, S & S’s motion for directed verdict was granted. Plaintiff’s case against FMCC was allowed to go to the jury; a verdict of $5,000 was returned in favor of plaintiff. Thereafter, FMCC made a motion for judgment notwithstanding the verdict. In response, plaintiff suggested that the court deny defendant’s motion or, if the court decided that the verdict should not be allowed to stand, that an order be entered for a voluntary nonsuit without prejudice to refile in state court. The court ordered a voluntary nonsuit without prejudice to refile and ordered nunc pro tunc that a verdict be directed in favor of S & S and against FMCC. FMCC appeals from the district court’s orders dismissing plaintiff’s complaint without prejudice and directing a verdict in favor of S & S.
Where no responsive pleading is filed, Fed.R.Civ.P. 41(a)(1) makes clear that a party may dismiss his action without order of the court. However, Fed.R.Civ.P. 41(a)(2) reads in part:
By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper.
It has long been acknowledged that the rule gives the district court equitable discretion to dismiss an action upon plaintiff’s request. Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975); United States v. Gunc, 435 F.2d 465 (8th Cir. 1970); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966). As stated in International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1946):
At most, the discretion vested in the court is a judicial and not an arbitrary one and does not warrant a disregard of well settled principles of procedure.
Id. at 780.
Here the action had been pending for over eighteen months. Discovery had been conducted on both sides, extensive pretrial preparation and proceedings had been undertaken and a two and one-half day jury trial had been held. A jury deliberated and rendered the verdict. Briefing had been completed on the motion for judgment notwithstanding the verdict. The only possible basis for the dismissal without prejudice appears to be that plaintiff feared the trial court might grant the motion. Plaintiff’s motion fails to disclose the reason for seeking the dismissal without prejudice. Plaintiff did not indicate that new evidence might be shown. Even if there were such evidence, there is no indication that plaintiff could not have presented it during trial.
This case is in a somewhat different posture than the International Shoe Co. case but the same reasoning applies here. There the defendant had moved for a directed verdict and the plaintiff then moved for a dismissal without prejudice. Here plaintiff has the verdict, but was obviously apprehensive of the court’s ruling on the judgment notwithstanding the verdict. In International Shoe Co. this court reasoned:
There seems to have been ample opportunity to prepare the case for trial and four and a half days had been consumed in taking testimony at the time plaintiff rested his case. Defendant’s motion for a directed verdict had been fully presented on its merits and submitted to the court, and the court had announced its intention to sustain the motion and direct a verdict for defendant. As the result of the proceeding the court had reached a decision on the merits and all that remained to be done was the accepting of a verdict and the entry of judgment thereon. To all intents and purposes the defendant had secured a decision that plaintiff’s action was without merit and this decision had been announced. The discontinuance of the case in such circumstances involved more for the defendant than the mere annoyance and expense of a second litigation upon the same subject matter. It deprived it of the benefit of a decision in its favor.
Id. at 780.
We find the defendant has sustained substantial prejudice by the dismissal. It will be subjected to more litigation expense and might be prejudiced on its third-party claim. If the trial court errs in granting judgment notwithstanding the verdict, plaintiff may still appeal to this court. Under the circumstances we feel the court abused its discretion in granting the motion to dismiss without prejudice at such a late time in the proceedings. Ferguson v. Eakle, 492 F.2d 26 (3rd Cir. 1974); Noonan v. Cunara Steamship Co., 375 F.2d 69 (2d Cir. 1967); International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1946); see Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975); United States v. Gunc, 435 F.2d 465 (8th Cir. 1970); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966). Cf. Western Union Telegraph Co. v. Dismang, 106 F.2d 362 (10th Cir. 1939). See generally 9 Wright & Miller, Federal Practice & Procedure §§ 2364, 2376 (1971); 5 Moore’s Federal Practice ¶¶ 41.05[1], 41.05[3] (2d ed. 1979).
As we indicated earlier, defendant impleaded S & S for indemnification. The trial court granted a directed verdict in favor of S & S at the close of the evidence. There is no need to review at this time the merits of the indemnity claim brought by defendant. Fed.R.Civ.P. 14 permits impleader of one who is or may be liable to the defendant. Federal impleader is designed to decide contingent liability as well as primary liability and the third-party claim can accelerate determination of the liability, if any, between the third-party plaintiff and the third-party defendant. As a prerequisite to that contingency, a court may grant a conditional judgment against the third-party defendant that does not become enforceable until the third-party plaintiff is otherwise determined to be entitled to judgment or payment of the judgment. See Travelers Insurance Co. v. Busy Electric Co., 294 F.2d 139, 145 (5th Cir. 1961); Wright & Miller Federal Practice & Procedure § 1451 (1971). In the present case the trial court ruled in favor of the third-party defendant before entering judgment on the original complaint. Under the circumstances, because the issue of S & S’s liability over to FMCC may be rendered moot by the ultimate disposition of FMCC’s motion for judgment against Williams notwithstanding the verdict, we decline to rule at this time on FMCC’s appeal from the judgment in favor of S & S. Instead, we dismiss FMCC’s appeal from that judgment without prejudice, and hold that the ruling of the trial court in favor of S & S should be appealed (if necessary) after judgment on the merits has been entered in the main suit.
The order of the district court dismissing plaintiff’s action without prejudice is vacated; the case is remanded and the court is directed to rule on defendant’s motion for judgment notwithstanding the verdict; the appeal by defendant on its third-party complaint is ordered dismissed without prejudice. In the event the court overrules defendant’s motion for judgment notwithstanding the verdict, defendant may move within ten days for reconsideration of the court’s ruling on its third-party complaint; upon such ruling the court should simultaneously enter judgment on the verdict and on the third-party complaint for convenience of appeal.
It is further ordered that each party shall pay its own costs on this appeal.
. Of course, the court may sever the third-party claim for separate trial and reserve ruling on it until trial on the main cause is complete. If the third-party claim is not severed the judgment on the main case is not final for purposes of review until the third-party claim is ruled upon or unless the district court files a Fed.R. Civ.P. 54(b) order. See 6 Moore’s Federal Practice ¶ 54.36 (2d ed. 1976).
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_genapel2 | H | 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.
FRATES et al. v. EASTMAN et al.
No. 549.
Circuit Court of Appeals, Tenth Circuit.
March 17, 1932.
COTTERAL, Circuit Judge, dissenting.
R. A. Kleinschmidt and Marvin T. Johnson, both of Tulsa, Okl., for appellants.
Samuel A. Boorstin and John F. Conway, both of Tulsa, Okl., for appellee.
Before LEWIS, COTTERAL, and Me-DERMOTT, Circuit Judges.
MeDERMOTT, Circuit Judge.
The plaintiff, a seven year old hoy, was injured when the Chevrolet car in which, he was riding with his mother collided at a street intersection with a bus operated by the defendants. He recovered judgment for $1,-000, and the defendants appeal.
1. Error is assigned because the court denied a motion for an instructed verdict. It is argued that one of plaintiff’s witnesses testified that the Chevrolet struck the bus, instead of the bus striking the Chevrolet; and that the bus stopped within a few feet from the point of impact. There was a dispute in the evidence on these points; but, were it otherwise, these facts alone are not conclusive on the question of fault. Where cars collide at an intersection, one of the drivers is generally at fault; which one it is does not depend upon the precise location of the cars at the moment of impact, nor upon the question of speed at that moment. One must look further back than the moment of impact to ascertain the fault. .If a ear races into an intersection, or enters upon tho wrong' side of the street, or fails fo yield the right of way to one entitled, it is no answer to say: “I was at fault, but I had almost stopped, and besides, I so nearly cleared the other car that the impact was between the rear end of my ear and the front end of the other.” While the evidence was conflicting, one disinterested witness testified that the bus was on the left side of the street; that it was traveling 30 miles an hour; that the Chevrolet was two-thirds of the way across the intersection when the collision occurred; others testified that the Chevrolet entered the intersection first. This is ample evidence to carry the case to the jury.
2. Error is assigned because the court admitted, over objection, city ordinances which limited the speed of automobiles at intersections to 15 miles per hour, and which required that vehicles shall be driven on the light side of the street at intersections. The record discloses tho following :
“Mr. Conway: We offer in evidence Section 7 of Article 3 of the Ordinances of the City of Tulsa; Section 8, subsection 3, of Section 8, and Sect ion. 9, and Section 80.
“Mr. Kleinschmidt: What is this you are reading from. I don’t know whether these are the ordinances in effect at that time or not.
“Mr. Conway: The statutes of this state say that any copy of ordinances purporting to be published by any city or municipality are admissible in evidence without further proof, and this one purports to be published by the City of Tulsa in November, 1929, and I have pleaded those in my petition.
“Mr. Kleinschmidt: I understand, but I don’t know whether they are the ordinances in force or not and I am not ready to admit it. Of course, there might be a lot of changes in the ordinance between the time those were published and the date of this accident, March 14,1930. * * *
“Mr. Kleinschmidt: To this offer and to each section of the purported ordinances the defendants object as incompetent, irrelevant, and immaterial, no proper foundation having been laid, and no proper proof that such ordinances were in force and effect at the time of tho alleged accident.
“The Court: Overruled, they may be received.
“Mr. Kleinschmidt: Exception.
“The Court: I will give you the opportunity to offer in evidence if you wish on that proposition of what the ordinances may be.”
While the formal objection was comprehensive, the specific objection to which counsel emphatically directed the attention of tlie trial court was “there might bo a lot of changes in the ordinance between the time those were published and the date of this accident.” That objection is not renewed here, and it is not sound, for the burden is not upon one who introduces an official compilation to prove that a particular ordinance has not been amended or repealed. To prove such negative would require the introduction of all subsequent ordinances or statutes, or reliance upon opinion evidence. As a rule oP convenience, the burden is on the adversary to introduce proof of repeal or modification, and full opportunity was afforded the appellants to offer such proof. Cragg v. Los Angeles Trust Co., 154 Cal. 663, 98 P. 1063, 36 Ann. Cas. 1061; Bouver v. City of Bessemer, 17 Ala. App. 665, 88 So. 192.
Section 645 of tho Compiled Statutes of Oklahoma, 3921, provides: “Printed copies of any of the ordinances, resolutions, rules, orders, and by-laws of any city or incorporated town in this State purporting to be published by authority of‘ such city or incorporated town, or manuscript copies of the same, certified under the hand of the proper officer, and having corporate seal of such city or town affixed thereto, shall be received as evidence.”
The appellants now object tonthe ordinances on the ground that there was no proof that the compilation offered purported to be published by authority of the city. The objection is not well taken, for two reasons. In the first place, the appellants in the court below expressly waived the point. When tho compilation was offered, appellants’ counsel asked: “What is this you are reading from?” Appellee’s counsel replied by referring to the quoted statute, and said: “And this one purports to be published by tho City of Tulsa in November, 1929, and I have pleaded those in my petition.” Whereupon appellants’ counsel stated: “I understand, hut I don’t know whether they are the ordinances in force,” etc. There is no room here to quibble; there can be but one interpretation of this colloquy, and but one meaning to be ascribed to Ms statement, “I understand.” He brushed aside proof as to the purported publication, and centered his fire on the proposition that “there might be a lot of^ehanges” in the five months that elapsed between their publication and the accident. In the second place, the law is abundantly settled that counsel may not speeificallyeall the attention of the trial court to one ground of pbjeetion, and then, under a blanket objection, direct our attention to another. Frey & Son, Inc., v. Cudahy Packing Co., 256 U. S. 208, 41 S. Ct. 451, 65 L. Ed. 892; Robinson & Co. v. Belt, 187 U. S. 41, 50, 23 S. Ct. 16, 47 L. Ed. 65; United States v. U. S. Fidelity & Guaranty Co., 236 U. S. 512, 529, 35 S. Ct. 298, 59 L. Ed. 696; Guarantee Co. of North America v. Phenix Ins. Co. of Brooklyn (C. C. A. 8) 124 F. 170; Ottumwa Box Car Loader Co. v. Christy Box Car Loader Co. (C. C. A. 8) 215 F. 362; Louisville & N. R. Co. v. Western Union Telegraph Co. (C. C. A. 5) 233 F. 82; Arkansas Bridge Co. v. Kelly-Atkinson Const. Co. (C. C. A. 8) 282 F. 802; Monument Pottery Co. v. Imperial Coal Corporation (C. C. A. 3) 21 F.(2d). 683.
The judgment is affirmed.
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_stpolicy | 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 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".
Arthur and Hilda HAFFER, Appellants, v. Alvin A. VOIT and The Mengel Company, et al., Appellees. Ann F. AMES, Appellant, v. Alvin A. VOIT and The Mengel Company, et al., Appellees.
No. 12215.
United States Court of Appeals, Sixth Circuit.
Feb. 7, 1955.
L. Lyne Smith, Jr. (of Woodward, Hob-son & Fulton), Louisville, Ky., Sidney L. Garwin, and Israel Beckhardt, New York City, for appellants.
Charles G. Middleton, Leo T. Wolford, and Edwin G. Middleton, Louisville, Ky. (Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, Ky., of counsel), for appellees.
Before ALLEN, MILLER and STEWART, Circuit Judges.
PER CURIAM.
This case came on to be heard upon the record and briefs and oral argument of counsel:
And it appearing that plaintiffs herein, minority stockholders in The Mengel Company, a New Jersey corporation, have filed a derivative action against the corporation and its president attacking the revision on October 21,1949, of an option by the corporation’s directors without approval of the stockholders;
And it appearing that said revised option provided in substance for the sale to the president of 10,000 shares of unissued common stock of the corporation to be paid for by the president’s demand note for $100,000, the stock to be pledged as collateral, the dividends paid on such shares to be applied to payment on the note, and the corporation to have no recourse against the president on the note except to the extent of the stock deposited as collateral;
And it appearing that on October 26, 1949, the president exercised the option in accordance with the terms thereof;
And it appearing that the stockholders were fully apprised through the proxy dated April 4, 1950, sent them for the stockholders’ meeting, of the terms of the said revised option;
And it appearing that said revised option was authorized by 14:9-1 (a), Revised Statutes of New Jersey, 1937, and by 14:9-4 as amended in 1948, Revised Statutes Cumulative Supplement, New Jersey, 1948, N.J.S.A.;
And it appearing that while under the amended statute of 1948 the revised option was subject to be altered, changed or repealed by the stockholders, no such action was taken by the stockholders ;
And it appearing that plaintiffs made no earnest and honest effort to secure from the stockholders such action as they desired, Cf. Rule 23(b) Rules of Civil Procedure, 28 U.S.C.A.; Long v. Stites, 6 Cir., 88 F.2d 554;
And it appearing that plaintiffs’ explanation that they made no effort to secure such action from the stockholders upon the ground, among others, that they were widely scattered and that there would be expense and delay incident to such demand, is legally insufficient. Bruce & Co. v. Bothwell, D.C., 8 F.R.D. 45. Cf. Stone v. Holly Hill Fruit Products, Inc., 5 Cir., 56 F.2d 553:
It is ordered that the judgment of the District Court be and it hereby is affirmed for the reasons stated in the findings of fact and conclusions of law of the District Court entered January 13, 1954.
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_applfrom | E | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
MARTIN v. HIATT, Warden.
No. 12666.
United States Court of Appeals Fifth Circuit.
May 9, 1949.
Rehearing Denied May 25, 1949.
Joe Freels Martin, of Atlanta, Ga., in prop. per.
Walter G. Cooper, of Atlanta, Ga., for amicus curiae Robt. Clayton St. Clair.
J. Ellis Mundy, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.
Before HOLMES, McCORD, and WALLER, Circuit Judges.
WALLER, Circuit Judge.
This is another of the more than 1500 petitions for habeas corpus that have been filed in recent years in the Atlanta Division of the United States District Court for the Northern District of Georgia, wherein release from the custody of 'the United States Penitentiary at Atlanta has been sought
The petitioner here, who was sentenced to imprisonment for three years for violation of the National Motor Vehicle Theft Act, Title 18, U.S.C., Sec. 408 [now §§ 2311-2313], by the United State's District Court for the Eastern District of Kentucky, alleges that he was illegally held in custody without arraignment or bail from May 7 to May 21, 1948, contrary to the Fifth and Fourteenth Amendments of the Federal Constitution; that between these dates petitioner was subjected to repeated and protracted questioning by members of the Kentucky State Highway Patrol and of the Federal Bureau of Investigation, during which “petitioner was threatened and coerced by use of reference to his past record and threatened’ reprisal against a you'ng lady in company of petitioner at the time of his arrest”; that he was advised that if he would sign a confession, the young lady in question would be released and he would be given an early trial rather than having to wait until the October term of the Court; that petitioner took notice of thi-s advice and having the welfare of the young lady in mind, as well as the threats of irrelevant matters, and being ignorant and untutored and without the advice of counsel or friends, he agreed to, and did, sign a confession, waive indictment, and plead guilty, in consequence of which he was sentenced. In short, he alleges violation of due process in being held without bail or arraignment between May 7 and May 21, 1948, and in being intimidated into signing a statement while being so held for such period.
The writ issued and upon final hearing the petitioner’s application was denied and he was remanded to the custody of the respondent because of the failure of the petitioner to comply with Sec. 2255 of Title 28 U.S.C.A., which reads in part as follows:
Ҥ 2255. Federal custody; remedies on motion attacking sentence
“A prisoner in custody under sentence of a court of Che United States claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
“A motion for such relief -may be made ■at any time.”
* * * * * *
“An application for a writ of 'habeas-corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to-the court which sentenced him, or that such court has denied 'him relief, unless it also appears that the remedy by motion is-inadequate o-r ineffective to test the legality of his detention.”
Petitioner, -appealing here, asserts that Sec. 2255 is in violation of Article 1, Sec. 9, Clause 2, of the Federal Constitution,, which provides that:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Concededly the great writ of habeas corpus has not been, and could not be, suspended by Congress in the absence of a rebellion or invasion, and the sole question presented to us is whether o-r not Sec. 2255 is tantamount to a suspension of the writ.
The great writ is of such -antiquity that its origin is unknown, but from its inception as a writ designed to put people in jail rather than to get them out its status-has been far from static.
No attempt will be made here to trace its development through the ages, but it is interesting to note that since the First Judiciary Act of 1789 the statutes have provided that judges of the Supreme and District Courts of the United States should have the right to issue writs of habeas corpus, etc., “which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”
From time immemorial it was thought that trial courts, State and Federal, had been invested with the primary duty of safeguarding the constitutional rights of defendants, and from the time of the enactment of the statute of 1789 until the present the courts have held in at least half a thousand cases that the writ of (habeas corpus cannot be used as a substitute for a writ of error or an appeal.
But for some reason, not readily discernible, there seems to 'have grown up the notion that final judgments in criminal trials in the lower courts should be attended by no favorable presumptions, and that only in the higher courts of the United States does constitutional justice really abide. In drawing to such courts the power through 'habeas corpus to supervise the “intrinsic fairness” of criminal trials in both State and Federal courts, there has been not only a disinclination to accord full faith and credit to final judgments of trial courts of competent jurisdiction but also a readiness to grant permission to petitioners, admittedly guilty of serious offenses, to dispute, orally, collaterally, and as often as they chose, the solemn records and final judgments of the courts.
It is not subject to argument that the great writ cannot be suspended in times of peace, but the proposition is also undebatable that it ought not to be abused in times of war or peace. It was doubtless to these ends that Congress .passed Chap. 153, Title 28 U.S.C.A., §§ 2241 to 2255, inclusive, whereby to provide that an -attack upon a final judgment of conviction by a Federal court in a criminal case ought usually to be made first in the court that rendered such judgment, proximate to which the records, the witnesses, and the alleged despoilers of constitutional rights generally reside. It was doubtless believed that there the petitioners could get at these despoilers in frontal, rather than collateral, attacks, no more handicapped by estoppels of records or judgments than if the attacks were made in places far remote if they also alleged that the violated Constitution or “intrinsic fairness” was on their side. Then, if sudh a petitioner’s effort were an ineffective test or if he failed to succeed in the court that had cast the yoke upon him, the right of appeal would still be his; and if either or' both of these efforts should prove inadequate, then he should still have access to the great, age-old, and grossly abused writ of habeas corpus ad subjiciendum.
The right to the writ has never been absolute. The statute from 1789 until the present has required that for the writ to issue it must be “agreeable to the principles and usages of law.” The petition must be in writing and under oath. Section 454 [now § 2242], Title 28 U.S.C.A. If the petitioner be held under a judgment of a State court, a showing that he has exhausted his State remedies or that the State affords him no remedy is a condition precedent to maintaining the writ in the Federal court. If petitioner appeal's from a judgment of a court of the United States in a proceeding where the detention complained of is by virtue of process issued out of a State court, Sec 466 [now § 2253], Title 28 U.S.C.A., provides that no appeal will be allowed unless the judge of the United States court who rendered the final decision, or a judge of the appellate court, certifies that there is probable cause for the appeal.
The procedure in habeas corpus has been the subject of change by legislation down through the centuries but the intent and purpose of the writ have remained substantially unchanged. In the passage of Chapter 153, supra, Congress has not undertaken to suspend the writ but has set up procedure that is designed to supply a more appropriate remedy to those -unlawfully detained as well as to preserve the 'writ for those who are entitled to it and at the same time to protect it from abuse by those who do not deserve it, but who clamor for it incessantly. The additional remedy provided above has not ended or suspended the writ of habeas corpus although it may have lessened its abuse by placing some emphasis on the finality of final judgments against collateral attacks without limit, thereby rendering perjury less tempting to tho-se of little veracity, convenient memory, or evil purpose.
The Act in question has had the approval of the Judicial Conference of Senior Circuit Judges, the Congress of the United States, and United States District Courts in the cases of Lowe v. Humphrey, Warden, 80 F.Supp. 442, and Wong v. Vogel, 80 F.Supp. 723. Moreover, a presumption of constitutionality attends the Act. The provisions of Sec. 2255 — which are the only provisions of the chapter here under consideration — whether viewed as an additional method of testing the validity of a detention or as conditions precedent to the issuance of a writ, appear not only to he reasonable and valid but also as a highly desirable means of lessening the abuse of the writ.
The judgment of the lower Court is affirmed.
The order of the Court erroneously refers to the section as 2455 of Title 28 U.S.C.A. but the record clearly shows that the section involved was 2255 of Title 28 U.S.C.A.
Jenks, 18 Quarterly Law Review (1902), p. 64, et seq.
See 1 Stat. 81, Sec. 377, Title 28 U. S.C.A.; § 1651, Title 28 U.S.Code Annotated Judiciary and Judicial Procedure.
Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172.
Carter v. Illinois, supra.
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_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".
STEIN v. BOSTIAN et al. (two cases).
Nos. 12213, 12246.
Circuit Court of Appeals, Eighth Circuit.
Feb. 25, 1943.
Phineas Rosenberg, of Kansas City, Mo., for appellant.
Warren S. Earhart and Roy B. Cunningham, both of Kansas City, Mo., for appellees.
Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.
SANBORN, Circuit Judge.
The question for decision is whether the court of bankruptcy could subject a cash exemption, to which the bankrupt was entitled under the laws of Missouri, to the payment of claims for taxes filed by that State and by the City of Kansas City.
The facts are stipulated. Sigmund Stein, a merchant of Kansas City, Missouri, and the head of a family, was adjudicated a bankrupt February 17, 1941, upon an involuntary petition. On that day he filed his schedules showing his liabilities, among which were taxes aggregating $530, and his assets which consisted of his stock in trade, fixtures and accounts receivable. In' his schedules the bankrupt made the following claim for exemptions: “I claim as exempt under and by virtue of Article 19, Chapter 5 of the Revised Statutes of Missouri, 1929 [Art. 19, Ch. 6, Revised Statutes of Missouri, 1939, Mo.R.S.A. § 1316 et seq.], all of my household goods, wearing apparel, furniture, household stores, and ornaments of myself and family heretofore scheduled, as well as all other personal property heretofore scheduled herein, all of them not exceeding in value the amount allowed me by law or the sum of $400.”
William B. Bostian was appointed receiver on February 17, 1941, and on February 18, without notice to the bankrupt, he procured from the referee in bankruptcy an order to sell the bankrupt’s merchandise and fixtures free of liens. The sale was at public auction, and the highest bid received was $710 for the merchandise and fixtures together, and they were sold for that amount. Prior to the sale, the referee had mailed notice thereof to the bankrupt, who did not appear and object. The sale was confirmed on February 26, 1941. The bankrupt did not waive his exemption rights or stipulate them away.
At the first meeting of creditors, held on March 10, 1941, William B. Bostian was elected trustee. On March 12, 1941, he filed a report of exemptions, specifying as exempt:
“Household goods and furniture
Wearing apparel if unencumbered and if encumbered the equity therein
Household stores.”
The attorney for the bankrupt objected to the failure of the trustee to “set off merchandise or cash equivalent as exempt, and as claimed in bankrupt’s schedules.” On April 29, 1941,, the trustee filed a supplemental report of exemptions, specifying as exempt: “Cash $300 (Subject to costs of administration and claims adjudged prior to cash exemptions by the Bankruptcy Court).”
No creditor of the bankrupt filed exceptions to or challenged in any way the trustee’s reports of exemptions. The bankrupt filed exceptions to so much of the trustee’s supplemental report as sought to subordinate his cash exemption to costs of administration and claims adjudged prior to such exemption.
The tax claims filed against the estate of the bankrupt were as follows: State of Missouri, $191.05; Jackson County, Missouri, $71.93; City of Kansas City, Missouri, $267.02. None of these tax claimants had levied upon or seized or sold any part of the assets for taxes or commenced any proceedings for that purpose or for establishing a lien thereon.
The referee on July 9, 1941, issued an order directing the bankrupt and the tax claimants to show cause why the referee “should not make either an order allowing the payment by the trustee in bankruptcy of $300.00 as cash exemptions out of the proceeds of the sale of the assets of this estate, or an order that the bankrupt is not entitled to such cash exemptions as against said tax claims or rights of the trustee in bankruptcy.”
After a hearing, the referee decided that the court of bankruptcy had jurisdiction to determine the controversy between the bankrupt and the tax claimants over the $300 cash exemption conditionally set off to the bankrupt; that the tax claimants, State of Missouri and Kansas City, Missouri, had rights superior to those of the bankrupt in the $300 exemption; that it should be equitably divided between these two tax creditors; and that Jackson County, Missouri, “having defaulted”, had forfeited its right to participate in a distribution of the bankrupt’s exemption. The bankrupt petitioned for a review of the referee’s order directing the application of the exemption to the payment of the tax claims. The District Court affirmed the referee, and the bankrupt appealed.
The effect of what the court of bankruptcy did was to set off to tax creditors the cash exemption to which the bankrupt was entitled.
The trustee contends that the Bankruptcy Act confers jurisdiction on the courts of bankruptcy to determine all claims to exemptions of bankrupts; that the object and effect of the Missouri statutes is to abolish exemptions as against taxes due the State and its subdivisions; and that when an exemption is set apart in cash, the court of bankruptcy may order it applied to the claims of creditors against whom the bankrupt can not claim exemptions. The trustee does not contend that the exemption is subject to costs of administration.
The statutes of Missouri providing that certain property “owned by the head of a family, shall be exempt from attachment and execution,” are Sections 1324 and 1327, Revised Statutes of Missouri, 1939, Mo.R.S.A. §§ 1324, 1327. Section 1330 of the same Statutes provides: “Sec. 1330. Nothing contained in this article shall be construed so as to exempt any property from seizure and sale for the payment of taxes due this state, or any' city, town or county thereof.”
Thus, while exempt property in Missouri is not subject to attachment and execution, it is subject to seizure and sale for taxes due the State or its subdivisions. It is agreed, however, that none of the property of the bankrupt had been seized or sold for taxes or that any lien for taxes had been established thereon. The right to an exemption under Missouri law is not made to depend upon the payment of taxes, nor is the amount of the exemption determined by deducting the amount of the debtor’s liability for taxes.
The question presented is, in our opinion, so well settled that we shall not indulge in a discussion of the pertinent provisions of the Bankruptcy Act or a review of the cases construing those provisions.
The exempt property to which a bankrupt is entitled is no part of his estate in bankruptcy, is not subject to administration by the court of bankruptcy, and the title to such property does not pass to the trustee, but remains in the bankrupt. Lockwood v. Exchange Bank, 190 U.S. 294, 299, 300, 23 S.Ct. 751, 47 L.Ed. 1061. The authority of the court of bankruptcy to determine claims of bankrupts to their exemptions is “to control exempt property in order to set it aside, and thus exclude it from the assets of the bankrupt estate to be administered.” Lockwood v. Exchange Bank, supra [p. 299 of 190 U.S., 23 S.Ct. at page 753, 47 L.Ed. 1061]. See also, Smalley v. Laugenour, 196 U.S. 93, 97, 98, 25 S.Ct. 216, 49 L.Ed. 400; Lucius v. Cawthon-Coleman Co., 196 U.S. 149, 151, 25 S.Ct. 214, 49 L.Ed. 425. If creditors of a bankrupt assert that property, while exempt generally, is not exempt from process to enforce their particular debts, they must resort to courts other than the court of bankruptcy to enforce payment out of such property. Duffy v. Tegeler, 8 Cir., 19 F.2d 305, 308. Compare, Hukill-Hunter Co. v. Oliver, 3 Cir., 43 F.2d 100.
It may be true, as the referee points out, that the cash exemption set off to the .bankrupt can be reached by his tax creditors through other proceedings, and that it would be convenient, expeditious and economical to have the court of bankruptcy order that the exemption be applied to the payment of the tax claims. That, however, does not alter the fact that Congress has not conferred upon the courts of bankruptcy jurisdiction to administer the exempt property of a bankrupt when a claim for exemptions has been filed, or to treat such property as any part of a bankrupt’s estate.
The fact that, prior to the appointment of a trustee, the property of the bankrupt was converted into cash and that he did not protest against the sale, is immaterial. He claimed his exemptions in his schedules, and it is conceded that he did not waive his right to his exemptions or stipulate it away. It was the duty of the trustee and of the court to safeguard the right of the bankrupt to his exempt property. That right was, under the plainest principles of equity and fair dealing, transferred, without impairment, to the proceeds of the sale. Smith v. Thompson, 8 Cir., 213 F. 335, 336; In re Miller, 7 Cir., 95 F.2d 441, 443; In re Kane, 7 Cir., 127 F. 552, 554; Bank of Nez Perce v. Pindel, 9 Cir., 193 F. 917, 922. Compare, Steele v. Leonori, 28 Mo.App. 675, 683; State, to Use of Codding v. Finn, 8 Mo.App. 261, 264; Marchildon v. O’Hara, 52 Mo.App. 523, 526, 527.
It is evident that both the referee and the District Court thought that the decision of the Supreme Court of Missouri in the case of United States ex rel. First Nat. Bank v. Lufcy, 329 Mo. 1224, 49 S.W.2d 8, sanctioned the action taken in this case. That case is not controlling and is clearly distinguishable. In the Lufcy case the court ruled that the bankrupt had consented to the sale of his exempt homestead upon condition that out of the proceeds liens of creditors upon it should be paid, and that his right to an exemption should be transferred to the proceeds, if any, in excess of such liens. In the case at bar there were no liens on the exempt cash and no consent by the bankrupt that tax creditors should be paid out of his exemptions.
The order appealed from is reversed, and the case is remanded, with directions to allow the bankrupt his cash exemption unconditionally.
The bankrupt, not being certain whether be could appeal as of right or whether this court must allow his appeal, gave notice of appeal and also procured from this court an order allowing his appeal. That is why this case is captioned as though it involved two appeals. Hereafter, we think that appeals so taken should be treated as a single appeal and not as two separate appeals as has been done in the past.
In Missouri, taxes are not by statute made a lion on personal property, exempt or unexempt. See: State ex rel. Davis v. Goodnow, 80 Mo. 271, 275; State, to Use of Phillips v. Rowse, 49 Mo. 586, 592; City of Carondelet v. Picot, 38 Mo. 125, 130; Greeley v. Provident Sav. Bank, 98 Mo. 458, 460, 11 S.W. 980. Personal property may be seized and sold for taxes “in the same manner as goods and chattels are or may bo required to be seized and sold under execution issued on judgments at law,” and after demand and notice. § 11086, R.S.Mo.1939, Mo.R.S.A. § 11086. Personal taxes are a debt to be collected only in the manner authorized by statute. National Lumber & Creosoting Co. v. Burrows, Mo.App., 284 S.W. 153, 154, and may be presented against the estates of insolvent debtors in the same manner as other indebtedness. State ex rel. and to Use of Graves v. Farmers’ Trust Co. of Macon, Mo.Sup., 31 S.W.2d 1069, 1070.
Sec. 24, Title 11 U.S.C.A. “This title shall not affect the allowance to bankrupts of the exemptions which are yrcscribed by the laws of the United States or by the State laws in force at the time of the filing of the petition * * * .”
Sec. 75, sub. a (6), Title 11 U.S.C.A. “Trustees shall * * ~ (6) set apart the bankrupts’ exemptions allowed by law, if claimed, and report the items and estimated value thereof to the courts as soon as practicable after their appointment.”
Sec. 110, Title 11 U.S.C.A. “The trustee of the estate of a bankrupt * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition in bankruptcy * * * except insofar as it is to property which is held to be exempt, * * *.”
Sec. 11, sub. a (11), Title 11 U.S.C.A., gives to the courts of bankruptcy jurisdiction to “determine all claims of bankrupts to their exemptions.”
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_treat | C | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Alvin Eugene BAKER, Appellant, v. UNITED STATES of America, Appellee.
No. 19073.
United States Court of Appeals Eighth Circuit.
June 5, 1968.
James L. Homire, Jr., St. Louis, Mo., for appellant.
Jim J. Shoemake, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., on the brief.
Before VOGEL, Senior Circuit Judge, and BLACKMUN and LAY, Circuit Judges.
VOGEL, Senior Circuit Judge.
Defendant-appellant herein was convicted by a jury of a violation of 18 U.S.C.A. § 2312 and thereafter sentenced to confinement for a period of two years. He appeals from the judgment of conviction and raises the sole issue of sufficiency of the evidence to support the verdict of guilty.
Viewing the evidence in the light most favorable to the government, it discloses that on the evening of August 8, 1967, a 1967 Buick automobile parked at 2415. Louisiana Street, Little Rock, Arkansas, was stolen. That same evening, the appellant testified that he entered the stolen car at Fourteenth and Chester in Little Rock. James Rideout and Kenneth Pippins were in the car when appellant entered it, and immediately upon entering the car appellant apparently learned that it was stolen. Appellant was 18 years of age and without any money at the time he entered the car. Appellant rode in the car as it was driven directly from Little Rock, Arkansas, to St. Louis, Missouri, where, six hours latér, he was. let out at his home at 4355 Maryland, in St. Louis.
Appellant further testified that he did not drive the car, he bought no gas for the car, and he paid no expenses for the trip. There is no suggestion that appellant stole or helped steal the car and there is no evidence or suggestion that appellant entered into a conspiracy with the two other occupants of the car to steal a car for transportation to St. Louis. Thus, the only evidence, as testified to by appellant and by an FBI Agent, against the appellant was his admission that he rode in the stolen car.
The trial court instructed the jury that it could infer transportation of the car by possession and further instructed the jury as to what constitutes active or constructive possession. The government argues that the ease may be affirmed under this theory. We disagree. There is no evidence suggesting even the barest elements of either actual or constructive possession of this car by appellant. As appropriately noted in another context in Barnes v. United States, 5 Cir., 1965, 341 F.2d 189, 191:
“ * * * The effect of the charge in the instant case was to shift the burden of proof to the defendant to overcome a prima facie inference of guilt from the fact of possession, when possession had not been clearly established by the evidence. There was no direct testimony that defendant Barnes ever had possession of the vehicle, but only circumstantial evidence from which the jury could draw the conclusion that the defendant had been in possession.”
It is obvious that here the jury would have to infer possession by appellant’s mere presence in the car. The constitutional infirmities of such an inference have already been suggested in United States v. Romano, 1965, 382 U.S. 136, 141, 86 S.Ct. 279, 15 L.Ed.2d 210. Even accepting the appropriateness of this initial inference, however, to further infer that appellant transported or caused to be transported this car from the inference of his possession of the car involves such obvious speculation as to be totally inconsistent with the requirements of due process. We agree, to this extent, with the holding in Julian v. United States, 9 Cir., February 28, 1968, 391 F.2d 279, that “where convicting presumptions are projected on possession, the evidence of possession ought to be very clear to satisfy the test of guilt beyond a reasonable doubt.” See, also, Wheeler v. United States, 10 Cir., 1967, 382 F.2d 998, 1000. (Appellants “correctly contend that being a mere passenger in a stolen automobile moving in interstate commerce does not prove requisite possession so as to give rise to the presumption of guilty knowledge.”)
The trial court also instructed the jury that they could return a guilty verdict if they found that appellant had aided and abetted in the transportation of this stolen car. These instructions properly required “participation” by the appellant in the crime because, as noted by Judge Learned Hand in discussing various definitions of aiding and abetting:
“It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used — even the most colorless, ‘abet’ — carry an implication of purposive attitude towards it.” United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, 402.
Accord: Nye & Nissen v. United States, 1949, 336 U.S. 613, 619-620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (aiding and abetting is “a rule of criminal responsibility for acts which one assists another in performing.”); Pereira v. United States, 1954, 347 U.S. 1, 10-11, 74 S.Ct. 358, 98 L.Ed. 435.
This court has had occasion to consider the question of sufficiency of the evidence to find a defendant guilty as a principal because he aided and abetted the criminal acts of another. In a case involving facts similar to the instant case, this court stated, in Johnson v. United States, 8 Cir, 1952, 195 F.2d 673, 675:
“ * *. * To be an aider and abetter it must appear that one so far participates in the commission of the crime charged as to be present, actually or constructively, for the purpose of assisting therein. * * * Generally speaking, to find one guilty as a principal on the ground that he was an aider and abetter it must be proven that he shared in the criminal intent of the principal and there must be a community of unlawful purpose at the time the act is committed. As the term ‘aiding and abetting’ implies, it assumes some participation in the criminal act in furtherance of the common design, either before or at the time the criminal act is committed. It implies some conduct of an affirmative nature and mere negative acquiescence is not sufficient.”
See, also, Mays v. United States, 8 Cir, 1958, 261 F.2d 662, 664; Mack v. United States, 8 Cir, 1964, 326 F.2d 481, 484-486. Mere association is not sufficient to establish aiding and abetting, Ramirez v. United States, 9 Cir, 1966, 363 F.2d 33, 34; presence by itself is not sufficient, Hicks v. United States, 1893, 150 U.S. 442, 450, 14 S.Ct. 144, 37 L.Ed. 1137; United States v. Williams, 1951, 341 U.S. 58, 64, n. 4, 71 S.Ct. 595, 95 L.Ed. 747; United States v. Minieri, 2 Cir, 1962, 303 F.2d 550, 557; and it is also established that knowledge that a crime was to be committed and presence at the scene of the crime are generally not sufficient. Ramirez v. United States, supra; United States v. Garguilo, 2 Cir, 1962, 310 F.2d 249, 253.
This review of the law convinces us that the government has not sustained its burden of proving participation in transporting a car in interstate commerce when it proves only that someone has ridden in a stolen car as it was being so transported.
The government argues that Lambert v. United States, 5 Cir, 1958, 261 F.2d 799, is sufficient authority for the government’s position here. There, the appellant waited at the corner of a parking lot as his friend entered the lot and stole a car in New Orleans. The two then drove to Birmingham, Alabama, where a service station operator testified that appellant was still a passenger in the car when the occupants thereof had the gasoline tank filled and drove off without paying. The crucial distinction in that case is that there appellant actually participated in the stealing of the car, possibly by acting as a lookout for his companion, or that the appellant there had formed a conspiracy with his companion to steal the ear. Moreover, the appellant was still with his companion in the car the next day and remained in the car even after his companion had left a filling station without paying for the car’s service. Thus Lambert involved not only association, but also evidence of participation in the illegal act. Here there is no evidence of participation.
Neither does the government’s reliance on Garrison v. United States, 10 Cir, 1965, 353 F.2d 94, impress us because much more circumstantial evidence suggesting possession was presented in that case than is present here. In Garrison, defendant attempted to sell a tire from the car, defendant bought gasoline for the car, defendant directed his partner to drive the car when they left a motel, and defendant was later found in the front seat of the car while his partner was in the back seat. As the court there noted, this evidence “certainly shows some control by Garrison over the recently stolen car and was sufficient for the jury to infer that Garrison was at least an aider and abettor in the transportation of the car and, as such, had possession of it as his codefendant did.” No such circumstantial evidence of control is present in the instant case.
A recent case in which the facts most closely parallel the facts here is Allison v. United States, 10 Cir, 1965, 348 F.2d 152. In Allison, a car was stolen in Springfield, Missouri, the night of July 11th. The morning of July 13th Allison was identified as occupying the right-hand front seat of the car which was parked in a field near Elk City, Kansas. This car was abandoned near Elk City and on the afternoon of July 13th another car was stolen in Elk City and found the next day in Pawhuska, Oklahoma. Allison and another were arrested several blocks from that car and one of them had a jumper cable in his pocket. The court found this evidence insufficient to sustain the Dyer Act conviction of Allison because, “Neither the fingerprint nor the presence in the ear shows control, dominion, or authority over the car.” 348 F.2d at 154.
We find that the government has failed to present sufficient evidence to prove that appellant transported or caused to be transported the stolen car in interstate commerce so that appellant’s motion for directed verdict should have been granted.
Reversed.
. “Possession in one state of property recently stolen in another state, if not satisfactorily explained, is a circumstance from which the jury might reasonably draw the inference and find, in the light of surrounding circumstances, that the person in possession not only knew it to be stolen property, but also transported or caused it to be transported in interstate commerce.”
. “The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it.
“A person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.
“The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, their possession is joint.
“If you find from the evidence beyond a reasonable doubt that the accused either alone or jointly with others had. actual or constructive possession of the automobile described in the indictment, then you may find that such automobile was in the possession of the accused within the meaning of the word ‘possession’ as used in these instructions.”
. “Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.
“Every person who thus willfully participates in the commission of a crime may be found to be guilty of an offense. Participation is willful if done voluntarily and purposely and with specific intent to do some act the law forbids, or with specific intent to fail to do some act the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.”
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_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.
Charles A. BLANEY et al., Appellants, v. FLORIDA NATIONAL BANK AT ORLANDO et al., Appellees.
No. 22229.
United States Court of Appeals Fifth Circuit.
March 7, 1966.
Robert Dyer, George T. Eidson, Jr., Akerman, Senterfitt, Eidson, Mesmer & Robbinson, Orlando, Fla., for appellants.
Fred H. Kent, Clarence G. Ashby, Haywood M. Ball, Ulmer, Murchison, Kent, Ashby & Ball, Jacksonville, Fla., for ap-pellees.
Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and-FISHER, District Judge.
TUTTLE, Chief Judge:
Appellants (plaintiffs below) brought this action individually, and as representatives of a class comprised of the holders of ten per cent mortgage bonds, issued pursuant to a trust indenture agreement by Fischer-Electro-Magnetics, Inc., a now bankrupt corporation. The complaint alleges improper action by appellee-bank (and its Trust Officer) as trustee under said indenture agreement. In light of our disposition of the case, we do not elaborate upon the specific acts which appellants urge as a breach of the bank’s fiduciary obligations as trustee, other than to note the substantiality of their claim. It should be noted, however, that the trust indenture contained an exculpatory clause, purporting to limit the trustee’s liability to “gross neglect of its duties hereunder or for failure to exercise good faith in the performance hereof.” In holding, as we do, that appellants’ complaint does not state a federal claim, we are mindful of the possibility that the Florida courts may give effect to this exculpatory clause, thus rendering non-compensable an otherwise actionable breach of fiduciary duty on the part of the bank. See Smith v. Boyd, 119 Fla. 481, 161 So. 381 (1935).
A threshold problem faces this court in light of the disposition of this case below. The district court’s dismissal for lack of diversity or “other jurisdictional grounds” was improper in light of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 13 A.L.R.2d 383 (1946). This latter case teaches that where a complaint is drawn, as here, to seek recovery directly under the Constitution or laws of the United States, a federal court must entertain the suit “to decide whether the allegations state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy,” id. at 682, 66 S.Ct. at 776, unless 1) the alleged federal claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction, or 2) the claim is wholly insubstantial and frivolous. Ibid. However, in the interest of economy of judicial time and effort, this court expressly declines to remand on this ground. Rather, we proceed to determine whether, as a matter of law, appellants’ claim states a federal cause of action — a question which “must be decided after and not before the court has assumed jurisdiction over the controvesy.” Ibid.
Appellants premise their claim for relief upon the following regulation promulgated by the Board of Governors of the Federal Reserve System, pursuant to its authority under former 12 U.S.C. § 248(k) (repealed Sept. 28, 1962) :
“Every such national bank shall conform to sound principles in the operation of its trust department.”
12 C.F.R. § 206.6(f) (1961). [Footnote 5 to this subsection “commended” to banks operating trust departments the statement of “principles” of trust institutions approved by the Executive Council of the American Bankers Association (Appendix to Regulation F of the Board of Governors of the Federal Reserve System, 12 C.F.R. § 206 at p. 35 et seq.).] Appellants ask this court to imply from Section 206.6(f) a federal civil remedy in their favor, as holders of securities subject to the trust indenture administered by appellee. Such an implied cause of action would be based upon the bank’s failure to “conform to sound principles in the operation of its trust department.” Thus, in effect, we are invited to fashion a federal common law of “sound” trust principles pursuant to “authorization” found in an innocuous administrative regulation. We decline this invitation.
Our conclusion is based partially upon the most recent Supreme Court pronouncement on implying civil remedies from federal regulatory statutes, J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). There the plaintiff alleged that defendant-corporation, by seeking support for a merger through circulation of a false and misleading proxy statement, in violation of Section 14(a) of the Securities Exchange Act and regulations issued pursuant thereto, had deprived shareholders of their pre-emptive rights. The question as put by the Court was whether Section 27 of the Securities Exchange Act authorized a federal cause of action for rescission or damages, based upon such an alleged deprivation.
The approach of the Supreme Court in allowing such a private cause of action is illuminating. First, it noted that Section 27 is broad in its terms, granting to approprate district courts jurisdiction over “all suits in equity and actions at law brought to enforce any liability or duty created” by the Act. Second, it emphasized the broad remedial purposes of the Section 14(a) and the proxy rules issued pursuant thereto — purposes expressly noted in the Act itself. Third, it implicitly noted that both the stockholders and the corporation were within the group sought to be protected by the proxy rules. Fourth, it concluded that “[pjrivate enforcement * * * provides a necessary supplement to Commission action,” -Borak at 432, 84 S.Ct. at 1560, especially since “[t]ime does not permit an independent examination of the facts set out in the proxy material and this results in the Commission’s acceptance of the representations contained therein at their face value * * Ibid. Under these circumstances, the Court held that a private remedy existed.
Measuring the circumstances involved in this case by the general approach of the Supreme Court in Borak, we readily observe that appellants, as security holders, are within the class of persons sought to be benefited by the banking regulation. In our opinion, however, the similarity ends at this point. Unlike Section 27 of the Securities Exchange Act (footnote 2, supra), the section which prescribes specific liabilities for violations of the Federal Reserve Act (Title 12, U.S.C., Chapter 3), speaks in narrow terms, as follows:
“Should any national banking association in the United States now organized fail within one year after December 23, 1913, to become a member bank or fail to comply with any of the provisions of this chapter applicable thereto, all of the rights, privileges, and franchises of such association granted to it under chapter 2 of this title, or under the provisions of this chapter, shall be thereby forfeited. Any noncompliance with or violation of this chapter shall, however, be determined and adjudged by any court of the United States of competent jurisdiction in a suit brought for that purpose in the district or territory in which such bank is located, under direction of the Board of Governors of the Federal Reserve System by the Comptroller of the Currency in his own name before the association shall be declared dissolved. In cases of such noneompliance or violation, other than the failure to become a member bank under the provisions of this chapter, every director who participated in or assented to the same shall be held liable in his personal or individual capacity for all damages which said bank, its shareholders, or any other person shall have sustained in consequence of such violation.
Such dissolution shall not take away or impair any remedy against such corporation, its stockholders, or officers, for any liability or penalty which shall have been previously incurred.”
12 U.S.C. § 501a. Thus, solely as a matter of statutory construction, we would hold the remedies enumerated in Section 501a to be exclusive.
Furthermore, we doubt seriously whether the national trust regulations were motivated by the broad remedial purposes underlying the Securities Exchange Act; they were primarily designed, rather, to place national banks on an equal competitive basis with state banks and trust companies in the state where the national bank is situated. This is obvious from the most cursory reading of repealed 12 U.S.C. § 248(k), now 12 U.S. C. § 92a, For this same reason, since we are not dealing with broad, remedial social legislation, we feel justified in concluding that Congress intended regulatory controls to be exercised solely by the Board of Governors (or the Comptroller, today), without room or need for supplementary enforcement. Cf. Consolidated Freightways v. United Truck Lines, 216 F.2d 543, 547 (9th Cir. 1954).
In our conclusions we are reinforced by a basic feeling that the law of trusts and estates, like the law of domestic relations, see DeSylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 100 L. Ed. 1415 (1956), is primarily a matter of state concern. See United States v. Yazell, January 17, 1966, 86 S.Ct. 500, (family property interests are “intensely local”). That Congress, too, recognized this fact seems obvious from the provisions of 12 U.S.C. § 92a itself, making the right of national banks to act as trustees, executors, administrators or in any other fiduciary capacity turn upon the law of the state in which such national bank is located [see also former 12 U.S.C. Section 248 (k) ]. The areas in which the federal courts have recently returned to “the free-wheeling days antedating Erie R. Co. v. Tompkins * * * are few and restricted,” Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963), and should remain so. Accordingly, we hold that appellants’ complaint does not state a federal cause of action.
The judgment is affirmed because of the failure to allege a state of facts upon which relief could be granted.
. Upon the repeal of 12 U.S.C. § 248(k), the jurisdiction of the Board of Governors of the Federal Reserve System over trust departments of national banks was transferred to the Comptroller of the Currency. 12 U.S.C. § 92a. Subsequently the Comptroller promulgated Regulation 9, which superseded Regulation F, see 12 C.F.R. Part 9, and which contains a regulation exactly corresponding to 12 C.F.R. § 206.6(f), i. e., 12 C.F.R. § 9.6(f) (1968 ed.), and footnote 2 thereto. Since it appears from the complaint that substantially all of the events allegedly creating liability on the part of the bank occurred while 12 C.F.R. § 206.6 (f) was in effect, we feel that appellants were correct in basing their claim primarily thereupon. Nevertheless, to whatever extent appellants must base their claim for relief upon 12 C.F.R. § 9.6(f), our holding also applies pro tanto to this latter regulation.
. Section 27, 15 U.S.C. § 78aa, provides in relevant part:
“The district courts of the United States, the Supreme Court of the District of Columbia, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of via--lations of this title or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this title or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this title or rules and regulations thereunder, or to enjoin any violation of such title or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found.”
. To whatever (if any) extent appellants must base their claim for relief upon Regulation 9 of the Comptroller of the Currency, 12 C.F.R. § 9.6(f), see footnote 1, supra, their claim is cast under the National Banking Act, and, accordingly, 12 U.S.C. § 93, rather than 12 U.S.C. § 501a, will become applicable. Since 12 U.S.C. § 93 also speaks in narrow terms, it is indistinguishable from 12 U.S.C. § 501a for purposes of our analysis.
. It should be noted that appellants here sue the bank and its trust officer — not its directors.
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_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.
HOLLOWAY v. LOONEY.
No. 4705.
United States Court of Appeals Tenth Circuit.
Oct. 8, 1953.
Writ of Certiorari Denied Dec. 7, 1953.
See 74 S.Ct. 245.
Tyree Holloway, pro se.
George Templar, Arkansas City, Kan., and Charles H. Rooney, Topeka, Kan., on the brief, for appellee.
Before BRATTON, MURRAH and PICKETT, Circuit Judges.
PER CURIAM.
This is an appeal from a judgment of the District Court of Kansas discharging a writ of habeas corpus to test the lawfulness of petitioner’s custody by the respondent Warden.
The material facts are that pursuant to a conviction, the petitioner was sentenced in July 1944 by the District Court for the District of Columbia for a term of five to fifteen years. He appealed from this judgment and elected not to commence the service of his sentence. While this appeal was pending and on October 27, 1944, the petitioner was convicted on another offense in the same District and sentenced for a term of two and one-half to seven years, to take effect at the expiration of the sentence imposed in the first case. He was committed to the custody of the Attorney General and did not appeal from the latter sentence. The appeal from the first sentence was affirmed on February 26, 1945, and he commenced the service of that sentence on March 7, 1945.
■ As grounds for his discharge, peti-. tioner contends that the latter sentence of two and one-half to seven years, to commence at the expiration of the first sentence, which had not commenced at the time of the imposition of the latter, is fatally lacking in definiteness and certainty as a consecutive sentence and must therefore be construed to have commenced on the date of its imposition and his commitment; that having served the two and one-half to seven years, he is entitled to a discharge from further custody for that offense.
This identical question was raised and decided adversely to the petitioner in a motion to vacate under Section 2255, 28 U.S.C.A. See Holloway v. United States, 89 U.S.App.D.C. 332, 191 F.2d 504. The remedy provided under Section 2255 to test the validity of a sentence upon the ground that the court was without jurisdiction to impose it, or that it was in excess of the maximum provided by law or otherwise subject to collateral attack, being in lieu of the former remedy in habeas corpus, is exclusive and habeas corpus is not available to relitigate the question or review the decision of the court in a proceedings under Section 2255. See Barnes v. Hunter, 10 Cir., 188 F.2d 86; Clough v. Hunter, 10 Cir., 191 F.2d 516; Kreuter v. United States, 10 Cir., 201 F.2d 33; Smith v. United States, 10 Cir., 205 F.2d 768. A prisoner may however be heard in habeas corpus “to contend that he is being held in confinement without any judgment of a court, or that he is being held after having fully served the sentence for which he was committed.” Mills v. Hunter, 10 Cir., 204 F.2d 468, 470. But habeas corpus is available only to effectuate a prisoner’s immediate release and not to test the legality of his imprisonment at some future time. Pope v. Huff, 73 App.D.C. 170, 117 F.2d 779. The writ will not issue in the absence of a showing that the prisoner is presently restrained of his liberty without warrant of law. Macomber v. Hudspeth, 10 Cir., 115 F.2d 114; Wall v. Hudspeth, 10 Cir., 108 F.2d 865; McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238.
The petitioner does not contend that he is not presently in lawful custody of the Warden. He admits, as the record shows, that he is not presently entitled to release from custody under the first sentence of five to fifteen years. He is therefore in lawful custody under a valid sentence and the trial court correctly discharged the writ.
The judgment is affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
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.
The RATH PACKING COMPANY, a corporation, Plaintiff, Counter-Defendant and Appellant, v. M. H. BECKER, as Director of the County of Los Angeles Department of Weights and Measures, Defendant, Appellee and Cross-Appellant, C. B. Christensen, as Director of Agriculture of the State of California, Intervenor, Appellee and Cross-Appellant. The RATH PACKING COMPANY, a corporation, Plaintiff and Appellant, v. Joseph W. JONES, as Director of the County of Riverside Department of Weights and Measures, Defendant, Appellee and Cross-Appellant.
Nos. 73-2481, 73-2482, 73-3092, 73-2496 and 73-3180.
United States Court of Appeals, Ninth Circuit.
Oct. 29, 1975.
Certiorari Granted April 19, 1976.
See 96 S.Ct. 1663.
Arnold K. Graham, Deputy County Counsel (argued), Los Angeles, Cal., for M. H. Becker.
Allan J. Goodman, Deputy Atty. Gen. (argued), Los Angeles, Cal., for C. B. Christensen.
Loyal E. Keir, Deputy County Counsel (argued), Riverside, Cal., for Joseph W. Jones.
Dean C. Dunlavey (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., for Rath Packing Co.
Before BROWNING and TRASK, Circuit Judges, and RICH, Judge.
The Honorable Giles S. Rich, Judge, United States Court of Customs and Patent Appeals, sitting by designation.
OPINION
RICH, Judge:
These suits were brought by Rath Packing Company (hereinafter “Rath”) to enjoin the enforcement of certain California statutes and regulations pertaining to the labeling by weight of packaged foods at retail, and for a declaration that the federal Wholesome Meat Act of 1967, 21 U.S.C. § 601 et seq., and a regulation promulgated thereunder, 9 CFR 317.2(h)(2), preempt these California statutes and regulations. They were consolidated for decision in the district court and on appeal.
Rath is a nation-wide processor and seller of meat products, including bacon, and maintains a meat-packing establishment at Vernon, California, which is subject to federal inspection under the Wholesome Meat Act and 9 CFR 302.1 as an establishment in which “any products of * * * carcasses of livestock are * * * prepared for transportation or sale as articles of commerce, which are intended for use as human food.” Becker and Jones are the Directors of the Departments of Weights and Measures of Los Angeles and Riverside Counties, California, respectively. They are responsible for the actual enforcement of the State weights and measures laws in their counties. Intervenor Christensen is the Director of Agriculture of the State of California.
Jurisdiction in the district court was based on 28 U.S.C. § 1331(a), as it was alleged that a case or controversy arising under the laws of the United States involving more than $10,000 was presented. We have jurisdiction of this appeal under 28 U.S.C. § 1291.
The district court, in a memorandum and order reported at 357 F.Supp. 529 (C.D.Cal.1973), granted in part the relief requested, and all parties appealed the determinations adverse to them.
This case is a companion to General Mills, Inc., et al. v. Jones, 530 F.2d 1317, decided concurrently herewith. Much of the discussion in this opinion is applicable to the General Mills case as well.
Background
This case concerns the packaging and weighing of bacon. In order to understand the issues, a brief description of the properties of bacon and how it is packed and weighed is necessary.
The weighing and packaging of bacon at the Rath plant takes place under internal Rath procedures which have been submitted to an official of the United States Department of Agriculture (USDA). After the pickled and smoked pork bellies come from the bacon press, where they are squared into uniform rectangular shapes, they are sliced by a machine, which distributes the slices in “drafts” of approximately one pound weight. An operator places each draft on an insert, or “tux”, board, which is a hardboard coated either with wax or with polyethylene. The drafts are then passed to a scaling station, where they are weighed and the operator either adds or removes bacon to bring the weight within a predetermined target limit. After scaling the bacon is passed to a tux overwrap machine, which inserts the bacon into a carton and seals it. This carton is not hermetically sealed and the bacon in it does lose some moisture to the atmosphere over time. Although Rath now does use some hermetically sealed bacon containers, this packing method is agreed to be in accordance with good distribution practices. Once the bacon is weighed at the scaling station, it is not weighed again before it leaves the Rath plant, an average of 4 days, never more than 8 or 9 days, later. In determining the pass zone Rath follows the USD A procedure of subtracting from the actual weight of the draft and the tux board on which it lies the weight of a dry tux board. This method uses a “dry tare.” There is no evidence that Rath has violated federal weight standards in any way.
The federal program for regulation of net weight labeling of meat and meat food products exists in part under the Wholesome Meat Act of 1967, supra. The Act added the concept of “misbrand-ing” to the prior federal meat inspection laws. 21 U.S.C. § 601(n) provides in relevant part:
(n) The term “misbranded” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances:
* * * * * ^
(5) if in a package or other container unless it bears a label showing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (B) of this sub-paragraph (5), reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary [of Agriculture];
* * * * * *
In 9 CFR 317.2(h)(2) the Secretary purported to implement § 601(n)(5):
(2) The statement as it is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large.
In the supermarket the California inspectors employed a different weighing method, using a “wet tare.” The California procedure is set forth in detail in 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5. Briefly, the California inspectors follow a twelve-step procedure set forth in Section 2933.3 of the regulations:
(1) determine the number of packages in the lot to be sampled;
(2) from a table in the regulation, determine the total package sample size (e. g., 15 packages out of a lot of 300);
(3) from the same table, determine the tare sample size (e. g., 2 packages out of a lot of 300);
(4) record the gross weight of each tare sample package;
(5) remove the usable contents from each tare sample, weigh the used, empty container, and compute the average tare Weight;
(6) weigh the remaining packages in the package sample and record their weights, determining the amount of error from labeled weight for each package;
(7) [not applicable to bacon];
(8) calculate the preliminary total error for the sample, and determine the arithmetical average error;
(9) calculate the range of error for each sub-group of the package sample;
(10) determine whether any unreasonable errors exist, and eliminate from further computations all samples whose errors exceed the preliminary average error in underweight situations by more than the amounts set forth in tables in the regulations; if the number of unreasonable errors exceeds a certain set figure for each sample size, further action, including the issuance of off-sale orders, may be undertaken.
(11) recalculate the total and average error of the sample excluding the unreasonable errors;
(12) “(a) If the total error as obtained from the sample is plus and is less than the value shown in Table III for the corresponding range and sample size, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot.
“(b) If the total error obtained from the sample is less than the above-determined value, and the error is minus, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken the lot shall be passed. If additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot.” [Sec. 2933.3.12.]
If an inspector cannot pass the lot based on this sampling technique or after retesting, he then may order the lot off-sale under the provisions of California Business and Professions Code § 12211:
Each sealer shall, from time to time, weigh or measure packages, containers or amounts of commodities sold, or in the process of delivery, in order to determine whether the same contain the quantity or amount represented and whether they are being sold in accordance with law.
# # * sif * #
Whenever a lot or package of any commodity is found to contain, through the procedures authorized herein, a less amount than that represented, the sealer shall in writing order same off sale and require that an accurate statement of quantity be placed on each such package or container before the same may be released for sale by the sealer in writing. The sealer may seize as evidence any package or container which is found to contain a less amount than that represented.
Evidence was adduced at the trial from various California officials, including Becker, that the county departments do not recognize variations in net weight that result from water loss during good distribution practice. Mr. Cervinka, a statistician employed by the California Department of Agriculture, testified on direct examination as an expert for Christensen that Art. 5 of the regulation, described above, is a statistically valid procedure. On cross-examination he indicated that Art. 5 does not make any distinction between products that lose water and those that do not, nor does it make provision for any weight reductions during the course of handling. On this and other evidence the district court concluded that Art. 5 uses “absolute” weight as determined by statistical methods as its measure of compliance and makes no reference in describing the steps of the weighing and calculating process to reasonable variations from label weight caused by “loss * * * of moisture during the course of good distribution practice.” The district court’s fact findings have substantial evidentia-ry support and are not clearly erroneous. F.R.Civ.P. 52(a). Becker, Christensen, and Jones do not urge error in the district court’s construction of Art. 5.
Procedural History
During the period September 1971 to March 1972 inspectors under the supervision of Becker and Jones visited supermarkets in Los Angeles and Riverside Counties and weighed packages of Rath bacon to determine compliance with the State statute and regulations concerning net weight labeling. Becker’s representatives ordered approximately 84 lots of bacon off sale for short weight; Jones ordered nearly 400 packages of Rath bacon off sale in the period September 29 to December 30, 1971, for the same reason.
On February 17, 1972, the Riverside County Counsel brought an action in the name of the People against Rath in the Superior Court for Riverside County for an injunction under Cal.Civ.Code § 3369 and for civil penalties under Cal.Bus. and Prof.Code § 17536, alleging that Rath had committed acts of unfair competition in violation of Cal.Bus. and Prof. Code § 17500 by distributing for sale in Riverside County supermarkets the packages of bacon that Jones’ representatives had ordered off sale. On March 1, 1972, the Los Angeles County Counsel filed a similar action against Rath in the Superior Court for Los Angeles County.
Rath removed both actions to federal district court within a week thereafter; but on March 20, 1972, the district court remanded the actions to the State courts, finding, at least with respect to the Riverside action, that there was no diversity of citizenship and that “[n]o substantial federal question is presented on the face of the pleadings.”
Meanwhile, on March 17, 1972, Rath filed two actions in federal district court, one against the People and Becker, the other against Jones. Rath requested declarations that the California statutes and regulations impose labeling standards on meat food products prepared by Rath that are in addition to or different than the standards of the Wholesome Meat Act of 1967, specifically 21 U.S.C. § 601(n)(5) and 9 CFR 317.2(h)(2) and that California could not impose weight labeling requirements on Rath meat food products after they left the Rath plant. Rath also requested injunctions against the enforcement by Becker and Jones of labeling requirements in addition to or different than those in the Act and against the ordering off-sale or otherwise preventing the sale of Rath products for failure of the products to bear an accurate label in terms of net weight after they have left Rath’s plant. Becker, Jones, and Christensen counterclaimed for the same relief sought by the State in the state court actions.
After the remands, on March 30, 1972, Rath answered the state court complaints and filed cross-complaints seeking the same relief, in virtually the same language, as Rath sought in federal court. In July 1972 Christensen intervened in both the state and federal court litigations.
Becker filed in the district court motions requesting the court either to abstain from deciding the federal court action or to stay the federal action pending final determinations in the state court actions. The district court denied these motions in May 1972. On November 14, 1972, the superior court in the Riverside action dismissed Rath’s cross-complaint; Rath appealed. On the very next day, Christensen and Becker moved the district court to dismiss Rath’s action or to stay it pending decision on Rath’s state appeal. The district court denied the motions, and this court, on Christensen and Becker’s petition for a writ of prohibition, declined to disturb the district court’s assumption of jurisdiction.
On April 3, 1973, the district court, after a trial on.the merits of Rath’s action against Becker and on cross-motion for summary judgment in the action against Jones, entered judgment declaring Cal.Bus. and Prof.Code § 12211 and 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5 to be preempted by federal law and enjoining their enforcement. In the course of its Memorandum the court held that 9 CFR 317.2(h)(2) was invalid, and that thus the sole federal labeling standard was “accurate” weight. The court also held that accurate weight labeling standards could be applied to packages of meat and meat food products at the retail level. Cross-appeals were taken to this court.
The Riverside action continued, and in January 1974, while Rath’s first appeal was still pending in the California District Court of Appeal, the superior court entered summary judgment on the complaints of Jones and Christensen against Rath; Rath appealed again. In an unreported decision in April 1974 on Rath’s first appeal, the California appellate court reversed the dismissal of Rath’s cross-complaint against Jones, holding that the federal court’s judgment was res judicata on the issue of the validity of § 12211 and Art. 5 (to the extent that it implemented § 12211). On Rath’s second appeal, in December 1974, the appellate court reversed the grant of summary judgment on the complaints and remanded the case to the Riverside superior court for trial, holding that there existed issues of fact that required trial. People v. Rath Packing Company, 44 Cal. App.3d 56, 118 Cal.Rptr. 438 (1974). The appellate court also explained further the basis of its decision on Rath’s first appeal, holding that the effect of the federal court judgment was to preclude relitigation of the narrow issue of the preemption of § 12211, and its implementation in Art. 5, by the Wholesome Meat Act. The appellate court held, 118 Cal. Rptr. at 446 n.6, that Art. 5 is not unconstitutional.
Although the record does not contain any notice of the proceedings in the Los Angeles superior court action, we are informed by Rath’s reply brief that in February 1974 the Los Angeles court gave res judicata effect to the final judgment on the preemption issue and decided in Rath’s favor the issues of constitutionality and whether Becker’s ordering of Rath’s bacon off sale complied with state law. An appeal from this judgment is pending.
I.
Becker, Jones, and Christensen contend that the district court lacked jurisdiction of the subject matter before it, and, in the alternative, that the principles of abstention and comity required the court to stay its hand until the state court actions had proceeded to judgment. We reject both contentions.
A.
The question of subject matter jurisdiction may be raised by the parties at any time or by the court sua sponte. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1938); F.R.Civ.P. 12(h)(3). Becker et al. first contend that the declaratory judgment actions brought by Rath are nothing more than attempts to get collateral review of the remands to state court of the actions brought against Rath by the People which Rath had removed to the district court. 28 U.S.C. § 1447, provides:
§ 1447. Procedure after removal generally.
(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise * * *.
Their second contention is that Rath’s claim for declaratory and injunctive relief in the district court is in reality a defense to the state court actions, and, as such, cannot form a basis for federal question jurisdiction under 28 U.S.C. § 1331.
After the institution of Rath’s federal action Becker at al. presented these contentions to this court by way of a petition for a writ of prohibition, Becker et al. v. Real, No. 72-3037, which the court, ELY and HUFSTEDLER, Circuit Judges, denied. We find no reason to depart from that decision.
Federal question jurisdiction is determined by the federal district court solely from the face of plaintiff’s complaint. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Removability cannot be created by defendant pleading a counter-claim presenting a federal question under 28 U.S.C. § 1331. See 1 Barron & Holtzoff, Federal Practice and Procedure (Wright Ed.) § 102; United Artists Corp. v. Ancore Amusement Corp., 91 F.Supp. 132 (S.D.N.Y.1950). Thus, Rath’s answer and cross-complaint in the state court, raising its claim for declaratory and injunctive relief under federal law, were not before the district court when it remanded the state court actions and do not raise any issues necessarily adjudicated by the court in deciding to remand. The decision of the district court that the case does not invoke the federal jurisdiction and must be remanded precludes further litigation of the issue of the forum in which the removed case is to be litigated. Missouri Pacific Ry. Co. v. Fitzgerald, 160 U.S. 556, 583, 16 S.Ct. 389, 40 L.Ed. 536 (1896). The decision of the district court to remand has no bearing on the merits of the underlying claims. Since the district court did not make any decision with respect to the propriety of a federal forum for Rath’s claims, we cannot say that the maintenance of Rath’s claim in federal court works a circumvention of 28 U.S.C. § 1447(d). Cf. Chandler v. O’Bryan, 445 F.2d 1045, 1057 (10th Cir. 1971). Rath is not contending that the remand orders were erroneous, but only that it has a right to a federal forum for its alleged federal claims.
The argument that Rath’s claims are not within the federal question jurisdiction, it not being denied that there is no diversity of citizenship, takes its roots in the statement of the Supreme Court in Public Service Commission v. Wycoff, 344 U.S. 237, 248, 73 S.Ct. 236, 242, 97 L.Ed. 291 (1952):
Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is a federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law * * * (emphasis added [by the Court]).
The doubt that the Court expresses is still with us, e. g., C. Wright, Law of Federal Courts § 18, at 62 (2d Ed. 1970).
In order to appreciate the Wycoff case we must first look to the jurisdictional background of the Declaratory Judgment Act, 28 U.S.C. § 2201. The Act is procedural only, creating a new federal remedy without expanding the jurisdiction of the federal courts. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). “ ‘Jurisdiction’ means the kinds of issues which give right of entrance to federal courts.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950). The Wycoff “test” quoted supra has its origins in Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511 (1894), where the Court said, “a suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws.” Furthermore, the complaint of the declaratory plaintiff must present a federal question “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914).
In Wycoff the complainant brought an action for declaratory judgment against the Utah Public Service Commission, requesting a finding that the business conducted by complainant in carrying goods between points in Utah was interstate commerce (and thus not subject to regulation by the Commission). The principal concern of the Court was the nature of the controversy presented, 344 U.S. at 244, 73 S.Ct. at 240:
A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and the counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent’s explanation of the purposes of the injunction it originally asked, which is “to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.” (Emphasis supplied [by the Court].)
From this the Court concluded that “this dispute has not matured to the point where we can see what, if any, concrete controversy will develop.” 344 U.S. at 245, 73 S.Ct. at 241. In the portion of Wycoff quoted three paragraphs above, the Court was applying its concern that the controversy was not ripe for adjudication by pointing out a declaratory plaintiff may not create a controversy by seeking to have a federal court adjudicate federal defenses he might assert in a proceeding before a state court or administrative tribunal which is not ripe, but which is merely threatened or impending.
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. * * *. (Emphasis added.)
Another aspect of the matter was aired in Chandler v. O’Bryan, supra. O’Bryan brought a libel action in Oklahoma state court against Chandler, a United States District Judge, on statements made by Chandler to a newspaper accusing O’Bryan of bribing judges of the Oklahoma Supreme Court. Chandler removed the action to federal district court; but the district court held that the acts alleged in the complaint were not done in performance of Chandler’s official duties as a federal judge, nor were they done under color of judicial office, and remanded the case to the state court for lack of a federal question, there being no diversity of citizenship. It is settled that Chandler’s judicial immunity defense arises under federal law. Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). A verdict for O’Bryan was returned in the state court. Chandler then filed a declaratory judgment action in federal court seeking to have the state libel judgment enjoined and expunged, alleging his federal judicial immunity claim. The district court granted relief to Chandler, 311 F.Supp. 1121 (W.D.Okl.1969), but the 10th Circuit (by a panel of three judges of the 8th Circuit) reversed.
The court found Wycoff directly applicable, and held that Chandler was seeking a separate federal adjudication of a matter which was “in reality in the nature of a defense” to the state court libel action, which was based solely on state libel law and raised no federal question itself. The action was dismissed for lack of federal jurisdiction.
The instant case is different. While it is true that judgment in Rath’s favor affects the results of the,Los Angeles and Riverside actions, we cannot say that Rath’s action is premature or that Rath’s claim is merely a defense to the state court actions. The ordering off-sale of Rath’s products in September 1971 and afterward and the upward adjustment of the pass range at the sealing station at Rath’s plant, increasing the overpack of bacon necessitated by California weighing procedures, it was stipulated below, caused Rath a loss of more than $10,000. The off-sale orders themselves are sufficient State action to create an actual controversy between Rath and the state weights and measures officials. See Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 508, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). The present controversy was not created by the institution of the state court actions against Rath, but arose independently thereof by virtue of the off-sale orders.
Unlike Chandler, Rath’s claims have vitality in the absence of the litigation in state court; Rath had the right to a federal forum before the institution of the state court actions. Chandler’s federal claim was purely in the nature of a defense to the libel action. Brought without reference to the underlying state court proceeding, Chandler’s claim would be a useless gesture: no one would care whether Chandler acted under the protection accorded by the courts to his office if O’Bryan had refrained from suing him. That Rath’s claim is or can be the basis for a defense to the state court actions states a mere truism; the test is whether Rath has created a federal controversy where none existed or is seeking an adjudication of a claim which is essentially meaningful only when pleaded as a defense to the particular pending state court actions. We find neither factor present and consider that Rath has stated claims which are within the federal jurisdiction conferred on the district court by 28 U.S.C. § 1331.
The Commission has plainly indicated an intent to enforce the Act; and prohibition of the statute is so broad as to deny the United States the right to ship at reduced rates, unless the Commission first gives its approval. The case is, therefore, quite different from Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291, where a carrier sought relief in a federal court against a state commission in order “to guard against the possibility,” id., 344 U.S. at page 244, 73 S.Ct. at page 240, that the Commission would assume jurisdiction. Here the statute limits transportation at reduced rates unless the Commission first gives approval. The controversy is present and concrete — whether the United States has the right to obtain transportation service at such rates as it may negotiate or whether it can do so only with state approval.
B.
We also hold that considerations of comity and abstention did not require the district court to relinquish jurisdiction.
Comity is a principle of long standing:
We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in. common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure.
* * *• * * *
The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose. Ponzi v. Fessenden, 258 U.S. 254, 259-60, 42 S.Ct. 309, 310, 66 L.Ed. 607 (1921).
This circuit has defined the rule of comity as “merely of recognizing exclusive jurisdiction in the court first acquiring jurisdiction of any action.” Gregg v. Winchester, 173 F.2d 512, 513 (9th Cir. 1949). Under these rules and in the present circumstances, the principle of comity does not suggest that the district court should have declined to hear Rath’s claims. The subject matter of the litigation before us consists of the federal questions raised by Rath in its complaint. These federal questions were first taken into the control of a court when Rath filed its complaint in the district court on March 17, 1972. No state court could have acquired jurisdiction over this subject matter until Rath answered and filed its cross-complaints in the state courts on March 30, 1972. Our conclusion is reinforced by the actions of the District Court of Appeal in the Riverside action twice giving res judicata effect to the federal district court judgment. If, as Becker and Christensen contend, the only matter preventing the first Riverside judgment, dismissing Rath’s cross-complaint against Jones, from being given preclusive effect as a final judgment is Cal.Code of Civ.Proc. § 1049, the California appellate court would not have directed the trial court to abandon its position and to follow the federal judgment, which, since it had been appealed, was just as “final” as the Riverside judgment if evaluated under California law. We do not see here the federal-state conflict that the comity doctrine seeks to avoid. The district court acquired jurisdiction over the federal question prior to the state courts, and very scrupulously avoided deciding even tangentially the constitutionality of the California statutes and regulations or whether the actions of the inspectors were in compliance with state law. The state courts have not questioned the right of the district court to take the action it did and held the federal judgment entitled to preclusive effect in the state courts on the particular issues litigated in the federal courts.
In applying the abstention doctrine a federal district court has discretion in declining to exercise or postponing the exercise of jurisdiction it already has in deference to a state court resolution of underlying issues of state law. Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Abstention is appropriate only where the issue of state law is uncertain, Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965), and where “the delay and expense to which the application of the abstention doctrine inevitably gives rise” can be justified. England v. Board of Medical Examiners, 376 U.S. 411, 418, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). However, abstention is not automatic whenever a question of state law may be involved. As the Court said in Baggett v. Bullitt, 377 U.S. 360, 376-77, 84 S.Ct. 1316, 1326, 12 L.Ed.2d 377 (1964
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_geniss | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Asa Hurrial MINOR, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 18408.
United States Court of Appeals Eighth Circuit.
March 13, 1967.
Rehearing Denied April 21, 1967.
Heaney, Circuit Judge, dissented.
John W. Walker, Little Rock, Ark., for appellant and filed brief.
Lindsey J. Fairley, Asst. U. S. Atty., Little Rock, Ark., for appellee and filed brief with Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark.
Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal by the defendant Asa Hurrial Minor, Jr., from his conviction by a jury on Count II of an indictment charging him with the transportation of a specifically described Chevrolet automobile in interstate commerce from Indiana to Arkansas, knowing said motor ve-hiele to have been stolen in violation of 18 U.S.C.A. § 2312. Defendant was sentenced to two years imprisonment. The court on its own motion dismissed Count I of the indictment which charged interstate transportation of another automobile upon the ground that proof that such automobile was stolen was insufficient.
Defendant represented himself in the trial court. His right to counsel, including right to court-appointed counsel without expense to him, was fully explained. Defendant persistently declined counsel and insisted upon representing himself. The court just prior to the opening of the trial again offered to provide counsel. Defendant has not, either in the trial or here, raised the issue that he has been deprived of his constitutional right to be represented by counsel. He is represented on this appeal by competent counsel and raises no brief point that his waiver of counsel in the trial court was not knowingly and intelligently made, nor does he in any way intimate or suggest that he has been wrongly deprived of his constitutional right to counsel. Hence, the issue of denial to defendant of his right of counsel is not now before us.
Defendant urges he is entitled to a reversal for the following reasons: (1) Insufficiency of the evidence to support the guilty verdict. (2) Admission of prejudicial evidence and failure to give instruction limiting the consideration of such evidence. (3) The jury was unconstitutionally selected.
None of the errors here asserted was raised in the trial court. No motion for acquittal was made; no objection was made to any evidence offered; no exception to or request for instructions was made and there was no challenge to the jury panel. Thus absent a plain error situation, there is nothing before us for review. “A trial judge ordinarily should not be held to have erred in not deciding correctly a question that he was never asked to decide.” Page v. United States, 8 Cir., 282 F.2d 807, 810; Petschl v. United States, 8 Cir., 369 F.2d 769.
Defendant attempts to excuse his failure to preserve errors here asserted by a contention that he is unskilled and unknowledgeable in the law. It is well settled that the right to counsel may be waived as long as the waiver is knowingly and intelligently made. Moore v. State of Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167; Carter v. People of State of Illinois, 329 U.S. 173, 177, 67 S.Ct. 216, 91 L.Ed. 172; Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461.
The Constitution does not force an unwanted attorney upon a defendant. Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268; United States v. Washington, 3 Cir., 341 F.2d 277, 285. The accused may before trial elect to conduct his own defense. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356; United States ex rel. Maldonado v. Denno, 2 Cir., 348 F.2d 12, 15; Johnson v. United States, 8 Cir., 318 F.2d 855, 856; Butler v. United States, 8 Cir., 317 F.2d 249, 258. However, as aptly stated by the Court of Appeals for the Fifth Circuit: “Once it is found * * * that such an accused has properly waived his right to counsel, the effects flowing from that decision must be accepted by him, together with the benefits which he presumably sought to obtain therefrom.” Smith v. United States, 5 Cir., 216 F.2d 724, 727. Thus, when accused elects to waive his constitutionally guaranteed right of counsel, he does so at his own risk and must accept the consequences of his action. United States v. Redfield, D.C.Nev., 197 F.Supp. 559, 572, affirmed on the basis of the trial court’s opinion, 9 Cir., 295 F.2d 249.
Sound policies of judicial administration as prescribed by the Rules of Criminal Procedure should apply to all trials whether conducted by counsel or by a defendant. Otherwise, defendant would in practical effect be given two trials, one in which he conducts his own defense and if unsuccessful, another trial with representation by counsel.
In the event the trial results in a clear miscarriage of justice, the 52(b) plain error rule affords a defendant representing himself all of the protection to which he is justly entitled when he has knowingly and intelligently elected to waive counsel and has deliberately chosen to act as his own attorney.
A careful examination of the record shows that no plain error has been committed and that defendant has had in all respects a fair trial. Defendant by representing himself secured many advantages that would not have been available to him had he been represented by ■counsel. Defendant was permitted to testify in narrative form and was permitted to say everything that he desired to without restriction. He made his own ■opening statement to the jury, his own closing argument, and he was allowed to supplement his argument after the court had instructed the jury. Defendant cross-examined the witnesses and was given much more freedom than would have been afforded counsel. As heretofore pointed out, the court on its own motion at the close of the Government’s case dismissed Count I and advised the defendant that he would not have to meet such charge. On several occasions, the court restricted the Government’s testimony on its own motion. The instructions given are simple, easily understood and fair.
Resort to the plain error rule is appropriate only in exceptional cases where such course is necessary to prevent a clear miscarriage of justice. Petschl v. United States, supra; Page v. United States, supra; Johnson v. United States, 8 Cir., 362 F.2d 43, 46; West v. United States, 8 Cir., 359 F.2d 50, 53; Gendron v. United States, 8 Cir., 295 F.2d 897, 902.
We find no plain error requiring a reversal has been committed and affirm the conviction.
The evidence is clearly sufficient to support the guilty verdict. Title 18 U.S.C.A. § 2312 reads: “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.”
There is direct proof from the owner that the precise car involved in this offense was stolen from the Placke Chevrolet Company in St. Louis, Missouri, on September 24, 1964, and was reported stolen to the police at 7:30 p. m. on that date. The invoice of the manufacturer to the Placke Chevrolet Company showing ownership of the car in such company was introduced. After the car was recovered by the authorities, it was returned to such owner. Such evidence is not contradicted. Defendant himself stated to the jury, “I believe this vehicle was stolen on the 24th of September. I came into acquisition of it about one month later.”
Defendant specifically admitted that he transported the car from Indiana to Arkansas where it was recovered. Thus the only element of the offense with respect to which any dispute exists is whether defendant knew the automobile was stolen at the time he transported it to Arkansas.
The court in an instruction to the jury, not excepted to and not asserted to be error upon this appeal, told the jury:
“Possession of property recently stolen, if not satisfactorily explained, is ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew that the property had been stolen, * * * ”
The foregoing instruction contains a proper statement of the applicable law. Lee v. United States, 8 Cir., 363 F.2d 469, 474; Cloud v. United States, 8 Cir., 361 F.2d 627, 629; Harding v. United States, 8 Cir., 337 F.2d 254, 257.
As we point out in Harding, supra, the instruction here given differs' materially. from the supplemental instruction in Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350, relied upon by the defendant.
Defendant’s defense is based upon his testimony that he was holding the car as security for a loan to Ellsworth Turner. He said that he had a chattel mortgage on the car but produced no evidence to prove that he did. The jury was not compelled to accept defendant’s uncorroborated explanation of his possession of the car.
Defendant’s contention that plain error was committed in receiving certain evidence, not objected to, is without merit. Defendant went to trial on a two-count indictment charging two transportation offenses involving separate stolen automobiles. Such counts were properly joined in the same indictment under Rule 8, Fed.R.Crim.P., and no Rule 14 request for severance was made. Trial upon all counts of indictments such as this is the usual procedure. While Count I was before the jury, some evidence was introduced with respect to the stealing of the car there involved and the registration and transportation thereof. The transactions involved in each of the counts were closely related. Both cars were discovered at the same place and at the same time. The evidence offered was competent to support Count I at the time it was offered. Count I was subsequently dismissed by the court on its own motion. The defendant has failed to demonstrate that any prejudicial error was committed in the reception of such evidence.
There is some hearsay testimony as to reports received by officers that the cars were stolen and that the license number and registration certificate on the Chevrolet did not pertain to the car involved in fcount II but was issued for a 1950 Chevrolet owned by the defendant. No plain error was demonstrated. Such evidence is merely cumulative. The theft is shown by the direct testimony of the owner and the registration is shown by the license bureau officer’s testimony. Complaint is also made of receiving evidence as to registration from the registration official without the introduction of the exhibits. The exhibits were in court. If objection had been made, the exhibits could have been readily identified and introduced. Defendant could also have introduced the exhibits.
The Government made out a prima facie case by showing defendant’s admitted possession of recently stolen property. The registration evidence was not essential to the Government’s case. In any event, such evidence was not prejudicial.
Defendant’s final contention that the jury was not selected in a constitutional manner, in that the panel does not represent a fair cross section of the community, is not supported by the record. No challenge was made nor was any evidence offered in support thereof in the trial court. All we have before us is an attachment to defendant’s brief showing a list of jurors called to serve on October 17, 1966, and purporting to list the occupations of most of such jurors. This is not the jury that tried the defendant. He was tried on April 5, 1966.
We are satisfied that there is no record support for defendant’s contention. Even if the list submitted on appeal is considered, it falls far short of meeting the burden resting upon the defendant to show that the jury which convicted him was improperly constituted.
We hold that none of the errors asserted upon this appeal were properly raised in the trial court and that none of the errors urged constitute plain error under Rule 52(b). The defendant has had in all respects a fair trial.
The judgment of conviction is 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_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".
John S. MARCHANT, Plaintiff, Appellant, v. The DAYTON TIRE & RUBBER CO., Defendant, Appellee.
Nos. 87-1487, 87-1634.
United States Court of Appeals, First Circuit.
Heard Oct. 7, 1987.
Decided Jan. 6, 1988.
Joseph T. Papetti with whom Stephen M. Ouellette, Orlando & Associates, Gloucester, Mass., and Peter A. Donovan, Boston, Mass., were on brief, for plaintiff, appellant.
Francis H. Fox with whom David A. Schecker and Bingham, Dana & Gould, Boston, Mass., were on brief, for defendant, appellee.
Before COFFIN, Circuit Judge, BROWN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.
Of the Fifth Circuit, sitting by designation.
COFFIN, Circuit Judge.
Plaintiff-Appellant, John Marchant, was injured when a tire manufactured by the defendant-appellee, Dayton Tire & Rubber, exploded while plaintiff was mounting it onto his truck. Following a jury trial at which defendant was found liable for damages for a breach of warranty on the tire, the trial judge entered a judgment for the defendant notwithstanding the verdict. Plaintiff appeals the judgment n.o.v.
I.
On April 28,1982, plaintiff was mounting a tire manufactured by defendant on a light truck wheel rim. Plaintiff had gotten the tire, which seemed to be in excellent condition, out of storage at his place of employment, J & P Trucking Co. He was mounting the second of two tires when the explosion occurred. Plaintiff had been mounting the actual rubber tire onto the wheel of the truck. He had learned to perform this procedure during previous employment in garages, and had performed this operation many times previously.
The trial judge described the operative facts as follows:
The process, oversimplifying, involves lubricating the deflated tire, prying it into position within the “well” of the wheel, and applying air pressure to force the wire “bead” of the tire outward, over an interior “hump,” until it is seated firmly along the outer rim of the wheel. On this occasion plaintiff had just completed this process and was about to place the tire on his truck, when he discovered an air leak. He removed the tire, repaired the leak, and started again. He placed the tire on the floor, and while he was standing over it and reapplying air, the tire exploded. Subsequent examination of the tire showed that the bead had been broken, presumably during the second mounting, although it might have been damaged during the first. Defendant’s witness testified that, if the bead gets “hung up” during the mounting process, too much air pressure may break it. It is industry-wide practice to advise against exceeding 40 lbs. per square inch (p.s.i.). Plaintiff estimated that he inflated the tire to no more than 55 p.s.i. on the first mounting of the tire, and to a lower pressure on the second.
Plaintiff claims that the accident resulted from improper design of the bead. The bead, embedded in the rubber, consists of a number of circles of several wires that ultimately overlap at their ends. Plaintiffs expert testified that there should have been no overlap. Defendant conceded that if excessive air pressure during mounting damaged the bead, it was most likely to break at an inside end of the overlap. However, its position was that the likelihood of beads being damaged was extremely remote, so remote that all domestic manufacturers, producing millions of tires a year, uniformly made their beads in this manner. Plaintiffs expert conceded that this was, and still is, the domestic practice, and stated he had criticized it “since the late ’60’s,” and complained to the Department of Transportation in 1982. He pointed to a French manufacturer, Michelin, that uses many turns of a single wire, with the ends socket-welded to avoid the overlap. There was no evidence that even Michelin had adopted this procedure in 1973, the year of the present tire. At the same time, there would seem nothing so mechanically difficult about the process that it would not have been feasible earlier.
Marchant v. Dayton Tire & Rubber Co., No. 85-1122-C-A, slip op. at 2-4 (D.Mass. May 6, 1987). There was further testimony that the plaintiff had never noticed any warning concerning the maximum air pressure for safe mounting of defendant’s tire, but that he assumed from experience that no more than about 65 p.s.i. should be used.
The jury found for the plaintiff following a three-day trial, and awarded him $600,000 in damages. The district court granted the defendant’s motion for judgment notwithstanding the verdict. It found that the plaintiff had failed to establish a breach of warranty either on a theory of design deficiency or on the alternative theory of failure to warn. The district court also conditionally ordered a new trial, in the event that the j.n.o.v. was reversed on appeal. The court found that no reasonable jury, upon proper argument, would have rejected the affirmative defense that plaintiff’s own unreasonable behavior was the proximate cause of his injury. The judge added that his decision to order a new trial was influenced by plaintiff’s counsel’s “improper closing” to the jury. Slip op. at 10-12. We address each of these issues in turn, beginning with the district court’s judgment j.n.o.v. on the breach of warranty cause of action.
II.
The Massachusetts Legislature has transformed warranty liability “into a remedy intended to be fully as comprehensive as the strict liability theory of recovery that has been adopted by a great many other jurisdictions.” Back v. Wickes, 375 Mass. 633, 639, 378 N.E.2d 964 (1978). Massachusetts law of warranty is thus now “congruent in nearly all respects with the principles expressed in Restatement (Second) of Torts § 402A (1965).” Id. at 640, 378 N.E.2d 964.
This variant of “strict liability” offers two methods of establishing liability: proving a design defect, and demonstrating a failure to warn adequately of a dangerous condition.
A.
A manufacturer has the duty to design products “so that they are reasonably fit for the purposes for which they are intended.” Smith v. Ariens Co., 375 Mass. 620, 624, 377 N.E.2d 954 (1978). A product is “reasonably fit” for its purposes if the design prevents the “reasonably forseeable risks attending the product’s use in that setting.” Back v. Wickes, 375 Mass, at 641, 378 N.E.2d 964. There is no real question in this case that plaintiff’s use was forseeable.
This does not, however, end the inquiry. The “fitness” of the product “is a question of degree, depending largely, although not exclusively, on reasonable consumer expectations.” Id. at 642, 378 N.E.2d 964. Even where the product design creates a risk of foreseeable harm, “[t]he question is whether this risk was ‘unreasonable.’ ” Raney v. Honeywell, Inc., 540 F.2d 932, 935 (8th Cir.1976). The Supreme Judicial Court of Massachusetts has explained how this determination should be approached:
In deciding this issue, the jury must weigh competing factors much as they would in determining the fault of the defendant in a negligence case. The inquiry focuses on product characteristics rather than on the defendant’s conduct, but the nature of the decision is essentially the same. In evaluating the adequacy of a product’s design, the jury should consider, among other factors, “[1] the gravity of the danger posed by the challenged design, [2] the likelihood that such danger would occur, [3] the mechanical feasibility of a safer alternative design, [4] the financial cost of an improved design, and [5] the adverse consequences to the product and to the consumer that would result from an alternative design.”
Back v. Wickes, 375 Mass, at 642, 378 N.E.2d 964 (quoting Barker v. Lull Eng’r Co., 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 573 P.2d 443 (1978)) (citations omitted). In balancing these “pertinent factors,” the jury must make a judgment as to the “social acceptability of the design.” Back, 375 Mass, at 642, 378 N.E.2d 964.
In the present case, plaintiff offered evidence to show the gravity and likelihood of danger posed by the design. Plaintiff also introduced the current Michelin tire in evidence, to show the “feasibility” of an alternative design at the time of manufacture. The district judge acknowledged that the Michelin design was not “so mechanically difficult ... that it would not have been feasible earlier.” Slip op. at 4. The plaintiffs expert testified that the Michelin design was a safer alternative. Defendants concentrated on showing that the Michelin design would not have decreased the chances of explosion.
Neither party offered any evidence as to the costs and consequences of the alternative design, the “fourth” and “fifth” factors in the Back v. Wickes analysis. According to both the district court and the defendant, this omission of evidence as to the “trade-offs” is fatal to the plaintiffs case. The defendant introduced testimony that no domestic manufacturer was using the alternative design at the time the tire in question was built. The court reasoned that the plaintiff then had the burden to offer evidence “of the cost of the Michelin structure, or how much stronger the Michelin design would be, or whether there were any other performance or safety characteristics that would favor or disfavor its use. One or more of these factors presumably was of moment, in light of the fact that no domestic manufacturer was using it.” Slip op. at 4-5. Defendant’s expert did concede that the vast majority of bead failures occurred at the overlap, and plaintiff’s expert testified that he had never seen such a failure on a Michelin “non-overlapped” tire. The judge insisted that this alone did not establish a case for liability, without further evidence proving that the “trade-offs” made the alternative design more reasonable. In essence, the court insisted that the plaintiff prove to the jury the cost/benefit efficiency of the alternative design. Defendant also relied, both in its brief and at oral argument, on the proposition that the plaintiff has the burden of presenting to the jury the Back v. Wickes factors. See, e.g., Appellee’s Brief at 18.
This is not, however, the holding of Back v. Wickes. The question which prompted the listing of relevant factors in that case was whether evidence could be introduced to show what the trade practices were at the time. The Supreme Judicial Court ruled that such evidence was relevant, because it was probative of the reasonableness of the challenged design. Id. 375 Mass, at 642-43, 378 N.E.2d 964. Even this evidence, however, is not dispositive, and “counsel may argue that industry standards can and should be more stringent.” Id. at 643, 378 N.E.2d 964. Thus, plaintiff’s case is not automatically defeated merely because the alternative design was not being used at the material time.
The trial judge properly instructed the jury here that the “competing factors” should be balanced when deciding reasonableness of design. Such an instruction is all that Back v. Wickes requires. There is no authority for the proposition that these factors must be introduced by the plaintiff, nor that the plaintiff must prove that the alternative design was efficient on a cost/benefit basis. But cf. Oberst v. Int’l Harvester Co., Inc., 640 F.2d 863, 865 (7th Cir.1980) (under Illinois law, plaintiffs must prove that alternative design was “feasible” “in terms of cost, practicality and technological possibility,” where “feasibility” includes elements of economy, effectiveness and practicality); Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir.1974) (same).
Defendant’s theory on the burden of proof is further belied by the Supreme Judicial Court’s dispositions in Smith v. Ariens Co., 375 Mass. 620, 377 N.E.2d 954 (1978), and doCanto v. Ametek, Inc., 367 Mass. 776, 328 N.E.2d 873 (1975). In those cases, the SJC specifically held that in some circumstances, the plaintiff need not present any expert testimony at all in order to demonstrate unreasonable design. A jury might be able to find that the challenged design breaches the duty of reasonable care in design simply on the basis of its own lay knowledge. 375 Mass, at 625, 377 N.E.2d 954; 367 Mass, at 782-83, 328 N.E.2d 873. In Smith, decided the same day that the Back v. Wickes catalogue of factors was announced, the SJC upheld a verdict that a snowmobile was designed such that an “unreasonable risk of harm” was created, where the only evidence relied upon by the jury was the snowmobile itself. Id. Not only did the plaintiff in Smith fail to address the costs and efficiencies of alternative designs, but no alternatives were even suggested. See also Raney v. Honeywell, Inc., 540 F.2d 932, 935 (8th Cir.1976) (reiterating “relevant factors to be considered,” but upholding jury verdict even without plaintiff evidence of alternatives’ costs and benefits).
We conclude, then, that unless the Supreme Judicial Court was taking with one hand what it was providing with the other when it issued the Back and Smith opinions, plaintiff here has presented sufficient evidence for a finding of an unreasonable defect. If the defendant believed that a cost/benefit analysis of alternatives would demonstrate its design to be reasonable, then it was its responsibility to produce evidence in support of such a theory. It might, e.g., have offered evidence to explain why no one in the industry was using the Michelin design in 1973. Its failure to do so should not redound to the detriment of the plaintiff. On this record, the jury’s verdict must be upheld on the plaintiff’s theory of breach through defective and unreasonable design.
B.
Plaintiff’s alternative ground for liability also supports the verdict. A product is “unreasonably dangerous and, therefore, ... not fit for the purposes for which such goods are used, if foreseeable users are not adequately warned of dangers associated with its use.” Hayes v. Ariens, 391 Mass. 407, 413, 462 N.E.2d 273 (1984).
The defendant offered evidence that it had distributed to tire dealers a chart prepared by the Rubber Manufacturers Association that warned not to inflate tires above 40 p.s.i. when mounting. No warning was placed on the tire or distributed to every forseeable mounter of the tire. The plaintiff, who was a forseeable user, testified that he had never inflated a tire while mounting at more than about 65 p.s.i. The jury was within its rights to decide that the poster distributed to dealers was inadequate to warn forseeable consumers, especially if the plaintiff had not noticed the warnings on the poster in all his years in the business. The district court acknowledged that questions regarding the adequacy of warnings are “are ‘almost always an issue to be resolved by a jury.' ” Slip op. at 7 (quoting MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 140, 475 N.E.2d 65 (1985)).
The court nevertheless found that the jury’s verdict could not stand, again because the plaintiff had not introduced any evidence to rebut the industry-wide practice of not providing warnings. The plaintiff's alleged dereliction once more was to ignore the “trade-offs” which would have to be made if a more specific warning was provided, according to the trial judge. Slip op. at 7-8.
However, contrary to the court’s assertions, we do not think that the process by which the industry makes decisions regarding proper warnings on its products is such a “specialized area” that “it would be beyond the province of a lay jury, unaided, to make a substantive finding outweighing that of an entire industry.” Slip op. at 8. The test is whether the warning is comprehensible to the average user and whether it conveys a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person. MacDonald, 394 Mass, at 140, 475 N.E.2d 65. “Few questions are ‘more appropriately left to a common sense lay judgment than that of whether a written warning gets its message across to an average person.’ ” Id. (quoting Ferebee v. Chevron Chem. Co., 552 F.Supp. 1293, 1304 (D.D.C.1982)). Just as in the area of defective design, the jury is perfectly capable of assessing whether the proposed warning would be unreasonable because of possible cost or confusion.
Defendant argues that the plaintiff had the burden of showing how a particular hypothesized alternative warning would have prevented the accident in this case. But if the jury may use its lay knowledge to decide that a particular design is defective, it can just as easily infer that a warning on the tire wall would have alerted plaintiff to the dangers of inflating over 40 p.s.i. Cf. Hayes, 391 Mass, at 409-10, 462 N.E.2d 273 (even without specific evidence of alternative warnings, jury could have found that reasonably prudent manufacturer of snowmobile would have affixed a different warning). This is particularly true where, as here, the user would have had numerous opportunities to notice such a warning, since he had had extensive exposure to the tires in the past.
The jury’s verdict was therefore supported by the evidence on the warning theory as well; defendant’s failure to demonstrate why other warnings might have been inefficient or ineffective does not change the fact that plaintiff introduced sufficient evidence from which the jury could infer inadequate warning in this case.
The trial court’s judgment notwithstanding the verdict is vacated, and the district court is instructed to reinstate the verdict as to liability.
III.
The district court also ordered, in the alternative, that a new trial be granted, on the ground that an affirmative defense was so clearly made out that no reasonable jury should have rejected it. In order to establish an affirmative defense in this context, the defendant must prove “that the plaintiff knew of the product’s defect and its danger, that he proceeded voluntarily and unreasonably to use the product and that, as a result, he was injured.” Allen v. Chance Manufacturing Co., 398 Mass. 32, 34, 494 N.E.2d 1324 (1986).
The defendant in this case, however, could not possibly establish the affirmative defense to the claim of defective design, because there is no evidence that the plaintiff was even aware of the dangerousness of the bead design.
As to the claim of breach for failure to warn of a dangerous condition, the trial judge decided that the plaintiff had acted “unreasonably” under the Allen standard, in that he “knew that too much air could cause a tire to explode, that mounting a tire called for special knowledge, and ... that instructions were available, but stood over the tire administering a high amount of pressure without consulting them.” Slip op. at 9-10.
The plaintiff testified that he had never before inflated a tire during mounting to more than about 65 p.s.i., because he estimated that a greater pressure would be unsafe. He also testified that he thought that the tire in question at no time had more than 55 p.s.i. while he was mounting it, and that the tire was at approximately 40 p.s.i. when it exploded. One of the defendant’s experts contended that plaintiff might have inadvertantly pumped in over 60 p.s.i. Plaintiff’s expert testified that not only was plaintiff’s mounting proper, but also that the bead would not burst until the tire had reached pressures of approximately 320 p.s.i. One of the defendant’s experts estimated the “bursting pressure” of the tire at 160 p.s.i. Another expert testified that the bead could not be broken at pressures lower than 60 p.s.i., presuming the tire had been properly mounted.
From all this testimony, the jury properly could have concluded that plaintiff reasonably thought that the tire could not explode at pressures below 65 p.s.i., and that his inflation of the tire that day was below this figure. They could have also found that plaintiff, who had performed this process at least 20 or 30 times previously, was not acting unreasonably in his mounting procedure, despite the fact that he did not stop to check instructions. In fact, such a precaution would be rarely taken by someone with plaintiff’s experience. Moreover, because there was testimony that pressures far above the 55 p.s.i. plaintiff estimated he used would be necessary to cause the bead to explode, the jury could have decided that the air pressure alone was not the cause of the bead’s failure. In that case plaintiff's behavior, whether or not it was reasonable, would not have been the proximate cause of the explosion and his injuries. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 356, 446 N.E.2d 1033 (1983). The jury’s verdict reflects an appropriate rejection of the defendant’s affirmative defense.
We have accepted the truism that a trial judge is not a thirteenth juror who may set aside a verdict because he interpreted the evidence to reflect another result. See, e.g., United States v. Rothrock, 806 F.2d 318, 322 (1st Cir.1986); Payton v. Abbott Labs, 780 F.2d 147, 153 (1st Cir.1985); Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978). Despite our general deference to the trial court, this circuit “puts definite limits upon a district court’s right to upset a jury verdict,” so as to “protect the fragile power given to the jury.” Rothrock, 806 F.2d at 322.
We have thus developed the following standard of review:
Where an order for a new trial is predicated on the district court’s evaluation of the weight of the evidence rather than its concern about the effect of prejudicial acts that may have resulted in an unfair trial, we will exercise a more stringent standard of review, Payton, 780 F.2d at 152, requiring the court to refrain from interfering “ ‘unless it is quite clear that the jury has reached a seriously erroneous result.’ ” Borras, 586 F.2d at 887, quoting 6A J. Moore, Moore’s Federal Practice 1159.-08[5], at 59-160 to 161.
Rothrock, 806 F.2d at 322. In this case, we think that it was improper for the court to second-guess the jury’s evaluation of the evidence on the affirmative defense, for reasons we have explained above. The jury’s result was not “seriously erroneous.”
IY.
The district court’s final (and perhaps pivotal) ground for a new trial is that plaintiff’s counsel indulged in many errors during closing argument. Under the Roth-rock standard quoted above, we do not exercise as strict a standard of review for an order of new trial when that order is predicated on concern about the effect of prejudicial acts that may have resulted in an unfair trial.
The misrepresentations of evidence alluded to by the judge, however, do not rise to the level necessary to erase the jury’s otherwise reasonable verdict on liability. Most of these alleged errors consisted of interpretations by counsel of the inferences suggested by the evidence. At two separate points in counsel’s argument, the court specifically instructed the jury to ignore counsel’s opinions as to the credibility or interpretation of evidence. Again in its jury charge, the court criticized counsel “both in general for stating his opinion, which is fundamentally off limits, and also with respect to a particular instance when he spoke of the evidence which did not at all coincide with my memory.” (A. 291.) We think that these admonitions were sufficient to offset any slight prejudice that may have been engendered by counsel’s remarks.
We therefore set aside the order for a new trial.
Y.
The jury awarded plaintiff $600,-000 in damages, although his only substantial injury was a broken wrist. The trial judge generously characterized the jury’s award as “very high.” Slip op. at 12.
The plaintiff has undergone extensive physical therapy on his wrist, with prospects of further therapy in the future. Plaintiff was also required to undergo surgery where a cube of bone was transferred from his hip to his wrist, a procedure that might be repeated in the near future. He was confined to bed for four weeks following the first procedure, and had to go without work for approximately two years. He still must soak and heat the wrist on a daily basis. Plaintiff had, until the accident, been in the process of investing time, money and effort into learning the trade of carpentry. He had planned to start his own carpentry business, but is prevented by his injury from pursuing that career. While plaintiff thus has been denied the livelihood to which he had aspired, he evidently has not suffered significant financial losses on account thereof. His employment as an operator of heavy equipment has provided a higher salary than he would normally have realized as a carpenter. Plaintiff introduced evidence, however, that this alternative employment is possibly more provisional and uncertain than carpentry, because of the indeterminate future effects of the health of the industry, the weather, and plaintiff’s continued abilities to work with heavy equipment despite his injuries. Plaintiff also testified as to his pain and suffering as a result of the injury.
We think that, in light of this evidence, $600,000 in damages is so excessive as to warrant our intervention. The evidence of medical expenses and lost wages indicates special damages totaling at most $50,000. Even accounting for future damages, $550,000 for pain and suffering is not reasonable in these circumstances; it is “so grossly disproportionate to the injuries ... as to be unconscionable.” Laaperi v. Sears, Roebuck & Co., Inc., 787 F.2d 726, 735 (1st Cir.1986). The verdict is not “within the universe of possible awards which are supported by the evidence.” Clark v. Taylor, 710 F.2d 4, 13 (1st Cir.1983).
We conclude that a new trial on damages is appropriate here. However, we condition this holding on plaintiffs declining to remit half of the total amount awarded by the jury. We think that $300,000 represents the highest reasonable total of damages for which there is adequate evidentia-ry support in this case. See Laaperi, 787 F.2d at 734. Conditioning a new trial on such a remittitur comports with the “maximum recovery rule” adopted by this and other circuit courts. See, e.g., Liberty Mutual Ins. Co. v. Continental Casualty Co., 771 F.2d 579, 588-89 (1st Cir.1985); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1046-47 (5th Cir.1970). Plaintiff has the privilege under the Seventh Amendment of choosing to take his chances on a new trial in the hope that a second jury might return a verdict for a higher amount. If, however, plaintiff opts to remit half of the general verdict, defendant would not in any way be prejudiced. Cf. Liberty Mutual, 771 F.2d at 588. The remaining total is a reasonable one which cannot be challenged; the remittitur “has the effect of merely lopping off an excrescence.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935).
Accordingly, the district court shall reinstate the verdict of the jury on liability. The judgment notwithstanding the verdict is vacated. A new trial shall be ordered on damages only if plaintiff decides not to remit $300,000 (plus any interest accrued thereon) from the general verdict of $600,000.
. Plaintiff brought this action on alternative theories of negligence and breach of warranty. The judge’s charge to the jury did not specify which causes of action the jury was being asked to rule on. According to the district court, plaintiff waived the negligence count. The defendant thought, on the other hand, that the negligence count was the only theory on which the jury had been charged. The plaintiff contends that it did not waive either count, and that the jury charge reflects both theories. All discussion of these matters seems to have taken place off the record.
We agree with the district court that the jury was charged on a warranty theory, even though "a small portion of the charge might be read as sounding in negligence." Slip op. at 1 n. 1. Because we conclude that the verdict should stand on the warranty cause of action, we need not reach the question of whether the jury verdict further supports a finding on negligence. The plaintiffs recovery would not be enhanced by the additional finding of negligence.
. Appellee also contends that the Michelin tire was insufficient to establish an alternative design because there was no evidence that it was actually available at the time that the tire in question was manufactured. The alternative need not be in fact available, however. The Back test is one of feasibility. There is no. dispute here that the Michelin design was feasible in 1973. All the jury must find is that a more reasonable design than the one in question could have been produced. As we explain below, though the absence of the alternative design in the industry might be probative of its unreasonableness, such an absence is not dis-positive on the issue of feasibility.
. The court’s charge was as follows:
Some precautions ... may not be practical, either because the expense would be so great that the article would be too expensive for purchasers or a precaution might spoil the utility. A child might put his hand in the toaster and burn it. This could be prevented by some kind of a guard perhaps, but who would buy such a toaster? There must be a reasonable limit.
[Y]ou may ask yourself did the defendant make the bead rings as safe as was reasonable? What were the alternatives? You may consider the likelihood of the danger and you may consider the extent, the seriousness, of the danger. In your weighing of what is a reasonable product you may properly look to the industry at large as a guide. It is not necessarily a guide. Did all of them go wrong?
. We note in passing that it makes sense not to place upon the plaintiff the initial burden of showing the relative efficiency and cost of the alternative design. The defendant has the actual knowledge of why certain designs were chosen over others, and it cannot be presumed that this specialized knowledge could be readily discerned by the plaintiff. We do not mean to suggest, however, that the burden of proof is shifted to the defendant as soon as the plaintiff introduces evidence of a viable alternative. The jury is free to weigh all of the Back factors on the evidence before it. As the trial judge suggested in his jury charge in this case, the jury could simply decide that the proposed alternative design is self-evidently unreasonable, just as it could conclude that a challenged product is defective without any evidence of viable alternatives.
. There is no suggestion in the record that an intermediary’s failure to warn was a superseding cause of the injury. See MacDonald, 394 Mass, at 135-36, 475 N.E.2d 65. Plaintiff, whose job it was for many years to perform this precise operation, is exactly the sort of "consumer” whose use of the tire for mounting purposes is most forseeable. Reliance on an intermediary to warn such a user would not be reasonable. If, however, the tire had been sold to a person untrained in mounting, there might be an argument that the manufacturer reasonably relied on the seller to provide the warning. In this case, however, there is no evidence that the defendant provided proper warning even to those persons who would most likely be mounting the tire on a wheel.
. It should also be noted that trial judge seemed to have considered this factor only insofar as it contributed to what he viewed as the jury’s improper verdict on the affirmative defense. Slip op. at 10. He explicitly noted that he was not treating counsel’s remarks as an independent ground for new trial, but only as a "makeweight” within his analysis of the verdict on the affirmative defense. Id. at 10 n. 5. Because we have already found that verdict to be sound, we do not think it appropriate to presume that the district court would have granted a new trial solely on the basis of the closing argument.
. It might be argued that setting a maximum possible figure on remittitur is impossible in a case involving unliquidated damages such as pain and suffering. See, e.g., Hulett v. Brinson, 229 F.2d 22, 25 (2d Cir.1955). Cf. Kolb v. Goldring, Inc., 694 F.2d 869, 875 (1st Cir.1982) (where defects in award are “readily identified and measured,” remittitur more appropriate, because "[a]djustment of the award is fairly mechanical and does not interfere with the jury’s function”). But this assumption is probably merely a vestige of the obsolete belief that appellate review is always inappropriate as to these types of damages. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2820, at 134-35 (1973). It is now not uncommon for appellate courts to prescribe remittitur in such a case. See, e.g,, Sant’s Style Shop v. Cosmos Broadcasting Corp., 694 F.2d 998, 1008 (5th Cir.1982); Keyes v. Lauga, 635 F.2d 330, 336 (5th Cir.1981). Of course, we cannot pretend to simple precision in establishing a maximum reasonable amount of pain and suffering damages. We believe, however, that $300,000 is a very generous estimate of the outer bounds of a reasonable award in this case.
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_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.
HEALY-TIBBITTS CONSTRUCTION COMPANY, Plaintiff/Appellee, v. HAWAIIAN INDEPENDENT REFINERY, INC., Defendant/Third-Party Plaintiff/Appellant, and Bechtel, Inc., Third-Party Defendant.
No. 80-4270.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 19, 1981.
Decided March 31, 1982.
Alexander C. Marrack, Hoddick, Reinwald, O’Connor & Marrack, Honolulu, Hawaii, for defendant/third-party plaintiff/appellant.
Felix A. Maciszewski, Honolulu, Hawaii, for plaintiff/appellee.
Before ALARCON, POOLE and FERGUSON, Circuit Judges.
FERGUSON, Circuit Judge:
Healy-Tibbitts Construction Company sued Hawaiian Independent Refinery, Inc. (“HIRI”) for damages plus interest, costs, and attorneys’ fees in an action allegedly arising out of performance of a construction contract. The original complaint listed seven counts, five of which were in contract, two of which were arguably in tort. At trial, defendants prevailed on all counts. Pursuant to the judgment on the complaint, HIRI submitted a bill of costs, including attorneys’ fees to be taxed to the losing party in actions in the nature of assumpsit pursuant to Hawaii Rev.Stat. § 607-14 (1972). The court awarded HIRI its costs, but denied the statutory attorneys’ fees on the basis that the plaintiff’s initial claim included nonassumpsit claims and that, therefore, the attorneys’ fees statute did not apply. Defendant HIRI appeals from the latter ruling.
The only issue presented is whether the district court erred in denying attorneys’ fees to HIRI on the basis that Hawaii Rev. Stat. § 607-14 does not apply to this action because plaintiff’s initial complaint included nonassumpsit as well as assumpsit claims.
The original statute provided that in all actions of assumpsit the prevailing party is entitled to attorneys’ fees taxed to and paid by the losing party. With Hawaii’s acceptance of modern rules of civil procedure, the original statute became very difficult to apply because under the new rules it was no longer necessary to plead specific legal theories. The modern Federal Rules of Procedure also do not distinguish between different forms of civil action. Rule 2 of the Federal Rules of Civil Procedure explicitly states that there shall only be one form of action known as a civil action. Rule 8 of the Federal Rules of Civil Procedure establishes that it is unnecessary to plead a specific legal theory when filing a complaint in a civil action. Instead, the complaint need only contain a short statement of the facts and a demand for judgment to which the claimant believes he or she is entitled. In recognition of the reality that the modern rules of civil procedure abolish assumpsit as a separate form of civil action, the Hawaiian statute was revised to provide attorneys’ fees in all actions in the nature of assumpsit. What constitutes a case in the nature of assumpsit has been broadly defined by Hawaiian case law.
There is no doubt that assumpsit covers all possible contract claims. Historically actions in assumpsit were suits at common law for breach of contract, express or implied. Suits for extra work performed under a contract and for quantum meruit were considered to be actions in assumpsit.-
When there is doubt as to whether the action is in assumpsit or in tort, there is a presumption that the suit is in assumpsit. Given the fact that under the modern rules of civil procedure the technicalities of common law pleadings are no longer important, it is not unusual for doubt to arise as to the nature of the suit. The determination of when an action is in the nature of assumpsit should be based on whether the actual factual allegations are such that historically the action would have been brought in assumpsit. See Osorio v. Waterhouse Trust Co., 29 Haw. 376, 388 (1926); Barkhorn v. Adlib Associates, Inc., 225 F.Supp. 474, 475 (D.Haw.1964), 222 F.Supp. 339, aff’d per curiam, 409 F.2d 843 (9th Cir. 1969). When there is doubt as to whether or not the plaintiff’s complaint is in assumpsit or in tort, a plaintiff's prayer for attorneys’ fees has been cited as a significant indication that the action sounded in assumpsit. Braham v. Honolulu Amusement Co., 21 Haw. 583, 584 (1913).
The parties agree that five of the plaintiff’s seven counts were in the nature of assumpsit. Two of the remaining counts are arguably in tort. Simply adding claims that are arguably in tort does not automatically, however, turn the action into a suit in tort. At most, the two questionable counts would raise a doubt as to whether the action was in assumpsit or in tort. However, when there is doubt as to the nature of the suit, the presumption is that it sounds in assumpsit and not in tort. See Osorio v. Waterhouse Co., 29 Haw. 376, 385 (1926)
The presumption in favor of assumpsit is strengthened when the plaintiff has prayed for attorneys’ fees in his original complaint. Under Hawaii law, a plaintiff who claims statutory attorneys’ fees can be estopped to deny that his action is in the nature of assumpsit.
If it were doubtful in the light of these allegations, whether this was an action ex delicto or in assumpsit, the doubt would be resolved against the plaintiff since he himself until the filing of the bill of costs evidently regarded it as being in assumpsit (Whittenton Mfg. Co. v. Memphis Packet, 21 F. 896, 901). In his prayer for judgment he asks for attorney’s commissions, a prayer wholly inappropriate in any action other than assumpsit.
Braham v. Honolulu Amusement Co., supra, 21 Haw. at 584.
In this case, then, even if the two additional counts that sounded in tort raised a doubt as to whether or not the action was in assumpsit, the fact that the plaintiff prayed for attorneys’ fees in his original complaint means that doubt should be resolved in favor of the defendant. Of course, not every complaint that joins claims sounding in contract with claims sounding in tort need be considered a case “in the nature of assumpsit.’’ If the contract claims are merely decorative, for instance, and not germane to the genuine dispute being litigated, the court might appropriately decline to apply the provisions of Hawaii Rev.Stat. § 607-14. The case before us, however, is clearly not of that character. Here, the trial judge held the statute inapplicable merely because tort claims were included in the complaint. That holding was error.
Attorneys’ fees, then, should have been granted. The amount of such fees is left to the discretion of the trial judge. We observe, however, that the judge is limited in the exercise of that discretion by the schedule set out in the statute. In determining a reasonable fee within the statutory limits, the judge is free to consider such factors as the amount and difficulty of legal services reasonably called for and actually provided, in the prosecution or defense of the various counts of the complaint, and the degree of success attributable to the various elements of those services. In evaluating these factors, the judge should of course be guided by the policy inherent in a statute which grants attorneys’ fees for cases “in the nature of assumpsit,” but not for other kinds of cases.
REVERSED AND REMANDED.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_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".
LUCAS v. SWAN.
No. 3498.
Circuit Court of Appeals, Fourth Circuit.
Oct. 3, 1933.
John S. Stump, Jr., of Clarksburg, W. Va. (Howard L. Robinson, of Clarksburg, W. Va., on the brief), for appellant.
S. T. Spears, of Elkins, W. Va., and Hardin R. Harmer, of Shinnston, W. Va., for appellee.
Before PARKER and SOPER, Circuit Judges, and WATKINS, District Judge.
PARKER, Circuit Judge.
This is an appeal in an action instituted by the receiver of the failed First National Bank of Shinnston, W. Va., to recover from one of the indorsers on a negotiable promissory note held by the bank. The note was a demand note for the sum of $11,000, payable at the bank, and was dated December 30, 1927. It was executed by the Derbrah Silk Company, a corporation of Pennsylvania, was made payable to maker, and was indorsed by the maker and five other persons, among whom was the defendant. It was the fifth renewal of a note executed September 10,1924, and originally given for the sum of $14,000, but subsequently, upon one of the renewals, reduced to $11,000.
The notice of motion, which was the pleading of plaintiff, in addition to alleging presentment for payment at the bank, dishonor, and notice to defendant, alleged that the maker was a fictitious or nonexistent person, that the note was accepted hy the bank for the accommodation of the defendant, and that defendant as a result of being a director both of the bank and the silk company must be held to have waived demand, presentment, and notice of dishonor, and to be estopped from setting up lack of these as a defense. The defendant filed “Particulars of Defense” alleging that he was an accommodation indorser of the note sued on, that there had been no presentment or demand for payment, that necessity therefor had not been excused or waived, and that notice of dishonor had not been given defendant, nor had same been waived or excused.
The evidence showed that the proceeds of the original note had gone to the silk company and had been used in large part for the payment of the obligations of that company then outstanding; that the note had been renewed from time to time upon the indorsement of the same persons who had indorsed the original instrument; and that the defendant, who was a director of the silk company as well as of the bank, had been present at the meetings of the bank’s directors when the renewal of the note was approved. It appeared also that the silk company was wholly insolvent and for some time before the institution of the action on the note had had no assets whatever. Its president had filed with the department of revenue of Pennsylvania in the year 1926, an affidavit showing that it had ceased to do business in 1923, that its assets had been distributed in payment of debts, and that since that time it had owned no property, and the purpose foi which it had been chartered had been permanently abandoned. The records of the department of revenue show that, on the strength of this affidavit, the silk company was marked “out of existence” on April 27, 1928. The evidence, however, is that this entry is used merely to indicate that the corporation has been dropped from the list of those from which the revenue department collects taxes. It does not result in the dissolution of the corporation under the law; and it may later register anew, upon filing returns and paying a nominal tax for the years during which it has been inactive., Defendant denied that he knew that the silk company was without assets until late in the year 1928, some time after the execution of the note sued on.
The receiver testified that, 'in August after he took charge of the bank, he declared the note due and payable, exhibited it to the defendant at the bank, and advised defendant that he was looking to him for payment; that defendant requested time for the handling of the note; and that time was granted him. He further testified that the maker of the note and the other indorsers were insolvent and that he was looking for payment to the defendant alone. Defendant denied any presentation or demand; and testified that he had no notice that he was to be held for the note until he received a letter from the attorney for the receiver, notifying him that the note must be paid. The trial judge instructed the jury that if they believed from the evidence that the plaintiff looked to the defendant for the payment of the note and demanded payment of him, and that defendant knew that plaintiff looked to him and demanded payment, then formal presentment, demand, and notice were dispensed with, and they should find for plaintiff.
There was verdict for plaintiff; and from judgment thereon defendant has appealed assigning a number of errors, the one principally relied upon being the instruction to which we have referred. Plaintiff contends that the charge as given was correct, and that the judgment should not be disturbed on the additional grounds: (1) That, the maker being “out of existence,” the indorsers were liable as makers, and that presentment for payment, demand, and notice of dishonor were not necessary to charge them; (2) that these were unnecessary for the further reason that defendant was an accommodated indorser; (3) that demand for payment was made upon defendant and no additional notice or demand was necessary; and (4) that presentment and notice were waived by the conduct of the defendant.
We think it clear that the instruction complained of was erroneous. Even though the maker of a note be insolvent, it is necessary that it be presented for payment in accordance with its terms, and that notice of dishonor be given the indorsers in order to1 hold them. Grandison v. Robertson (C. C. A. 2d) 231 F. 785, 797; Nolan v. H. E. Wilcox Motor Co., 137 Tenn. 667, 195 S. W. 581; Haynes Automobile Co. v. Shepherd, 220 Mich. 231, 189 N. W. 841, 25 A. L. R. 930 and note at page 963. The vice of the instruction is that it makes the liability of the indorser depend, not upon the presentment for payment and notice of dishonor, which under the contract of the indorser are conditions of liability (Grandison v. Robertson, supra [C. C. A.] 231 F. 785, at page 797; Case v. McKinnis, 107 Or. 223, 213 P.422, 32 A. L. R. 167, 179), but upon the mental attitude of the plaintiff and knowledge of same on the part of the defendant. It is true that the instruction couples with this the matter of demand; but it is elementary that mere demand upon the indorser is not sufficient to charge him, in the absence of presentment and notice of dishonor, unless the case is one where presentment or notice fire not necessary, or unless these have been waived. Case v. McKinnis, supra; 8 C. J. 525 and cases cited. In most cases where the maker is insolvent, the holder looks to the indorsers for payment and the indorsers know that they are being looked to, but this is no reason why the holder should not comply with the conditions upon which the liability of the indorsers depends.
And we see nothing in the position that presentment and notice were dispensed with because the silk company had disposed of its assets and been marked “out of existence” on the records of the revenue department of the state of Pennsylvania. So far as the evidence shows, the corporation had not been dissolved or its charter surrendered. It had the power, therefore, whether it had assets or not, to enter into contracts. It was a real person within contemplation of law, ánd not a fictitious person, or person not having capacity to contract, as was necessary to come within the provisions of section 115, subd. 1, of the Negotiable Instruments Law (Code W. Va. 1981, 46-7-27, subd. (a). It is well settled that a corporation does not cease to exist because it has become insolvent or has lost its property and ceased to carry on the business for which it was chartered. Brock v. Poor, 216 N. Y. 387, 111 N. E. 229; Essex Co. v. Commonwealth, 246 Mass. 242, 141 N. E. 38; Jones Mining Co. v. Cardiff Min. & Mill. Co., 56 Utah, 449, 191 P. 426.
Equally without foundation is the position that the defendant was an accommodated indorser, and hence not entitled to notice under section 115, subd. 3, of the Negotiable Instruments Law (Code W. Va. 1931, 46-7-27, subd. (e). An indorser is accommodated when the maker, drawer, or acceptor of a negotiable instrument makes, draws, or accepts same for his benefit, and without consideration. See N. I. L. § 29 (Code W. Va. 1931, 46-2-6). The maker here was the person accommodated and primarily liable; and the indorsers were accommodation indorsers for the maker. Case v. McKinnis, supra, 107 Or. 223, 213 P. 422, 32 A. L. R. at page 181; Murray v. Third Nat. Bank of St. Louis (C. C. A. 6th) 234 F. 481; McDonald v. Luckenbach (C. C. A. 3d) 170 F. 434. The fact that the original note was renewed from time to time and that the liability of the indorsers might have been enforced if renewals had not been granted does not change! their relationship. Brannan Neg. Inst. Law (4th Ed.) p. 717; Nolan v. Brown, 152 La. 333, 93 So. 113; Maynard Trust Co. v. Furbush, 243 Mass. 190, 137 N. E. 270. It was still the debt of the silk company for which the renewal notes were given, and the indorsers were still signing without consideration to themselves in order to lend credit to the principal debtor.
The position that the note was “accepted” by the bank for the accommodation of defendant within the meaning of section 115, subd. 3 (Code W. Va. 1931, 46-7-27, subd. (c) Of the Negotiable Instruments Law is clearly unsound. The word “accepted” is used in that section in its technical sense and means, with relation to a bill of exchange, the “signification by the drawee of his assent to the order of the drawer” (N. I. L. § 132 [Code W. Va. 1931, 46-10-1]). It has no reference to loans upon, or discount of, promissory notes.
We have carefully considered the eases of Fosdiek v. Government Mineral Springs Hotel Co., 115 Wash. 127,196 P. 652, and Greenwade v. First Nat. Bank of Louisa, 240 Ky. 60, 41 S.W.(2d) 369, upon which the receiver relies. In the Fosdiek Case, we think that the court has misinterpreted the meaning of “accepted” as used in the statute; and we cannot follow its reasoning to the effect that a bank which discounts a note for an insolvent maker is to be held to have “accepted” it for the accommodation of the indorsers. For an illuminating comment on this decision, see Brannan, Negotiable Instruments Law' (4th Ed.) p. 716. The same may be said of the reasoning in the Greenwade Case, with the added observation that in that case the court rested its decision primarily on the ground that the evidence supported the finding as to waiver made by the chancellor in the court below. The case of Dankmer v. Wheeling Printing Co., 103 W. Va. 40, 136 S. E. 690, also relied upon by the receiver, is not remotely in point. The decision there was merely that it was error to exclude evidence offered for the purpose of showing that the note sued on had been executed for the accommodation of the persons appearing thereon as indorsers. It is, of course, well settled that such indorsers are the primary debtors, and that presentment and notice of dishonor are not necessary to charge them.
Some confusion in thinking arises because the indorsers here were irregular indorsers. 8 C. J. 74. There was much conflict of authority, prior to the Negotiable Instruments Law, as to the nature of the contract into which such indorsers had entered and what was necessary in order to charge them. See 8 C. J. 74, and cases there cited. The Negotiable Instruments Law has settled this matter in the states where it is applicable, however, by providing that such irregular indorsers are liable as ordinary indorsers in accordance with the rules prescribed in section 64, subdivision 2 of which (Code W. Va. 1931, 46-5-5, subd. (b)), is applicable here.
With regard to the demand made upon defendant, we do not think that a mere demand, with nothing else, was sufficient to fix his liability. Since the note was a demand note, demand within a reasonable time was necessary to fix the liability of the indorsers, as well as of the maker, unless, of course, this requirement was in some manner waived; and ordinarily it is for the jury to say whether demand was made within a reasonable time. Murray v. Third Nat. Bank of St: Louis, supra (C. C. A. 6th) 234 F. 481; Davis Nat. Bank v. Kight, 86-W. Ya. 319-, 193 S. E. 482, As the note was payable at the bank, it was sufficient that the demand for payment be* made there. N. I. L. § 73 (Code W. Ya. 1931, 46-6-4); Davis Nat. Bank v. Kight, supra. But the mere presence of the paper in the bank was not sufficient presentment and demand to fix the liability of indorsers, as would be true in the ease of paper payable on a specific date. See notes 11 A. L. R. at page 976, 59 A. L. R. 1291 and Bank of United States v. Smith, 11 Wheat. 173, 175, 6 L. Ed. 443; Bank of United States v. Carnea!, 2 Pet. 543, 549, 7 L. Ed. 513. We think that the rule with respect to demand paper held by the bank at which it is made payable, is that, to fix liability, the bank must take some unequivocal action showing that it elects to exercise the right to declare the paper due and collect it. National Hudson River Bank v. Kinder-hook & H. Ry. Co., 17 App. Div. 232, 45 N. Y. S. 588, affirmed' National Hudson River Bank v. Moffett, 162 N. Y. 623, 57 N. E. 1118. Such action was taken by the receiver, according to his testimony, when, in the bank and in the presence of the defendant, he declared the note due and called on defendant to pay it. This was an unequivocal act, performed at the place where the note was payable, showing that plaintiff demanded payment ; and it at the same time gave notice to defendant that the note had been dishonored and that plaintiff looked to him for payment. As stated, however, the testimony of plaintiff on this point was contradicted; and the instruction of which complaint is made did not present to the jury the question raised by the contradiction, nor the question as to reasonable time.
On the question of waiver, there is evidence on the part of plaintiff, contradicted however by the defendant, that upon plaintiff’s demanding payment of him, defendant asked and was given time to arrange payment. If this is true, it was a waiver of presentment and demand upon the maker and of any further notice of dishonor. Dillon v. Bron, 96 Kan. 189, 159 P. 553; Moll v. Roth Co., 77 Or. 593,152 P. 235; K'uhl v. Sehliehtemeier (C. C. A. 8th) 14F.(2d) 593; Washington Horse Exch. Co. v. Bonner, 189 N. C. 29, 193 S. E. 997. But this, as well as any other matter showing waiver upon which plaintiff may rely, is a matter for the jury to pass on under proper instructions from the court. The mere fact that the defendant was a director of the bank would not amount to a waiver of his rights as indorser (Case v. MeKinnis, supra; Maynard Trust Co. v. Fur-bush, supra); but in this connection it should be said that, in passing upon whether demand for payment of the note was made within a -reasonable time, or whether demand in what might otherwise be considered a reasonable time was waived (but not on the question as to whether there was a waiver of any demand) , the jury might properly consider that the defendant was one of the directors of the bank who acquiesced in the renewal of the original loan over a period of more than three years, and that he allowed the bank without protest to hold the note sued on for the period of more than a year during which he remained a director after the last renewal, although he had learned some time before his resignation that the silk company had no assets with which to pay it. Linthicum v. Bag-by, 131 Md. 644, 192 A. 997.
Because of the error in the instructions to the jury, we must grant a new trial. It is not necessary, therefore, to discuss the other matters embraced in the assignments of error. We feel that it is well to say, however, as the question may come up again on the retrial of the case, that we do not think that the affidavit filed with the Pennsylvania department of revenue was admissible to prove the financial condition of the company, nor that the insolvency of the company or the indorsers could be proved by the testimony of the receiver based merely upon inquiries which he had made. On the question of solvency or insolvency, general reputation is admissible in a proper ease. Wigmore on Evidence (2d Ed.) vol. 3, § 1623, p. 378. And an expert who has had opportunity to examine the facts may express an opinion on the question, if a proper basis is laid for his testimony. Wig-more on Evidence (2d Ed.) vol. 4, § 19591, and eases cited. But it is not permissible for one, even though he be an expert, to give an opinion on solvency or insolvency based, not upon an examination of facts and records, but upon mere hearsay. Freeman v. State, 108 Miss. 818, 67 So. 460; Fletcher, Cyclopedia Corporations, vol. 8, p. 8614.
The position of the defendant is not one which appeals to the conscience of the court; but it must be remembered that we are not passing upon any liability of the defendant arising out of his relationship as a director of the bank, and that the sole question before us is the application to the ease of the Negotiable Instruments Law, which affects commercial transactions throughout the country. In applying such a statute it is of more than ordinary importance to remember that “hard cases are the quicksands of the law,” and not, for the purpose of doing equity in the particular ease, to give the statute an interpretation which will introduce confusion into a law which it is of the utmost importance to have free of ambiguity.
For the reasons stated, the judgment will be reversed, and the ease will be remanded for a new trial.
Reversed.
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_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
NATIONAL LABOR RELATIONS BOARD v. LUXURAY, Inc.
No. 10.
Circuit Court of Appeals, Second Circuit
Nov. 3, 1941.
Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Bernard R. Bralove and Bertram Edises, all of Washington, D. C., for petitioner National Labor Relations Board.
Philip Jones, of New York City (John N. Platoff, of Union City, N. J., of counsel), for respondent Luxuray, Inc.
Before L. PIAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The respondent is a New York corporation engaged in the business of manufacturing wearing apparel. The National Labor Relations Board has filed a petition to’ enforce an order (1) requiring the corporation to desist from unfair labor practices, consisting of threats and anti-union statements calculated to persuade its employees not to join or assist International Ladies’ Garment Workers’ Union and to interfere with, restrain and coerce them in their right to self-organization and to bargain collectively through representatives of their own choosing; (2) requiring the corporation to offer Ethel Weller immediate reinstatement to her former position in the appliqué department or to a substantially equivalent position without prejudice to her seniority and to make her whole for any loss of pay since February 4, 1938, by reason of discrimination in regard to hire and tenure.
The Board found upon substantial evidence that in April 1937 the union began to organize the respondent’s employes. In a speech to them in December 1937 Rogosin, the president, gave reasons why it woftld not be to their advantage to join the union. In the course of his remarks he said about C. I. O. union leaders:
“ * * * They promised you increases in salaries, steady work, and vacations, and all they accomplished was that you have no work at all.
“ * * * I have been molested and annoyed by union conferences and adjustments, which have taken too much of my time, preventing me from planning to secure enough work to keep you employed as in the past. * * *
“It does not seem to me that Mr. Green, of the A. F. of L., or Mr. Lewis, of the C. I. O., are very seriously concerned over what they can do for you. It seems that their only interest is to obtain you as members and have the income of your dues for what it may do for themselves. You can readily see this, when they attack companies like ours, which have been paying better wages then the majority of competitive manufacturers, and you realize that we sell our goods in competition with manufacturers in New Jersey, Pennsylvania, North Carolina, South Carolina, and elsewhere. There were a number of manufacturers in our industry in Pennsylvania and in the South, paying considerably lower wages than we were, whom the union did not bother at all or attempt to bother, and they, in turn, having a lower cost of production and the mind of their management at ease, have gotten the business that rightfully should have been ours.
* ❖ * -\i * *
“My advice to you is that it is not to your interest to join the union and pay-dues. All you will accomplish will be that you will give to the union a portion of what we are able to give you. My advice is to work in harmony with the company and leave it to our judgment as to when it is practical to increase your scale of wages and when it is not. * * * ”
Shott, a Field Examiner of the National Labor Relations Board, gave testimony as to the attitude of Rogosin towards unions. He testified that when he took up with Rogosin the complaint of the Board about the discharge of Ethel Weller, Rogosin said: “She is working for the union, and I have no place in my organization for any one receiving wages as a union organizer * * * I want the Labor Board to understand that she is discharged * * * I am going to run my own business and I am not going to permit the Labor Board to run my business * *
It seems clear from the various utterances of Rogosin that there was proof that the respondent had a fixed hostility towards the activities of its employes in organizing a union in its plant and in selecting International Ladies’ Garment Workers’ Union as their representative. There plainly was substantial evidence of acts of interference, restraint and coercion on the part of the employer such as are proscribed by Section 8(1) of the Act, 29 U.S.C.A. § 158(1).
It is argued on behalf of the respondent that portions of Rogosin’s speech to the employes contained expressions sympathetic with labor unions. He did allude to the fact that Beaunit Mills, a corporation owning all the stock of respondent and of which he was president, had appointed T. W. O., a C. I. O. affiliate, bargaining agent for its employes at the Beaunit Mills Plant at Cohoes, New York, and had entered into a contract with T. W. O. regulating labor relations. But it is to be noticed that there is no proof that this contract had the sanction of the Cohoes employes or that they had selected it to represent them. It was open to the Board to regard the contract between Beaunit and T. W. O. as having no bearing on the situation here for at best it was an agreement covering workers who were not part of the group to which respondent’s employes belonged or with which the latter were appropriately combined as a bargaining unit. Rogosin’s speech as a whole and his subsequent talk with Shott amply supported the finding of the Board that the respondent had violated the rights guaranteed to its employes under Section 7 of the Act, 29 U.S.C.A. § 157, and had been guilty of acts of interference prohibited by Section 8(1).
It is further contended by the respondent that Rogosin acted lawfully in warning the employes against unions because of his right to freedom of speech guaranteed by the • Constitution. But freedom of speech does not extend to interested appeals by an employer to induce his men not to exercise the right of collective bargaining and not to become members of a labor union. National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U.S. 272, 274, 58 S.Ct. 577, 82 L.Ed. 838; National Labor Relations Board v. Federbush Co., 2 Cir., 121 F.2d 954, 957; National Labor Relations Board v. American Mfg. Co., 2 Cir., 106 F.2d 61, affirmed 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988. When Rogosin said to his employes: “My advice is to work in harmony with the company and leave it to our judgment as to when it is practical to increase your scale of wages and when it is not, * * * ” his action went beyond mere friendly advice. In view of his power to discharge the employes they might fairly suppose not only that it was not to their interest to become members of the union but that they might suffer from such an association. National Labor Relations Board v. A. S. Abell Co., 4 Cir., 97 F.2d 951, 956.
The mandatory provisions of the order directing the reinstatement of Ethel Weller with back pay are vigorously assailed by the respondent, but we feel no doubt that they find substantial justification in the record.
Mrs. Weller had acted as a fore-lady in a department of the Fort Plain Plant and was an employee of acknowledged competence. It is said that when the work of the company slowed down and many in her department were laid off she was excused for this reason. But she was never offered reinstatement, while other employes of inferior status were restored, and Rogosin told Shott, when the latter complained of this, that she was “discharged” and that he had no place in his “organization for anyone receiving wages as a union organizer.” She had been a member of the union for about nine months before she was laid off, had been conspicuously active in the union organization and had had weekly meetings held for that purpose at her house. The fact that other members of the union had been retained as employes, when Ethel Weller was laid off and that she had been kept in employment for many months after her membership in the union was known is said to show conclusively that there was no discrimination against her. But her leadership in union activities, the use of her house for the weeks immediately preceding her discharge for union activities, the persistence of the respondent in refusing reinstatement to her while juniors in service were being taken back justify the inference of discrimination drawn by the Board. Indeed such an inference is fully warranted by Rogosin’s statement to Shott which we have quoted, had there been little or nothing else on which to base the finding.
The belated contention that the Examiner showed bias and did not give a fair hearing is wholly unfounded. Iiis report contained some mistakes and his finding that an employee, Clara Gramps, was discharged because of union activities was reversed by the Board. Nevertheless, the fact that he acted with propriety and afforded the respondent a fair hearing is evident from the remarks of the latter’s counsel who said at the close of the hearing: “I thank the Examiner for your kindness and consideration and your efforts toward impartiality.”
For the foregoing reasons we hold that the petition of the Board for enforcement of its order should be granted with the conceded modification of Paragraph 2 (b) thereof, so far as it requires the payment over of moneys received for work performed on Federal, State, County, Municipal and other work relief projects. See Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6.
Petition granted as modified.
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".
Pedro ARROYO, Petitioner-Appellee, v. Everett JONES, Superintendent, Great Meadow Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents-Appellants.
No. 1267, Docket 82-2072.
United States Court of Appeals, Second Circuit.
Argued June 17, 1982.
Decided July 23, 1982.
Certiorari Denied Nov. 29,1982.
See 103 S.Ct. 468.
John D. B. Lewis, New York City (William E. Hellerstein, The Legal Aid Society, New York City, on the brief), for petitionerappellee.
Mark Dwyer, New York City (Robert M. Morgenthau, Dist. Atty. for New York County, Amyjane Rettew, New York City, on the brief), for respondents-appellants.
Before OAKES, MESKILL, and KEARSE, Circuit Judges.
KEARSE, Circuit Judge:
The State of New York appeals from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, 534 F.Supp. 980, granting the petition of state prisoner Pedro Arroyo for a writ of habeas corpus on the ground that the state trial judge’s supplemental jury charge, that “people are presumed to intend the natural, probable and logical consequence of their acts,” unconstitutionally deprived Arroyo of the presumption of innocence, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We modify and affirm the order of the district court.
FACTS
Arroyo was convicted in 1973, after a jury trial in New York State Supreme Court, of one count of attempted murder, three counts of assault, and one count of possessing a weapon. Two versions of the events leading to the charges against Arroyo emerged at the trial. According to the prosecution’s witnesses, on April 13, 1972, Arroyo was apprehended by two New York City police officers shortly after leaving the scene of a robbery. He was being returned to the scene of the robbery when he broke free from the officers and ran. He was quickly pursued by a third officer, Raymond Bernard, who attempted to tackle him. Arroyo dodged the tackle, drew a revolver, and fired at Bernard. Bernard had drawn his own handgun and extended his right arm into a firing position. Arroyo’s shot, from five feet away, struck and shattered the grip of Bernard’s gun, and the spent bullet pierced Bernard’s police jacket but not his chest. Bernard returned fire; Arroyo leaped over a car hood and fired at Bernard twice more, missing both times. The police officers eventually wounded Arroyo, who thereupon surrendered.
Arroyo testified that his memory of the events was sketchy because of the injuries he had sustained. He recalled having been accosted by a gun-wielding stranger who had a second gun in his waistband. He stated that he had immediately pushed aside and held the man’s gun hand, grabbed the other gun from the man’s belt, struck him with that gun, and fled. As he ran, he was shot and wounded. Arroyo testified that he had no recollection of ever firing a gun. Two other defense witnesses also testified that Arroyo had not fired a gun and that all of the shooting had been done by the police officers.
When the trial judge instructed the jury, before discussing any of the charges specifically, she instructed the jury that the prosecution bore the burden of proving every element of every alleged crime beyond a reasonable doubt. As to the attempted murder count, the judge stated that the “intent to cause the death of Raymond Bernard” was an essential element of the crime, and defined intent without using any language that could have been interpreted as shifting the burden of proof. The same unobjectionable instruction as to intent was given twice more with respect to other counts. These initial instructions are unchallenged.
Several times during the course of its deliberations, the jury made inquiries of the trial judge. First, it asked to have the testimony of Officer Bernard reread. The second request, made approximately four hours after the deliberations had begun, was for “the law and the interpretation of the [attempted murder] charge.” The trial judge repeated, in large part, her initial instructions concerning that count, including the proper instructions on intent. After deliberating for another two hours, the jury returned to ask, “[d]oes shooting at a policeman necessarily constitute attempted] murder?” The trial judge responded as follows:
[T]he law which defines murder and attempt mentions only persons as to the elements of that crime, it applies to all persons.
Attempted murder is defined in the law, a person is guilty of attempted murder[,] and I am combining the statute on attempt as well as murder[,] when with intent to cause the death of another person he attempts to cause the death of such person.
(Tr. 808.) The jury returned to the jury room, but returned twelve minutes later, some six and one-half hours after it had begun deliberations, with another inquiry, as follows:
We have reached agreements on four charges and divided on the fifth one, to assist us with the latter, we would seek further classification [sic] of the words conscious intent.
(Tr. 810.) The parties are in accord that the charge on which the jury had not reached agreement was that of attempted murder.
The trial judge conferred with the prosecutor and defense counsel before responding. The prosecutor suggested that the jury be instructed that “people are presumed to intend the natural, probable and logical consequence of their acts.” Arroyo’s lawyer stated that he had no objection. The trial court then gave the following supplemental instruction:
Now, Members of the Jury, a person acts intentionally with respect to attempting to cause death or injury to another person, when the alleged perpetrator’s conscious objective is to cause such death or injury.
Intention is a subjective thing and depends on the operation of the individual’s mind, nonetheless, it is possible to make' a finding of intention based on the objective actions of the individual].
The Penal Law defines intentionally as follows: a person acts intentionally with respect to a result or conduct described by a statute to finding [sic] an offense when his conscious objective is to cause such result or to engage in such conduct.
By agreement, I can tell you that people are presumed to intend the natural, probable and logical consequence of their acts.
(Id.; emphasis added.) Twenty-five minutes later the jury returned a verdict of guilty on all counts.
Arroyo perfected his appeal to the Appellate Division in 1977. He argued that, although the portion of the supplemental charge italicized above represented a correct statement of New York law, the presumption language denied him due process of law by nullifying the prosecution’s duty to prove intent and shifting to him the burden of proof on that issue on the attempted murder count. The Appellate Division unanimously affirmed Arroyo’s conviction for attempted murder; it dismissed the remaining four counts because they had merged with the attempted murder count. Leave to appeal to the New York Court of Appeals was denied.
In October 1979, a few months after the United States Supreme Court’s decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, Arroyo pursued his due process claim in New York State Supreme Court by moving pursuant to New York Criminal Procedure Law § 440.10 to vacate the judgment of conviction. The State opposed the motion on the ground that Arroyo’s failure to object at trial to the presumption instruction constituted a forfeiture of the claim. The court rejected this argument, but denied the motion on its merits, on the ground that
in the totality of the entire charge and the detailed instructions to the jury in this case [the presumption language] did not have the same potential for impermissible burden shifting as the instruction struck down by the Supreme Court in [Sandstrom v. Montana, supra].
(Opinion of May 19, 1980 at 14). Leave to appeal to the Appellate Division was denied, thus exhausting Arroyo’s state court remedies.
Arroyo then commenced the present proceeding in the district court, seeking a writ of habeas corpus. In an opinion dated February 11, 1982, the district court ruled that, under Sandstrom v. Montana, supra, the inclusion of the presumption language in the supplemental instruction on intent denied Arroyo due process. The court granted the writ, ordering that the State either release Arroyo from custody or retry him within sixty days. This appeal followed.
DISCUSSION
In Sandstrom v. Montana, which has been the subject of considerable recent discussion in this Court, see, e.g., Ramirez v. Jones, 683 F.2d 712 (2d Cir. 1982); Rivera v. Coombe, 683 F.2d 697 (2d Cir. 1982); Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982); Nelson v. Scully, 672 F.2d 266 (2d Cir.), cert. denied, - U.S. -, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1982); Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1455, 71 L.Ed.2d 666 (1982), the United States Supreme Court ruled that a jury instruction that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts,” violates the defendant’s right to due process because it tends to shift the burden of proof on the issue of intent to the defendant and to deprive the defendant of the presumption of innocence. In the present case the State does not seriously contend that the portion of the supplemental instruction challenged by Arroyo — “people are presumed to intend the natural, probable and logical consequences of their acts” — is not the same type of instruction found invalid in Sandstrom. Rather, it contends principally that, when read in light of the charge as a whole, as is required by Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), the presumption language did not have the effect of shifting the burden on intent to Arroyo and did not deprive him of the presumption of innocence. We reject the State’s argument. In light of the special prominence of the presumption language by reason of its presence in a supplemental instruction, see Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946), and the series of questions from the jury that preceded it, we cannot conclude that the offending language was “harmless beyond a reasonable doubt,” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
In Nelson v. Scully, supra, we discussed thoroughly the need, in reviewing trial court instructions, not to view the improper language in isolation and to evaluate the charge as a whole, in order to determine whether the improper language “ ‘so infected the entire trial that the resulting conviction violates due process.’ ” 672 F.2d at 272 (quoting Cupp v. Naughten, supra, 414 U.S. at 147, 94 S.Ct. at 400). Nelson and the other cases heretofore considered by this Court in the wake of Sandstrom have dealt with offending language in the body of the court’s principal (or only) charge, rather than in a supplemental charge such as that confronting us here.
A supplemental charge must be viewed in a special light. It will enjoy special prominence in the minds of the jurors for several reasons. First, it will have been the most recent, or among the most recent, bit of instruction they will have heard, and will thus be freshest in their minds. Moreover, it will have been isolated from the other instructions they have heard, thus bringing it into the foreground of their thoughts. Because supplemental instructions are generally brief and are given during a break in the jury’s deliberations, they will be received by the jurors with heightened alertness rather than with the normal attentiveness which may well flag from time to time during a lengthy initial charge. And most importantly, the supplemental charge will normally be accorded special emphasis by the jury because it will generally have been given in response to a question from the jury. The particularly telling impact of a supplemental instruction — and especially the last such instruction — upon a jury was recognized in Bollenbach v. United States, supra, as follows:
The Government suggests that the judge’s misconceived “presumption” was “just what it appears to be — a quite cursory, last minute, instruction on the question of the necessity of knowledge as to the stolen character of the - notes — and nothing more.” But precisely because it was a “last minute instruction” the duty of special care was indicated in replying to a written request for further light on a vital issue by a jury whose foreman reported that they were “hopelessly deadlocked” after they had been out seven hours.... Particularly in a criminal trial, the judge’s last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptionable and unilluminating abstract charge.
326 U.S. at 611-12, 66 S.Ct. at 405.
On the record before us there is every reason to believe that the court’s presumption language made a special impression on the jurors. It was the last sentence they heard before returning for their final minutes of deliberation. It was a brief and pointed statement. And, most importantly, it gave them a way to decide the issue that had caused them, first, to ask for an interpretation of the original instructions on attempted murder, second, to ask if a shot at a police officer necessarily evinced an attempt to murder, and third, to ask for “further clarification of the words ‘conscious intent’.” In light of this repeated questioning over the first six and one-half hours of deliberations, and in light of the jury’s decision on the attempt count less than one-half hour after having heard the improper charge, it seems highly likely that the supplemental charge was in the forefront in the jurors’ minds.
In these circumstances, we do not believe the trial court’s initial unobjectionable charge on intent can be deemed to have cured the defective language in the supplemental charge. Since the initial instructions did not mention any presumption as to intent they did not give the jury any assistance in how to apply a presumption— whether they were free to disregard it, whether it was merely something they might infer, or whether the defendant had to overcome it. More importantly, the initial instructions cannot be deemed to have disinfected the later presumption language because the jury’s questions reveal that the initial charge simply was not understood. In short, it is all very well as a general matter for the State to urge us to evaluate the effect of presumption language in light of the charge as a whole. But when the jurors have so little comprehended the unobjectionable initial charge that they have found it necessary to ask three times for clarification, it would be decidedly dense of us to assume that the unobjectionable initial charge, as to which enlightenment was requested, itself enlightened the jury as to the real meaning of the improper enlightenment.
We find no merit in the State’s argument that the supplemental charge was not important because intent was not a hotly debated issue at trial. It is true that intent has been a more prominent issue in cases such as Sandstrom, in which the defendant admitted killing the deceased but pleaded lack of intent due to a mental disorder aggravated by alcohol consumption. Although subtler here, the issue as to intent to murder was highlighted by Arroyo’s testimony that he had merely tried to protect himself by knocking Bernard aside and fleeing, and that he did not remember firing a gun. Thus the trial testimony raised a question as to intent, and the jury’s inquiries during its deliberations reveal that it had substantial uncertainty as to whether the State had proven intent to murder beyond a reasonable doubt.
Nor do we find any of the State’s other arguments more persuasive. For example, in contending that as a practical matter the presumption language probably had little effect, the State states that
[b]y the time the jurors heard this supplemental charge, they had already reached verdicts of guilty on four counts, and on three of those counts they had been required to find that Arroyo acted with a specific intent. Arroyo’s theory that the jurors, who had three times properly found intent from the evidence without resort to a presumption, could have understood the supplemental charge as a direction to ignore the evidence about intent in reaching a verdict on the final count, is simply incredible.
(State’s Reply Brief at 5; emphasis added.) This argument is wide of the mark, for what the sequence of events leads us to infer is not that the presumption language caused the jurors to “ignore the evidence about intent,” but rather that it may have led them to ignore their doubts about that evidence. This argument by the State really amounts to a contention that the jury would not have resorted to the presumption because there was adequate evidence from which it could have found the requisite intent proven. The question, however, is not whether the jury could have convicted on the basis of the evidence without resort to the presumption, but whether we can be sure beyond a reasonable doubt that this is what it did. Sandstrom v. Montana, supra, 442 U.S. at 526, 99 S.Ct. at 2460. Obviously, in light of the jury’s repeated requests for clarification and the relative speed of its decision after receiving the presumption language, “[i]t would indeed be a long jump at guessing to be confident that the jury did not rely on the erroneous ‘presumption’ given them as a guide.” Bollenbach v. United States, supra, 326 U.S. at 614, 66 S.Ct. at 406.
In sum, we agree with the conclusion of the district court that the presumption language of the trial court’s supplemental charge was not harmless beyond a reasonable doubt and that the petition for habeas corpus should be granted.
CONCLUSION
As noted above, the New York Appellate Division, on affirming Arroyo’s conviction for attempted murder, set aside the convictions on the other four charges because they were lesser-included offenses which merged with the attempted murder conviction. The district court’s decision granting habeas corpus was silent as to its effect on these extinguished lesser counts. Although we affirm the decision requiring the State to release or retry Arroyo for attempted murder within sixty days, we modify the order to permit the State to seek in state court the revival of the convictions on any of the four extinguished counts. As thus modified, the order of the district court is affirmed.
. The trial judge’s instruction on intent was as follows:
What is intent; under our law, a person acts intentionally with respect to attempting to cause the death of another person when the alleged perpetrator’s conscious objective is to cause such death. This portion of my charge is concerned itself only with the attempt to commit the crime of murder based on the intention to cause the death of a victim, of course, we all recognize that an intention is a subjective matter and it depends on the operation of an individual’s mind none the less it is possible to make a finding of intention based on objective actions of the alleged perpetrator; in fact, this is the only method that we can use in determining intention since we cannot get into the mind of the alleged perpetrator. Therefore, in your deliberation, you may use the defendant’s objective action as a determining factor in deciding whether or not he acted intentionally.
You may also refer to all the other evidence which may indicate intent or not indicate intent. The Penal Law of the State of New York defines intentionally as follows: a person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. ■
. Sandstrom v. Montana, supra, was not to be decided for two years, and although following Sandstrom the New York Court of Appeals stated that the law of New York had long held the Sandstrom -type charge to be erroneous as a matter of state law, People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430 (1980), there were a number of New York cases upholding similar presumption language, see id. at 474, 429 N.Y.S.2d 584, 407 N.E.2d 430 and cases cited therein (Fuchsberg, J., concurring).
. In light of the state court’s rejection of the State’s procedural argument and its decision on the merits of Arroyo’s due process claim, Arroyo’s failure to object at trial to the presumption language does not bar federal review. Engle v. Isaac, - U.S. -, 102 S.Ct. 1558, 1575 n.44, 71 L.Ed.2d 783 (1982); Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981).
. Following the district court’s decision, the parties agreed to a stay of the order pending a decision of this appeal, and Arroyo remains incarcerated.
. In its Brief on Appeal at 13, the State says, “Certainly, it would have been preferable had the trial judge not included the quoted sentence in her instructions. See Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979).”
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_typeiss | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES v. ROHLEDER, et al. (two cases).
Nos. 9093, 9123.
Circuit Court of Appeals, Third Circuit.
Argued May 23, 1946.
Decided Aug. 15, 1946.
J. Gregory Bruce, of Washington, D. C., (John F. Sonnett, Asst. Atty. Gen., and Gerald A. Gleeson, U. S. Atty., and Thomas J. Curtin, Asst. U. S. Atty., both of Philadelphia, Pa., and Joseph M. Friedman, Chief, War Frauds Civil Section, of Washington, D. C., on the brief), for the United States.
James F. Masterson, of Philadelphia, Pa., (G. Fred Di Bona, of Philadelphia, Pa., on the brief), for defendants.
Before MARIS, GOODRICH and Mc-LAUGHLIN, Circuit Judges.
McLaughlin, circuit judge.
This is a civil suit brought by the United States under Sections 3490-3492 inclusive, and Section 5438 of the Revised Statutes, 31 U.S.C.A. §§ 231-233, 18 U.S.C.A. §§ 80, 82-86, to recover the forfeitures and double damages provided by Section 3490 for submitting false claims for materials supplied as a subcontractor on a Navy shipbuilding project. The government offered no evidence of actual damage at the trial and sought only to recover the statutory forfeitures. The case was tried without a jury. The District Judge found that the defendants had violated Section 3490 as to the sixteen contracts involved. He assessed the statutory penalty of $2,000 against the defendants on each of the contracts. From the judgment entered therein the defendants appeal. The government, claiming that each of the ninety purchase orders in the matter called for a separate forfeiture, cross appeals on that point.
The defendant, Charles F. Rohleder, is a building contractor in Philadelphia; the other defendants were employed by him as his agents and carried on with him the activities described below. Rohleder entered into subcontracts with the Cramp Shipbuilding Company, which was under contract with the Navy Department. This main contract between Cramp and the Navy, dated October 29, 1940 (designated NOD 1550), obligated Cramp to improve its shipyards in Philadelphia by the erection of “Emergency Plant Facilities” preparatory to the building of six light cruisers. The provisions of the contract were that the Cramp Company would, without profit to it, by itself or through contracts with others, make improvements of the value of about $12,000,000. Records and accounts of the project were to be kept by Cramp, and capital for carrying it on was obtained by arrangement with a number of banks. The Navy, represented by the Supervisor of Shipbuilding at the Cramp plant, had broad rights of inspection of work and records during and after construction. The Supervisor’s approval was required in advance for all plans, prices, subcontractors and subcontracts involved. At the completion of the work, a Final Cost Certificate would be presented by Cramp to the Navy, which would then reimburse the company from government funds at 1/60 per month.
On the same date as the main contract, Cramp entered into the first of sixteen subcontracts with Rohleder, eight of which are classed as principal and eight as extension of work projects. The ensuing fifteen were concluded at various times up to September 8, 1941, the date of the last one. These subcontracts were for the actual construction, required by NOD 1550, by Rohleder. They were on a cost-plus-fixed-fee basis, the estimated cost being $1,935,179 and the fixed fee being $63,003. All but two of the subcontracts expressly ■stated that the work involved was let under and was subject to NOD 1550. All but one of the subcontracts required purchases of $100 or over should be approved by Cramp before being placed. All of the subcontracts were approved about the time of execution by the Navy representative.
Before the execution of any of these subcontracts, an authorized Navy representative orally informed some of the Cramp officials that, in order to obtain the ■approval for purchase of material, there would have to be furnished to him in advance, three or more bids together with the vendor’s name and the price submitted by him. This requirement was reduced to memorandum form. The District Court found that the defendants were aware of this requirement and purported to comply with it in connection with purchase orders submitted in their contract work.
The vast majority of such orders submitted by defendants are not questioned. But ninety of them were found by the District Court to contain “three or more bids, one or more of which bids the defendants knew or had cause to know were false, fictitious, and not bona fide competitive bids.” The practice as to these of Roh-leder, the other defendants, or their subordinates, was to obtain from dealers bids higher than the one it was desired to have accepted, with the understanding that these bids were not seriously made on the part of the dealers. The ninety items so treated were included in work under all sixteen of the contracts. The bids involved were forwarded by Rohleder to the Cramp Company and approved without suspicion by it. They were sent to the Navy representative who upon inspection and in reliance on the facts presented gave the final approval, also without suspicion. Rohleder was then provided with copies of the correspondence between Cramp and the Navy, indicating the approved bid. This method was followed for each of the ninety items, and for each of them Rohleder was reimbursed by Cramp. In some instances, the material upon which the bids were given had been installed by Rohleder before the approval procedure got under way. The prices thus obtained were reflected in the Final Cost Certificate submitted by Cramp and paid by the United States through the Navy Department under the terms of NOD 1550.
The Court below also found that “No evidence of any damage suffered by the United States as a result of the alleged illegal acts was offered,” and that there “is no evidence * * * that the government would have saved any money had genuine * * * bids * * * been submitted.” It appears in the record that the defendants were acquitted of the related criminal action in 1943.
The defendants contend that there can be no recovery under Section 3490 unless actual damages, pecuniary or proprietary, are alleged and proved. They argued that as Section 5438 stood at the time it was incorporated into Section 3490, it required pecuniary loss in order that a conviction be sustained. The question is not wholly free from doubt. It is somewhat complicated by the circumstances that Section 5438 was amended in 1918 among other particulars not presently important by inclusion of the phrase “or for the purpose and with the intent of cheating or swindling or defrauding the Government of the United States.” United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616, was decided under the 1918 amendment and the Supreme Court specially stressing the above amendment language held that actual loss to the government was necessary to sustain a conviction. Capone v. United States, 7 Cir., 51 F.2d 609, and United States ex rel. Starr v. Mulligan, 2 Cir., 59 F.2d 200, are much to the same effect.
Section 5438 was further amended in 1934. The important changes for our purposes were, the dropping of the above quoted part of the 1918 amendment and the addition of the clause “in any matter within the jurisdiction of any department or agency of the United States * * That last amendment was considered by the Second Circuit in United States v. Mellon, 96 F.2d 462, on the contention that there could be no violation of the statute without pecuniary loss to the government. The Court said 96 F.2d at page 463: “Before the amendment of 1934 the scope of the statute was, indeed, so limited. United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616; United States ex rel. Starr v. Mulligan, 2 Cir., 59 F.2d 200.” It is particularly noted that the Court is there referring to Section 5438 with the 1918 “defrauding” phrase relied on in the Cohn opinion and not to the original Section 5438 as it was incorporated into Section 3490. Love v. Mantz, 8 Cir., 72 F.2d 631, does not answer the question either, as the Court there applied the rule of the above cases under the 1918 amendment to indicate that pecuniary loss was a vital element of the claim.
Closest to the.present situation is United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, rehearing denied 318 U.S. 799, 63 S.Ct. 756, 87 L.Ed. 1163. That was a civil suit by an informer under Sections 3490-3494, 31 U.S. C.A. §§ 231-235. The District Judge correctly held that it must rest on violations of Section 5438 as that section read when it was incorporated in Section 3490. United States v. Hess, D.C.W.D.Pa., 41 F.Supp. 197, 205. This is conceded by both sides in this appeal. In the Hess case, just as here, the government asked for forfeitures on items, among others,- for which no damage was shown. The District Judge said as to this, 41 F.Supp. at page 218: “The next reason urged by .defendants for a new trial is that the court erred in refusal of defendants’ 9th point, which reads as follows: '9. There can be no recovery of any penalty or ■ forfeiture on account of any project in which no actual damages have been shown.’ Section 3490, R.S., expressly provides for a penalty of $2,000, ‘and, in addition, double the amount of damages which the United States may have sustained.’ This makes it plain that regardless of damages sustained, the United States would still be entitled to recover the penalty. This point refers to instances where the United States withheld payments on account of the discovery of the fraud, so that no actual .damage was shown. However, that would not preclude the United States from recovery of the penalty prescribed by Section 3490, R.S.”
The judgment of the District Court including the forfeitures • allowed for eight projects as to which no damage had been proven was affirmed by the Supreme Court, supra. The no damage forfeitures were not referred to specifically in the opinion but the concluding paragraph thereof did say [317 U.S. 537, 63 S.Ct. 388], “We have examined the other contentions of the respondents and approve of the disposition of them by the courts below.” The petition for rehearing specially called the attention of the Court to the circumstances surrounding the particular eight projects; nevertheless the petition was denied as stated.
In view of the attitude toward just such claims as are before us, by the Supreme Court in the Hess litigation, we conclude that Section 3490 embracing Section 5438 as the latter was when incorporated into Section 3490, permits recovery of a forfeiture thereunder without actual damage being proven.
Defendants’ second point is that the defendant Rohleder-had no knowledge that the bids were-fictitious. It is not challenged by the defendants that in connection with many of the- ninety purchase orders the material had already been purchased or contracted for and actually used, prior to Rohleder’s sending in the supposedly competitive bids. A letter in evidence admittedly dictated by Rohleder but never mailed, as the Trial Judge said, “indicates that he was familiar with and had himself engaged in the practice of giving complimentary bids in order to comply with contract requirements for competitive bidding.” The Trial Court further said, “The bids were obtained by his [Rohleder’s] agents for his sole benefit and to the extent that their conduct imposes liability, he is answerable for it.” Defendants question this last quoted finding as not in accord with established principles of agency law but cite no cases to sustain the proposition. Under the circumstances the Court’s statement was proper. United States v. Van Riper, 3 Cir., 154 F.2d 492. Even without the agency inference there is sufficient evidence to warrant the District Judge deciding that Roh-leder knew the bids being submitted were not bona fide.
The defendants next urge that the Navy had no. authority to demand competitive bids. The main contract between the Navy and Cramp, Article 1, Section 3, Paragraph 5, provided: “Provided, however, that none of the items of the Emergency Plant facilities shall be acquired or constructed unless the approval of the Department (which for this purpose shall be represented by the Supervisor of Shipbuilding at the plant of the Contractor) shall have first been obtained to the plans and specifications therefor, the purchase price thereof, the subcontractor, supplying or constructing the same, and the terms of any subcontract made by the Contractor therefor.”
On October 28,1940, Lieutenant Bishop, acting for the Navy, requested competitive bids. The Navy-Cramp contract was entered into on October 29, 1940, and that, same day the first Cramp-Rohleder agreement was approved. While there was no competitive bidding clause in this or any of the later agreements, all but two of them contained statements that the work under them was subject to the Navy-Cramp contract. The procedure of submitting competitive bids was accepted by Rohleder and ostensibly followed by him throughout his work. There was no indication from him to the Navy or to Cramp that would in any way suggest otherwise. It was testified to that such method was fundamental Navy procedure. Considering the nature of the cost-plus-fee contract Rohleder had, the day to day differentiation in amounts of labor and materials required and the necessity that Rohleder’s prices had to be approved by the Supervisor of Shipbuilding under the terms of the parent agreement, we agree with the Trial.Judge that the Navy requirement of competitive bids was reasonable practice and within the scope of the above quoted paragraph of the Navy-Cramp agreement.
Defendants’ final point is devoted to excusable circumstances surrounding the undertaking. They refer to the tremendous time pressure, saying that such irregularities as existed were not caused by any ulterior motive but in the all prevailing effort to get the job accomplished. Undoubtedly this element was present. They refer to the defendant Rohleder having completed his part of the rehabilitation of the Cramp Shipyard speedily at three-fifths of the average overhead and to the satisfaction of all concerned. There is considerable force in these ássertions, but we cannot go along with the defendants when they designate the common sense Navy method of insisting on three genuine competitive bids as “red tape.” Nor can we condone the scheme of paying lip service to the requirement while secretly consumating the ninety purchase orders without actually obtaining such bids. There is testimony in the record that the Supervisor of Shipbuilding had the authority to and on occasion did waive the requirement for competitive bidding when the faots warranted it, but from all that appears no such request was ever made by the defendants.
The government cross appeal is concerned with the question of the number of forfeitures allowed! The District Court awarded the statutory forfeiture of two thousand dollars on each of the eight main contracts and on the eight subcontracts. The government insists that there should be a forfeiture declared on each of the ninety purchase orders. United States ex rel. Marcus v. Hess (supra) is also illuminating on this problem. In that case there were fifty-six distinct P.W.A. projects involved and many hundreds of false forms. On the judgment in favor of the plaintiff, the latter urged that the penalty attach not only to the fifty-six items but to each false affidavit certificate submitted by the defendants. The defendants argued that the entire fifty-six projects constituted but one act. The District Court found that each project was a single claim. The Supreme Court in its-opinion 317 U.S. at page 552, 63 S.Ct. at page 388, 87 L.Ed. 443, upheld this, saying: “The District Court concluded that the lump sum in damages should be assessed for each separate P.W.A. project. Petitioner does not object to this decision and we conclude that under the circumstances of this case each project can properly be counted separately.”
The government argues that in Hess the fraud was in the procurement of the contracts whereas in the situation confronting us the fraud arises from the means taken to obtain the approval of the Supervisor of Shipbuilding. That difference does exist but is not enough to avoid the impact of the Hess opinion. There the Supreme Court said 317 U.S. at page 552, 63 S.Ct. at page 388, 87 L.Ed. 443: “The incidence of fraud on each additional proj ect is as clearly individualized as is the theft of mail from separate bags in a post office.” Nor do we think that it can be fairly substantiated that the District Court in limiting the forfeiture to the sixteen contracts overlooked the second and third clauses of Section 5438. The fraud was committed with respect to the contracts. The purchase orders were part of those contracts and not definite projects in themselves. They are analogous to the great number of spurious forms in the Hess case which were absorbed into their respective projects. The grouping by the Trial Judge of the ninety purchase orders under their respective contracts generally corresponds to the distinctions made in United States ex rel. Marcus v. Hess, supra. It is reasonable and has a sound basis in the record.
Affirmed.
Section 3490 of the Revised Statutes, 12 Stat. 696, reads as follows: “See. 3490. Any person not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight, Title ‘CRIMES,’ shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such an act, together with the costs of the suit; and such forfeiture and damages shall be sued for in the same suit.-’
Section 5438 of the Revised Statutes, 12 Stat. 696, as it appeared at the time of its incorporation in Section 3490, reads as follows: “Sec. 5438. Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, or who enters into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, * * * every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.”
In that one the amount was $200.
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_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.
Edward W. OSTROWSKI, et al, Plaintiffs-Appellants, v. The UNITED STATES DEPARTMENT OF LABOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, et al. Defendants-Appellees.
No. 79-1667.
United States Court of Appeals, Sixth Circuit.
Argued June 1, 1981.
Decided and Filed July 2, 1981.
Ferdinand M. Peters, Koperski & Peters, Warren, Mich, for plaintiffs-appellants.
James K. Robinson, U. S. Atty, Henry J. Maher, Plunkett, Coomey, Rutt, Watters, Stanczyk & Pedersen, David Wightman, U. S. Department of Labor, Thomas M. Woods, Asst. U. S. Atty, Special Litigation Section, Detroit, Mich, Frederic D. Cohen, Attorney, Appellate Staff, William Kanter, Freddi Lipstein, Civil Division, Dept, of Justice, Washington, D. C, for defendants-appellees.
Before EDWARDS, Chief Judge, and KENNEDY, Circuit Judge and HORTON, District Judge.
Honorable Odell Horton, United States District Judge for the Western District of Tennessee, sitting by designation.
PER CURIAM.
Plaintiffs in this case appeal from a judgment requiring them to reimburse the Federal Employees’ Compensation Fund out of damages previously awarded to them in a state court tort action against third parties.
In 1973, Michigan adopted a “no fault” automobile insurance system which limited these plaintiffs to recovery for noneconomic losses (such as pain and suffering) in their suit against third party tortfeasors. See Mich.Comp.Laws Ann. § 500.3135 (Supp. 1981). The question presented for our review is whether this modification in Michigan’s tort law prohibits the United States from obtaining reimbursement, out of plaintiffs’ third party tort suit recovery, for economic benefits paid under the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. §§ 8101-8193 (1976). The District Judge who decided this case answered this question in the negative in a lengthy and carefully considered opinion. See Ostrowski v. Roman Catholic Archdiocese of Detroit, 479 F.Supp. 200 (W.D.Mich.1979).
FECA section 8132 provides in part:
If any injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as a result of suit or settlement by him or in his behalf, the beneficiary, after deducting therefrom the costs of the suit and a reasonable attorney fee, shall refund to the United States the amount of compensation paid by the United States and credit any surplus on future payments of compensation payable to him for the same injury.
Construing this statutory section, the District Judge held:
It is undisputed that any payments the plaintiff will receive as a result of the state court action will be “damages” paid to discharge a legal liability arising from the same injuries that gave rise to compensation under FECA, namely, for injuries occurring in the January, 1975 accident. There is no language in Section 8132 delineating two classes of damages — one of which gives rise to a duty to reimburse and one of which does not. On the contrary, by its terms the duty to reimburse encompasses all damages recovered from third parties.
479 F.Supp. at 203.
It should be noted that Congress delegated authority to the Secretary of Labor to promulgate regulations under FECA. See 5 U.S.C. § 8149. Under that authority, the Secretary has adopted a regulation which provides as follows:
If an injury for which benefits are payable under the Act is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, and, as a result of suit brought by the beneficiary or by someone on his or her behalf, or as a result of settlement made by him or her or on his or her behalf in satisfaction of the liability of such other person, the beneficiary shall recover damages or receive any money or other property in satisfaction of the liability of such other person on account of such injury or death, the proceeds of such recovery shall be applied as follows:
(a) If an attorney is employed, a reasonable attorney’s fee and cost of collection, if any, shall first be deducted from the gross amount of the settlement;
(b) The beneficiary is entitled to retain one-fifth of the net amount of the money or other property remaining after the expenses of a suit or settlement have been deducted, plus an amount equivalent to a reasonable attorney’s fee proportionate to any refund to the United States;
(c) There shall then be remitted to the Office, the benefits which have been paid on account of the injury, which shall include payments made on account of medical or hospital treatment, funeral expense, and any other payments made under the Act on account of the injury or death;
(d) Any surplus then remaining may be retained by the injured employee or his dependents, and the net amount of damages received by the beneficiary shall be credited against future payment of benefits to which the beneficiary may be entitled under the Act on account of the-same injury or death.
20 C.F.R. § 10.503 (1980).
The regulation is obviously designed to prevent injustice to the federal employee in an instance where recovery from a third party, by dint of attorney fees or other costs, would have been entirely or substantially wiped out by the FECA claim.
In the instant case, appellant Ostrowski had received from the Federal Employees’ Compensation Fund $5,058.70 for medical care costs and $41,196.62 for loss of wages through December 6, 1978. As of the time of trial, wage loss was still being paid under FECA. Ostrowski received $100,000 in settlement of his third party tort action.
We have reviewed the purposes of FECA, which include prompt assistance in meeting the employee’s medical expenses and continuation of wage payments when he is injured in the course of his employment. The provisions for the fund to recoup such expenditures are obviously designed to diminish the cost of this governmental program and preventing the possibility of double recovery.
For the reasons stated above and further spelled out in the Memorandum Opinion of the District Judge filed September 18,1979, the judgment of the District Court is affirmed.
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_counsel2 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff and Appellee, v. Joseph Charles BONANNO, Jr., and Salvatore Vincent Bonanno, Defendants and Appellants.
Nos. 72-1779, 72-1780.
United States Court of Appeals, Ninth Circuit.
May 12, 1972.
Albert J. Krieger, New York City, for defendants and appellants.
James L. Browning, Jr., U. S. Atty., Philip R. Michael, Asst. U. S. Atty., San Francisco, Cal., for plaintiff and appellee.
CHAMBERS, Chief Judge:
Salvatore Vincent Bonanno and Joseph Charles Bonanno, Jr., brothers, were convicted of rather ungentle federal crimes. Salvatore was sentenced to a prison term to run concurrently with terms he was serving already in a federal penitentiary. Joseph was sentenced to five years in prison but is at large on bail pending appeal.
On February 16, 1972, the brothers filed notices of appeal. At the time of sentence, Joseph was represented by John T. Dawson of Campbell, California, and Salvatore by Albert J. Krieger of New York City.
Promptly the district court put the appeals under our expedited appeal plan. Our clerk then set the ready date for all briefing to be completed as of May 1, 1972.
Since February 16, 1972, this court has heard nothing from Joseph’s attorney, Dawson. On April 27, 1972, our clerk received from Attorney Krieger a request for an extension of time to file the record. (It was not in proper form. Although there had been no substitution, in his application Krieger purported to act for both parties. At the clerk’s suggestion, Krieger has now moved to substitute himself for Dawson to serve for Joseph, also.) The application to extend time to docket was the first communication from counsel to our clerk. Under the rules, the record should have been here March 27, 1972.
The request of April 27 specified that two weeks was needed, but the record arrived here on May 1, 1972. The affidavit relates that there was a reporter’s daily transcript in the trial. For this criminal appeal we should get an original and four copies of the transcript. We can get photostatic reproduction of transcripts in less than a week, usually within two days and sometimes overnight. We assume the reporter can do business with our contractor. And practically the record here could have been forwarded within a week after notice of appeal was filed.
But the Krieger affidavit indicates that just recently he found out that the reporter should be paid $911.10 and that he had promptly paid it, and we could expect the transcript to be along soon. After he paid, the transcript arrived quite promptly.
But we get the transcripts in here in 74 days instead of 40 days under the rules (and someone should have shortened the 40 days’ time).
I do not indict Krieger. His delays are less than par for the course. But I use his case to express my views, because in so many other cases of delay it might be said that counsel is a bumbler. Krieger is one of the most competent in the criminal field. I believe him to be ethical, and an ethical lawyer is to be admired for taking the cases of unpopular people such as the Bonannos.
But I believe Krieger could have put the record in here promptly if early action would have benefited his clients. But Joseph is out on bond. Tomorrow can’t be any worse than today. So the request for an extension says, essentially, “The record did not pursue me.”
We have tried one way and another to get criminal cases in and heard promptly. Some of our measures such as “ready date” work for a while but then counsel build up immunities to them. Criminal cases are entitled to priority. The Chief Justice calls on us to get criminal cases disposed of promptly. The Judicial Conference of the United States commanded us in October, 1971, to come up with a plan to get the criminal cases disposed of promptly.
The best plan to get these cases disposed of promptly is to calendar on the date of receipt of notice of appeal the case for an oral hearing. Counsel traditionally respect a date for an oral hearing in open court. (Of course, intermediate monitoring of the laggards is necessary.) I feel I am authorized to calendar after a default.
Salvatore and Joseph may have been improperly convicted. If so, their convictions should have been reversed ere now. If their convictions are sound, that should have been so pronounced this week of May 8, 1972, or earlier. ((The ready date was May 1, 1972.)
Yesterday I entered in the appeal an order as follows:
“Record to be filed on or before May 12, 1972. Balance of docket fee to be paid forthwith. Opening brief to be filed on or before June 1, 1972. Government brief to be filed on or before June 15, 1972. Case is to be heard during the week of July 12, 1972.”
This will assure disposition in about five months after judgment in a case that could have been disposed of in a few weeks. The delay here by comparison with a lot of other criminal cases is minor, but there is no room to argue in this one that there was any good reason for the slightest delay.
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_appnonp | 99 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". 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.
INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES UNION, et al., Appellants, v. GEORGE A. KRACHER, INC., et al.
No. 86-5442.
United States Court of Appeals, District of Columbia Circuit.
Argued April 11, 1988.
Decided Sept. 16, 1988.
Barbara L. Camens, with whom David S. Barr and David Johnathan Cohen, Washington, D.C., were on the brief, for appellants.
Timothy J. O’Rourke, Washington, D.C., (appointed by the court), amicus curiae, urging affirmance.
Harry C. Citrino, Philadelphia, Pa., entered an appearance for appellees.
Before WALD, Chief Judge, and ROBINSON and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
The sole issue on this appeal is whether under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) as amended, liability for a corporation’s delinquent pension contributions extends to an individual who is the organization’s chief officer and principal shareholder. In an action asserting and seeking to enforce this responsibility, the District Court answered that question in the negative. Finding no significant indication that Congress intended to alter the fundamental principle of individual nonliability for corporate debt, we affirm.
I
George A. Kracher, Inc., a Pennsylvania corporation, was party to a collective bargaining agreement with District Council No. 21 of the International Brotherhood of Painters and Allied Trades (IBPAT), AFL-CIO. The agreement required the corporation to make monthly contributions on behalf of its employees to the IBPAT Union and Industry Pension Fund. When the corporation defaulted on some of the payment due in 1985, the Fund sued it in an effort to recover the arrearage. Also named as a defendant was George A. Kracher, its chief officer and dominant shareholder.
Neither the corporation nor Kracher appeared in the District Court action, and the Fund moved for a default judgment. It urged that Kracher be held liable both severally and jointly with the corporation on the theory that he was an “employer” as defined in Title I of ERISA. The Fund did not contend that Kracher was the alter ego of the corporation or that the circumstances required piercing the corporate veil. It maintained only that Kracher was personally and directly liable under the provisions of ERISA.
The District Court entered judgment against the corporation but dismissed the claim against Kracher, ruling that he was not an “employer” within the meaning of the statute. This appeal then followed.
II
Title I of ERISA imposes upon an employer under a contractual duty to pay into a multiemployer pension plan an obligation to make its contributions in a timely fashion. Section 515 provides that
[ejvery employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.
Clearly, then, the liability created by Section 515 falls solely upon an “employer ... obligated to make contributions.” Title I of ERISA defines an “employer” as
any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; ... includpng] a group or association of employers acting for an employer in such capacity.
The word “person” includes “an individual” and, among other entities, a “corporation.”
The Fund argues that Kracher fits within these definitions in that he is “an individual,” and as the chief corporate officer and principal shareholder who made all corporate decisions regarding payment of pension contributions, he acted "indirectly in the interest of an employer” — Kracher, Inc. —“in relation to an employee benefit plan.” According to the Fund, this “broad statutory language” is evidence of a congressional intent to include dominant corporate owners and officials within the scope of employer liability for delinquent contributions. The Fund also relies upon a bit of the legislative history:
It is intended that the coverage of the Act be construed liberally to provide the maximum degree of protection to working men and women covered by private retirement programs. Conversely, exemptions should be confined to their narrow purpose.
This canon of liberal construction, along with the characterization of ERISA as a comprehensive remedial statute designed to protect workers’ pension rights, leads the Fund to conclude that Congress intended to extend liability to corporate officers such as Kracher. We disagree.
Neither the plan nor the collective bargaining agreement contains any provision tending to impose personal liability on Kracher. Only the corporation, as signatory to the agreement, fits within the parameters of Section 515 as the “employer who is obligated to make contributions ... under the terms of” either the plan or the agreement. Nor do the statutory definitions of “employer” and “person” supply the necessary link between liability and Kracher individually. It cannot be said that a corporate official is a “person acting directly as an employer.” It is hornbook law that a corporate employee functioning purely as such acts not as but solely for the corporate employer; the corporation acts as the employer it is, though it can do so only through the agency of the employee or someone else. Moreover, we think it would be foolhardy to consider Kracher as one who “act[ed] indirectly in the interest of an employer.” Such an expansive reading would mean that every employee or other agent who discharges some responsibility in regard to a corporation’s employee benefit plan would be swept within the definition and thereby become an “employer” subject to liability for delinquent contributions. Obviously Congress did not contemplate that.
Ill
The Fund says, however, that the difficulties to which we have adverted could be ameliorated by incorporating an “economic reality” test into the definition of “employer.” This would mean that individual liability would be imposed only when a corporate officer has a substantial ownership interest and has actually exercised operational control over a corporate matter underlying the statutory violation — here, nonpayment of pension contributions. The Fund asserts that congressional intent for such an outcome can be derived by analogizing ERISA to the Fair Labor Standards Act (FLSA), in connection with which the caselaw employs an economic reality test in determining liability for unpaid wages. The Fund notes that the two statutes have similar definitions of employer and that both are instances of remedial social legislation serving the purpose of protecting employee compensation — FLSA in regard to workers’ wages, and ERISA with respect to employee benefit plans. Because of the close resemblance of congressional purposes and statutory definitions, the Fund contends that FLSA caselaw interpreting employer liability should be followed under ERISA, and that corporate owner-officers should be held personally liable for overdue pension contributions just as they would be for unpaid wages under FLSA.
The Fund argues that while importation of the economic reality test into Title I of ERISA would seal Kracher’s liability, it would not result in automatic penetration of the corporate veil. Rather, individual liability would accrue only when the individual targeted has a substantial ownership interest in the corporation and actual control over matters precipitating nonpayment of pension contributions. We decline, however, the Fund’s invitation to travel the path it would lead us down.
First, and perhaps most significantly, there is no indication that Congress intended to incorporate FLSA caselaw into ERISA’s definition of “employer.” When ERISA was enacted in 1974, it defined “employer” exactly as it does today, but at that time it conferred no statutory remedy for delinquencies in contributing. A cause of action therefor did not become available under the Act until passage of the Mul-tiemployer Pension Plan Amendment Act of 1980 (MPPAA). It is impossible to read into a definition of “employer” adopted in 1974 any congressional purpose to specify essential elements of a statutory right of action for recovery of unpaid contributions that did not exist until 1980.
There is also a significant difference between the operation of ERISA and FLSA, respectively. ERISA does not require employers to provide pension plans; the obligation to do so, and to contribute to them, springs from a privately-made contract embodied in a plan or a collective bargaining agreement. FLSA, however, commands employers to pay specified wages. This fundamental deviation, together with the complete absence of evidence that Congress had in mind the interpretation urged upon us by the Fund, constrains us to reject the notion that FLSA caselaw should be assigned a role in the context of Title I of ERISA.
Even without analogy to FLSA, the Fund maintains, there is enough of a manifestation of congressional intent in the enactment of Section 515 to indicate that liability was to extend to dominant corporate owners and officers. The Fund attempts to brace this position by referring to Congress’ concern about delinquent contributions and their serious impact on the financial stability of employee pension funds. We find the argument unpersuasive. The legislative history discloses that Section 515 was added to ERISA to simplify litigation over unpaid contributions, not to expand the universe of potential defendants. The Senate sponsors of that provision stated that
[rjecourse available under current law for collecting delinquent contributions is insufficient and unnecessarily cumbersome and costly. Some simple collection actions brought by plan trustees have been converted into lengthy, costly, and complex litigation concerning claims and defenses unrelated to the employer’s promise and the plan’s entitlement to the contributions. This should not be the case.
Similarly, the staff of the Senate Committee on Labor and Human Resources explained the reason for amending ERISA by adoption of Section 515:
The public policy of this legislation to foster the preservation of the private multiemployer plan system mandates that provision be made to discourage delinquencies and simplify delinquency collection. The bill imposes a Federal statutory duty to contribute on employers that are already contractually obligated to make contributions to multi-em-ployer plans_ The intent of this section is to promote the prompt payment of contributions and assist plans in recovering the cost incurred in connection with delinquencies.
We are unable to equate these statements of congressional purpose with an indication of congressional intent to hold corporate owners and officers liable for corporate failure to remit contributions owing to employee pension plans. There is nothing in the legislative history that suggests that Congress meant to expand that liability beyond parties who in a plan or collective bargaining agreement obligated themselves to make those contributions. In this case, that party is the corporation itself.
IV
Limited liability is a hallmark of corporate law. Surely if Congress had decided to alter such a universal and time-honored concept, it would have signaled that resolve somehow in the legislative history. We may usefully recall what quite recently in Connors v. P & M Coal Co. we announced:
We find nothing in either the language or purpose of the MPPAA to justify so significant a compromise of the corporate principle of limited liability, nothing to suggest that Congress intended to subject owner-operators of a closely held corporation to personal liability merely because they actively participated in running the business. Acceptance of the district court’s “interest and control” test would not only subvert the major purpose of incorporation, but would discourage future participation in multiemployer pension plans — a result that is clearly contrary to one of MPPAA’s stated objectives.
Connors held that corporate owner-officers were not personally liable under the withdrawal liability provisions of ERISA. Nonetheless, though Connors involved Title IV withdrawal liability rather than Title I delinquent-contribution liability, the doctrine of individual nonliability for corporate debt poses the same limitation for each. Connors’ determination on the vitality of the doctrine is just as compelling here.
The same conclusion has been reached in sister circuits. The Third, in Solomon v. Klein, declared that it could “find nothing in the legislative history to indicate that Congress intended to impose a personal liability on a shareholder or a high-ranking officer of a corporation for ERISA contributions owed by the corporation.” Other circuits echo that view. As we said in Connors, abrogation of the fundamental principle of corporate limited liability will “require more than an expansive interpretation of a definition.” We hold that liability for delinquent pension contributions under Section 515 of ERISA does not extend to an individual corporate owner or officer.
The judgment of the District Court is
AFFIRMED.
. 29 U.S.C. §§ 1001 et seq. (1982).
. The Fund is a multiemployer employee pension benefit plan within the meaning of ERISA. Id. § 1002(2)(A)(i), 37(A) (1982).
. Id. § 1002(5).
. International Bhd. of Painters & Allied Trades Union & Indus. Pension Fund v. George A. Kracher, Inc., Civ. No. 85-3316 (D.D.C. May 28, 1985) (judgment), Record Excerpts 46.
. 29 U.S.C. § 1145 (1982).
. Massachusetts Laborers’ Health & Welfare Fund v. Starrett Paving Corp., 845 F.2d 23, 24 (1st Cir.1988) (emphasis added); Solomon v. Laranne Sportswear Corp., 648 F.Supp. 407, 409 (E.D.N.Y.1986).
. 29 U.S.C. § 1002(5) (1982).
. Id. § 1002(9).
. Brief for Appellant at 9.
. Id.
. S.Rep. No. 127, 93d Cong., 1st Sess. 18 (1973).
. See Combs v. Sun-Up Coal Co., 634 F.Supp. 13 (D.D.C.1985), which applied the statutory definition of employer in a withdrawal liability case. Combs posited an example that would reasonably fall within the quoted language. The court noted that in the garment industry a contractor is generally the common law employer of employees covered under its plan, but that a manufacturer or jobber dealing with the contractor often has the obligation under its own collective bargaining agreement to contribute to the plan on the basis of the contracted-for work. Id. at 15 n. 5. The statutory language is conducive to application to a separate business entity, but not to a corporate officer or shareholder.
. Brief for Appellant at 15-21.
. 29 U.S.C. §§ 201 et seq. (1982).
. See Donovan v. Agnew, 712 F.2d 1509 (1st Cir.1983); United States v. Stanley, 416 F.2d 317 (2d Cir.1969); Donovan v. Grim Hotel, Inc., 747 F.2d 966 (5th Cir.1984), cert. denied, 471 U.S. 1124, 105 S.Ct. 2654, 86 L.Ed.2d 272 (1985); Chambers Constr. Co. v. Mitchell, 233 F.2d 717 (8th Cir.1956).
. See Massachusetts State Carpenters Pension Fund v. Atlantic Diving Co., 635 F.Supp. 9 (D.Mass.1984); accord, Rubenstein v. Tri-State Transp., 646 F.Supp. 1 (D.Mass.1984).
. See Donovan v. Agnew, supra note 15, 712 F.2d at 514 (FLSA case) ("we review the liability of corporate officers with a significant ownership interest who had operational control of significant aspects of the corporation’s day to day functions, including compensation of employees, and who personally made decisions to continue operations despite financial adversity during the period of nonpayment”).
. Pub.L. No. 96-364, 94 Stat. 1208, 29 U.S.C. § 1001, et seq. (1982).
. Brief for Appellant at 12-15.
. 126 Cong.Rec. 23,288 (1980) (remarks of Sens. Williams and Javits); see also Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 86-87, 102 S.Ct. 851, 861, 70 L.Ed.2d 833, 846 (1982).
. Staff of Senate Committee on Labor and Human Resources, 96th Cong., 2d Sess., S. 1076—The Multi-Employer Pension Plan Amendments Act of 1980: Summary and Analysis of Consideration, 44 (Comm.Print Apr. 1980) (emphasis added).
. 255 U.S.App.D.C. 334, 801 F.2d 1373 (1986).
. Id. at 337, 801 F.2d at 1376.
. 770 F.2d 352 (3d Cir.1985).
. Id. at 354.
. Massachusetts Laborers’ Health & Welfare Fund v. Starrett Paving Corp., supra note 6; Operating Eng’rs Pension Trust v. Reed, 726 F.2d 513 (9th Cir.1984).
. 255 U.S.App.D.C. at 338, 801 F.2d at 1377.
. We stress again that this case involves no claim of alter ego or conduct that might result in the necessity to pierce the corporate veil.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? 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.
Rafael RIVERA FERNANDEZ, Plaintiff, Appellant, v. Carlos CHARDON, etc., et al., Defendants, Appellees.
No. 80-1237
United States Court of Appeals, First Circuit.
Argued Feb. 3, 1981.
Decided May 8, 1981.
Sheldon Nahmod, Chicago, 111., with whom Hiram R. Cancio, Harry R. Nadal-Arcelay, Jaime R. Nadal-Arcelay, Blanca I. Mera-Roure, Jesus R. Rabell-Mendez and Cancio, Nadal & Rivera, San Juan, P. R., were on briefs, for plaintiff, appellant, Rafael Rivera-Fernandez, Angel L. ArzonMendez, Ramon A. Vega Cruz, Laura L. Santos-Roa, Angel L. Allende-Velazquez, Evelyn Irizarry-Escobar, Enrique Diaz-Maldonado, Jose D. Nieves-Rivera, Aida L. Sanchez De Negron, Herminia Ortiz-Ortiz, José R. Munoz-Rivera, Eduardo Tarafa-Gonzalez, Gladys Rosado-Acevedo, Roberto Velazquez-Nieves, Sara Velazquez-Concepcion, Cecilio Alvarez-Plajas, Enrique Rosado-Alverio, Julia Martínez Vda. De Calderon, Saquia Azize-Mawad, Isaias Torres-Sanchez, Miguel Alvelo-Rodriguez, Irma L. Baldoni De Valencia, and Manuel Rosas-Lebron.
Roberto L. Cordova, San Juan, P. R., with whom Brown, Newsom & Cordova and Ines Equia Miranda, San Juan, P. R., were on brief, for defendants, appellees.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
This opinion disposes of appeals in the following additional cases: No. 80-1238, Angel L. Arzon Mendez v. Carlos Chardon, et al. No. 80-1245, Ramon A. Vega Cruz v. Carlos Chardon, et al. No. 80-1247, Laura L. Santos Roa v. Carlos Chardon, et al. No. 80-1249, Angel Luis Allende v. Carlos Chardon, et al. No. 80-1254, Evelyn Irizarry Escobar v. Carlos Chardon, et al. No. 80-1339, Enrique Diaz Maldonado v. Carlos Chardon, et al. No. 80-1340, Jose D. Nieves Rivera v. Carlos Chardon, et al. No. 80-1341, Aida L. Sanchez de Negron v. Carlos Chardon, et al. No. 80-1342, Herminia A. Ortiz-Ortiz v. Carlos Chardon, et al. No. 80-1343, Jose R. Munoz Rivera v. Carlos Chardon, et al. No. 80-1344, Eduardo Tarafa Gonzalez v. Carlos Chardon, et al. No. 80-1345, Gladys Rosado Acevedo v. Carlos Chardon, et al. No. 80-1392, Roberto Velazquez Nieves v. Carlos Chardon, et al. No. 80-1404, Sara Valezquez Concepcion v. Carlos Chardon, et al. No. 80-1506, Cecilio Alvarez Plajas v. Carlos Chardon, et al. No. 80-1507, Enrique Rosado Alverio v. Carlos Chardon, et al. No. 80-1508, Julia Martinez Vda de Calderon v. Carlos Chardon, et al. No. 80-1509, Saquia Azize Mawad v. Carlos Chardon, et al. 80-1510, Isaias Torres Sanchez v. Carlos Chardon, et al. No. 80-1511, Miguel Alvelo Rodriguez v. Carlos Chardon, et al. No. 80-1512, Irma I. Baldoni de Valencia v. Carlos Chardon, et al. No. 80-1513, Manuel Rosas Lebrón v. Carlos Chardon, et al.
CAMPBELL, Circuit Judge.
Each of these 23 cases raises the issue of when the statute of limitations began to run on an employee’s claim that he or she was wrongfully demoted or fired because of political affiliation: the precise question is whether the limitations period began upon receipt of advance notification of demotion or discharge, or whether it dated from the time the employee stopped working at the job from which he or she was removed.
The plaintiffs in these 23 cases were all employed during the 1976-1977 school year as non-tenured administrators in the Commonwealth of Puerto Rico Department of Education. The plaintiffs were all active members of the Popular Democratic Party which was in power in Puerto Rico in the fall of 1976. A gubernatorial election was held in that year, in which a candidate of the New Progressive Party was elected. In March 1977 the new governor appointed defendant Carlos Chardon as Assistant Secretary of Public Education in charge of personnel. Sometime between June 3 and June 17, 1977, each plaintiff received a letter advising him or her that “the appointment to the position you now occupy expires with the termination of the present school year.” The letters received by 20 of the plaintiffs indicated that they would be reinstated to tenured positions they had previously held as teachers or lower level administrators. The other three, who had not previously held tenured positions, were told that their employment with the Department would cease. Each of the 23 letters indicated a date, between June 30 and August 8, when the action would take effect. The plaintiffs responded, most within a few days of receiving the notice, by a letter to defendant stating that “I am not in agreement with your decision .... To this effect I have remitted copy of the same to the Puerto Rico Teachers Association so that said organization may instruct its Legal Division to take the necessary action.” The demotions and terminations all occurred as scheduled.
On June 19, 1978, one Jose Ortiz Rivera, another Department of Education employee who had suffered similar treatment, filed suit in the United States District Court for the District of Puerto Rico under 42 U.S.C. § 1983. Ortiz Rivera claimed that the action had been taken because of his political affiliation, in violation of the first and fourteenth amendments to the United States Constitution. He purported to represent a class of over 100 persons, including these 23 plaintiffs. Class certification was denied, and each of these plaintiffs then filed a separate complaint, making essentially the same substantive allegations. The district court dismissed all 23 complaints on the ground that they were barred by the one-year statute of limitations applicable to section 1983 actions under 31 L.P.R.A. § 5298(2).
On appeal, the parties are agreed that section 5298 is the applicable statute of limitations, and that the present actions were commenced, for limitations purposes, on June 19, 1978, when Ortiz Rivera filed his complaint. If the one-year limitations period began to run when plaintiffs received notice of demotion or discharge (in each case before June 19, 1977), the current actions are untimely (unless the statute was interrupted, see note 2, infra). However, if the limitations period began later, when the demotion or discharge took effect (in each case after June 19, 1977), the present cases are not time barred. We hold that plaintiffs’ cause of action accrued, and the limitations period began, on the date when the demotions or discharges took effect.
Since section 1983 fixes no limitations period of its own, federal courts in section 1983 actions apply the limitations period provided by state law for the most closely analogous type of action, along with any state tolling rules. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). When the cause of action accrues, however, is a question of federal law. Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir. 1980); Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975); Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). Cf. Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947) (federal law determines when cause of action accrued in suit by receiver of national bank to collect assessment from stockholder); Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 474, 85 L.Ed. 605 (1940) (same). In the instant cases, the district court held that a cause of action accrues “when plaintiff knows or has reason to know of the injury which is the basis of the action.” The court found that the plaintiffs knew of the harm when they received the letters more than one year before the suit was filed. The court relied on two federal cases, United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (medical malpractice claim against Veterans Administration under Federal Tort Claims Act) and Mitchell v. Hendricks, 431 F.Supp. 1295 (E.D.Pa.1977) (section 1983 claim by prisoner for injury resulting from denial of medical treatment). In both of these cases, the plaintiff had no reason to know of the physical harm underlying his claim until sometime after it had occurred. The rule of accrual at the time of notice therefore served to extend, rather than to shorten, the limitations period. Similarly, a rule based on notice was applied to extend the limitations period in Lavallee v. Listi, 611 F.2d 1129 (5th Cir. 1980) (prisoner injured by negligently performed medical procedure; limitations period began only when prisoner knew or should have known that procedure was the cause of his continuing symptoms); Briley v. State of California, 564 F.2d 849 (9th Cir. 1977) (section 1983 action for fraudulently induced plea bargain; limitations period began only when plaintiff discovered fraud or could have done so); Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975) (section 1983 action for forced sterilization; limitations period began only when plaintiff learned that the operation was permanent); and Young v. Clinchfield Railroad, 288 F.2d 499 (4th Cir. 1961) (Federal Employer’s Liability Act action for disease resulting from exposure to toxic material; limitations period began only when disease diagnosed).
We are aware of only one case which has applied this rule prospectively, Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979). In that case a nontenured university instructor was notified in May 1970 that her contract would not be renewed at the end of the 1970-71 school year. Citing Cox v. Stanton and Young v. Clinchfield Railroad, the court held that the instructor’s cause of action under section 1983 had accrued when she received notice, even though her termination had not yet occurred. The court did not discuss the policies underlying the notice rule, nor did it explicitly consider whether those policies should properly be applied where notice precedes the challenged action.
In Egleston v. State University College at Geneseo, 2 Cir., 535 F.2d 752 (1976), the Second Circuit took the opposite view on similar facts. The plaintiff, a non-tenured faculty member, was notified in May 1972 that her contract, due to expire in June 1973, would not be renewed. In her suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the court held that June 1973 was the crucial date, since her “primary grievance ... is rooted in her discharge,” and “Appellant’s discharge was consummated only when she left the university — or, possibly, when a replacement was hired.” Id., at 755.
Four other circuits have indicated agreement with Egleston, although in none of these cases was the same issue directly presented for decision. Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir. 1980) (due process claim under section 1983 by discharged instructor); Kryzewski v. Metropolitan Government, 584 F.2d 802, 806 (6th Cir. 1978) (sex discrimination action under Title VII by discharged policewoman); Bonham v. Dresser Industries, 569 F.2d 187, 192 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978) (age discrimination claim under 29 U.S.C. § 623); Moses v. Falstaff, 525 F.2d 92, 95 (8th Cir. 1975) (age discrimination claim under section 623). See also Greene v. Carter Carburator Co., 532 F.2d 125, 127 (8th Cir. 1976) (Title VII claim).
We think the court in Bireline, and the district court in the present cases, misconstrued the notice rule. In our view, that rule has developed as a safeguard against unfairness to plaintiffs who, through no fault of their own, are unaware of their injuries until after the tortious act occurs. In such cases, the rule operates to postpone the running of the limitations period in order to give the plaintiffs a reasonable time in which to act once they have learned that they have suffered harm. The notice rule does not, however, alter the general rule that no cause of action exists until an unlawful act has occurred. Tort law has not traditionally recognized a doctrine of “anticipatory breach” comparable to that in contracts.
The issue of when the cause of action accrues depends, we believe, on when the alleged unlawful act occurred. It is necessary, therefore, to identify the unlawful act. Where, as here, the claim is that an employment decision was made for a prohibited reason, it could be argued that the unlawful act was the making of the decision, rather than the implementation of it. But we think such a refined rule would depart too sharply from the understanding of ordinary people. The plaintiffs in these cases are complaining that they were demoted or discharged, not merely that a decision was made on a particular occasion, of which notice was then given, to take such action against them. Had the decision been made but not yet implemented, equitable relief might have been sought to forestall irreparable harm, but it is unlikely that plaintiffs would have sought or received damages until or unless the threatened action was consummated. The alleged unlawful act was revocable, incomplete and, for practical purposes, nonexistent until the actual demotion or discharge.
Moreover, important policies of judicial administration favor a rule based on the date of implementation. While the date of notice in the present cases was easily established, other cases would surely arise in which resolution of that question would require lengthy proceedings. Notice might be oral, or it might be ambiguously phrased, or it might be transmitted by one whose authority is subject to question. We see no value in requiring courts and parties to devote their resources to litigating the adequacy of notice, when the date of the action itself is easily determined. In saying this, we are aware that the Supreme Court has declined to reach out for an easily identified date when that date bears no genuine relationship to the act of which plaintiff complains. Compare Delaware State College v. Ricks, - U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (date of termination not sufficiently connected to the challenged denial of tenure), discussed infra. But where, as here, the date that is most closely related to the plaintiffs’ claim is also the date most easily identified, we think concern for adoption of the rule that best promotes certainty and eliminates litigation over technical niceties is well warranted.
After the district court’s decision of these cases, the Supreme Court decided Delaware State College v. Ricks, supra. Defendants contend that that decision compels affirmance here. We disagree. Ricks, a black Liberian instructor, was informed in June 1974 that the faculty of Delaware State College had voted to deny him tenure. In accordance with the school’s usual practice, he was thereafter granted a one-year terminal contract, after which his employment with the school ended. In his suit alleging discrimination on the basis of national origin, Ricks contended that the limitations period under Title VII began to run only when he left the university in June 1975. The Supreme Court rejected this argument and concluded that Ricks’ cause of action had accrued when he was notified of the denial of tenure, in June 1974, and that his suit was therefore barred. The Court focussed on the allegations of Ricks’ complaint, which it found to charge discrimination in the denial of tenure, not in the discharge or any other subsequent action. The Court held that the denial of tenure was the “unlawful employment practice” within the meaning of Title VII, and that the date of that action was therefore the beginning of the limitations period. Three justices, in dissent, accepted the majority’s analysis (/. e., that denial of tenure, not discharge, was the unlawful employment practice) but placed the denial of tenure at a later date because of the later decision of an internal grievance board. Justice Stevens, alone among the justices, took the view that denial of tenure is analogous to advance notice of discharge. Based on that analogy, he argued that the date of discharge should control.
Refusal of the Ricks majority to adopt Justice Stevens’ analogy does not seem to us in any way to repudiate the precedents to which he sought to draw an analogy. The majority held merely that the denial of tenure in the academic setting is fundamentally different from a notice of discharge; it is a distinct and separate employment action, with important and far-reaching consequences for all aspects of the employee’s status. While denial of tenure is often followed by discharge, it is not always, and the consequences of denial of tenure are not dependent on its being followed by discharge. The Court found that Ricks’ complaint was based on the denial of tenure, which was effective immediately; it followed, therefore, that the limitations period began as soon as Ricks received notice of that action. Here, plaintiffs complain of discharges and demotions, not of any distinct event that occurred on an earlier date. The letters notifying them of the planned actions were notice and nothing more; they were not actions in themselves comparable to the denial of tenure.
To be sure, as we have said, one can argue that the notices themselves mirror the allegedly discriminatory motives of the defendants. One can also argue that a suit for injunctive relief might lie after receipt of notice (or, indeed, even before) to forestall threatened irreparable harm. Still plaintiffs’ quarrel is with their demotions and discharges — not with the notices themselves. No actual harm is done until the threatened action is consummated. Until then, the act which is the central focus of the plaintiffs’ claim remains incomplete. Such was not the situation in Ricks, where the denial of tenure was itself the completed act being challenged.
We conclude, therefore, that Ricks is inapplicable to these cases, and that the district court erred in dismissing the complaints.
The judgments of the district court are vacated and the cases are remanded for further proceedings not inconsistent herewith.
. The statute reads, in applicable part,
“The following prescribe in one year:
(D ...
(2) Actions to demand civil liability for grave insults or calumny, and for obligations arising from the fault or negligence in section 5141 of this title, from the time the aggrieved person has knowledge thereof.”
. This decision makes it unnecessary to reach plaintiffs’ alternative argument that the running of the limitations period was interrupted by their letters of protest, which they characterize as “extra-judicial claims” within 31 L.P. R.A. § 5303.
. Bireline is cited with apparent approval in Jackson v. Hayakawa, 605 F.2d 1121, 1127 (9th Cir. 1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980), but it is unclear whether this aspect of the holding in Bireline was actually applied in Jackson; the court there focussed on the date of notice, but the facts as stated in the opinion give the impression that the plaintiff had stopped working before he received notice of his termination.
. The Second Circuit followed this holding in Noble v. University of Rochester, 535 F.2d 756 (1976).
. We note that the Puerto Rico statute of limitations provides that actions prescribe within one year “from the time the aggrieved person has knowledge thereof.” See note 1, supra. No Puerto Rico authorities have been called to our attention, however, which suggest that this rule is meant to apply in cases, such as the present, where notice has been given in anticipation of the actual harm. Thus, while federal law would be controlling on accrual in any event, we are aware of nothing inconsistent with our analysis in the Puerto Rico statute and precedents. Indeed, the general federal accrual rule appears no different from that of Puerto Rico.
. We are not now faced with the question whether a mere threat of discharge or demotion, intended to chill the exercise of first amendment rights, would in itself give rise to a cause of action. Compare Elrod v. Bums, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Plaintiffs here complain not of a mere threat, but of consummated action.
. We do not read the complaints in these cases as charging a “continuing violation” in which the decision and the act were two consecutive elements. See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980). Rather, in our view each complaint charges a single act of discrimination which was consummated on the date that each plaintiff was discharged or demoted.
. Were the decision separated from its implementation by a greater time period than is involved here, and were the decision-making process more formal and definitive than appears here, the analogy to a tenure decision would be closer. But at least where the action taken follows quite soon after receipt of the notice, as happened here, we view the date of implementation as determinative for limitations purposes.
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 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Appellant, v. James REECE, Appellee.
No. 5053.
United States Court of Appeals Tenth Circuit.
May 25, 1955.
Rehearing Denied June 22, 1955.
Edgar Fenton, Oklahoma City, Okl. (Elliott C. Fenton, Oklahoma City, Okl., on the brief), for appellant.
Jack Cummins, Lawton, Okl. (Bill Logan, W. W. Godlove and Jack Brock, Lawton, on the brief), for appellee.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
MURRAH, Circuit Judge.
In this garnishment action, Appellee James Reece seeks to impose liability for personal property damage under an automobile liability insurance policy issued by Appellant, The Fidelity and Casualty Company of New York to Harry Poston, dba Poston Construction Company.
Reece sustained damages from the negligent operation of a truck engaged by Poston to haul gravel in the course of his construction business for a specified sum per load. In a suit to recover the damages, Reece obtained a default judgment against the owner of the truck, Ralph Hudson, and his operator, Carl Creswell, and after executions thereon were returned unsatisfied, he instituted this garnishment proceedings against Appellant insurance company. He contends that by the comprehensive terms of the “omnibus endorsement” to the insurance policy, Appellant extended the protection of its policy, to cover the liability of the truck owner and his operator as unnamed assureds within a specifically defined group in the endorsement.
In rendering judgment in garnishment, the trial court construed the policy as covering the truck owned by Ralph Hudson and operated by Carl Creswell, and accordingly held that the insurance company was liable for damages to the plaintiff caused by the negligent operation of the truck.
By the terms of the policy, the Appellant insurance company insured Harry Poston dba Poston Construction Company for property damage “caused by accident and arising out of the ownership, maintenance or use of any automobile.” The face of the policy showed that the coverage extended to owned, non-owned and hired automobiles. An owned automobile was defined as one owned by the named insured. A hired automobile was defined as one used under contract in behalf of, or loaned to, the named insured provided that such automobile “is not owned by or registered in the name of (a) the named insured or (b) an executive officer thereof or (c) an employee or agent of the named insured who is granted an operating allowance of any sort for the use of such automobile.” And a non-owned automobile was defined as “any other automobile.”
The word “insured” was defined in “Insuring Agreement III” of the policy to include “the named insured and also * * * any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured.” And it was then provided that, “The insurance with respect to any person or organization other than the named insured does not apply: * * * (d) with respect to any hired automobile, to the owner thereof or any employee of such owner; * *.” But the endorsement to the insurance policy entitled “Use of Other Automobiles” in effect provides that the definition of the word “insured” in “Insuring Agreement III” of the policy is inapplicable to any automobiles other than those owned by the named insured. And for the purposes of the endorsement, the contracting parties redefined the word “insured” to include:
“(a) Each individual named below, if a relative of and a resident in the household of the named insured or of any partner in or executive officer of the named insured, or if an executive officer or other employee of the named insured, and
“(b) the spouse of such an individual, if a resident of the same household, and
“(c) any person with respect to his presence in such other automobile with such named individual or spouse, but not his operation of the automobile, and any person or organization legally responsible for the use of the automobile by such named individual or spouse.”
Harry Poston is the only “individual named below” in the endorsement.
The endorsement specifically excluded from its coverage:
“(a) * * * any automobile owned by such named individual or a member of his household other than a private chauffeur or domestic servant of the named individual or spouse;
“(b) * * * any automobile while used in the business or occupation of the named individual or spouse, unless operated or occupied by such named individual, spouse, chauffeur or servant; * *
Appellant earnestly contends that by specific provisions in the endorsement, coverage on automobiles not owned by Harry Poston is expressly limited to Harry Poston and to his spouse.
Appellee’s argument is to the effect that the inclusion in the endorsement definition of “insured” of a group defined as “any person or organization legally responsible for the use of the automobile by such named individual or spouse” brought the truck owner and driver within the intended coverage of the policy. His reasoning is to the effect that Harry Poston was “using” the truck within the broad definition of the term, through its operation in his behalf by his servant or employee, Ralph Hudson, as distinguished from the more narrow term “operating”. See Annotation 160 A.L.R. 1195, 1204, and Samuels v. American Automobile Insurance Co., 10 Cir., 150 F.2d 221, 160 A.L.R. 1191. And he seeks to avoid the exclusionary effect of the endorsement relative to automobiles used in the business of the named insured “unless operated or occupied by the named individual, spouse, chauffeur or servant” by invoking the determination of the state court in the negligence action to the effect that in the operation of the truck, the truck owner and operator were employees and servants of Harry Poston. The determination of the state court on that point is said to be invulnerable to collateral attack in this proceedings and must therefore be taken as true in construing the coverage under the policy.
Parties may contract to extend or limit insurance liability risks as they see fit, and the issue involved here — the scope of liability insurance — is determined from the contractual intent and objectives of the parties as expressed in the policy and its endorsement. 7 Appleman, Insurance Law and Practice, 1942 Ed., Section 7481; 45 C.J.S., Insurance, §§ 827 and 829; Bennett v. Preferred Accident Ins. Co. of New York, 10 Cir., 192 F.2d 748. Doubtful or ambiguous provisions defining or limiting the scope of the risk must weigh against the insurer. Great American Ins. Co. of New York v. O. K. Packing Co., 202 Okl. 231, 211 P.2d 1014; Great American Indemnity Co. v. Deatherage, 175 Okl. 28, 52 P.2d 827; Commercial Standard Fire & Marine Co. v. Beard Well Service Co., 10 Cir., 210 F.2d 560; Tri-State Casualty Ins. Co. v. Loper, 10 Cir., 204 F.2d 557; Hawkeye Casualty Co. v. Western Underwriter’s Ass’n, Inc., D.C., 53 F.Supp. 256; 10 M.J., Insurance, Sec. 25; 29 Am.Jur., Insurance, Sec. 166; Collins v. New York Casualty Co., W.Va., 82 S.E.2d 288, with cited cases. But the extent or limit of the risks, if unambiguous, must be accepted in their plain, ordinary and popular sense, and liabilities clearly not contemplated under a fair and reasonable interpretation of the contract with its omnibus provisions may not be imposed upon the contracting insurer. 45 C.J.S., Insurance, §§ 827 and 829; Farm Bureau Mut. Automobile Ins. Co. v. Daniel, 4 Cir., 104 F.2d 477; United States Fidelity & Guaranty Co. v. Briscoe, 205 Okl. 618, 239 P.2d 754.
Insuring Agreement III of the policy is a conventional omnibus clause extending the coverage of the policy beyond the named insured to include third persons in the use of owned or hired automobiles, and in the use of non-owned automobiles in the business of the named assured with the permission of the assured. Given its usual and ordinary interpretation, we should have no hesitancy in saying that it was designed to and did cover the liability of the truck owner and his driver while engaged in hauling gravel for the named insured, Harry Poston, on a per load basis. Such construction is entirely consistent with the purposes and design of such omnibus provisions. 45 C.J.S., Insurance, § 829; Annotation 160 A.L.R. 1195; Annotation 126 A.L.R. 546; Annotation 106 A. L.R. 1251; Annotation 72 A.L.R. 1375.
But the parties did not stop there in their definition of “insured”. As we have seen, the policy contained an endorsement, also a part of the insurance contract, providing that the omnibus clause is inapplicable to “any other automobile” than those owned by the named insured, and redefining the term “insured” for the purposes of the endorsement.
By language too clear for doubt, the contracting parties marked the boundaries of coverage for non-owned automobiles used in the business of the named assured by specifying that they must be operated or occupied by the named assured, his spouse or chauffeur or servant. The meaning of the term “insured” was restricted to include only Harry Poston as the individual specifically named in the endorsement, his spouse, if a resident of the same household, and any person with respect to his presence in the non-owned automobile with the named assured or his spouse. But it is clearly provided that such third person is not covered with respect to his operation of the non-owned automobile.
The suggestion that the truck owner and his driver were covered by the extension of the definition of “insured” to include any person or organization legally responsible for the “use” of the automobile by the named assured cannot be said to be a reasonable interpretation of the intended coverage of the endorsement. While it is true that the term “used by the assured” may by contractual arrangement include the operation or use by a third person for the benefit of the assured, Annotation 160 A.L.R. 1195, 1204, like any other contractual provision it is subject to interpretation in context. It is clear that the parties here intended, by specific definition in the exclusions of the endorsement, to limit coverage to the more narrow term “operation or occupation” by the named assured when the automobile was being used in the insured’s business.
And in context, it is obvious that the parties used the word “servant” as a permissible operator of a non-owned automobile in the business of the assured within the limited meaning of a personal or domestic servant within the household of the insured rather than in the agency sense of that term as alleged by Appellee to bring the truck owner and his operator within the provided coverage.
It must be concluded, therefore, that the endorsement, instead of extending the coverage of the main policy, was intended to revoke the omnibus provisions covering the use of non-owned automobiles in the business of the assured, and to limit the coverage to the named assured or his spouse in the operation of non-owned automobiles for business purposes. By definition, therefore, the truck owner and his employee do not come within the coverage of the policy.
In view of this decision, it is unnecessary to consider the question of notice.
The judgment is reversed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_casetyp1_2-3-2 | 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 "civil rights - voting rights, race discrimination, sex discrimination".
BARCELO et al. v. SALDANA, Executive Secretary of Porto Rico.
No. 2610.
Circuit Court of Appeals, First Circuit.
Dec. 23, 1931.
O. B. Frazer, of New York City (Antonio R. Bareelo, Miguel Guerra Mondragon, Manuel A. Martinez-Davila, and Angel Arroyo Rivera, all of San Juan, Porto Rieo, on the brief), for appellants.
William C. Rigby and Fred W. Llewellyn, both of Washington, D. C. (James R. Beverley, Atty. Gen., of Porto Rico-, and Blanton Winship, Judge Advocate General, of Washington, D. C., of counsel), for appellee.
Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.
WILSON, Circuit Judge.
This is an appeal from a decree of the Supreme Court of Porto Rico denying the petition of the appellants for a writ of mandamus to compel the defendant, who is the Executive Secretary of Porto Rico, to register the names of the appellants as nominees of the Union Party of Porto Rieo, respectively, for the office of Resident Commissioner of Porto Rieo at Washington, and as a member of the Board of Review and Equalization of Porto Rieo.
The first issue raised before this court is on a motion to dismiss the appeal for lack of jurisdiction under paragraph 4, § 128 (a), of the Judicial Code, 28 USCA § 225 (a), on the ground that no federal question was involved in the decision of the Supreme Court, and that the value in controversy, exclusive of interests and costs, does not exceed the sum of $5,000.
It is not urged by counsel for the appellants that jurisdiction exists on the second ground. They rest their case on the question of jurisdiction on the ground that a federal question is involved, in that, if the decision of the Supreme Court is permitted to stand, it would, in violation of the Constitution of the United States and section 2 of the Organic Act of Porto Rieo, impair the validity of a .contract entered into between two political parties, and would deprive the people of Porto Rieo of equal rights under the law, and would unreasonably deprive them of the privilege of suffrage, which was extended to them under section 35 of the Organic Act, as well as under sections 25, 2.6, 27, 28, and 36.
The main facts out of which the issues arise in this case, both as to jurisdiction, and on the merits, are as follows: Since 1904 -the Partido Union de Puerto Rico, or the Union Party of Porto Rieo, which will hereinafter he referred to as the Unionist Party> has been the majority party in Porto Rieo. From 1904 to 1924 another political party designated as the Partido Republicano Puertorriqueño, or the Republican Party of Porto Rico, which will hereinafter be referred to as the Republican party, has contested the elections with the Unionist Party. In 1906 a third party appeared, which, without printing its Spanish title, may be referred to as the Socialist Party, but which had few followers until 1917. In 1920 it polled nearly 60,000 votes.
For some reason, which does not appear in the record, the Unionist Party and the Republican Party decided to form an alliance in the election of 1924, which they did by calling conventions of their respective parties in May of that year, each of which adopted a resolution to the effect that the said parties should form a political alliance or coalition under the name of the Porto Rican Alliance, which “shall assume and exercise all the powers and prerogatives appertaining to the two historical parties of Porto Rieo called the Porto Rieo Union Party and the Porto Rican Republican Party.”
Arrangements were agreed upon for the management of the affairs of the Alliance, the Central Committees of the two parties to remain in recess “for the duration of the coalition.”
As a result of this coalition, there was a split in the Republican Party and a new or fourth party was organized, which styled itself the Constitucional Historice Party, which will hereinafter be referred to as the Constitutional Party.
In the general election of 1924, as a result of the coalition, the Unionist party and the Republican Party agreed on candidates and each party nominated the same persons for the several offices to be filled, but they were grouped under the separate party names and insignia on the ballot in that election, which they could do under the Election and Registration Law of Porto Rieo as it then stood, which provided for a form of the Australian ballot.
The Socialist Party and the new Constitutional Party also took a leaf out of the book of the Alliance and nominated the same candidate for Resident Commissioner at Washington.
The result of this arrangement was that the Unionist Party in the election of 1924 still remained the majority parfy and the Aliianee elected their candidates by a substantial majority.
In May, 1927 (Laws 1927, p. 394, No. 1), sections 40 and 42 of the Election and Registration Law of Porto Rico were both amended, as counsel for appellants claim, as a result of complaints, that, since the Unionist Party and the Republican Party each cast more votes in prior elections than the Socialist Party, they had all the important election officials at the polls under the law. Whether the reason advanced by counsel was the real reason for the amendments, it is unnecessary to determine. The returns from the 1924 election, however, disclose that the Repute lican Party has lost its standing as the second party numerically, owing to the split in its ranks due to the Alliance, and the Socialist Party has assumed that position. In any event, the Legislature in 1927, Aet No. 1, adopted as an amendment to section 40, a provision common in many of the states, preventing two or more parties from fusing by each nominating the same person for the same office. Section 40 as amended now reads as follows:
“Section 40. No person shall be a candidate for more than one office, nor for the same office on two or more different tickets. If he has been nominated for two or more offices on one or more tickets or for the same office on two or more tickets, he must select the office and tieket on which he prefers his name to appear as a candidate. In the event of a candidate failing to make such selection prior to twelve o’clock noon on September 30th, his name shall be certified on the ticket and for the office for which he was first nominated. Should it be impossible to determine the office or tieket for which he was first chosen, then his name shall be certified for the office or tickets first named in the petition or certificate nominating him.” (The essential parts of the amendment are indicated by the italics.)
To section 42, which regulates the use of party names and insignia on the ballots and how they may be changed, the amendment of 1927 added a provision, with the evident purpose of permitting the alliance entered into between the Unionist Party and the Republican Party in 1924 to continue, if they so elected, but under a new arrangement as to the grouping of candidates, viz. instead of each member of the allianee grouping the candidate of both parties under its own party name, which could no longer be done under section 40 as amended, an allianee or coalition of parties was permitted to adopt a new general name and insigne, containing the insignia of each party of the allianee and register the candidates of the allianee in one group under the general name and insigne so adopted.
The amendment to section 42 reads as follows:
“Provided, That such parties as at the previous election went to the polls as an allianee or coalition and registered separate tickets in which the same candidates either totally or in part appeared for the same offices, may file in the office of the Executive Secretary of Porto Rico on petition of the central directing organization of said alliance or coalition, a general name and an insigne for said alliance or coalition containing the insigne of each of the allied or coalition parties, and underneath it one sole tieket shall be registered under the prescriptions of section 40 of the Election and Registration Law as hereby amended; Provided, further, That any alliance or coalition, going to the polls under one name or insigne as determined in the foregoing proviso, shall be considered as one single party with the same prerogatives, rights and duties as under the law pertained to the parties composing it, and hereafter it shall be considered as a principal or organized party according to the number of votes obtained thereby at the election, as herein provided.”
In March, 1928, the Directive Committee of the Allianee, claiming to represent both members of the Alliance, voted to continue the allianee and coalition and proceeded to nominate candidates for the several offices, and certified the list to the Executive Secretary, together with the party name to be placed at the head of their group of candidates on the ballot and the insigne, which also included the insignia of the members of the Allianee. The name adopted was the Alianza Puertorriqueño, or the Porto Rican Allianee, and the insignia adopted was “an evenly balanced pair of scales bearing the name Alianza Puertorriqueño and embodying also the names of the two historical parties: ‘Union de Puerto Rico’ and ‘Republicano Puertorriqueño’ and their, respective insignia: the two hands and the eagle.”
Under date of August 28, 1928, a certificate was also forwarded to the Executive Secretary, stating that in a General Assembly of the Alianza Puertorriqueño held in the Municipal Theatre of San Juan on August 26,1928, it was resolved as f ollows:
“B. To ratify the resolution of the Directive Committee of the Porto Riean Aliianee of March 13, 1928, communicated to the Executive Secretary of Porto Rico and by virtue thereof the Porto Riean Alliance will go to the polls under a single ticket and insigne already adopted and registered with the official name of the Porto Rican Alliance of the Porto Rican Union party and the Porto Riean Republican party, the historical names of the two allied parties together with their symbols, personalities, rights and prerogatives thus remaining as the patrimony of The Allianee.
“That the Directive Committee of the Porto Rican Alliance, at its meeting of August 28, 1928, resolved to use as the abbreviated name of its collectivity that of Porto Riean Alliance and under that abbreviated name shall file in the office of the Executive Secretary of Porto Rico all of the certificates of conventions.”
Nominations for the several offices were thereafter sent in by the Allianee.
The two other parties, the Socialist and the Constitutional Party, were not to be outdone, and they also entered into an allianee, as they were permitted to do under the amendment to section 42, having voted for the same candidate for one office in 1924, and they too nominated a single ticket, with the result that there was, apparently, more defection from either the old Union or Republican Party, or both, and the result was not satisfactory to some of the leaders of the old Unionist Party, as the Porto Riean Alliance only won the election by less than 10,000 votes, over the Socialist-Constitutional Allianee.
The extent of this dissatisfaction and alarm was exposed by one of the appellants in a fervent speech delivered in a convention in 1929, purporting to be held by the old Unionist Party, in which he said of the political situation, among other things: “And if this situation is to continue, it may be foretold that the nearly fatal result attained by us in the last election, would be duplicated and centuplicated until the Union de Puerto Rico should suffer the greatest of defeats, thus disappearing, with her from Porto Rico, the highest exponent of patriotism, dignity and pride.”
It was natural, in the face of possible defeat at the next election, that disagreements among the leaders should arise, and the leaders of the old Unionist Party then took action to effect a withdrawal from the Alliance, in which they were apparently supported by a very considerable majority of the active members of the old Union Party, though there were those who insisted on preserving the Allianee and fighting out the battles under its name and insigne.
However, a majority of the members of the old Central Committee of the Unionist Party met and discussed the question and voted to call a convention of the Unionist Party. A convention was held and a resolution passed to withdraw from the Alliance. While this convention was being held, notices were sent out for an assemblage of the Porto Riean Allianee. A meeting was held at which some of those formerly belonging to the Unionist Party were present, and it was voted by this assemblage to continue the alliance, and retain the party name and insigne adopted in 1928. Each party, however, claims that the convention held by the other party, at which these actions were taken, was a pseudo convention.
Under these circumstances and under section 42 as interpreted by the Attorney General of Porto Rico, the Executive Secretary refused to register the names of the appellants as candidates under the name of the old Union .Party with its former insigne of the clasped hands, for the election to be held in 1932, on the ground that the word “Union” and the insigne of the clasped hands were a part of the name and insigne of the Porto Riean Allianee. A petition for writ of mandamus was therefore filed by the appellants to compel the Executive Secretary to so register their names.
A majority of the Supreme Court of Porto Rico sustained the action of the Executive Secretary and held that the allianee of the two old parties formed in 1924, having voluntarily acted under the amendment to section 42 in 1928, became a new political party with a distinct name and insigne; and that the appellants, while they and their followers, if they chose, could adopt a new name and new insigne, could not use any part of the name or insigne of the Porto Riean Allianee which still claimed it and the right to use it.
Erom the decree of the Supreme Court the petitioners appealed to this court, and as reasons of appeal have set forth fourteen assignments of error. An analysis of the assignments, however, will disclose that with one exception they either assert findings and rulings by the court below, which are not substantiated by the record, or relate to rulings of general law or interpretations of a local statute as applied to local affairs, or involve political rights that are not protected either under the Federal Constitution or the Organic Act of Porto Rico, and hence involve no federal question.
The only real ground on which the appellants can base their claim that a federal question is involved in the rulings of the court below is set out in the eleventh assignment as follows:
“That the construction given by the court below to the aforesaid sections 49 and 42, and specially to section 49 of the Election and Registration Law as amended in 1927, renders the said statutes in conflict with the Organic Act of Porto Rico, sections 25, 26, 34, 35, 36 and 37 thereof, in connection with the right of suffrage, inasmuch as it impairs and defeats the free combination of voters through political coalition or fusion tickets.”
We think the inclusion here of section 34 of the Organic Act must have been an inadvertence. No question was raised below under this section; the court below made no ruling under it; and there immediately follows in the assignment, after the enumeration of the several sections referred to, these significant words, “in connection with the right of suffrage.” Section 34 has no relation to suffrage as have each of the other sections enumerated. Counsel, however, have, urged in their brief here that the amendments to sections 49 and 42 in 1927 are invalid for want of proper specifications in the title of the act, but we think without merit, as the title was sufficient under the rulings of the Supreme court and of this court. Posados v. Warner, Barnes & Co., 279 U. S. 349, 344, 49 S. Ct. 333, 73 L. Ed. 729; Martinez v. People of Porto Rico (C. C. A.) 46 F.(2d) 427.
As to whether this assignment raises a substantial federal question may be a debatable one. As counsel for appellee point out, the mere reference to an article of the United States Constitution or a federal statute does not raise a federal question; and a federal question essential to give jurisdiction to an appellate federal court must be substantial and necessarily involved in the opinion of the court below. New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 344-346, 22 S. Ct. 691, 46 L. Ed. 936; Heitler v. United States, 260 U. S. 438, 439, 43 S. Ct. 185, 67 L. Ed. 338; Equitable Life Assurance Society v. Brown, 187 U. S. 398, 311, 23 S. Ct. 123, 47 L. Ed. 190.
However, we are inclined to the view that the court below in its opinion ruled on the question of whether section 42 contravened , any of the sections of the Organic Act relating to suffrage, and since the Organic Act; unlike a State Constitution, is a federal statute, the appellants are entitled to be heard here on that issue.
Counsel for appellants persistently refer to section 49 as being unconstitutional, and insist it is so linked with section 42 that, if section 49 violates the Organic Act, section 42 must also be held to do so, or at least be rendered invalid because both were included in the same act. The connection betweeln the two sections, however, is not sufficiently clear, we think, to require them to stand or fall together. Nor do we think section 49 was involved in the question of whether the Union Party could or did withdraw from the Alliance in 1929, and retain its old prerogatives as to name and insigne. The two sections relate to entirely different subjects — one to the grouping of candidates; the other to the adoption of party names and party insignia to be placed on the ballot over the party nominations and the effect of joining in an alliance or coalition. The reference in the amendment to section 42 to the prescriptions in section 49 does not necessarily render section 42 dependent on section 49. The reference was entirely superfluous. Every party, whether formed by the coalition of two parties or not, was subject to the provisions of section 49, as well as to the other provisions of the Election Act.
Neither is the fact that they were coupled together in one act conclusive of their interdependence. They are two separate sections of one general act which govern registrations, nominations and elections in Porto Rico.
Counsel for the appellants have assumed that the Supreme Court in its majority opinion held that section 49 was constitutional, but a careful examination of the opinion discloses no ruling on this section either one way or the other. In 'fact, the court expressly states that it does not rule upon it. The court evidently did not consider section 49 as involved in the issues before it.
However, the amendment to section 49 has now been so often held to be a proper regulation of the privilege of suffrage under the Australian ballot system of voting that we think the Supreme Court might well have held it did not violate any of the provisions of the Organic Act. See People v. Czarnecki, 266 Ill. 372, 107 N. E. 625; People v. Czarnecki, 256 Ill. 320, 100 N. E. 283; Todd v. Kalamazoo, etc., Election Com’rs, 104 Mich. 474, 62 N. W. 564, 64 N. W. 496, 29 L. R. A. 330; Helme v. Lenawee County Election Com’rs, 149 Mich. 390, 113 N. W. 6, 119 Am. St. Rep. 681, 12 Ann. Cas. 473; State v. Coburn, 260 Mo. 177, 168 S. W. 956; State v. Wileman, 49 Mont. 436, 143 P. 565; State v. Porter, 13 N. D. 406, 100 N. W. 1080, 67 L. R. A. 473, 3 Ann. Cas. 794; State v. Bode, 55 Ohio St. 224, 45 N. E. 195, 34 L. R. A. 498, 60 Am. St. Rep. 696; Hayes v. Ross, 41 Utah, 580, 127 P. 340; Payne v. Hodgson, 34 Utah, 269, 97 P. 132; State v. King County Superior Ct., 60 Wash. 370, 111 P. 233, 140 Am. St. Rep. 925; State v. Anderson, 100 Wis. 523, 76 N. W. 482, 42 L. R. A. 239.
The only state courts holding to the contrary are California in a divided opinion, which state has since rendered the opinion of the court ineffective by a constitutional amendment; and New York, which has followed the practice of years standing of electing judges by the same nominations by the two leading parties.
By the same token we think there is nothing in the court’s interpretation of section 42 that is in contravention of any provision of the Organic Act, even if it were erroneous. It relates solely to the rights of political parties and in no way unreasonably interferes with the right of the electors voting for any candidate they see fit, whose name appears on the ballot, any more than the election law did before the amendment was made. The free expression of the right of suffrage is no more interfered with as to an elector who cannot read or write finder a law allowing his party to join with another party and group their candidates under one name and insigne, than it is under a law permitting two parties to group the same candidates under two party names and insigne. The illiterate elector votes for the same candidates in either case, and exercises just as much intelligence and freedom of choice in voting. It may interfere with the plans of political leaders, but it does not interfere with the organization of as many political parties as the people of Porto Rico see fit to establish, or the exercise of the rights of suffrage by inserting the name or names of any candidate an elector desires to vote for in his party column.
The only other question raised by the assignments of error is whether the Supreme Court of Porto Rico in its majority opinion correctly interpreted section 42 as applied to the alliance of the Union and Republican Party. Unless section 42 is held to contravene the Organic Act, this is purely a local issue. While this section may be susceptible of the interpretation placed on it by the appellants, it is not so clear that it is the only construction as to warrant this court in rejecting the construction by the Supreme Court of Porto Rico, which is not without foundation, even though we might even 'adopt the other as a court of first instance. Cardona v. Quinones, 240 U. S. 83, 88, 36 S. Ct. 346, 60 L. Ed. 538; Graham v. O’Ferral (C. C. A.) 248 F. 10; Trujillo & Mercado v. Succession of Rodriguez (C. C. A.) 233 F. 208, 212; Succession of Garcia v. Hernandez (C. C. A.) 270 F. 455, 458.
The suggestion may also be pertinent as bearing on the correctness of the result arrived at by the court below, that, while the sponsors of the amendment provided in detail for the method of joining two parties in an alliance, it made no provision for any method of disentangling an alliance of political parties once made under section 42. A partnership is hardly an analogous organization.
In any event, the organization and control of political parties in Porto Rico, in so far as any justiciable questions are involved, that do not concern the Organic Act, present questions which are of a purely local nature, of which this court has no jurisdiction on this appeal.
The judgment of the Supreme Court of Porto Rico is affirmed with costs.
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
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.
GRAY & BARASH, Inc., v. LUCKENBACH S. S. CO. et al.
(Circuit Court of Appeals, Ninth Circuit.
October 12, 1925.)
No. 4404.
Appeal and error <©=»1011 (I) — Findings on conflicting testimony not disturbed.
Findings of trial court on conflicting evidence will not be disturbed on appeal, except for plain and manifest error.
Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.
Libel by Gray & Barash, Tne., against the Luekenbach Steamship Company, wherein the International Stevedoring Company was brought in as party defendant on petition of the Steamship Company. From a decree dismissing the libel, libelant appeals.
Affirmed.
Palmer & Askran and Murphy & Kumm, all of Seattle, Wash., for appellant.
Chas. F. Munday, of Seattle, Wash., for appellee International Stevedoring Co.
Bronson, Robinson & Jones, of Seattle, Wash., and Andros, Hengstler & Dorr, of San Francisco, Cal., fqr appellee Luekenbach S. S. Co.
Before GILBERT, RUDKIN, and MeCAMANT, Circuit Judges.
RUDKIN, Circuit Judge.
This is an appeal from a decree dismissing a libel in admiralty. Briefly stated, the facts are as follows :
In October, 1922, the appellant purchased one 1,250-kilowatt General Electric steam turbo generator and base from the Tiffany FJeetrie Company, of New Haven, Conn. It then arranged with the respondent, Luekenbach Steamship Company, to carry the generator and base by water from the port of Philadelphia to the port of Seattle. The generator and base were incased in a substantial wooden crate, and for the purpose of handling and loading the seller, at the instance of the buyer, placed two substantial wire cables around the crate, of sufficient strength to lift and handle it. These cables were fastened by lapping and doubling back and fastening the ends by means of U-shaped clamps. The clamps were threaded on the end, and the cable held in place and tightened by means of nuts screwed down over a movable bar. The erato was loaded onto the train at New Haven, and removed from the train to the dock, and from the dock to the vessel at Philadelphia, by means of these cables. Upon arrival of the vessel at Seattle, the cables were again used by the stevedoring company in unloading from the vessel, but when the crate was raised to a distance of about 10 feet from the hold one of the cables slipped through the clamp and the crate fell to the bottom of the vessel, causing damage to the amount of upwards of $3,000.
The appellant thereupon filed its libel against the steamship company to recover the damages thus sustained, charging two grounds of negligence: First, failure and neglect to use safe and sufficient appliances; and, second, failure and neglect to tighten the clamps used in fastening the cables and to keep them tight. The stevedoring company was later brought in on petition of the steamship company. On the final hearing the court below found that the cables placed around the crate containing the generator and base were used in unloading at Seattle at the instance and request of the appellant, and that the stevedoring company exercised due care and caution in their use. These findings are supported by competent testimony, and the rule is universal that findings of the trial court, based on conflicting testimony taken in open court, will not be disturbed on appeal, except for plain and manifest error.
A careful examination of the record in this case discloses no such error, and the decree is therefore- 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_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.
Ellene Z. ROSENSTEEL, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 8204.
Circuit Court of Appeals, Third Circuit.
Argued March 16, 1943.
Decided March 22, 1943.
Norman D. Keller, of Pittsburgh, Pa. (W. A. Seifert, of Pittsburgh, Pa., A. Lloyd Adams, of Johnstown, Pa. and Reed, Smith, Shaw & McClay, of Pittsburgh, Pa., on the brief), for petitioner.
Ray A. Brown, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key añd J. Louis Monarch, Sp. Assts. to Atty. Gen., on the brief), for respondent.
Before BIGGS, MARIS, and JONES, Circuit Judges.
PER CURIAM.
The decision of the United States Board of Tax Appeals is affirmed for the reasons stated in its opinion, 46 B.T.A. 1184.
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_r_fed | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MUTH et al. v. UNITED STATES.
No. 3693.
Circuit Court of Appeals, Fourth Circuit.
June 25, 1935.
Warren E. Miller, of Washington, D. C. (Horace T. Smith, of Baltimore, Md., on the brief), for appellants.
Fendall Marbury, Sp. Asst, to the Atty. Gen. (Bernard J. Flynn, U. S. Atty., of Baltimore, Md., and Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., on the brief), for the United States.
Before FARKER, NORTHCOTT, and SOPER, Circuit Judges.
PER CURIAM.
This is a war risk insurance case in which verdict was directed for the government. Premiums paid kept the policy in force to June 1, 1919, and insured died in September of that year. When the evidence is viewed in the light most favorable to plaintiff, as it must be on motion for directed verdict, it shows that during the life of the policy insured was suffering from general paralysis of the insane, and that this disease was of such character that he could not engage with reasonable regularity in any substantially gainful occupation without inaterial injury to his health. It appears, also, that the disability was of permanent character, and that the condition of insured from the time of his discharge from the Army in April, 1919, grew progressively worse until his death, which was suicidal, in September following. There was evidence that insured did considerable work between the time of his discharge and his death; hut, in view of the testimony that he was not able to work without material injury to his health, this fact should not preclude recovery. Carter v. U. S. (C. C. A. 4th) 49 F.(2d) 221. The jury should have been permitted to say, in the light of all of the evidence, whether he became totally and permanently disabled within the meaning of the policy while it was in force. U. S. v. Coward (C. C A. 4th) 76 F.(2d) 875; Odom v. U. S. (C. C. A. 4th) 70 F.(2d) 104; U. S. v. Flippence (C. C. A. 10th) 72 F.(2d) 611. The exception to the admission of the declaration of the insured upon his discharge, filed with the War Department’s records, is without merit; but, for the error in directing verdict for the government, the judgment appealed from must be reversed.
Reversed.
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_numappel | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
PARK ROAD HOUSING COMPANY, Inc., Appellant, v. ADAS ISRAEL HEBREW CONGREGATION et al., Appellees.
No. 12245.
United States Court of Appeals District of Columbia Circuit.
Argued May 9, 1955.
Decided June 16, 1955.
Petition for Rehearing Denied July 13, 1955.
Messrs. Thurman L. Dodson and E. Lewis Ferrell, Washington, D. C., for appellant.
Mr. Leon M. Shinberg, Washington, D. C., with whom Mr. Martin S. Becker, Washington, D. C., was on the brief, for appellee Adas Israel Hebrew Congregation.
Mr. Jacob N. Halper, Washington, D. C., with whom Mr. Ernest F. Coleman, Washington, D. C., was on the brief, for appellee Bishop L. H. Hemingway and certain other appellees.
Before EDGERTON, PRETTYMAN, and WILBUR K. MILLER, Circuit Judges.
PER CURIAM.
The plaintiff real estate broker appeals from a judgment for the defendants in an action for a commission. Count I of the complaint asks judgment against the seller for the amount of the commission which the seller paid to a different broker, the Colonial Investment Company. Count II asks judgment for the same amount, against both the seller and the purchasers, as damages caused by collusion between them to deprive the plaintiff of the commission.
“To become entitled to a commission, a broker must find a purchaser who is able and willing to buy on the identical terms offered by the seller. * * * It is true that the plaintiff first introduced the eventual purchaser to the defendant, but this circumstance alone, though significant, is not determinative, in the present circumstances.” Battle v. Price, 63 App.D.C. 326, 327, 72 F.2d 377, 378. The eventual purchaser was not able and willing to buy on the terms offered by the seller until the Colonial Investment Company suggested means of financing the purchase. The evidence supports the District Court’s finding that there was no collusion.
Affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_applfrom | D | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Plaintiff-Appellee, v. Michael CROWELL, Defendant-Appellant.
No. 92-5682.
United States Court of Appeals, Sixth Circuit.
Argued March 4, 1993.
Decided June 18, 1993.
Harwell G. Davis, III, Asst. U.S. Atty. (argued and briefed), Jerry G. Cunningham, U.S. Atty., Chattanooga, TN, for plaintiff-appellee.
John C. Cavett, Jr. (argued and briefed), Jahn, Jahn, Cavett & Maddux, Chattanooga, TN, for defendant-appellant.
Before: MERRITT, Chief Judge, and JONES and NELSON, Circuit Judges.
MERRITT, Chief Judge.
Defendant Michael Crowell appeals his conviction by guilty plea and sentence for possession with intent to distribute and distribution of cocaine, and for conspiracy. He challenges the district court’s grant of the government s motion to withdraw from a plea agreement, the district court’s finding that defendant is a “career offender” under the Sentencing Guidelines, U.S.S.G. § 4B1.1, and the district court’s refusal to reduce his offense level for acceptance of responsibility, U.S.S.G. § 3E1.1. We vacate the judgment and sentence and remand the case to the district court for reconsideration of these issues.
I.
In July, 1991, defendant Crowell was arrested in Georgia and charged with cocaine trafficking. In August, while out on bond, Crowell contacted an undercover agent with the Tennessee Bureau of Investigation about the possibility of exchanging cocaine for marijuana. Federal and state agents conducted a sting operation in Tennessee in October, 1991. They arrested Crowell, along with two other men allegedly involved in the proposed drug transaction, Steven Rogers and James Gemelas. Crowell and Rogers were charged with conspiracy to possess with intent to distribute and conspiracy to distribute cocaine.
II.
On January 6, 1992, Crowell and the government executed a plea agreement and filed it with the court. As part of this agreement Crowell promised to “cooperate fully, truthfully, and voluntarily” with the government. Shortly after signing the agreement, Crowell met with government agents and answered questions about the drug transaction for which he was arrested in Tennessee and the transaction that resulted in his Georgia arrest. On January 8, just two days after filing the plea agreement with the court, the government filed a motion to withdraw, alleging that Crowell had violated the agreement.
Crowell had told government agents that he did not know Steven Rogers prior to October, 1991. The government discovered, however, that when Crowell was arrested in Georgia in July, 1991, Georgia authorities had confiscated a pocket computer containing Rogers’ name and telephone numbers. The government was also suspicious that Crowell had lied about the circumstances surrounding his Georgia arrest.
On a government motion to withdraw from a plea agreement the burden of proof is on the government to establish by a preponderance of the evidence a substantial breach of the agreement. United States v. Tilley, 964 F.2d 66, 71 (1st Cir.1992). In this case, the government failed to offer any testimony or documentary evidence that Crowell violated the plea agreement. The only evidence presented at the hearing was the testimony of Tennessee Bureau of Investigation Agent Copeland. This testimony did not tend to establish that Crowell violated the plea agreement, and the government does not argue otherwise.
The government does assert that its allegation of a breach amounted to a proffer of evidence to which the defendant failed to object, and that under United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987), the district court was permitted to accept the government’s allegations as true. This argument is unavailing. In Lee the defendant “waiv[ed] his right to a hearing” by conceding that the government would be able to produce testimony supporting its version of the facts. Id. In this case the defense disputed the government’s version of the facts and insisted that Crowell had not breached the plea agreement.
Nevertheless, the district court granted the government’s motion. Commenting upon Agent Copeland’s opinion that Crowell had lied to the government, the court stated:
Now, he may be right and he may be wrong about that, but I believe that is his legitimately held opinion, and I suspect he is right, but I don’t know that, of course. I don’t make a determination about that at this point.... So, I am going to allow the government to withdraw from the Plea Agreement, just as I would allow either of the defendants to withdraw their guilty plea or to withdraw from the Plea Agreement if they did not feel that, legitimately, that the government was living up to the government’s side of the Plea Agreement.
This statement indicates that the court thought it could grant the government’s motion to withdraw at the court’s discretion, or based upon the good faith belief of government agents. As discussed above, a court cannot allow the government to withdraw from a plea agreement because of a defendant’s breach of the agreement without proof by a preponderance of the evidence of a substantial breach. See Tilley, 964 F.2d at 71.
Although the court later made a written finding that Crowell had violated the plea agreement, the court’s misstatement of the law during the hearing was likely a factor in the government’s failure to offer evidence of a breach of the agreement. Depending upon how one interprets the record, the court either accepted an improper proffer of evidence or lulled the government into thinking that evidence of a breach was unnecessary. In either case the proper disposition is a remand for a determination of whether Cro-well in fact violated the plea agreement by failing to “cooperate fully, truthfully, and voluntarily” with the government.
III.
Crowell also challenges the district court’s finding that he is a “career offender” under the Sentencing Guidelines, U.S.S.G. § 4B1.1. Section 4B1.1 provides in part as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions, of either a crime of violence or a controlled substance offense.
Section 4B1.2(1) defines “crime of violence” as follows:
(1) The term “crime of violence” means any offense under federal or state law punishable by imprisonment for a term exceeding one year that&emdash;
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another ...
The court’s finding that Crowell is a “career offender” is based upon two previous Colorado convictions, one for aggravated robbery and one for aggravated motor vehicle theft. Crowell admits that his aggravated robbery conviction is a “crime of violence” under the Guidelines, but argues that his conviction for aggravated motor vehicle theft is not.
In 1981, Crowell was indicted in Colorado for robbery and aggravated motor vehicle theft; he was also charged with “crime of violence” for using a knife in the robbery. He pled guilty to the motor vehicle count, and the other counts were dismissed. The robbery count charged Crowell with taking money, a car, and other personal property. The aggravated motor vehicle theft count charged Crowell with taking a taxi “without authorization and by threat and deception.” A probation officer testified at the sentencing hearing that he had contacted the El Paso County District Attorney’s Office and been told that the automobile Crowell was charged with taking in the robbery - count was the same car he was charged with taking in the motor vehicle count. The district court found that the motor vehicle conviction involved the threat of physical force, relying upon the wording of the indictment and the testimony that the same car was involved in all three counts.
A sentencing court may consider all relevant evidence, whether or not such evidence would be admissible at trial, as long as it has sufficient indicia of reliability. U.S.S.G. § 6A1.3. Further, the government need only prove facts used in sentencing determinations by a preponderance of the evidence. United States v. Range, 982 F.2d 196,198 (6th Cir.1992). Despite these liberal rules, the government failed to establish that Crowell is a career offender under the Sentencing Guidelines.
The general rule is that an indictment “cannot be used as evidence against the person indicted.” In re Oliver, 338 U.S. 257, 265, 68 S.Ct. 499, 503, 92 L.Ed. 682 (1948); see also United States v. Gotti, 641 F.Supp. 283, 288 (E.D.N.Y.1986) (“government may offer the indictment of Charles not to prove the facts it states but to show he was under indictment”). At sentencing, the Guidelines exclude any evidence that does not have “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3. This Court has stated that “due process requires ... some evidentiary basis beyond mere allegation in an indictment” and that “[t]his due process limit on the evidence a sentencing court may properly consider is recognized in the commentary to § 6A1.3.” United States v. Smith, 887 F.2d 104, 108 (6th Cir.1989). The Seventh Circuit has stated that “ ‘[sjuffi-cient indicia of reliability’ might also be described as ‘an “evidentiary basis beyond mere allegation in the indictment.” ’ ” United States v. Coonce, 961 F.2d 1268, 1281 (7th Cir.1992) (citations omitted). Because Cro-well was not convicted on the Colorado robbery count or the crime of violence count, the indictment’s references to the use of a knife in those counts cannot be used as evidence against him.
When an indictment does result in a conviction the indictment may be used as evidence of facts essential to sustain the judgment, Gotti, 641 F.Supp. at 288-89, but not as evidence that all conduct charged in the indictment occurred. The wording of the aggravated motor vehicle count in the indictment is not evidence that Crowell committed that offense by the “use, attempted use, or threatened use of physical force,” because such violence is not essential to an aggravate ed motor vehicle theft conviction in Colorado. The Colorado Aggravated Motor Vehicle Theft statute states that:
A person commits aggravated motor vehicle theft in the first degree if he knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception ...
Colo.Rev.Stat. § 18-4-409(2). It is possible to violate this statute without even threatening physical force. For example, in People v. White, 679 P.2d 602 (Colo.1984) (en banc), the Colorado Supreme Court considered the case of a defendant convicted of first degree aggravated motor vehicle theft in which the sentencing court suspended four years of the sentence, in part because “it was a nonviolent crime.” Id. at 603.
The government did not present sufficient evidence for the district court to determine by a preponderance of the evidence that Cro-well is a “career offender” under the Sentencing Guidelines. Therefore, if on remand the district court determines that Crowell violated the terms of his plea agreement, the court should also grant Crowell a new sentencing hearing in which the court can reexamine whether he qualifies as a “career offender.”
IV.
This court cannot consider Crowell’s claim that he is entitled to a reduction in sentence for acceptance of responsibility without a finding from the district court on the question of Crowell’s cooperation with the government. If, therefore, resentencing is necessary, the sentencing court should reexamine this issue as well.
V.
For the foregoing reasons the judgment and sentence are VACATED and the case is REMANDED to the district court for further proceedings not inconsistent with this opinion.
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_appel2_1_3 | 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 second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
Harry LEWIS and Sylvia Baker, Plaintiffs-Appellees/Cross-Appellants, v. William H. ANDERSON, Walt Disney Productions, Defendants-Appellants/Cross-Appellees.
Nos. 81-5693, 81-5735.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 8, 1982.
Decided Nov. 22, 1982.
Seth M. Hufstedler, Hufstedler, Miller, Carlson & Beardsley, Los Angeles, Cal., for Walt Disney.
Bertram Bronzaft, New York City, argued, for Baker; Ronald M. McQuoid, Murchison & Cumming, Los Angeles, Cal., Gar-win, Bronzaft & Gerstein, New York City, on brief.
Appeal from the United States District Court for the Central District of California.
Before WRIGHT, TANG and SCHROEDER, Circuit Judges.
TANG, Circuit Judge:
These appeals are from a district court order granting $110,552.73 in attorneys’ fees and costs to plaintiff Lewis in a shareholder derivative and securities law class action.
The facts underlying this appeal are thoroughly detailed in the district court’s opinion. Lewis v. Anderson, 509 F.Supp. 232, 234-35 (C.D.Cal.1981). In 1973 Disney adopted a stock option plan for key employees. In 1974, the Stock Option Committee of Disney’s board of directors, without the approval of the shareholders, granted to the 1973 option grantees additional stock options at much lower prices. In 1974, Lewis filed this derivative action challenging the validity of the stock option grants, contending, inter alia, that the Stock Option Committee members breached their fiduciary duties to Disney’s shareholders in making the grants and violated the federal securities law by not disclosing the 1974 changes in the stock option program.
Shortly after the action was filed, Disney’s board of directors created a Special Litigation Committee to investigate the charges in Lewis’ complaint and to decide whether it was in Disney’s best interest to pursue the litigation against the defendant board members and option grantees. After a preliminary investigation, the Committee recommended that the board of directors seek shareholder ratification of the Stock Option Committee’s authority to make the 1974 grant. The board followed the recommendation, and on February 9, 1977, Disney’s shareholders voted to approve the Stock Option Committee’s action. Based upon this ratification, the Special Litigation Committee decided that further prosecution of the Lewis litigation was not in the best interests of Disney or its shareholders.
Pursuant to the Committee’s decision, the district court in 1977 granted partial summary judgment against Lewis, holding that the action would be dismissed under the business judgment rule if, after a mini-trial, the court determined that the Special Litigation Committee had acted independently and in good faith. This judgment was affirmed on appeal. Lewis v. Anderson, 615 F.2d 778 (9th Cir.1979), cert. denied, 449 U.S. 869, 101 S.Ct. 206, 66 L.Ed.2d 89 (1980).
Concluding that he could not demonstrate that the Special Litigation Committee had not acted in good faith, Lewis moved in December 1980 to dismiss his action. Lewis also petitioned the court to award him $381,210.36 in attorneys’ fees and expenses against Disney, contending that his lawsuit had conferred substantial benefits to both the company and its shareholders. On March 11, 1981, the district court granted Lewis’ fee petition in part. It ruled that the submission of the 1974 stock option grants for shareholder approval was a substantial benefit to Disney and its shareholders and attributable to Lewis’ lawsuit. It therefore held that Lewis was entitled to attorneys’ fees for time expended prior to the 1977 shareholder ratification. After a hearing on the appropriate amount to be awarded, the court awarded Lewis $105,-971.25 in attorneys’ fees and $4,581.48 for expenses. Both Lewis and Disney appeal the award.
The main issue on appeal is whether the district court erred in concluding that federal and California law permit an attorneys’ fee award to Lewis for the corporate benefit of shareholder ratification. Assuming that a fee should have been awarded, did the district court abuse its discretion by awarding a fee that was excessive, as Disney argues, or insufficient, as Lewis argues. We affirm the district court.
A district court’s award of attorneys’ fees may not be reversed absent an abuse of discretion. Kerr v. Screen Extras Guild, 526 F.2d 67, 69 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Any fact findings underlying the award are subject to review under the clearly erroneous standard. Morola v. Atlantic Richfield Co., 493 F.2d 292, 295 (3d Cir.1974). The legal principles the court relies upon to inform its discretion, however, are subject to de novo review. See id.
The award here was based upon the substantial benefit doctrine. Under both federal and California law, the doctrine permits a plaintiff to recover attorneys’ fees if his action has conferred a substantial benefit upon a class represented by the defendant. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 394-96, 90 S.Ct. 616, 626-27, 24 L.Ed.2d 593 (1970); Reiser v. Del Monte Properties Co., 605 F.2d 1135, 1139 (9th Cir.1979); D’Amico v. Board of Medical Examiners, 11 Cal.3d 1, 25, 520 P.2d 10, 28, 112 Cal.Rptr. 786, 804 (1974).
Disney argues that California law governs here because the benefit of shareholder ratification pertains more to Lewis’ state law claims than to his federal securities law claims. Disney is technically correct. If the plaintiff’s relief derives from a state law cause of action, any entitlement to attorneys’ fees must also derive from state law. Kabatoff v. Safeco Insurance Co., 627 F.2d 207, 210 (9th Cir.1980). On the other hand, Lewis seeks credit for some benefits attributable only to Lewis’s federal securities claims, in which case federal law would apply. See generally Reiser, 605 F.2d 1135, 1137-1140 (discussing federal law on attorneys’ fees).
The district court found that federal and California law were indistinguishable with respect to the substantial benefit doctrine. We agree. The California courts have relied primarily upon federal precedent in developing a state law version of the doctrine. Fletcher v. A.J. Industries, Inc., 266 Cal. App.2d 313, 323, 72 Cal.Rptr. 146, 152 (1968). Jutkowitz v. Bourns, Inc., 118 Cal. App.3d 102, 112, 173 Cal.Rptr. 248, 254 (1981). Moreover, neither party has identified any significant difference between California and federal law in applying the doctrine. Therefore we need not decide which law governs. Kabatoff, 627 F.2d at 209. Substantial Benefit
The district court based its fee award to Lewis on the ground that Lewis’ action prompted Disney to seek shareholder ratification of the 1974 stock option grants and that ratification was a substantial benefit to Disney and its shareholders.
Disney contends that the award is contrary to federal and California interpretations of the substantial benefit doctrine because Lewis’ litigation did not “succeed.” Disney concedes that neither federal nor California law requires a plaintiff to obtain judgment as a pre-condition for fees. It acknowledges that both federal and California law permit a fee recovery when a substantial benefit arises from a settlement rather than a judgment. See United Operating Co. v. Karnes, 482 F.Supp. 1029 (S.D. N.Y.1980); Fletcher v. A.J. Industries, Inc., 266 Cal.App.2d at 324, 72 Cal.Rptr. at 153. It also concedes that federal law permits a fee award if a benefit arises from corporate remedial action that moots the plaintiff’s claim. See Reiser v. Del Monte Properties Co., 605 F.2d 1135, 1140 n. 4 (9th Cir.1979); Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir.1974), cert. denied, 422 U.S. 1048, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975); Kahan v. Rosenstiel, 424 F.2d 161, 167 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970). Disney claims, however, that this authority does not apply here because Lewis’ suit resulted in a voluntary dismissal rather than its being settled or mooted.
The unifying principle of these decisions is that even if a plaintiff does not ultimately prevail, attorneys’ fees are nonetheless awardable if his action creates a substantial benefit. This standard is satisfied here. Although no settlement occurred and the shareholder ratification did not technically moot Lewis’ action, Disney’s success in obtaining shareholder ratification effectively remedied and, in a broad sense, mooted the complaint’s claim that the 1974 stock option grants were invalid for lack of shareholder approval. The ultimate fate of the action itself does not determine whether Disney’s shareholders should share the cost of obtaining the benefit resulting from Lewis’s action.
Aside from the requirement of establishing a substantial benefit, courts have imposed only the additional requirement that a plaintiff must demonstrate that his complaint was “meritorious.” See, e.g., Kahan, 424 F.2d at 167. This requirement is met if the plaintiff’s complaint has sufficient merit to survive a motion to dismiss on the pleadings. Id. This standard was satisfied. Lewis’ complaint withstood Disney’s motion for summary judgment. Moreover, the district court found, and Disney does not dispute, that Lewis would probably have prevailed on the merits had Disney not obtained shareholder ratification. Lewis, 509 F.Supp. at 238.
Disney also contends that shareholder ratification is too ephemeral a benefit to permit a fee award under California law. It relies primarily upon the California Supreme Court decision in Woodland Hills Residents Ass’n, Inc. v. City Council, 23 Cal.3d 917, 945, 593 P.2d 200, 216, 154 Cal.Rptr. 503, 519 (1979), which states that a plaintiff may recover attorney’s fees under the substantial benefit doctrine if the non-pecuniary benefit conferred is “concrete and clearly substantial.” Disney argues that the benefit fails to meet this test.
Woodland Hills does not preclude a fee award here. The district court concluded that shareholder ratification was a substantial benefit because it vindicated Disney’s shareholder’s right to be consulted on major management issues and raised the standards of fiduciary relationships within Disney. Lewis, 509 F.Supp. at 238. While less tangible than the recovery of money damages, Fletcher v. A.J. Industries, 266 Cal.App.2d 313, 324, 72 Cal.Rptr. 146, 153 (1968), held that this type of “corporate therapeutics” is sufficiently beneficial to a corporation and its shareholders to warrant an attorneys’ fee award. Woodland Hills does not overrule Fletcher’s rule or result. Rather, Woodland Hills cites Fletcher approvingly as a case that satisfies the “concrete and clearly substantial” standard. Woodland Hills, 23 Cal.3d at 946, 593 P.2d at 216, 154 Cal.Rptr. at 519.
Disney argues that the benefit in Fletcher was more “substantial and concrete” than the benefit conferred here. The plaintiff in Fletcher succeeded in permanently changing the corporation’s management procedures and in creating an arbitration forum to assess money damages against several of the corporation’s officers. In contrast, Disney notes, the shareholder ratification here produced neither long-lasting changes in corporate procedure nor any monetary recovery.
We reject this distinction. Fletcher’s holding was not based on the narrow ground that fees are awarded only if longstanding procedural changes are instituted or if a monetary recovery is made. Instead, Fletcher endorsed a rule permitting fee recovery when important shareholder rights are successfully asserted:
The final question in the present case is whether the benefits realized by the corporation were sufficiently “substantial” to warrant the award. To find that they were, the trial court need not determine that abuses existed in the corporate management, and that the action corrected them. It will suffice if the court finds, upon proper evidence, that the results of the action “maintain the health of the corporation and raise the standards of ‘fiduciary relationships and of other economic behavior,’ ” or “prevents) an abuse which would be prejudicial to the rights and interests of the corporation or affect the enjoyment or protection of an essential right to the stockholder’s interest.”
Fletcher, 266 Cal.App.2d at 324, 72 Cal.Rptr. at 153 (quoting Bosch v. Meeker Cooperative Light and Power Ass’n. 257 Minn. 362, 366-67, 101 N.W.2d 423, 426-27 (1960)).
Lewis contends that it should be reimbursed for attorneys’ fees and expenses for the period after the February 9, 1977 shareholder ratification. The substantial benefit conferred by Lewis’ action was the shareholder ratification. Because the post-ratification activities did not result in corporate or shareholder benefit, these fees and expenses were properly denied.
Disney contends that the district court should not have awarded fees for all time expended until the shareholder ratification. Ratification resulted from the totality of Lewis’ effort prior to the ratification. All specific claims in Lewis’ complaint related to the charge that the 1974 stock option grants were invalid without the approval of the shareholders.
Having considered both parties’ objections to the amount of the award, we conclude that the district court did not abuse its discretion. Manhart v. City of Los Angeles, 652 F.2d 904, 907-08 (9th Cir.1981).
AFFIRMED.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_procedur | B | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES v. SILVERTON.
No. 4671.
United States Court of Appeals First Circuit. ■
Dec. 24, 1952.
Melvin Richter, Attorney, Department of Justice, Washington, D. C. (Holmes Bald-ridge, Asst. Atty. Gen., George F. Garrity, U. S. Atty., and Edward F. McLaughlin, Jr., Asst. U. S. Atty., Boston, Mass., and Paul A. Sweeney and George F. Foley, Attorneys, Department of Justice, Washington, D. C., on brief), for appellant.
David R. Berg, Springfield, Mass., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.
The United States brought suit in the court below against a war surplus purchaser for the balance due on his purchase of certain scrap webbing. Defendant filed his answer, denying liability; asserting that the invitation to bid on scrap webbing was a misrepresentation, because “the goods received by him were not such as the general trade recognizes as scrap webbing and were not free of metal”; and making counterclaim against the United States for “the loss he has sustained due to the misrepresentation by the plaintiff.” Plaintiff’s answer to this counterclaim denied liability thereon, relying upon the terms of the bid contract as calling for a sale of the surplus material “as is”, with no warranty or representation by the government of any kind, express or implied.
Defendant Silverton is in the waste material business in Holyoke, Massachusetts. In November, 1945, he received from the War Department an invitation to bid on some surplus material in Camp Blanding, Florida. The invitation to bid listed a large number of items under appropriate generic headings such as “Textile, Cotton”, “Textiles,- Woolen”, and “Paper”. Under the heading “Textile, Cotton”, appeared item “79-A, Webbing, scrap, mixed (nrfau) 40000 Lb.”
The bid form contained the following clauses material here:
“5. Inspection. Bidders are invited and urged to inspect the property to be sold prior to submitting bids. Property will be available for inspection at the time specified in the Invitation. No labor will be furnished for such purpose. In no case will failure to inspect be considered ground for a claim.
“6. Sale of Property ‘As Is’. Unless otherwise specified, all property is sold ‘as is’; the Government makes no guaranty, warranty or representation, express or implied, as to the kind, size, weight, quality, character, description or condition of any kind of the property, or its fitness for any use or purpose; this is not a sale by sample.”
Defendant was an experienced purchaser of war surplus material, familiar with the provisions of the bid contract here used. Without inspecting the material listed under item 79-A, or writing to some correspondent in Camp Blanding, Florida, to make the inspection for him, or making any inquiry from the camp salvage officer as to the condition of the goods, he submitted a bid of 2.51 cents per lb. on this item. In December, 1945, the War Department accepted his bid. The defendant made payment of $1,004.00, which was the bid price on the basis of 40,000 lbs., and gave the salvage officer instructions to- ship the material direct to the J. A. Manning Paper Company at Troy, New York, to whom the defendant had contracted to resell the goods. Actually the material purchased under item 79-A weighed 45,600 lbs., and this quantity was shipped in a carload lot, as directed. There is no doubt that under the terms of the bid contract the listed weight of 40,000 lb§. was to be treated as merely approximate, and the buyer was bound to pay at the -bid price for any amount in excess of 40,000 lbs. up to fifty per cent of the estimated quantity. Hence the successful bidder, if there were no- other difficulty in the case, owed an additional $140.56 on the contract price, which was the amount the United States sued for in its present complaint.
The carload shipment consisted of a loose, miscellaneous assortment of army equipment, such as canteen covers, leggings, cartridge belts, bandoleers, gas masks, haversacks, etc., mostly with pieces of metal attached, such as metal buckles on the cartridge belts .and metal hooks on the leggings.
When the carload arrived at the plant of J. A. Manning Paper Company they rejected the shipment and, according to the defendant, called him up to inform him “it wasn’t scrap webbing at all, it wasn’t anything like what I had been shipping them.” In his testimony, the defendant explained that he put in his bid on “Webbing, scrap, mixed” in reliance upon the definite trade usage in the waste material business ascribing to that phrase the meaning that the webbing is free of metal components; that he purchased the material for resale for the purpose of conversion into fiber for paper-making, for which purpose the webbing had to be free of metal; that at the amount he bid for the material, the cost of removing the metal parts would have been prohibitive.
' After attempting unsuccessfully to resell tlie carload lot to another customer, the Spaulding Fibre Company, he had the shipment rerouted to his plant in Holyoke, where he personally examined it for the first time. After that, the defendant called up the salvage officer at Camp Blanding, explained his difficulty, and asked what he should do about it, and the officer told him to write him a letter. It does not appear that the defendant at this time notified the government that he rejected the shipment as not complying with the contract, or that there was any demand upon the government to retake the goods and refusal of the government so to do.' Shortly afterwards the defendant resold the shipment to one Bel-sky, a wholesale scrap dealer, at one-half cent per lb., or a total of $228.00.
In his memorandum opinion the district judge found as a fact, in accordance with the defendant’s testimony, that the term “scrap webbing mixed” as used in the salvage material trade “signifies cotton textile webbing without metal or metal parts attached thereto”; and further found, in spite of the exculpatory clauses of the contract, that the government had committed a breach of contract in that “the material shipped- was not that which plaintiff contracted to sell and defendant agreed to buy.” In the course of the trial the judge expressed the view that the situation before him was like ordering apples and getting oranges. He gave judgment for the defendant on the complaint by the United States, and gave an affirmative judgment for $2,228.08, plus interest, against the United States on the defendant’s counterclaim.
It seems to us clear that when, under the circumstances above related, the defendant, with knowledge of the alleged defect in the goods shipped, exercised the rights of ownership by offering them for sale to Spaulding Fibre Company, and finally -by selling them to the scrap dealer Belsky, he gave up any possible right to rescind the sale. His acceptance of the goods rendered him liable for the unpaid balance of $140.56 on the agreed purchase price. See 3 Williston on Sales (Rev.Ed.) §§ 483, 490; American Elastics, Inc., v. United States, 2 Cir., 1951, 187 F.2d 109, 113-114, So much for the cause of action by the; United States on the original complaint.
But such acceptance of the goods did noft necessarily bar the buyer from maintaining; an action for damages against the seller for breach of contract or breach of warranty. See § 49 of the Uniform Sales Act; 3 Wil-liston on Sales (Rev.Ed.) § 484 et seq. This brings us to a more detailed consideration of the defendant’s counterclaim in the present case.
At the threshold, the government asserts that the court below did not have jurisdiction of this counterclaim against the United States. We think the district court rightly held that it had jurisdiction to dispose of the counterclaim on its merits.
The United States has not consented to be sued in tort for fraud or misrepresentation. Under the Tucker Act, 28 U.S.C. § 1346(a) (2), it has consented to be sued “upon any express or implied contract with the United States, or for liquidated or unliqui-dated damages in cases not sounding in tort.” Its consent to be sued under the Tort Claims Act contains a specific exception of any claim arising out of misrepresentation or deceit, 28 U.S.C. § 2680(h). As appears above, it may be that the defendant meant to base his counterclaim upon a theory of tort, since he claimed damages for “the loss he has sustained due to the misrepresentation by the plaintiff.” But it is clear that the United States, by filing its original complaint against the defendant in the court below, did not thereby consent to be sued on a counterclaim based upon a cause of action as to which it had not otherwise given its consent to be sued. United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888.
The district judge, however, did not make any findings of fraud, and apparently based his judgment on the counterclaim upon a theory of allowmg damages for breach of contract. This is evident not only from the language -of his opinion but also from the fact that he included in the award of damages against the United States an item for loss of expected profits. See Smith v. Bolles, 1889, 132 U.S. 125, 10 S.Ct. 39, 33 L.Ed. 279; Sigafus v. Porter, 1900, 179 U.S. 116, 21 S.Ct. 34, 45 L.Ed. 113,
It is conceded by the government that the defendant in this case could have brought an original action in the court below against the United States for breach of contract, under the Tucker Act. If he had done so, of course the court below, under Rule 42, F.R.C.P., 28 U.S.C. could have consolidated such action with the pending action brought by the United States. It would be the emptiest technicality to hold that the same jurisdiction could not be invoked by way of counterclaim in the action already brought by the United States. So far as United States v. Nipissing Mines Co., 2 Cir., 1913, 206 F. 431, holds to the contrary, it is certainly out of harmony with the more liberal view as to the waiving of governmental immunity expressed in United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523, a case on which the court below quite justly relied as affording a persuasive analogy.
But coming to the merits, we think that the defendant as a matter of law failed to establish a cause of action in contract.
Any possibility of breach of warranty must necessarily be excluded, in view of the terms of the contract in which the government specifically disclaimed making any “guaranty, warranty or representation, express or implied, as to the kind, size, weight, quality, character, description or condition of any kind of the property, or its fitness for any use or purpose”.
Nor can it be maintained that the United States committed a breach of contract .in failing to deliver what it had contracted to deliver. We must of course accept the district judge’s finding that the defendant interpreted the phrase “Webbing, scrap, mixed” in accordance with the usage in his particular line of business, as signifying cotton textile webbing without any metal attached thereto. But it does not appear that the government officers, in drafting the invitation to bid, used the phrase in that sense, or even knew of such trade usage. In ordinary and general usage, the term was not an inapt description of the miscellaneous surplus equipment classified under item 79-A. In that sense, it was certainly for the most part scrap webbing, though with some admixture of metal. The invitation to bid was evidently framed to spare the government the necessity of attending to the niceties of detail in describing the goods offered, for example, to make the description conform to any possible trade usages of which the salvage officers might not even be aware. Under the terms of the sale, with inspection invited prior to the submission of bids, caveat emptor was certainly intended to be applied to the furthest limit that contract stipulations could accomplish it. As stated by the Court of Claims in Triad Corp. v. United States, 1927, 63 Ct.Cl. 151, 156, a case involving the sale of surplus property under substantially similar contract provisions:
“Under the terms of the [contract] it is difficult to perceive how the Government could have given purchasers more specific warning than it did, that they bought at their risk what material it had and was offering for sale; that if a purchaser wished to protect himself he could do so by inspection, full opportunities for which were offered, and that if he failed to inspect and received something other than what he thought he was buying he could have no redress and could not claim allowances by reason thereof. More than that, he was distinctly told that failure to inspect would not be considered as a ground for adjustment. If plaintiff neglected to embrace the opportunity offered it to inspect and purchased the property without doing so, with notice that it bought at its own risk, it created by its own negligence the situation from which it now seeks relief.”
See also Mottram v. United States, 1926, 271 U.S. 15, 46 S.Ct. 386, 70 L.Ed. 303; Maguire & Co. v. United States, 1927, 273 U.S. 67, 69, 47 S.Ct. 274, 71 L.Ed. 540. In the latter case the Supreme Court quoted with approval from the opinion below, in the 'Court of Claims: “ ‘If the plaintiff received from the Government a different material from that which it thought it had bought it is not the fault of the Government, and the plaintiff cannot recover for its own negligence [failure to inspect the goods].’ ”
We would not press this idea to an extreme ; for instance, if item 79-A had consisted wholly of scrap metal, it might ’be that the bidder, even though he had failed to make an inspection before submitting his bid, could have rejected'the shipment as not .conforming to the contract. By no stretch could a load of scrap metal be construed, in good faith, as being within the description of “scrap webbing mixed”, a subhead under “Textile, Cotton”.
No such ridiculous discrepancy is presented here; this is not a case of ordering apples and getting oranges. The defendant himself, though he testified to the trade usage, was somewhat vague and confusing as to what he would call the stuff he got. To the question, “You know belts have metal. Isn’t that webbing?”, he answered, “Yes, that is webbing,” At another point he said that he would “call it webbing even though it has metal on it.” At still another time-he said, “It would be scrap webbing with metal.” Again, he said that the carload contained “absolutely no webbing as I understand the term”; that in his view “they were offering me Textiles, Cotton.” That was the generic heading under which item 79-A was listed. One would suppose that if the presence of metal components did not prevent the materials from being aptly described as “Textile, Cotton”, the same presence of metal parts would not prevent the material from being aptly described as “scrap webbing mixed”, as in the sub-item. Interestingly enough, in that portion of defendant’s testimony dealing with his effort to resell the carload to the Spaulding Fibre Company, he said that he called their purchasing agent “and I told him I had this car of scrap webbing that I told him there might be a little metal, could I ship the car to them.” We are clearly of the opinion that if there was any technical inaccuracy in the listing of item 79-A, the government was saved from liability by the above-quoted disclaimer clause in the contract.
The judgment of the District Court is vacated and the case is remanded to that Court with direction to enter judgment for the United States on its complaint, in the amount of $140.56, with interest, and to give judgment for the United States on defendant’s counterclaim.
Meaning “non-repairable for Army use.”
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_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.
In re Ronald KIRSH; In re Paula Kirsh, Debtors. EUGENE PARKS LAW CORPORATION DEFINED BENEFIT PENSION PLAN, Plaintiff-Appellant, v. Ronald KIRSH; Paula Kirsh, Defendants-Appellees.
No. 91-55701.
United States Court of Appeals, Ninth Circuit.
Submitted July 6, 1992.
Decided Aug. 31, 1992.
Gary Brown, Century City, Cal., for plaintiff-appellant.
James M. Leonard, Leonard & Zeitsoff, Los Angeles, Cal., for defendants-appel-lees.
Before FARRIS, WIGGINS and FERNANDEZ, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a).
PER CURIAM:
Ronald and Paula Kirsh (the Kirshes) filed for bankruptcy, and the Eugene Parks Deferred Benefit Pension Plan (the Plan) asked that the Kirshes’ debt to it be found nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). The bankruptcy court denied that request because it found that the Plan had not relied on the Kirshes’ false representations. The district court affirmed the bankruptcy court. We affirm.
BACKGROUND
Eugene Parks (Parks) is an attorney who established the Plan to provide for his retirement. Parks had been practicing law for twenty years and the area of his practice was business law. That included handling real estate transactions in which he represented buyers, sellers or brokers. The Plan was intended to be the basis of Parks’ retirement security, so in his capacity as its administrator he was cautious about lending the Plan’s money. He did not use it for speculative purposes.
Ronald Kirsh (Kirsh) had been a client of Parks for ten years and their relationship was not simply that of attorney and client. They socialized together and, as Kirsh said, Parks “was everything to me. He was all my advice, he was all my legal advice, all my personal advice, all my marital advice.” In a 1987 letter, Kirsh wrote, “I think of you like my own father.... Thank you, your son Ronnie.” Clearly, these men were very close personal friends.
In 1987, the Kirshes had fallen on hard times and were deeply in debt. Parks knew that the Kirshes did not always pay their legal bills on time, but he still agreed to lend them money from the Plan. In doing that, he insisted upon receiving security in the form of a deed of trust on real property owned by the Kirshes. He also obtained a little additional security by having the Kirshes give him postdated checks for the first four interest payments. This dispute revolves around that loan transaction.
The loan was in the amount of $40,000 and the Kirshes gave the Plan a deed of trust on a condominium they owned. The note which that deed of trust secured contained the following recitals:
A. Warrantee [sic]: For the purpose of inducing the Payee/Lender to make this loan, we represent that:
(a) The present value of the property securing this loan is $240,000.00; and
(b) The only encumbrance senior to this loan is a First Deed of Trust in favor of Glendale Federal S & L Association with an outstanding loan balance of approximately $140,000.00.
The terms of the loan to the Kirshes were fair, reasonable, and fully disclosed to them. There was not a breath of actual overreaching on the part of Parks. Neither the Plan nor Parks ordered a title report of any kind. They simply accepted the Kirshes’ representations about the state of the security.
Those representations were false. In fact, the property was encumbered by two deeds of trust. One secured a loan from Glendale Federal Savings and Loan with an unpaid balance of $133,200. That loan was in default. The other, which was taken out just one month before the transaction with the Plan, secured a loan with a balance of $120,000 from Mercantile National Bank. The Plan’s note was therefore secured by a third deed of trust. When the condominium was ultimately foreclosed upon, the Plan received nothing. The proceeds of the sale were just enough to pay off Glendale Federal and to leave about $17,200 for Mercantile National.
The Plan received very little return on its investment before the Kirshes filed bankruptcy. It claimed that it had been defrauded and sought to exempt the debt from discharge, but the bankruptcy court found in favor of the Kirshes. The district court affirmed, and the Plan appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 158(d) and 28 U.S.C. § 1291.
We review the bankruptcy court’s findings of fact under the clearly erroneous standard, and its conclusions of law de novo. In re Jogert, Inc., 950 F.2d 1498, 1505 (9th Cir.1991). The determination of justifiable reliance is a question of fact subject to the clearly erroneous standard of review. See id., where the phrase “reasonable reliance” was used, about which we will say more in this opinion. The issue of nondischargeability is a question of federal law and is governed by the provisions of the Bankruptcy Code. Grogan v. Garner, — U.S.-,-, 111 S.Ct. 654, 658, 112 L.Ed.2d 755 (1991).
DISCUSSION
As we have already pointed out, when the Kirshes sought the protection of the bankruptcy court, the Plan sought to prevent the discharge of their debt. It relied upon the fraud provision of the Bankruptcy Code, 11 U.S.C. § 523(a)(2)(A). Section 523(a)(2) provides in pertinent part that a debtor is not entitled to be discharged from any debt to the extent that the debt was obtained by:
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive....
As a plain reading of the statute shows, parts (A) and (B) are mutually exclusive, the former referring to representations other than those respecting the debt- or’s financial condition and the latter referring specifically to written statements of financial condition. This difference has been recognized by other courts. See In re Ophaug, 827 F.2d 340, 342-43 (8th Cir.1987); In re Seaborne, 106 B.R. 711, 714 (Bankr.M.D.Fla.1989). Cf. In re Siriani, 967 F.2d 302, 304 (9th Cir.1992) (“the two subsections of section 523 are substantially similar”). For present purposes it is enough to point out that the statement we are considering did not purport to set forth the debtors’ net worth or overall financial condition, so our analysis must revolve around 11 U.S.C. § 523(a)(2)(A).
We have outlined the elements which a creditor must prove in order to preclude a debtor’s discharge. Those are:
(1) [that] the debtor made the representations;
(2) that at the time he knew they were false;
(3) that he made them with the intention and purpose of deceiving the creditor;
(4) that the creditor relied on such representations;
(5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.
In re Britton, 950 F.2d 602, 604 (9th Cir.1991) (quoting In re Houtman, 568 F.2d 651, 655 (9th Cir.1978) (emphasis omitted)).
In this case, there can be no doubt that the Kirshes made representations which they knew were false and that they made those representations with the intention of deceiving Parks and the Plan. Nor can it be doubted that those representations were the proximate cause of the Plan’s losses. Thus, elements (1), (2), (3) and (5) are satisfied. Our analysis will therefore focus upon the fourth element. The Kirshes contend that the Plan did not prove that element by a preponderance of the evidence. That is the Plan’s burden. See Grogan, — U.S. at -, 111 S.Ct. at 658. The Kirshes also contend that since Parks was their attorney, the Plan should not be able to prevent their discharge. We will consider each of these issues in turn.
A. Reliance.
(1) The Legal Standard.
The courts have had some difficulty with the reliance issue and that has, at least on the surface, generated a split among the circuits. That split is over what word should implicitly or explicitly precede the word “reliance.” Should we say “actual reliance” or “reasonable reliance” or “justifiable reliance”? We now decide that the latter phrase is the proper one and that it most accurately describes what the courts have actually done.
We start with the Supreme Court’s observation that we are deciding a question of federal, not state, law. Grogan, — U.S. at-, 111 S.Ct. at 658-59. That, of course, does not reveal the content of the federal law itself, but there is reason to think that it is simply the common law. The Supreme Court has pointed us in that direction. While the Court has recognized the fresh start purpose of the bankruptcy law, it has also emphasized that the real concern is for the “honest but unfortunate debtor.” Id. at-, 111 S.Ct. at 659. The Court completed that thought by stating: “We think it unlikely that Congress, in fashioning the standard of proof that governs the applicability of these provisions, would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Id. This suggests to us that the Court had the usual common law standard in mind, rather than some exotic standard designed to give more protection to the perpetrators of fraud. Nor is there any reason to believe that Congress itself intended to alter the common law when it adopted section 523(a)(2)(A). Rather, as the court suggested in In re Howarter, 114 B.R. 682, 685-86 (B.A.P. 9th Cir.1990), it is most likely that Congress was referring to the common law definition of fraud when it adopted that section. Perhaps Congress intended to deviate from that definition when it went out of its way to set forth a specific standard for section 523(a)(2)(B), one that referred to reasonable reliance, but we need not decide that question here. Compare Siriani, 967 F.2d at 304 (the provisions are similar) with Ophaug, 827 F.2d at 342-43 (the provisions set forth different standards).
If common law is to apply, it is important to identify the content of that law. We turn to two of the best sources of that law, the well-known Prosser and Keeton on the Law of Torts and the Restatement (Second) of Torts. They make it quite clear that at common law the justifiable reliance standard is the proper one.
Prosser and Keeton declares that reliance must be justifiable, which, as it says, seems to be for the purpose of “providing some objective corroboration to plaintiffs claim that he did rely.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 108 at 749-50 (5th ed. 1984). As that work points out, the standard is not that of the average reasonable person. It is a more subjective standard which takes into account the knowledge and relationship of the parties themselves. Thus, “a person of normal intelligence, experience and education ... may not put faith in representations which any such normal person would recognize at once as prepos-terous_” Id. at 750. At the same time, the standard does protect the ignorant, the gullible, and the dimwitted, for “ ‘no rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool.’ ” Id. at 751 (footnote and citation omitted). On the other hand, if a person does have “special knowledge, experience and competence” he may not be permitted to rely on representations that an ordinary person would properly accept. Id. In other words, while reasonableness of behavior is a factor in the mix, it is only a factor. The more precise question is whether the person who claims to have been gulled was justified in relying. The difference in approach can make a significant difference in the result of the analysis.
The Restatement is to the same effect. It declares that one can recover for a fraudulent representation if “his reliance is justifiable.” Restatement (Second) of Torts § 537(b) (1977). It goes on to state that where there is justifiable reliance on a fraudulent misrepresentation, a person’s recovery will not be barred by his contributory negligence. Id. § 545A. However, a person cannot rely upon a representation if “he knows that it is false or its falsity is obvious to him.” Id. § 541. This rule is illustrated by the following example:
[Ijf one induces another to buy a horse by representing it to be sound, the purchaser cannot recover even though the horse has but one eye, if the horse is shown to the purchaser before he buys it and the slightest inspection would have disclosed the defect. On the other hand, the rule stated in this Section applies only when the recipient of the misrepresentation is capable of appreciating its falsity at the time by the use of his senses. Thus a defect that any experienced horseman would at once recognize at first glance may not be patent to a person who has had no experience with horses.
Id. at § 541 cmt a.
On the other hand, one who receives a fraudulent misrepresentation of a fact “is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.” Id. § 540. That even applies to people who do not examine the public records in real estate transactions, for “[t]he recording acts are not intended as a protection for fraudulent liars.” Id, § 540 cmt b.
While, as we have said, we are applying federal, not state, law, it is worth noting that California, where the Kirshes’ acts took place, follows the rules we have just explicated. Its law was defined over fifty years ago when Justice Traynor wrote Seeger v. Odell, 18 Cal.2d 409, 115 P.2d 977 (1941). There, through various machinations some bounders managed to deprive an elderly couple of their property. The falsity of the representations would have been apparent to any person who looked at the public records. Moreover, the couple actually lived on the land which, the con artists said, had been sold at a sheriffs sale. The court synopsized the law as follows: A plaintiff must show that “he was justified in his reliance,” but negligence in failing to discover an intentional misrepresentation is no defense. 18 Cal.2d at 414, 115 P.2d 977. Moreover, “[t]he fact that an investigation would have revealed the falsity of the misrepresentation will not alone bar his recovery, and it is well established that he is not held to constructive notice of a public record which would reveal the true facts.” Id. at 414-15, 115 P.2d 977 (citations omitted). “Nor is the plaintiff held to the standard of precaution or of minimum knowledge of a hypothetical reasonable man.” Id. at 415, 115 P.2d 977. It is only if “the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable” that he will be denied recovery — a person cannot purport to rely on preposterous representations or close his eyes “to avoid discovery of the truth....” Id. Thus, the court said, neither public records nor the argument that a person should know the state of his own title could preclude recovery. Id. at 415-16, 115 P.2d 977.
We have recognized this reading of the California law. In Jogert we referred to the standard as being that of “reasonable reliance” but we went on to describe that standard as California does. ■ In other words, we described it in the language of justifiable reliance. 950 F.2d at 1505-07. This use of the word “reasonable” in place of “justifiable” is of no real moment unless a later reader is led away from the true content of the reliance element.
Having outlined the common law, it remains to us to consider the cases which have spoken to the reliance issue in the bankruptcy context.
This circuit has not explicitly stated what the standard should be. We have just described Jogert which arose in the context of a bankruptcy case, but it applied California law and did not purport to consider the meaning of section 523(a)(2)(A). We have also mentioned Britton, 950 F.2d at 604, where the unadorned word “reliance” was used. Our decisions in In re Houtman, 568 F.2d 651, 655 (9th Cir.1978) and In re Taylor, 514 F.2d 1370, 1373 (9th Cir.1975), are to the same effect as Britton.
We had occasion to mention the standard again in In re Rubin, 875 F.2d 755 (9th Cir.1989). However, while we said that the creditor’s reliance was reasonable, we expressly declined to decide whether reasonable reliance was required. Id. at 759 n. 2. In doing so, we set out a group of facts that described a case of justifiable reliance. Id. at 759. See also In re Ashley, 903 F.2d 599, 604 n. 6 (9th Cir.1990). Most recently, in Siriani, we suggested that “reasonable reliance” was required; however, that statement was not only dictum but also suggested that Rubin so held, which it did not. Siriani, 967 F.2d at 304.
Other circuits have been somewhat more explicit. The Eighth Circuit, in particular, has said that only actual reliance is required. In Ophaug that court considered a case where a person loaned money to a friend of his, a man he had known and socialized with for over ten years. 827 F.2d at 341. Ophaug had represented that the money was to be used to purchase some other land, and had given a security interest in machinery for the purpose of securing his note. The money was not intended for a land purchase and the machinery was already encumbered. The bankruptcy court held against the creditor because, as it said, his reliance was not reasonable. Id. at 342. The Eighth Circuit declared that it need not be reasonable but need only be actual, which it was. Id. at 343. A similar set of facts is found in In re Phillips, 804 F.2d 930 (6th Cir.1986). There the lender was a banker and an attorney. He loaned money to a friend whom he had known for twenty-five years, and took back a mortgage to secure the debt. He did not seek a title report, “due to his long personal relationship with the Phillips.”- Id. at 931. The bankruptcy court and the district court both found that the creditor’s reliance was unreasonable. The Sixth Circuit reversed. It held that considering the long friendship and the fact that the creditor had no reason to distrust Phillips, the bankruptcy and district courts had held the creditor “to an overly stringent legal standard of ‘reasonableness.’ ” Id. at 933. What is most interesting about this pair of cases is that both seem to be applying a standard of justifiable reliance, even though one court — the Eighth Circuit — said actual reliance was enough and the other court — the Sixth Circuit — applied a standard of reasonable reliance. In both cases, it is fair to say that the lender simply relied upon the honesty of an old friend, who took advantage of him. That is a typical case of justifiable reliance. It is rather doubtful that the Eighth Circuit would find actual reliance in other circumstances, for example, if a person’s claimed reliance was manifestly unreasonable, preposterous, or the result of an intentional closing of his own eyes to the facts. The same can be said of the Sixth Circuit's application of the concept of reasonable reliance.
The other cases in this area are to much the same effect. We will not unduly extend this opinion by canvassing their facts in depth, but will make a brief mention of some of them. See In re Allison, 960 F.2d 481, 485 (5th Cir.1992) (applies “actual reliance” but describes facts that would justify reliance); In re Mullet, 817 F.2d 677, 679 (10th Cir.1987) (applies “reasonable reliance” and found it did not exist where a bank rather blindly accepted the word of an unknown, unproven, twenty-three year old customer); In re Kimzey, 761 F.2d 421, 423 (7th Cir.1985) (applies “reasonable reliance” and finds bank’s reliance on the word of a regular customer to be reasonable, even though the bank knew that he was short of capital); In re White, 130 B.R. 979, 987 (Bankr.D.Mont.1991) (applies “reasonable reliance” but described the creditor’s acts as such “unreasonably reckless wishful thinking as to constitute no reliance at all”); Seaborne, 106 B.R. at 714 (applies “actual reliance” but the creditor’s acts appear to have been justified); In re Burklow, 60 B.R. 728, 732 (Bankr.S.D.Cal. 1986) (applies “reasonable reliance” and finds the creditors reliance reasonable because the test is subjective and the creditor relied upon a friend).
Finally, we return to Howarter, the decision of the Ninth Circuit Bankruptcy Appellate Panel. In that case, again, the court declared that it was adopting the common law and stated that reasonable reliance was required. 114 B.R. at 685-86. The facts, however, are instructive. The debtor had an investment business and the creditor had invested through him in the past. When asked about a particular investment, the debtor told the creditor not to make it. When asked again, the creditor was told not to borrow on his own residence for the purpose of making the investment. The creditor then independently learned that there were serious problems with the investment. He still persisted and the debtor finally accepted some money from him. Id. at 683-84. Given that set of facts, the court found no reasonable reliance. This does, however, look like the classic case of a lack of justifiable reliance — the kind of situation where the creditor “ ‘must have closed his eyes to avoid discovery of the truth....’” Seeger, 18 Cal.2d at 415, 115 P.2d 977 (citation omitted).
Thus, we conclude that a creditor must prove justifiable reliance upon the representations of the debtor. In determining that issue, the court must look to all of the circumstances surrounding the particular transaction, and must particularly consider the subjective effect of those circumstances upon the creditor.
(2) Application of Legal Standard.
When the bankruptcy court decided this case it spoke in terms of reasonableness but its findings indicate that Parks did not justifiably rely upon the Kirshes’ representations regarding the state of their title.
Parks was no ordinary person. In fact, he was not even an ordinary attorney. He had been practicing for twenty years and concentrated on business law. He was well aware of the fact that standard practice in California was for lenders to obtain title reports. Lenders do not merely rely upon the representations of borrowers. That is especially true when the lender knows that the borrower is having financial difficulties and does not always pay his bills in a timely fashion. We recognize that Parks and Kirsh were very close friends, but that does not excuse Parks’ throwing of all caution to the winds and relying on the Kirshes’ word alone. Obtaining a title report is a simple and not overly expensive proposition. A person with Parks’ knowledge, experience and competence should have ordered one. Thus, this case differs from Ophaug where the creditor was not an expert and did not know that the debtor was in any financial difficulty. 827 F.2d at 341. Nor is it like Phillips where the creditor was not a practicing attorney. 804 F.2d at 931.
In short, given the facts of this case the bankruptcy court did not err when it found that Parks did not rely upon the Kirshes’ representations within the meaning of section 523(a)(2)(A).
B. The Attorney-Client Relationship.
The Kirshes argue that Parks entered into this transaction with a client and did not fully comply with the California Rules of Professional Conduct. Thus, they assert, the Plan should be precluded from obtaining relief in this proceeding.
At the time of this transaction the Rules of Professional Conduct required an attorney to refrain from entering into business transactions with his client unless: (1) the transaction and terms were fair and reasonable to the client fully disclosed in writing, and in language the client should reasonably have understood; (2) the client consented to the transaction in writing; and (3) the client was given a reasonable opportunity to seek the advice of independent counsel. See Cal.R.Prof. Conduct, 5-101 (repealed). The bankruptcy court determined that Parks had complied with the first two of these requirements. However, it also found that Kirsh did not have an opportunity to consult with another attorney.
Taking those findings as accurate, we agree with the bankruptcy court that they do not preclude the Plan’s petition. The Rules of Professional Conduct do not establish substantive legal duties— they neither create, augment nor diminish any duties. Cal.R.Prof. Conduct 1-100. While the rules can be evidence of a breach of fiduciary duty, they do not, standing alone, prove the breach. See, Mirabito v. Liccardo, 4 Cal.App. 4th 41, 44-46, 5 Cal.Rptr.2d 571 (1992). No such breach appeared in this case.
This is not a case where a faithless attorney has taken advantage of his client. Quite the reverse. In this case, the Kirshes took advantage of a personal relationship and relieved the Plan of $40,000. The Rules of Professional Conduct were designed for particular purposes. They were not intended as a protection for clients who wrong their lawyers.
CONCLUSION
We hold that the bankruptcy court correctly determined that the Kirshes could discharge their debt to the Plan. On the facts of this case, the Plan did not justifiably rely upon the Kirshes’ representations about the state of their title.
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_sentence | E | 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".
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Henry McK. HASEROT and Bonnie C. Haserot, Respondents.
No. 16184.
United States Court of Appeals Sixth Circuit.
Nov. 3, 1965.
Richard J. Heiman, Department of Justice, Washington, D. C., on brief, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Gilbert E. Andrews, Attorneys, Department of Justice, Washington, D. C., for petitioner.
John Lansdale, Jr., Cleveland, Ohio, John Lansdale, Jr., Edward J. Hawkins, Jr., Squire, Sanders & Dempsey, Cleveland, Ohio, on brief, for respondent.
Before WEICK, Chief Judge, and TAYLOR and THORNTON, District Judges.
ORDER.
The above cause coming on to be heard on the record, the briefs of the parties, and the argument of counsel in open court, and the court being duly advised.
The contention of the petitioner that Section 304(a) Internal Revenue Code of 1954 applies to the transactions here involved requires consideration of Section 302, the pertinent portion of which provides that corporate redemption of stock be treated as a distribution in part or full payment in exchange for the stock except where it “is not essentially equivalent to a dividend.” The Tax Court did not determine if the redemption here was equivalent to a dividend, the concluding-paragraph of the opinion of the Tax Court stating that:
“Since there is no dispute as to the amount of the gain and since that amount will in either event be taxed as a long-term capital gain, it is not necessary for us to determine in this proceeding whether that result is arrived at via section 351 or via sections 304 and 302(a).”
It appears to this Court, upon review, that a determination of the issue of equivalency might indeed be dispositive of the thrust of petitioner’s argument on the Section 304 application to the transaction herein and that such -a determination should be made. This Court has previously held that this is a factual matter. (Woodworth v. Commissioner of Internal Revenue, 218 F.2d 719, 724, C.A. 6th 1955, and Chandler’s Estate v. Commissioner of Internal Revenue, 228 F.2d 909, C.A. 6th 1955.) As such, it should be decided initially by the Tax Court.
This matter is hereby remanded to the Tax Court for further proceedings in accordance with the views expressed in this order.
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_counsel2 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
COMMITTEE IN SOLIDARITY WITH THE PEOPLE OF EL SALVADOR (CISPES), et al., Appellants, v. William F. SESSIONS, Director, Federal Bureau of Investigation, et al., Appellees.
No. 90-5179.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 20, 1991.
Decided April 12, 1991.
Alan H. Levine, with whom Melvin L. Wulf, Michael Ratner, New York City, and James Klimaski were on the brief, Washington, D.C., for appellants.
R. Joseph Sher, Sr. Trial Counsel, Dept, of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Jay B. Stephens, U.S. Atty., were on the brief, Washington, D.C., for appellees.
Before SILBERMAN, WILLIAMS, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
For more than two years, from 1983 to 1985, the Federal Bureau of Investigation investigated the Committee in Solidarity with the People of El Salvador (CISPES), several of its members, and individuals and groups associated with the organization. An informant, later found to be untrustworthy, had alleged that CISPES was involved in terrorist activities. No links to terrorism were ever uncovered. After determining that it had been acting on unreliable information, the FBI terminated the inquiry. By then the Bureau had collected a considerable amount of data about CISPES and its members.
In testimony before congressional committees, the Director of the FBI, William F. Sessions, said the investigation should never have been initiated, but denied that the Bureau had acted illegally in conducting the inquiry. Director Sessions notified the committees that several agents had been disciplined and that internal procedures had been revised to insure that such errors would not recur.
Thereafter, in 1988, CISPES, four other organizations, and eight individuals brought this action against Director Sessions and the FBI. The complaint, as amended, alleged that the FBI conducted the investigation for the purpose of deterring plaintiffs from exercising their First Amendment right to protest the government’s policy in Central America, that the investigation had this effect, that CISPES’s membership declined during the investigation, and that plaintiffs were suffering irreparable harm as a result of the FBI’s possession of information about them and its dissemination of such information to others. Plaintiffs claimed that defendants were violating their First Amendment rights to freedom of speech and association, as well as the Privacy Act of 1974, 5 U.S.C. § 552a. They sought a declaratory judgment and a “mandatory injunction” requiring the FBI to collect all FBI files and any “other federal agency files” relating to the CISPES investigation and to deposit these files in the National Archives “upon terms and conditions to be determined by the Court.”
After the district court denied plaintiffs’ motion for a preliminary injunction (705 F.Supp. 25 (D.D.C.1989)), defendants filed a motion to dismiss the case for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). While the motion was pending, the FBI entered into a written agreement with the National Archives transferring all of its CISPES files, including those held by its field offices and those resulting from “spin-off” investigations, to the Archives. The district court took note of the agreement and dismissed the complaint on the grounds that the case was moot and that plaintiffs lacked standing. 738 F.Supp. 544, 547-48 (D.D.C.1990).
The first question on appeal is whether, in light of the FBI’s transfer of its files to the Archives, this continued to be a “case or controversy” under Article III of the Constitution. Plaintiffs’ challenge to the constitutionality of the FBI’s investigation could not alone satisfy the requirement. The investigation ended years ago. To pass judgment on its legality would be to render an advisory opinion unless there were current consequences. In injunction suits, plaintiffs usually must establish that the allegedly illegal actions of the past are causing or threatening to cause them present injuries. E.g., O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974); cf. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). Current or future harm serves to keep the controversy alive. If the possibility of continuing injury disappears while the lawsuit is pending, the complaint ordinarily should be dismissed as moot.
We shall assume the complaint presented a live controversy when plaintiffs filed it in 1988. But the alleged harm resulting from the FBI’s possession of the information necessarily ceased when the FBI relinquished the files. It is of no consequence that the FBI, rather than destroying the files, turned them over to the Archives. That is the relief plaintiffs requested. Their complaint sought an order directing the FBI to deposit its CISPES files with the Archives under such “terms and conditions” as the court saw fit. Although the court did not impose the terms governing the transfer, the court did review the agreement and indicated that it would have granted no further relief if plaintiffs had prevailed on the merits.
It is therefore appropriate to presume that the agreement provided a sufficient remedy for the harm plaintiffs alleged. However, because the FBI acted voluntarily, without judicial compulsion, mootness also depended on there being little likelihood that the agreement would be undone. United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); see United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n. 10, 102 S.Ct. 1070, 1074-75 & n. 10, 71 L.Ed.2d 152 (1982). Assessing that probability was “a matter for the trial judge,” Concentrated Phosphate Export Ass’n, 393 U.S. at 204, 89 S.Ct. at 364, who determined that there was no basis for doubting that the FBI would honor the agreement and that all CISPES files, including those in the FBI’s computer banks, were covered. Plaintiffs object that the court relied on representations made by the FBI and its Director to the court (and to Congress), rather than on facts established in an adversary proceeding. But “it has been the settled practice” to accept such representations in determining whether a case presents a live controversy. DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974); Ehlert v. United States, 402 U.S. 99, 107, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). The district court thus properly found this aspect of the ease to be moot.
This still leaves plaintiffs’ claim about information in the hands of other federal agencies, information plaintiffs wanted the FBI to retrieve and turn over to the Archives pursuant to court order. The district court dismissed this claim on the defendants’ Rule 12(b)(1) motion, citing “mootness” and lack of standing, both of which it regarded as jurisdictional. Plaintiffs argue that the court’s ruling, a portion of which is quoted in the margin, actually was on the merits. They say this makes a procedural difference because a dismissal for failure to state a claim is improper if matters outside the pleadings “are presented to and not excluded by” the court. Rule 12(b), Fed.R.Civ.P. In that event, Rule 12(b) requires the court to treat the proceeding as one for summary judgment under Rule 56 and to give the parties an opportunity to present opposing material. Plaintiffs contend they were deprived of this opportunity.
Even if plaintiffs are right that the court, in effect, dismissed their claim on the merits — that is, pursuant to Rule 12(b)(6)— their conclusion would not follow. The only materials outside the pleadings presented by the defendants were the agreement between the FBI and the Archives and a letter from Director Sessions to Senator Boren announcing the decision to transfer the records. These items had nothing to do with files in the possession of other agencies, which is the concern of this portion of plaintiffs’ complaint. Rule 12(b) therefore did not require the court to convert this into a Rule 56 summary judgment proceeding. Once we pass that point, it makes little difference whether the court’s dismissal of this claim is viewed as resting on lack of jurisdiction, the merits or a combination of the two. See Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1239 (D.C.Cir.1978); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524, 1528-29 (1st Cir.1983). Equitable considerations and justiciability often tend to merge as the district court decides “whether the controversy is sufficiently live and concrete to be adjudicated and whether it is an appropriate case for equitable relief.” American Foreign Service Ass’n v. Garfinkel, 490 U.S. 153, 161, 109 S.Ct. 1693, 1698, 104 L.Ed.2d 139 (1989) (per curiam).
Procedural considerations aside, we think the district court reached the correct result. Plaintiffs’ supposed continuing injury was far too speculative to support the sort of extraordinary injunction they sought. They alleged that if other government agencies kept the information the FBI had supplied to them, the individual plaintiffs would have less of a chance to obtain government employment. Yet no plaintiff expressed any desire to engage in government employment. The district court therefore found the allegation of continuing harm far-fetched and we agree. O’Shea v. Littleton, 414 U.S. at 497-99, 94 S.Ct. at 676-78. “Injunctions ... will not issue to prevent injuries neither extant nor presently threatened, but only merely ‘feared.’ ” Exxon Corp. v. FTC, 589 F.2d 582, 594 (D.C.Cir.1978) (quoting Connecticut v. Massachusetts, 282 U.S. 660, 51 S.Ct. 286, 75 L.Ed. 602 (1931)), cert. denied, 441 U.S. 943, 99 S.Ct. 2160, 60 L.Ed.2d 1044 (1979); Newhouse v. Probert, 608 F.Supp. 978, 984 (W.D.Mich.1985).
Similar considerations warranted dismissal of this portion of the complaint under Rule 12(b)(6) for failure to state a claim upon which injunctive relief could be granted. Injunctions issue to prevent irreparable harm. Beacon Theatres v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954-55, 3 L.Ed.2d 988 (1959); Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985). When there appears to be no real harm to prevent, a court is justified in refusing to provide such relief. Moreover, whether the mandatory injunction plaintiffs sought would accomplish anything was itself speculative. Other federal agencies, not the FBI, controlled the records. An injunction compelling them to turn over their files would have been improper since they were not parties to the lawsuit. See Rule 65(d), Fed.R.Civ.P.; Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112, 89 S.Ct. 1562, 1570, 23 L.Ed.2d 129 (1969). The district court therefore properly dismissed this claim on the grounds that, “as a practical matter,” the FBI controls only files in its possession and that, in any event, plaintiffs’ asserted injury from the existence of these other files was too remote.
At oral argument, CISPES suggested that we should order the FBI to request (since it cannot compel) other agencies to return the relevant files. Yet the prospect of a court-ordered memorandum from the FBI asking a favor of other agencies seems an odd basis for launching a lawsuit. The chances that such “relief” would produce the ultimate result that CISPES seeks (transferral of all copies of the files to the Archives) is wholly speculative. At any rate, CISPES did not clearly argue for this relief in its appellate brief, so the issue is not properly before us. See Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
Affirmed.
. Plaintiffs sought to bring the suit as a class action on behalf of "178 individuals and organizations" but the class was never certified.
. Plaintiffs' claims under the Privacy Act were also rendered moot by the FBI’s disposal of the records in its possession, which is the maximum injunctive relief to which plaintiffs would be entitled under the Act. Reuber v. United States, 829 F.2d 133, 147 (D.C.Cir.1987); Metadure Corp. v. United States, 490 F.Supp. 1368, 1375 (S.D.N.Y.1980).
. As a practical matter, however, the defendants can only dispose of records over which they have custody or control. Information and records that the defendants have already disseminated, i.e., to other federal agencies or foreign governments, are beyond the disposal power of the defendants. Moreover, although other entities may have copies of the records, possession by these entities is not sufficiently related to plaintiffs’ asserted injury to establish an actual case or controversy.
738 F.Supp. at 546.
.There is no such constraint on the court when it is considering a motion to dismiss for lack of jurisdiction under Rule 12(b)(1). Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_r_bus | 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 "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Selwyn CLARK, Plaintiff, Appellant, v. ZIMMER MANUFACTURING COMPANY, Defendant, Appellee.
No. 5804.
United States Court of Appeals First Circuit.
Heard May 3, 1961.
Decided June 13, 1961.
Christy A. Pano, Worcester, Mass., for appellant.
Leon F. Sargent, Boston, Mass., with whom Donald A. Macksey and Powers, Hall, Montgomery & Weston, Boston, Mass., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered following the allowance of defendant’s motion for summary judgment.
Plaintiff-appellant, Selwyn Clark, filed a declaration in the Superior Court of Worcester County in the Commonwealth of Massachusetts alleging that: On January 2, 1957 plaintiff suffered a compound fracture of the right femur. He was hospitalized and operated on in order to reduce the compound fracture. During the operation an intramedullary nail manufactured by defendant, Zimmer Manufacturing Company, was inserted within plaintiff’s femur. On January 28, 1958 the intramedullary nail snapped or broke while within plaintiff’s femur. Defendant implied and warranted that the nail was fitted for the known purpose for which it was to be used. Defendant was negligent and careless in the manufacture of the intramedullary nail, and the nail was improperly manufactured. Because defendant was so negligent and the nail was improperly manufactured plaintiff suffered severe permanent injury and various other damages.
Defendant, on the basis of diversity of citizenship of the parties, removed the action to the United States District Court and subsequently filed its answer. Defendant denied that an intramedullary nail manufactured by it was used in connection with the operation performed on plaintiff on or about January 2,1957, and further denied each and every one of the plaintiff’s other allegations. Defendant made further answer by setting up various defenses, among them the following: (1) The medical treatment alleged by plaintiff to have involved the use of an intramedullary nail manufactured by defendant arose out of and was the result of injuries received by plaintiff in an automobile accident. Plaintiff made claim against Roland P. Couture for damages arising out of the personal injuries sustained by him as a result of the automobile accident. Three months following the alleged breaking of the intramedul-lary nail as alleged in plaintiff’s declaration, plaintiff on April 18,1958 by a written release for a good and valuable consideration discharged and released his claim and cause of action against Roland F. Couture. Wherefore plaintiff is barred from recovery as against the defendant for the injuries set forth in his declaration. (2) The plaintiff for the sum of $10,000 discharged and released his claim and cause of action against Roland F. Couture by a written release, a copy of which is attached and made a part of the answer. The release and compensation paid in settlement of the plaintiff’s claim against Roland F. Couture for the sum of $10,000 covered all injuries, disabilities and damage from which the plaintiff was then suffering and had incurred at the time of the execution of the release, which included the injuries alleged in this action. Wherefore the release and settlement constituted a full and complete satisfaction of any claim by the plaintiff for damages sustained by him, including the injuries and damage alleged in the declaration in this action and, consequently, plaintiff is barred from recovery against this defendant.
The release in its pertinent part reads: “For And In Consideration Of the payment to me * * * of the sum of Ten Thousand and No/100ths Dollars * * * I * * * do * * * release, acquit and forever discharge Roland F. Couture and any and all other persons, firms and corporations of and from any and all actions, causes of action, claims or demands for damages, costs, loss of services, expenses, compensation, consequential damage or any other thing whatsoever on account of, or in any way growing out of, any and all known and unknown personal injuries and death and property damage resulting or to result from an occurrence or accident that happened on or about the second day of January, 1957, at or near Millbury, Massachusetts.”
Defendant moved for summary judgment and in support thereof attached an affidavit of defendant’s attorney referring to the provisions of the release. A copy of the release was also attached. In opposition to the motion, plaintiff’s attorney filed his counteraffidavit which, in general, stated the facts concerning the release to be as set out in the answer of defendant, but which stated that plaintiff had no intention at that or any other time of releasing the present defendant from liability as a result of the defective condition of the nail and the breach of the implied warranty of fitness. The counteraffidavit further stated that plaintiff alleged that the act of the nail cracking, snapping or breaking is not the natural and probable consequence of the original injury, so that the release to Roland F. Couture would not be a bar; the original tortfeasor could not be expected to know or foresee that his act would cause the intramedullary nail to fracture. The counteraffidavit also alleged that there is a definite question of fact to be determined by the jury as to whether the breaking of the nail is and may be considered as a completely new injury.
Plaintiff’s contentions in this appeal are similar: that the alleged negligence of the defendant had no causal relation to the original injury, but created a new and independent cause of action, liability for which was not barred by the release; or, at least, that the question of whether the fracture of the nail was a new injury was a question of material fact for a jury to determine.
Defendant, however, states the question differently. It contends that the question of proximate cause is immaterial, and that the release by its express terms, and its legal implication, precludes plaintiff from maintaining this action.
The parties apparently agree that the effect of the release is governed by Massachusetts law. We shall, therefore, examine the Massachusetts cases.
Although there are not too many Massachusetts cases on the point, we think that the cases sufficiently indicate that state’s approach to the effect of releasing the original tortfeasor. This approach is in the following terms: whether or not the original tortfeasor could have been liable for the subsequent injury because it is the natural and probable result of the original tortfeasor’s negligence. See Purchase v. Seelye, 1918, 231 Mass. 434, 121 N.E. 413, 8 A.L.R. 503; Vatalaro v. Thomas, 1928, 262 Mass. 383, 160 N.E. 269. Cf. Annotation 1955, 40 A.L.R.2d 1075 for other approaches to the problem.
Defendant contends that, even under the Massachusetts view, the release bars this action against it, since it cannot be said as a matter of law that the original tortfeasor would not be liable for the subsequent nail fracture and accompanying damages, and the release in the contemplation of the law constitutes a discharge of doubtful claims also, i. e., even those as to which the released party may not, in fact, be liable. Purchase v. Seelye, supra, and Vatalaro v. Thomas, supra, seem to support this contention. In Purchase v. Seelye, the Supreme Judicial Court of Massachusetts reversed a verdict for a defendant surgeon who had mistakenly operated for hernia on the wrong side of the plaintiff’s groin. The plaintiff had released his employer of all claims and demands “arising or which may arise out of” the rupture. The Court held that the release was no bar to the action against the surgeon and was not admissible in evidence since the “act of the defendant [surgeon] * * * was a wholly wrongful, independent and intervening cause for which the original wrongdoer was in no way responsible.” The Court stated at 121 N.E. 414:
“The railroad company could not be held liable because of the defendant’s mistaken belief that he was operating upon some person other than the plaintiff; such a mistake was not an act of negligence which could be found to flow legitimately as a natural and probable consequence of the original injury, and a ruling in effect to the contrary could not properly have been made. * * *
“If a surgeon employed to operate upon a patient for hernia caused by the negligence of another, instead of performing that operation removes one of the patient’s kidneys (which is in sound condition) under the mistaken belief that he is treating another patient, can it reasonably be held that such a mistake is something that might sometimes follow, and as a matter of common knowledge and experience might be expected sometimes to follow, from an injury resulting in hernia? We think not * * *.” (Emphasis ours.)
In Vatalaro v. Thomas, the Court upheld the direction of a verdict for a defendant surgeon in an action to recover damages alleged to be caused by an unskillful operation for hernia. The Court said:
“If we assume that the defendant in the case at bar, in performing the operation for hernia, stitched too tightly the spermatic cord, which was in the area of the hernia operation, it could have been found by the Industrial Accident Board that such lack of skill was an act of negligence which, it might reasonably have been anticipated, would flow as a natural and probable consequence of the original injury * * *.” 160 N. E. .at page 270. (Emphasis ours.)
In several cases cited in Purchase v. Seelye, supra, the Court said there is a requirement of some identity of the cause of action against the defendant with that against the released party. See e. g., Leddy v. Barney, 1885, 139 Mass. 394, 2 N.E. 107; Brewer v. Casey, 1907, 196 Mass. 384, 82 N.E. 45. This connection is satisfied, however, if something in the nature of a claim has been made on the released party and there is a possible liability under the rules of law for the damages sought against the defendant. Cormier v. Worcester Consol. St. Ry. Co., 1919, 234 Mass. 193, 125 N.E. 549. See also Pickwick v. McCauliff, 1906, 193 Mass. 70, 78 N.E. 730.
We believe that it cannot be said as a matter of law that the fracture of the nail was a completely new injury for which the original tortfeasor would be in no way responsible. See, e. g., Whalen v. City of Boston, 1939, 304 Mass. 126, 23 N.E.2d 93; Wilder v. General Motorcycle Sales Co., 1919, 232 Mass. 305, 122 N.E. 319; Hartnett v. Tripp, 1918, 231 Mass. 382, 121 N.E. 17. Under the Massachusetts law as we understand it, defendant was entitled to summary judgment in its favor.
Judgment will be entered affirming the judgment of the district court.
. The persons involved in this release situation will be referred to as (1) original tortfeasor, who is not a party to the instant type of case; (2) the injured party, the plaintiff in the case; and (S) tbe subsequent tortfeasor, whether he be physician, or another, and whether he only aggravates the original injury, or inflicts a new one.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_appel1_7_5 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Charles W. FOSTER v. DONORA SOUTHERN RAILROAD COMPANY, Appellant.
No. 12090.
United States Court of Appeals Third Circuit.
Argued Feb. 21, 1957.
Decided March 4, 1957.
Gilbert J. Helwig, Pittsburgh, Pa. (Edmund K. Trent, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellant.
Frederic G. Weir, Pittsburgh, Pa. (Oliver, Brandon & Shearer, Pittsburgh, Pa., on the brief), for appellee.
Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.
PER CURIAM.
This is an appeal by the defendant railroad company from a verdict and judgment of $25,000 against it in a suit brought by an injured employee under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., in the District Court for the Western District of Pennsylvania. The sole question for our determination is whether the verdict was so grossly excessive that the refusal of the district court to grant a new trial because of it was an abuse of discretion which this court will correct. The district court filed an opinion in which it set forth its reasons for refusing to interfere with the verdict. 144 F.Supp. 297. While the verdict is large our examination of the record satisfies us that the evidence of the plaintiff’s injuries was sufficient to support it. It would serve no useful purpose to recite the evidence in detail. It is enough to say that we do not think that in permitting the verdict to stand the district court abused the broad discretion which the law entrusts to it in this regard.
The judgment of the district court will be affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_genapel2 | H | 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.
Robert S. GERSTELL and Alice R. Gerstell, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 14291.
United States Court of Appeals Third Circuit.
Argued June 4, 1963.
Decided June 26, 1963.
Richard H. Appert, New York City, (David Sachs, White & Case, New York City, on the brief), for petitioners.
Michael Mulroney, Dept, of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Melva M. Graney, Attys., Dept, of Justice, Washington, D. C., on the brief), for respondent.
Before BIGGS, Chief Judge, and Mc-LAUGHLIN and KALODNER, Circuit Judges.
PER CURIAM.
We can perceive no error in the proceedings of the Tax Court in this case though the review is vigorously pressed by the petitioners. Consequently the decision of the Tax Court will be affirmed on the comprehensive opinion of Judge Black.
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_r_bus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
The AIRLINES STEWARDS AND STEWARDESSES ASSOCIATION, LOCAL 550, TRANSPORT WORKERS UNION OF AMERICA, Plaintiff, Appellee, v. CARIBBEAN ATLANTIC AIRLINES, INC., Defendant, Appellant.
No. 7272.
United States Court of Appeals First Circuit.
Heard June 3, 1969.
Decided July 8, 1969.
Juan R. Torruella, Hato Rey, P. R., with whom Wilson F. Colberg, San Juan, P. R., and Pieras & Torruella, Hato Rey, P. R., were on brief, for appellant.
Alan E. Greenfield, Miami, Fla., with whom Sr. Francisco Aponte, Perez, San-turce, P. R., and Kovner, Mannheimer, Greenfield & Cutler, Miami, Fla., were on brief, for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
This appeal involves a dispute between appellant airline company and appellee union over the assignment of “open time” flights. Such flights occur whenever a regularly-scheduled crew member is absent. These flights are covered by standby stewardesses on a seniority basis pursuant to the provision of paragraph 4.G. of the Flight Stewardesses Scheduling Policy Manual which states that:
“If no low on time bidholder has indicated her availability, open time shall be offered to stand by in order of seniority. Such open time flights shall be offered and posted on the daily schedule at least thirty (30) minutes before the scheduled departure of the flight. In determining the assignment- of open time a Flight Stewardess must be available at San Juan Operations at least thirty (30) minutes prior to the estimated time of departure of the flight.”
The union contends that prior to September 9,1968, the company offered open time flights on an individual basis. After that date, however, the company began offering open time flights on a group basis, i.e., a stewardess would have to take all the flights in a group or none at all.
The union, alleging a unilateral change of working conditions, filed a complaint, seeking a temporary restraining order on September 11, 1968. After a hearing, a temporary restraining order and subsequently a permanent injunction were issued by the district court, 294 F.Supp. 630.
The company brings this appeal seeking reversal and vacation of the injunction. The threshold, and primary, question before us is that of the district court’s jurisdiction. In order to answer this question we look to the provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq.
The Railway Labor Act divides disputes into two broad categories — so-called minor disputes over which the National Railroad Adjustment Board has exclusive jurisdiction, and “major” disputes which are covered by § 6 of the Act.
The difference between major and minor disputes is easily stated: “ * * * ‘major’ disputes relate to the formation of new agreements or modification of existing agreements; ‘minor’ disputes relate to the interpretation or application of existing agreements.” Southern Ry. Co. v. Brotherhood of Locomotive Fire & Eng., 127 U.S.App.D.C. 371, 384 F.2d 323, 327 (1967). See also, Elgin J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945).
In the case before us, as in most cases, the court’s task is to distinguish between disagreements over the meaning or coverage of the contract, and unilateral attempts to change the contract. In this regard the following discussion by the court in Southern Ry. Co., supra, is instructive:
“If the railroad took action which it admitted was not in conformity with the existing agreement there would be no question that a ‘major dispute’ was involved; and the same result necessarily obtains where the railroad’s claimed justification is without any reasonable basis in the contract. United Industrial Workers, etc. v. Board of Trustees, 351 F.2d 183 (5th Cir. 1965). But we think that, where the railroad asserts a defense based on the terms of the existing collective bargaining agreement, the controversy may not be termed a ‘major’ dispute unless the claimed defense is so obviously insubstantial as to warrant the inference that it is raised with intent to circumvent the procedures prescribed by § 6 for alteration of existing agreements.” 384 F.2d at 327.
In short, in order for there to be a finding that a dispute is “major”, there must be a showing that the company’s defense constitutes a “substantial and clearly apparent change.” See International Ass’n of Machinists v. Eastern Airlines, Inc., 224 F.Supp. 48 (S.D.Fla.1963).
In the present case the company sought to justify its conduct by invoking paragraph 4.G. of the flight scheduling manual, supra, which states that “Such open time flights shall be offered. * * * ” [Emphasis added.] In the company’s view the district court’s action was tantamount to a rewriting of paragraph 4.G. to read “Each open time flight shall be offered. * * * ” [Emphasis added.]
Based on the literal language of paragraph 4.G. the company’s argument is not without merit. But the district court looked to past practice in holding that there has been a radical departure from the contract. Assuming the district court’s description of past practice to be accurate, see n. 1, supra, it is nevertheless not conclusive. Past practice may well be persuasive evidence of the meaning of contract terms but so may be the plural reference to “flights”. This confrontation between words and practice poses a run-of-the-mill problem of interpretation of the type commonly presented to arbitrators.
The district court found that the company’s conduct constituted a radical departure from the terms of the contract, and that this was therefore a “major” dispute. The court failed, however, to pursue the critical inquiry as to whether the company’s contractual defense was so obviously insubstantial as to be an attempt to circumvent § 6 of the Railway Labor Act. In our view no such finding could be made.
It may be that the district court’s interpretation of the contract will ultimately prove to be correct. But in deciding whether to assume jurisdiction to grant injunctive relief, the court’s task is not to interpret the contract. It is to determine whether the contractual defense is frivolous. Otherwise the arbitration machinery mandated by the Railway Labor Act will be dealt a crippling blow. Cf. Brotherhood of R. R. Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 35-39, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957).
We hold, therefore, that the union has misconceived its remedy and that the injunction must be vacated.
Reversed and remanded for vacation of the injunction.
. The company argues, with some support in the record, that prior to September 9, 1968, flights were offered on both an individual and a group basis. There is, however, no indication that group flights were insisted upon as they were after September 9, 1968.
. The Railway Labor Act was enacted in 1926 and is applicable to the present case by virtue of the 1936 amendments which extended the coverage of the Act to air carriers, 49 Stat. 1189 (1936), 45 U.S.C. § 181 et seq. (1964).
. The Act vests discretion in the National Mediation Board to establish a “National Air Transport Adjustment Board”, but as of the present no such agency has been established. Until such a board has been created, the Act imposes a duty on every air carrier and its employees to establish systems or group, or regional boards. The collective bargaining contracts which establish such boards are creatures of federal law and are enforceable in federal courts. International Ass’n of Machinists A.F.L.-C.I.O. v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963).
In the present case the company and the union have created an adjustment board, but the union has failed to file a grievance.
. Indeed, the company might take the position that the contract was drafted with an eye to the future, i. e., in anticipation of the time when increased traffic would mandate assignment of open time flights on a group basis.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_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.
BREWER et al. v. NATIONAL SURETY CORPORATION.
No. 3644.
Circuit Court of Appeals Tenth Circuit.
Aug. 25, 1948.
O. B. Martin, of Oklahoma City, Okla. (Andrew Fraley, of Oklahoma City, Okla., on the brief), for appellants.
Clyde Watts, of Oklahoma City, Okla. (Looney, Watts, Ross, Looney & Smith, of Oklahoma City, Okla., on the brief), for appellee.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
HUXMAN, Circuit Judge.
This is an appeal from the judgment of the trial court dismissing appellants’ cause of action on the ground that appellants’ amended complaint and the opening statement of their counsel did not state a cause of action against appellee. The sole question is whether the amended complaint and the opening statement of counsel, if established, were sufficient to show that one Roy C. Davis and Roger W. Davis were employees within the provisions of a Blanket Honesty Insurance Policy issued by appellee defining “employee” or “employees” as those “in the regular service of the insured in the ordinary course of the Insured’s business, and who are compensated by salary, wages, and/or commissions, and whom the Insured has the right to govern and direct at all times in the performance of such service * * * but not to mean brokers, factors, commission merchants, consignees, contractors, or other agents or representatives of the same general character.”
The amended complaint, so far as material, alleged substantially these facts:
That on December 15, 1946, appellants engaged Roy C. Davis and Roger W. Davis as employees to work for them pursuant to an oral contract under which they were to solicit orders for building materials in the State of California, which materials were to be furnished by appellants and were to be transported from Oklahoma City and delivered to customers in California obtained by the employees; that the employees were to make collections on the sale and delivery of the merchandise in California and transmit the collected funds to appellants; that all costs and expenses incident to the sale and delivery of the merchandise were to be deducted and fifty per cent of the net proceeds remaining was to be paid to the employees as their compensation; that it was orally agreed that appellants would govern and direct said employees in the performance of said contract and generally govern, direct and supervise their activities in the sale and delivery of the building materials handled by them under said agreement. The complaint then alleged defalcations which would make appellee liable under the bond if the Davis brothers were employees.
The amended complaint further alleged that the parties operated under the oral contract from December 15, 1946, to December 28, 1946, and that on December 28, 1946, a written contract was executed by the same parties. A copy of the written contract attached to the complaint, while executed December 28, 1946, recites that it was entered into on December 15, 1946. The pertinent provisions of the written contract are set out in footnote one. It thus appears that the written contract covers the identical period of time covered by the alleged oral contract. It also covers the same business transactions and contemplates the same course of business between the same parties as those provided for under the alleged oral contract.
It is competent for the parties to agree that a written contract shall take effect as of a date earlier than that on which it was executed, and when this is done, the parties will be bound by such agreement.
15 O.S.A. § 137, provides that: “The execution of a contract in writing, whether the law requires it to he written or not. supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument.”
In Seal Oil Company v. Roberson, 175 Okl. 140, 51 P.2d 801, 80S, the Oklahoma Supreme Court said: “ * * * that under such facts the written contract is the sole depository of the agreement of the parties on all matters which were the objects of their negotiations, and such contract cannot be altered, varied, contradicted, enlarged, narrowed, nor added to by parol testimony * * * ”
See also cases collected under'Note 2 and Note 3, 15 O.S.A. § 137. It follows that we must look to the written contract alone to determine whether the Davis brothers were employees under the provisions of the policy in question. An examination of the appended contract clearly indicates the absence of an employer and employee relationship between the parties thereto.
The trial court correctly concluded that the contract did not establish the relationship of employer and employee. The Davis brothers were not employees of appellants either under the definition of “employees” in the contract or under the principles laid down in the decisions. There is a complete absence of those elements stressed in the decisions as essential to the creation of such a relationship. A casual reading of the contract makes this manifest and we shall not again detail those elements and discuss them at length. It is sufficient to say that the Davis brothers were not employees of appellants. The contract contemplated a business venture, the exact nature of which is not necessary to define, in which the parties combined their mutually beneficial facilities, as they hoped, for a common gain or profit. The facts clearly distinguish this case from that of United States v. Wholesale Oil Co., 10 Cir., 154 F.2d 745, upon which appellants place strong reliance.
Affirmed.
“Whereas: The Company has, (1) valuable connections with various material dealers in this region, and (2) the easb or credit with which to obtain largt quantities of building materials and other saleable merchandise, and (3) the organization to handle, (a) the purchasing of these various materials and merchandise, and (b) accounting for the various phases of the work resulting from the purchasing, handling, selling, delivery, etc., and,
“Whereas: The company agrees to furnish these facilities in fulfillment of this agreement, and,
“Whereas: Mr. Davis has (a) control of or owns transportation consisting of trucks capable of hauling large quantities of merchandise and (b) the organization to operate this transportation and (c) the connections and organization to dispose of merchandise and building materials in various parts of the U. S., and (d) agrees to use these facilities in fulfillment of this agreement, and,
“Whereas: It appears that by combining the facilities and resources of The Company and Mr. Davis, as listed above, and using these facilities and resources to obtain, sell, deliver, and collect for merchandise, a substantial profit may he realized.
“Now, Therefore: The parties agree to combine these facilities and resources and use this combination to obtain, handle, sell, transport, collect for and disburse collections received from the sale of Building materials and/or other kinds of merchandise. It is agreed between the parties that The Company is to obtain the materials and/or merchandise and handle the accounting in connection with the entire transaction; and that Mr. Davis is to receive and load the materials and/or merchandise on his truck and transport same to its destination, collect the money for the cargo and return the money to the Company for distribution.
“All moneys received from the sale of materials and/or merchandise shall be disbursed as follows:
“First. All invoices for the materials making up the load or loads shall be paid.
“Second. That portion thus remaining shall be divided equally between The Company and Mr. Davis. The Company shall pay, from its share, all expenses of accounting and financing in connection with the obtaining, selling, collecting, and disbursement. Mr. Davis shall pay, from his share, all expenses of operation, maintenance, and repairs of his transportation, salaries of truck drivers aud swampers and any other expense incident to delivery, selling and collection * * *
“This agreement covers only that business and transactions resulting from deals made to obtain materials and merchandise in Oklahoma for delivery to other states or vice versa and does not include any of the business conducted by the Paul Brewer Company including construction, sales and engineering and prefabricated buildings in Oklahoma * * * ”
13 C.J. § 132, page 308; 17 C.J.S., Contracts, § 61, page 410; Wright v. Prudential Ins. Co., 27 Cal.App.2d 195, 80 P.2d 752; American Credit Indemnity Co. v. Hecht & Co., 137 Ky. 261, 125 S.W. 697, 129 S.W. 340.
See the following cases: Jones v. Goodson, 10 Cir., 121 F.2d 176, 179; United States v. Wholesale Oil Co., 10 Cir., 154 F.2d 745; United States v. Albert Silk d/b/a Albert Silk Coal Co., 10 Cir., 155 F.2d 356; Texas Company v. Higgins, 2 Cir., 118 F.2d 636; Grace v. Magruder, 80 U.S.App.D.C. 53, 148 F.2d 679; Drumright Gas Engine Co. v. Sherrill, 173 Okl. 147, 46 P.2d 921; and cases cited therein.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
songer_r_bus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Paul BLUNT, Appellant, v. Charles L. WOLFF, Jr., Warden of Nebraska Penal & Correctional Complex, Appellee.
No. 74-1002.
United States Court of Appeals, Eighth Circuit.
Submitted June 14, 1974.
Decided Aug. 27, 1974.
Alan E. Peterson, Lincoln, Neb., for appellant.
Betsey S. Berger, Asst. Atty. Gen., Lincoln, Neb., for appellee.
Before GIBSON, BRIGHT, and STEPHENSON, Circuit Judges.
BRIGHT, Circuit Judge.
Paul Blunt, a Nebraska state prisoner who is serving his sentence of 24% to 35 years upon a conviction of robbery of approximately $169, seeks to annul the conviction through his petition for a writ of habeas corpus filed in the federal district court. Blunt filed no post-conviction proceedings in the state court but contends he has exhausted his remedies under state law through the direct appeal. United States District Judge Albert Schatz considered the habeas petition and rejected certain allegations as to their merits. As to others, however, he found that such issues had not been raised in the state supreme court, and hence, under the exhaustion doctrine, would not be considered on their merits. Blunt brought this timely appeal and we appointed counsel to assist him.
According to the district court’s analysis, Blunt raised ten issues in his petition and amended petition for habeas corpus relief, as follows:
1) That the evidence introduced at the trial supported at most a conviction for larceny, not robbery;
2) That petitioner was denied his sixth amendment right to counsel at trial (both through the ineffectiveness of Mr. Cullan and through the failure of Judge Krell [presiding judge at petitioner’s state court criminal trial] to appoint other counsel when the ineffectiveness became apparent);
3) That the petitioner made an involuntary, unintelligent, and unknowing waiver of counsel at trial;
4) That Judge Krell failed to exercise his duty to protect the petitioner acting pro se;
5) That Judge Krell failed to give petitioner an opportunity to prepare his defense in five respects:
a) He failed to grant a continuance in general;
b) He failed to grant a continuance to enable petitioner to get a transcript of the preliminary hearing;
c) He failed to grant a continuance to enable the petitioner’s witnesses to appear;
d) He failed to issue compulsory process for the petitioner’s witnesses;
e) That the state did not give petitioner necessary information concerning its witnesses;
6) That Judge Krell failed to recall two state’s witnesses;
7) That the trial court failed to provide a complete Bill of Exceptions;
8) That the petitioner was denied his sixth amendment right to counsel on appeal (both through the ineffectiveness of Mr. Hornstein and the failure of Judge Krell to appoint other counsel when that ineffectiveness became apparent);
9) That the prosecutor suborned the perjury of one of the state’s witnesses ;
10) That the sentence is excessive to the point of constituting cruel and unusual punishment under' the eighth amendment.
The record in this case discloses that Blunt defended himself on a pro se basis, although a member of the staff of the Douglas County, Nebraska, Public Defender’s Office served in an advisory capacity. Also, Blunt brought his appeal to the Nebraska Supreme Court on a pro se basis. Blunt’s briefs in the Nebraska Supreme Court disclose some form of assistance since the briefs contain the legend “Inmate Legal Assistance Office.”
The facts underlying the conviction are related in State v. Blunt, supra. Blunt entered a cleaning establishment in Omaha, Nebraska, on May 28, 1970, and caused a disturbance in the rear room. He then left the premises, but later returned and attempted to take some money out of a cash drawer. The counter clerk closed the drawer on Blunt’s hand. He pushed her away with sufficient force that she fell and lacerated her knees. Blunt then jerked the cash drawer out, removed the money, and fled. He was apprehended a few minutes later about two blocks from the place of the theft.
The record discloses that Blunt was initially brought to trial on September 14, 1970. After a jury was convened and trial commenced, a mistrial was granted because counsel disclosed defendant’s prior felony convictions in the voir dire of the jury. During the next month, Blunt indicated dissatisfaction with his appointed counsel and stated to the trial court that he would obtain his own attorney.
Blunt did not obtain counsel, but on November 2, his new scheduled trial date, he appeared before the trial court and stated that he would not permit the Public Defender to represent him and that he was not prepared to go to trial by himself. The court called the case for trial that same afternoon and directed that the Public Defender’s Office be in court to assist Blunt in the trial. The trial court denied all requests for a continuance and Blunt went to trial with the Public Defender acting as technical advisor. Mr. Cullan, who appeared for Blunt in the prior aborted trial of September 14, 1970, also served as technical advisor to Blunt at the November trial.
Following the trial and the conviction, the state trial court appointed Mr. Bennett Hornstein, of the Douglas County Public Defender’s Office (an attorney who had not previously represented Blunt) to prepare Blunt’s appeal. Subsequently, however, Mr. Hornstein moved to withdraw as counsel on the grounds that the appeal was “wholly frivolous.” The trial court, citing An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), granted the motion without prejudice to Blunt’s right to obtain his own counsel or conduct his appeal pro se. Blunt proceeded on his appeal pro se.
The Nebraska Supreme Court in denying Blunt relief on appeal specifically discussed Blunt’s claims of insufficiency of the evidence to justify the robbery conviction and excessiveness of the sentence. Contentions made by Blunt that he was deprived of a chance to prepare his defense or to obtain a record of his preliminary hearing were rejected as “contentions * * * not supported by the record and * * * without merit.” 193 N.W.2d at 435. On appeal to the state supreme court Blunt did not raise any question regarding withdrawal of appointed appellate counsel.
On the habeas petition, the United States District Court determined that the following numbered issues had actually been raised on Blunt’s direct appeal:
1) That the evidence introduced at trial supported at most a conviction for larceny, not robbery;
2) That petitioner was denied his sixth amendment right to counsel at trial (both through the ineffectiveness of Mr. Cullan and through the failure of Judge Krell to appoint other counsel when the ineffectiveness became apparent);
5) That the trial judge failed to give petitioner an opportunity to prepare his defense;
7) That the trial court failed to provide a complete Bill of Exceptions;
10) That the sentence was excessive to the point of constituting cruel and unusual punishment under the eighth amendment.
The United States District Court, on the other hand, determined that the following numbered issues were not raised or adequately presented to the Nebraska Supreme Court:
3) That the petitioner made an involuntary, unintelligent, and unknowing waiver of counsel at trial;
4) That the trial judge failed to exercise his duty to protect the petitioner acting pro se;
6) That the trial judge failed to recall two state’s witnesses;
8) That the petitioner was denied his sixth amendment right to counsel on appeal (both through the ineffectiveness of Mr. Hornstein and the failure of Judge Krell to appoint other counsel when that ineffectiveness became apparent);
9) That the prosecutor suborned the perjury of one of the state’s witnesses.
In resolving the appeal before us, we believe that we need only focus on issue No. 8, dealing with the withdrawal of Blunt’s appellate counsel.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), established strict criteria for the withdrawal of court-appointed appellate counsel. Counsel must determine that the appeal is “wholly frivolous” and advise the appellate court of that fact and request permission to withdraw. Additionally, counsel must submit a “brief” discussing the substantive aspects of the appeal. Finally, the appellate court must examine the entire proceedings and make its own independent determination of whether or not the appeal is “wholly frivolous.” If the appellate court so finds, then counsel may be allowed to withdraw. Id. at 744, 87 S.Ct. 1396.
In petitioner’s case, it was the state trial court rather than the state supreme court which reviewed the record and allowed counsel to withdraw. Under these circumstances, Blunt raises a substantial question of whether he was deprived of his sixth amendment right to counsel on appeal. The doctrine of exhaustion, however, requires that this issue be presented to the Nebraska courts before being considered in the federal forum. If Blunt was deprived of his sixth amendment right to counsel by not being furnished an attorney to present his appeal, he was not afforded an effective appeal and the decision thereon must be deemed a nullity.
With respect to remedies available to Blunt under Nebraska procedures, the Attorney General of Nebraska makes the following comment:
Appellant contends that post conviction remedies were not available to him. We simply do not know that to be a fact. While there is authority, as appellant correctly demonstrates, for the proposition that issues which could have been raised on direct appeal cannot be litigated again, the court has been faced in every case with an appellant who was represented by counsel on appeal.
If Blunt demonstrates to the Nebraska Supreme Court that he has been denied his sixth amendment right to counsel on appeal, that court may very well afford him an opportunity for a new appeal with competent counsel. Thus, it may be that Blunt will be able to raise before the Nebraska Supreme Court on a new direct appeal every issue presented to the federal court in his habeas petition.
While this court has recognized that under certain circumstances the federal courts on a habeas petition should consider those contentions which have already been exhausted in state proceedings notwithstanding the fact that some issues in the petition have not yet been considered in the state court, see Tyler v. Swenson, 483 F.2d 611 (8th Cir. 1973), that rule is inapplicable here. The unresolved, already exhausted issues presented to the federal district court are interrelated and intertwined with the unexhausted claim relating to the failure to furnish Blunt counsel on appeal. We think the correct procedure for us to follow in this case is to permit the state court to have the opportunity to pass on this sixth amendment issue and if the state court finds Blunt’s claim is meritorious to afford him full and effective relief unrestrained by any determination made by the federal district court on an issue that can still be presented to the state forum.
Since the federal district court considered certain claims as exhausted as though there had been a valid appeal in state court, that part of the court’s decision should be set aside.
Accordingly, we remand this case with instructions to enter a dismissal of the action without prejudice because the appellant has failed to exhaust his state remedies. Blunt should not be foreclosed by the federal judgment from presenting any of his claims to the Nebraska courts.
. Blunt’s state conviction was affirmed on appeal by the Nebraska Supreme Court. State v. Blunt, 187 Neb. 631, 193 N.W.2d 434 (1972).
. The federal district court decision is unreported. Blunt v. Wolff, Civil No. 72-L-125 (D.Neb., filed Nov. 27, 1973).
. Blunt also had the assistance of appointed counsel in presenting his petition before the United States District Court.
. At this hearing, Blunt was represented by appointed counsel, Mr. Cullan of the Public Defender’s Office.
. Justice McCown dissented, stating in his opinion that the 24% to 35 year sentence imposed by the sentencing judge amounted to “an abuse of discretion.” 193 N.W.2d at 436.
. See Approved Draft of American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, pp. 295-302.
. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). See Anders v. California, supra; Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967); DeMarrias v. United States, 444 F.2d 162 (8th Cir. 1971); Horsley v. Simpson, 400 F.2d 708 (5th Cir. 1968). See also Government of Canal Zone v. Corrella, 479 F.2d 1253 (5th Cir. 1973).
. See Anders v. California, supra; Douglas v. California, supra; Harris v. Estelle, 487 F.2d 56 (5th Cir. 1973); DeMarrias v. United States, supra; Horsley v. Simpson, supra.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_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.
WAGES et al. v. UNITED STATES CIVIL SERVICE COMMISSION.
No. 10761.
United States Court of Appeals Sixth Circuit.
Nov. 1, 1948.
William C. Sugg and D. L. Lansden, both of Nashville, Tenn., for appellants.
Ward Hudgins, of Nashville, Tenn., for appellee.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
This appeal arises out of the refusal of appellants to answer certain questions propounded at a hearing before the hearing examiner of the United States Civil Service Commission, conducted pursuant to the investigatory powers given the commission under the Hatch Act, 18 U.S.C., § 611. The appellants refused to answer the questions upon the ground, in substance, that the answers might incriminate them. Petitions were filed by the commission for an order requiring each witness to testify under subpoena theretofore issued. Orders to show cause were issued, and after hearing, the District Court ordered each appellant to answer the questions.
The petitions set forth that the commission, believing, as a result of its investigations, that certain administrative and supervisory employees of the State of Tennessee, covered by the provisions of the Hatch Act, “did command, coerce, and advise other such employees in subordinate positions to contribute part of their compensation to a political campaign committee,” issued subpoenas to the ' appellants commanding them to testify as to the facts within their knowledge with reference to-persons charged with violation of the Act. None of the appellants was at any time charged with such violation.
The questions were similar, the following question and answer being typical:
“Q. Mrs. Evans, in May or June of 1946, were you requested by any official or employee of the Division of Forestry to make a contribution to the Democratic-State Campaign Fund?
“A. I decline to answer.”
One appellant was asked whether she had' made such a contribution, and also whether she had signed a statement to that effect. Upon advice of counsel appellants refused to answer the questions, on the ground that the answers might incriminate-them.
We think the judgment of the District Court was correct and must be affirmed.
The pertinent provisions of the statute are as follows: “No officer or employee of any State or local agency whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States or by any Federal agency shall (1) use his official authority or influence for the purpose of interfering with an election or a nomination for office, or affecting the result thereof, or (2) directly or indirectly coerce, attempt to coerce, command, or advise any other such officer or employee to pay, lend, or contribute any part of his salary or compensation or anything else of value to any party, committee, organization, agency, or person for political purposes. No such officer or employee shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. * * *” [18 U.S.C. § 61Z(a)].
These provisions plainly do not penalize the payment of money nor make it a criminal act to make a political contribution. The statute neither expressly nor impliedly prohibits contributions either by individuals or by groups. It penalizes the solicitation of contributions under the circumstances detailed therein.
Nor are we impressed by the contention that a contribution is made criminal by the provision that “No such officer or employee shall take any active part in political management or in political campaigns.” This plainly includes and refers to executive direction of political campaigns and to such activities as making speeches, distribution of literature, house-to-house canvasses, etc.
We are cited to no court decision upon this point, but we think the meaning and the purpose of the statute is plain. It strikes at the evil presented when an official uses his official authority or influence for the purpose of affecting the result of elections or for the purpose of coercing or influencing his staff and subordinate employees to contribute to political funds. The action of the person who pays the money or makes the contribution is not made criminal, either expressly or in the purpose and intendment of the statute.
Moreover, affirmative answers to the questions propounded would not have tended to show that appellants, or any of them, had solicited or received, or were in any manner concerned in soliciting or receiving any assessment, subscription or contribution for a political purpose, in violation of § 208, 18 U.S.C.
It follows that the appellants could not be incriminated by answering the questions asked. The District Court was clearly correct in issuing the order appealed from, and it is affirmed.
Now 5 U.S.C.A. § 118k.
In 1948 Revision, 18 U.S.C.A. § 602.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_district | 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".
SOVRAN BANK, N.A., Appellee, v. Darl Duane ANDERSON, individually, and F/T/A Anderson Electronics and Engineering, Appellant, and Dean W. Sword, Jr., Trustee, Defendant.
No. 83-1296.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1984.
Decided Sept. 11, 1984.
Alexander P. Smith, Norfolk, Va. (Smith & Owens, Norfolk, Va., on brief), for appellant.
David H. Adams, Norfolk, Va. (Taylor, Walker & Adams, Norfolk, Va., on brief), for appellee.
Before WIDENER and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
WIDENER, Circuit Judge:
Anderson filed his petition in bankruptcy for relief under Chapter 7 of the Bankruptcy Code, claiming as exempt his equity in his residence which he and his wife own as tenants by the entireties. There was a first deed of trust on the residence with the approximate balance of $12,000 and a second deed of trust in favor of First & Merchants National Bank to secure a $50,000 demand note. The $50,000 note was pledged to First & Merchants as collateral for several loans made to Anderson to use in his business, Anderson Electronics, Inc.
The business loans included more than $74,000 not guaranteed by the Small Business Administration and a $150,000 note secured by the Small Business Administration. The SBA had paid the bank about $121,000 on the $150,000 obligation and had taken an assignment of the Bank’s right against Anderson on account of that note.
Upon this state of facts, the bankrupt being hopelessly insolvent, the bankruptcy court, upon the application of First & Merchants which wished to foreclose on the second deed of trust, modified the automatic stay provided for under 11 U.S.C. § 362 “to permit the parties to pursue their remedies in the state court.” The bankruptcy court also declined to discharge the bankrupt and continued the discharge hearing indefinitely. The question before us is whether or not the bankruptcy court erred by so modifying the automatic stay provision. We affirm.
The case of In re Ford, 3 B.R. 559 (D.Md.1980), which we affirmed on the opinion of the bankruptcy court sub nom Greenblatt v. Ford, 638 F.2d 14 (4th Cir. 1981), held in a similar situation that the interest of the bankrupt in real estate held by the entireties was a part of the bankrupt estate under 11 U.S.C. § 541 which interest was subject to exemption under 11 U.S.C. § 522(b)(2)(B), and impliedly held that the automatic stay provision of 11 U.S.C. § 362 applied to the bankrupt’s entirety interest in the property. We are of opinion the automatic stay provision of § 362 applies to the exempt entireties interest, and the parties recognize that rule.
We think the reasoning in Ford is persuasive, even if not controlling, here. In Ford we stated:
“Presuming that the debtor elects to exempt his interest in tenants by the entire-ties property, the Code as construed by this decision in no way affects the rights of a joint creditor of both spouses as those rights existed under the Act. As in the past, a joint creditor may, prior to the discharge of the bankrupt spouse from the debt of each creditor and upon the lifting of the stay, proceed to obtain judgment, execute or foreclose upon property owned by both the bankrupt and the non-bankrupt spouse as tenants by the entireties. Phillips v. Krakower, supra....” 3 B.R. at 576.
We think the fact that the property is held by the entireties and that the secured creditor will otherwise be unable to presently realize on its security for past due debts is quite analogous to the situation which existed in Phillips v. Krakower, 46 F.2d 764 (4th Cir.1931). In that case we affirmed an order of the district court which delayed the discharge of a bankrupt, a joint obligor on a note, so that the holder of the note could obtain a judgment in state court against the bankrupt and his wife who owned real estate held by the entire-ties. The reason for our decision was that the property otherwise could not have been reached by the creditor and was not subject to the bankruptcy proceeding. Just as importantly, we have only recently followed Krakower in Chippenham Hospital v. Bondurant, 716 F.2d 1057 (4th Cir.1983), in a case decided under the new Code as opposed to the old Act, and on almost identical facts to those in the Krakower case. In Chippenham we approved the lifting of the automatic stay provision and a deferral of discharge to permit the creditor to seek judgment in a state court in order to realize on property held by the bankrupt and wife by the entireties and claimed as exempt.
A lifting of the automatic stay under 11 U.S.C. § 362(b)(1) shall be granted “for cause, including the lack of adequate protection of an interest in property of such party in interest [in our case the bank].”
In the case before us, the residence held by the entireties cannot be reached in the bankruptcy proceeding. It was encumbered in good faith to secure the $50,000 note used as collateral for Anderson’s debts, and the entire interest of both Anderson and wife was encumbered to that effect. The Schedules show that the second deed of trust note held by First & Merchants as collateral is not nearly sufficient to cover its indebtedness, much less that of the SBA, whose debt may also be secured by the note. First & Merchants had only negligible, if any, other collateral to cover Anderson’s indebtedness to it. No reason appears to permit creditors, as in Krakower and Chippenham, who hold joint obligations of husband and wife, to proceed to judgment in order to realize upon real estate held by the entireties, and not to permit foreclosure by the bank which holds a deed of trust which will accomplish the same purpose. The passage from Ford at p. 576 we have quoted above requires, in terms, the opposite result. Thus, we are of opinion there was “cause” within the meaning of 11 U.S.C. § 362(b)(1) for amending the automatic stay to permit foreclosure.
The order of the district court appealed from is accordingly
AFFIRMED.
. An alternate ground for our decision is that Anderson does not have an equity in the residence as mentioned in 11 U.S.C. § 362(d)(2)(A). If the debtor does not have an equity in property to which the automatic stay applies, "the court shall grant relief from the stay----”
Anderson’s Schedules in bankruptcy show that the market value of the residence is $47,-000. A first deed of trust on the residence has $12,488 outstanding upon it. The second deed of trust held by First & Merchants in question here is for $50,000. Thus, there is a total of $62,488 secured by the residence valued at $47,-000. "Filing the schedule in a proceeding in bankruptcy is an ex parte act on the part of the bankrupt, and in that proceeding is a solemn admission which, unless corrected, binds him.” Horner v. Hamner, 249 F. 134, 137 (4th Cir. 1918). No proof has been offered that the value of the residence is not $47,000 nor that the amount owing on the first deed of trust is not $12,488, nor that the amount owing on the second deed of trust is not $50,000. Thus, the Schedules have not been corrected and are binding on Anderson. Anderson's objection, therefore, that it was necessary for the bank to prove his lack of equity in the residence in order to prevail is without merit, for his Schedules themselves show on their face that there is no equity in the residence above the secured indebtedness against it.
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_genresp1 | 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.
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.
HARRIS STRUCTURAL STEEL COMPANY, Inc., a Corporation of the State of New York Authorized to Do Business in the State of New Jersey, Appellant, v. UNITED STEELWORKERS OF AMERICA, AFL-CIO, LOCAL 3682, and United Steelworkers of America, AFL-CIO, an Unincorporated Association.
No. 13626.
United States Court of Appeals Third Circuit.
Argued Nov. 3, 1961.
Decided Jan. 22, 1962.
William W. Lanigan, Bound Brook, N. J. (M. Harvey Smedley, New York City, on the brief), for appellant.
Abraham L. Friedman, Newark, N. J. (Samuel L. Rothbard, Newark, N. J., Rothbard, Harris & Oxfeld, Newark, N. J., on the briefs), for appellees.
Before BIGGS, Chief Judge, and Mc-LAUGHLIN and FORMAN, Circuit Judges.
BIGGS, Chief Judge.
Invoking the aid of the New Jersey Uniform Declaratory Judgments Act, 2A N.J.S.A. 16-50 et seq., the plaintiff appellant, Harris Structural Steel Company, Inc., sued the defendant-appellee, United Steelworkers of America, AFL-CIO, Local 3682, and certain union officers in the Superior Court of Middlesex County, New Jersey, seeking to have a grievance resulting from the demand of members of the Local for “Christmas gifts”, in an-amount and of a nature explained hereinafter, declared to be outside the scope of a collective bargaining agreement entered into by the Harris Company and .the United Steelworkers of America, AFL-CIO, the International Union, and therefore outside the arbitration provisions of the agreement.
The defendants petitioned the court below to remove the case basing federal jurisdiction on Section 301 of the Labor Management Relations Act of 1947, 29 U. S.C.A. § 185, and removal was effected. The case was decided on a motion for .summary judgment made by the defendants. The court delivered an oral opinion, and judgment was entered dismissing the complaint on the merits and in favor of the defendants on their counterclaim. Arbitration of the grievance was ordered. The following operative facts, we believe, cannot be disputed.
Since 1946 the International Union has been and still is the certified collective bargaining agent of the production and maintenance employees of the Harris Company. Since 1946 the International ■has negotiated collective bargaining agreements with that Company. On March 14, 1960, the Company entered into a new collective bargaining agreement with the International. This agreement was in effect during December 1960 and January 1961 and will not expire until July 31, 1962.
Article I, Section 1 of the 1960 collective bargaining agreement between the Company and United’ Steelworkers ■of America, AFL-CIO, provides: “The Company recognizes the Union as the exclusive representative of all the Employees for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment.”
Article VII of the agreement states: “Adjustment of Grievances. Section 1. Should differences arise between the Company and the Union or between the Company and any of its employees as to the meaning and application of the provisions of this agreement or as to any question relating to the wages, hours of work and other conditions of employment of any employee there shall be no suspension of work on account of such differences, but an earnest effort shall be made to settle them promptly and in accordance with the provisions of this agreement and in the manner hereinafter set forth.” Step 5 of Article VII provides : “In the event the dispute shall not have been satisfactorily settled, the matter shall be appealed to the American Arbitration Association. The final decision of the Arbitrator designated by the said Association and accepted by the Company and the Union shall be binding.”
Section 3 of Article VII states: “During the term of this agreement neither the Union nor any employee shall (a) engage in or in any way encourage or sanction any strike or other action which shall interrupt or interfere with work or production at any of the shops or (b) prevent or attempt to prevent the access of Employees to any of the shops. During the term of this agreement the Company shall not engage in any lockout of employees at any of the shops. The Company may suspend and later discharge any Employees who shall violate any provision of this Section.”
In every year since 1946, in the period just before Christmas, the Company has granted to each employee in the bargaining unit an amount of money computed on the basis of days or hours of pay, at the employee’s rate of pay, for each month or year of his service. The record is not too clear as to the precise rate at which this amount of money was calculated but there is no room for doubt that whatever the formula, the amounts were calculated in terms of wages. In December 1960, however, the Company made a grant of money in a substantially reduced amount, approximately 50% of that made in December 1959, to each employee in the bargaining unit.
The present dispute between the Harris Company, the Local and the International is narrow in scope. The Company maintains vigorously that the sums granted these employees were given as Christmas gifts and were not wages to which they were entitled. The Unions and the employees through the Unions, claim to the contrary. The Unions insist that this grievance of the employees is subject to arbitration under the collective bargaining agreement and in particular under the provisions of Article VII set out above. The Company asserts that uncontroverted evidence demonstrates that the parties to the collective bargaining agreement did not intend, to include the subject matter of a grievance such as this within the agreement and hence within the provision for arbitration. We have examined the record carefully. Allegations of the affidavits filed on behalf of the Company are contradicted by an affidavit filed by a staff representative of the International. The extensive documentary evidence offered by the Company is not decisive. Were it not for the state of the law we would say that the case was not one which could be disposed of properly on motion for summary judgment but we think that the law in this case is so plain as to permit no alternative.
Five points are very clear: first, the Company recognizes the Union as the exclusive representative of the employees in the bargaining unit in respect to rates of pay and wages; second, the issue of bonus payments is not specifically excluded from the grievance provisions of the collective bargaining agreement; third, the grievance and arbitration article of the agreement expressly includes any question relating to wages, in addition to “differences * * * as to the meaning and application of the provisions of this agreement”; fourth, the sums granted, whether given or paid, to the employees at or near the Christmas season, were estimated in terms of wages; and, fifth, the agreement contains a no-strike provision.
It follows that this case is ruled, as the court below correctly indicated, by Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) and by United Steel Workers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). In Lincoln Mills, 353 U.S. 455, 77 S.Ct. 917, the Supreme Court made it clear that an “agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike.” Mr. Justice Douglas stated: “Viewed in this light, the legislation [Section 301 of the Labor Management Relations Act] does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.” See also United Steel Workers of America v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).
Wages are specifically included in the arbitration article of the collective bargaining agreement; the additional money grants are calculated in terms of wages and are not specifically excluded from the article. Mr. Justice Douglas stated in the Warrior opinion, 363 U.S. 581, 80 S.Ct. 1352: “Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of a disagreement.” The conclusion is irresistible that the grievance is arbitrable and that the court below was correct in so holding. The judgment will be affirmed.
. An answer and a counterclaim and affidavits were filed. The court below struck certain individual defendants, officers of the Local, from the record and ordered the International Union, United Steelworkers of America, AFL-CIO, added to the record as a party defendant,
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_state | 34 | 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".
Albert COOPER, Appellant, v. STATE OF NORTH CAROLINA, Samuel P. Garrison, Warden, Central Prison, Appellees.
No. 82-6293.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 6, 1982.
Decided March 10, 1983.
Norman B. Smith, Greensboro, N.C. (Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., on brief), for appellant.
Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., of North Carolina, Raleigh, N.C., on brief), for appellees.
Before WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.
ERVIN, Circuit Judge:
Albert Cooper challenges the constitutionality of his incarceration by the state of North Carolina after his felony conviction in state court. The district court denied his petition for a writ of habeas corpus and this court granted a certificate of probable cause. We now affirm.
I.
On December 2, 1971, Cooper was discovered by a policeman in a bowling alley in Goldsboro, North Carolina. He was behaving in a peculiar manner and was taken to a local hospital, where he told a nurse that he had “destroyed” his wife and children and made irrational statements to the nurse and to other hospital personnel. That same evening police entered Cooper’s apartment and found the bodies of his wife and four children, who had been brutally murdered.
Cooper was admitted to a state mental hospital and charged with the murders of his family. After being shuttled between hospital and court for several months, he finally was found competent to stand trial, although it was considered necessary by his doctor to keep him under medication during the trial in order to keep his mental illness in remission.
Cooper pled not guilty to five counts of first degree murder. His evidence at trial went toward showing his mental illness, and was largely corroborated by the state’s evidence. Indeed, the state has not contended at any point in Cooper’s odyssey that Cooper is not suffering from mental illness, but only that he was not legally insane when he committed the murders, and was legally competent to stand trial.
The trial judge instructed the jury that it could return verdicts of guilty of first degree murder, guilty of second degree murder, not guilty by reason of insanity, or not guilty. He distinguished the two degrees of murder and described their respective elements in accord with North Carolina law at the time. The judge repeatedly informed the jury that the state had the burden of proving beyond a reasonable doubt all the elements of the crime, including (for first degree murder) specific intent to kill, premeditation, and deliberation. The judge further instructed the jury that Cooper had the burden of proving to the jury’s satisfaction that he was legally insane at the time of the murders. He did not tell the jurors specifically that evidence of Cooper’s mental illness could be considered with regard to the elements of specific intent, premeditation, and deliberation, although he did state generally that their decision as to the existence vel non of a reasonable doubt should be “based on reason and common sense arising out of some or all of the evidence.”
The jury found Cooper guilty of first degree murder on all counts, and he was sentenced to life imprisonment. The North Carolina Supreme Court affirmed Cooper’s conviction over a strong dissent by Chief Justice Sharp, who argued that Cooper was entitled to a specific jury instruction that evidence of his paranoid schizophrenia was to be considered in determining whether the state had proven specific intent, premeditation, and deliberation. State v. Cooper, 286 N.C. 549, 213 S.E.2d 305, 334-35 (N.C.1975) (Sharp, C.J., dissenting).
II.
Cooper maintains before this court only one ground for habeas relief: the claim of entitlement to a specific jury instruction that evidence of his mental illness be taken into account in determining the state’s success in proving specific intent, premeditation, and deliberation. A jury charge which compels or even invites reasonable jurors to accept an unconstitutional view of the law vitiates a defendant’s conviction and can never be harmless error. Sandstrom v. Montana, 442 U.S. 510,526, 99 S.Ct. 2450, 2460, 61 L.Ed.2d 39 (1979). However, when reviewing a charge for constitutional infirmity, the court is required to look at the charge “in its entirety,” not just at the challenged parts. Reeves v. Reed, 596 F.2d 628, 629 (4th Cir.1979). While a charge which is correct viewed in its entirety will be upheld ordinarily despite the existence of misstatements of law, internal self-contradiction may render it invalid.
First instructing the jury in one way and then in another ... requires reversal for a new trial ... “If a charge to a jury, considered in its entirety, correctly states the law, the incorrectness of one paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudical, for the jury might have followed the erroneous instructions.”
United States v. Walker, 677 F.2d 1014, 1016 n. 3 (4th Cir.1982), quoting McFarland v. United States, 174 F.2d 538, 539 (D.C.Cir. 1949).
In collateral review of a jury charge, the court can grant relief only if a stringent standard is met by the petitioner: that of demonstrating that “the offending instruction is so oppressive as to render a trial fundamentally unfair.” Adkins v. Bordenkircher, 517 F.Supp. 390, 399 (S.D.W.Va. 1981), aff’d, 674 F.2d 279 (4th Cir.1982). The Supreme Court recently stated, in a case in which the petitioner’s claim, like Cooper’s, was that an omission in the jury charge constituted error, that
[t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. [141] 147 [94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)], not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” id. at 146 [94 S.Ct. at 400]. In this case, the respondent’s burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation beyond the reading of the statutory language itself of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.
Henderson v. Kibbe, 431 U.S. 145, 154-155, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). It is apparent that to afford Cooper relief this court must find that he has carried a very heavy burden of persuasion.
III.
Cooper’s primary objection to the trial judge’s jury instructions is the latter’s failure to instruct the jury to consider evidence about Cooper’s mental illness with regard to the elements of specific intent, premeditation, and deliberation of the crime of first degree murder. This, according to Cooper, in effect shifted to him the burden of disproving those elements of the crime.
It is clear that a state may make insanity an affirmative defense to be proven by the defendant, see Patterson v. New York, 432 U.S. 197, 205, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977), and may rely on a presumption of sanity in proving its case-in-chief in a criminal prosecution, see Mullaney v. Wilbur, 421 U.S. 684, 702 n. 31, 95 S.Ct. 1881,1891 n. 31, 44 L.Ed.2d 508 (1975). It is equally clear that the state must prove beyond a reasonable doubt every element of the crime with which a defendant is charged, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and “may not shift the burden of proof to the defendant by presuming [an element of a crime] upon proof of the other elements of the crime.” Patterson, 432 U.S. at 215, 97 S.Ct. at 2329. The labels attached by the state legislature or supreme court are not dispositive, see Patterson, id. at 210, 97 S.Ct. at 2327, and the federal courts are to employ a “functional analysis” aimed at determining whether the state has in effect incorporated the absence of the affirmative defense into the elements of the crime. See Holloway v. McElroy, 632 F.2d 605, 625, 628 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).
Cooper claims that by failing specifically to instruct the jury that it should consider mental illness evidence in connection with the state’s proof of specific intent, premeditation, and deliberation, the state trial court put the burden on him of demonstrating, through the insanity defense, the absence of intent. Under North Carolina law, the existence of mental illness can negate the possibility of intent, deliberation, and premeditation, see State v. Cooper, 213 S.E.2d at 320, elements of first degree murder which the state had to prove to convict Cooper. Cooper argues that the judge’s specific instruction to consider the mental illness evidence with respect to his affirmative defense of insanity might have misled the jury into thinking that it could consider that evidence only in that regard.
While there is a slight possibility that the jury could have misunderstood the trial judge’s somewhat imprecise instruction, Cooper has not made the showing that “the offending instruction [rendered the] trial fundamentally unfair,” Adkins,■ 517 F.Supp. at 379, necessary to support the grant of the writ of habeas corpus. The trial judge did tell the jury that they were to consider whether the state had excluded all reasonable doubts on the basis of “some or all of the evidence.” He repeatedly instructed the jury that the state had to prove all the elements of first degree murder beyond a reasonable doubt, and that this burden of persuasion included the elements of specific intent, premeditation, and deliberation. He stated that “with deliberation” meant “while in a cool state of mind.” Viewed “in its entirety,” we do not find that the charge was misleading, or “infected the entire trial.” Henderson, 431 U.S. at 154, 97 S.Ct. at 1736.
IV.
Cooper has failed to shoulder with success the heavy burden on a habeas petitioner who challenges a jury charge because of a sin of omission. Therefore, the district court’s denial of the writ must be affirmed.
AFFIRMED.
. The judge’s instruction that proof of an intentional killing gave rise to a presumption of malice accorded with then current state law but violated the due process requirements of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). This claim was not raised on direct appeal to the state supreme court, and, therefore, federal habeas relief is precluded. See Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980).
. This narrow standard of review does not contradict the general principle that constitutional infirmity in a jury charge is never harmless error, but only requires a stricter standard of proof from a habeas petitioner seeking to show such infirmity than is imposed on a criminal defendant in a direct appeal from his or her conviction.
. Cooper also contends that the North Carolina Supreme Court’s opinion on his direct appeal established an irrebuttable presumption of capacity to deliberate and premeditate arising upon his failure to prove his insanity defense, and that such a presumption violates due process. This argument misconceives our role in habeas corpus proceedings. This court does not exercise appellate jurisdiction over the state supreme court, and our concern in such proceedings is not to correct alleged errors in that court’s views of federal law, but solely to determine if the petitioner’s incarceration violates the federal Constitution. As we discuss below, the state trial court did not deny Cooper due process, and his incarceration is constitutional.
Cooper’s final argument, that his conviction violated the equal protection clause because North Carolina law guarantees a defendant a jury instruction on the effect of voluntary intoxication on the intentional elements of first degree murder, but does not guarantee such an instruction on the effect of mental illness, was not presented to the state supreme court or to the federal district court below. Cooper, therefore, may not raise this contention here. See Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980).
. Cooper’s reliance on Hughes v. Mathews, 576 F.2d 1250 (7th Cir.1978), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978), is misplaced. The constitutional error in that case was that the state used a rebuttable presumption of intent to convict a defendant while forbidding him to introduce relevant psychiatric evidence tending to rebut the presumption. No evidence was excluded in this case.
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_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".
CONCORD FABRICS, INC., Plaintiff-Appellant, v. MARCUS BROTHERS TEXTILE CORP., Defendant-Appellee.
No. 494, Docket 33341.
United States Court of Appeals Second Circuit.
Argued March 5, 1969.
Decided March 12, 1969.
Arthur S. Olick, New York City (Otterbourg, Steindler, Houston & Rosen, New York City, on the brief), for appellant.
Jesse Rothstein, New York City (Amster & Rothstein, Horvath & Young, and Harold Young, New York City, on the brief), for appellee.
Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and McLEAN, District Judge.
Sitting by designation.
PER CURIAM:
This appeal raises the narrow question of whether the district court properly refused to issue a preliminary injunction in this copyright infringement case.
Plaintiff-appellant, Concord Fabrics, Inc., brought this action seeking to enjoin Marcus Brothers Textile Corp. from manufacturing, converting, selling and distributing textile material allegedly copying Concord’s design pattern No. 7073, which Concord has copyrighted. The district court originally issued a temporary restraining order, but later denied Concord’s motion for a preliminary injunction and vacated the restraining order, finding that the allegedly infringing pattern was not so similar to the copyrighted pattern as to merit an injunction pending completion of the trial. 296 F.Supp. 736. We disagree.
The design on both plaintiff’s and defendant’s fabric consists of a circle within a square within a square, with the dimensions of the circles and squares being identical. The colors are essentially the same, although the defendant’s are somewhat brighter and more garish. The designs within the circles, between the squares, and around the outer square, while having some differences, give the same general impression on both samples. While the trial court placed great emphasis on the minor differences between the two patterns, we feel that the very nature of these differences only tends to emphasize the extent to which the defendant has deliberately copied from the plaintiff. For example, the frames around the border on the defendant’s sample are similar but run in opposite directions from the plaintiff’s figures. The same is true of the figures around the outer part of the circle. In sum, a comparison of the samples strongly suggests that defendant copied plaintiff’s basic design, making only minor changes in an effort to avoid the appearance of infringement.
The ultimate test in a copyright infringement case of this sort is whether an average lay observer would find a substantial similarity in the designs, recognizing the copy as an appropriation of the copyrighted work. Ideal Toy Corp. v. Fab-Lu Limited, 360 F.2d 1021 (2d Cir. 1966). An injunction pending the outcome of trial in such a case should issue if plaintiff can show a reasonable probability of prevailing on the merits. American Visuals Corp. v. Holland, 261 F.2d 652, 654 (2d Cir. 1958).
While there are some differences in both the color and design of the two patterns, we think that the average observer would probably find them substantially similar. In our view the plaintiff is likely to succeed after trial. It seems clear to us that in its discretion, the district court should have granted a preliminary injunction. As we have before us the same record, and as no part of the decision below turned on credibility, we are in as good a position to determine the question as is the district court.
The order of the district court is reversed and the case remanded, with directions that an injunction issue pending the outcome of a trial on the merits. Plaintiff should be required to post bond of $25,000 and the trial should be expedited.
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_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
SCOTT AND FETZER COMPANY (the Kirby Company Division), Plaintiff-Appellee, v. Virgil L. DILE, Individually and Virgil L. Dile and Barbara Jolene Dile, husband and wife, dba Railroad Freight, Railroad Salvage and Discount Freight; and T.H.E. California Corporation, an Arizona Corporation, dba Railroad Freight, Defendants-Appellants.
Nos. 79-3314, 79-3740.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 12, 1981.
Decided April 27, 1981.
David N. Ramras, Phoenix, Ariz., for Dile.
Barry L. Springel, Cleveland, Ohio, on brief; Irving Berger, Jones, Day, Reavis & Pogue, Cleveland, Ohio, argued, for Scott & Fetzer Co.
Before CHOY and REINHARDT, Circuit Judges, and KELLEHER, District Judge.
The Honorable Robert J. Kelleher, United States District Judge for the Central District of California, sitting by designation.
CHOY, Circuit Judge:
This is a consolidated appeal from a preliminary injunction issued by the United States District Court and from a subsequent order finding appellant Virgil Dile in civil contempt. We reverse the issuance of the injunction, vacate the contempt judgment and remand for further proceedings.
I. Facts
Appellee Scott and Fetzer Company, the Kirby Company Division (“Kirby”), is engaged in the business of manufacturing and distributing electric vacuum cleaners and parts and accessories therefor. Appellant Virgil L. Dile (“Dile”), a resident of the State of Arizona has been engaged since 1965 or 1966, in the retail sale of various consumer products, both individually and through corporations owned or controlled by him. He has done business under various trade names.
Kirby sells its products to “authorized factory distributors” pursuant to written agreements which include a license to use Kirby’s trademarks. Although there appears to be some dispute as to whether Dile was ever a factory authorized distributor of Kirby, he was not so authorized at all times relevant in this action.
Over the years Kirby has had written commitments with purchasers of vacuum cleaners to completely rebuild vacuum cleaners sold to them for a specified maximum fee, on condition that only the original purchasers request the rebuilding. It is not the company’s policy to rebuild and sell any used Kirby vacuum cleaners.
Dile has been engaged in the retail sale of rebuilt vacuum cleaners bearing Kirby’s trademark since 1971 or 1972. This case arose from Dile’s sale of these rebuilts and specifically from his advertising in connection with such sales.
Kirby brought suit against Dile alleging trademark infringement and unfair competition. The district court held a show cause hearing on March 21 and 22, 1979 on Kirby’s request for a preliminary injunction. On April 13,1979, the district court entered a preliminary injunction, part 3 of which required Dile to include in any advertising which used the word “Kirby” (a registered trademark owned by Kirby) a disclaimer of any affiliation with Kirby. Dile appealed from the preliminary injunction.
On May 9, 1979, Kirby filed a motion in the district court to hold Dile in contempt for violating the disclaimer injunction. Kirby requested that as partial relief for the violation the district court bar any use of the word “Kirby” in Dile’s advertising. The district court issued an order to show cause and held a hearing on the contempt motion on May 31, 1979.
On July 12, 1979, the district court entered an order in which it (a) held Dile in civil contempt, (b) ordered Dile to pay the expenses incurred by Kirby in the contempt proceeding, (c) ordered Dile to pay a fine of $500, and (d) ordered the cessation of all use of the word “Kirby” in any manner whatsoever in Dile’s advertising.
On August 3, 1979, Dile filed a motion that the district court reconsider the July 12 order with respect to the contempt finding, the $500 fine, and the non-use injunction. On October 10, 1979, after reconsideration, the district court entered an order (a) affirming the contempt finding, (b) striking the $500 civil contempt fine, and (c) denying Dile’s request to strike the non-use injunction. On November 8,1979, Dile filed a notice of appeal from the October 10 order. On January 17,1980, this court consolidated this appeal with the appeal from the original preliminary injunction.
II. Appeal from the Preliminary Injunction
A. Order to Show Cause Hearing
This action was commenced on March 18, 1978. The order to show cause hearing on Kirby’s request for a preliminary injunction was not held until March 21, 1979. During this period of more than one year, extensive discovery took place.
At the order to show cause hearing Kirby called 23 witnesses in support of its claim. Twenty of the 23 witnesses were not listed as witnesses by Kirby in its answers to interrogatories. All 20 were permitted to testify over Dile’s objection. In addition, of the 16 persons listed by Kirby as witnesses in the answers to interrogatories, Kirby called only three to testify at the hearing.
One of the undisclosed witnesses was an expert witness, John Lackner, a Kirby plant manager. His testimony concerned a'Kirby rebuilt that was sold by Dile to an investigator hired by Kirby. He testified that a substantial number of components of the rebuilt were not genuine Kirby parts and as to the safety hazards posed by the examined machine. He was allowed to testify despite the fact that his name was not listed in response to an interrogatory which expressly asked whether any experts had been retained by Kirby. Two of the 20 witnesses not listed were process servers. Their testimony was not used by Kirby as part of its case in chief. One witness was the private investigator hired by Kirby. Other witnesses included persons who had purchased rebuilt Kirby vacuum cleaners from Dile believing them to be new Kirby products.
Kirby also offered 51 exhibits in support of its claim. Twenty-six of the 51 exhibits were not listed as exhibits in Kirby’s answers to interrogatories. All of the exhibits were received over Dile’s objection.
Dile argues that the district court abused its discretion by permitting Kirby, over objection to call the 20 witnesses to testify at trial and to introduce the 26 exhibits when notice of their identity and intention to use them was first given after trial began and when the witnesses and exhibits were not listed in response to interrogatories. We agree. These actions by the district judge denied Dile his right to prepare effective cross-examination and to present rebuttal witnesses and exhibits. We note that the need for preparation for effective cross-examination is even more compelling where expert testimony is involved.
In addition it appears that Kirby used these undisclosed witnesses and exhibits to support a previously undisclosed theory of the case. Kirby’s theory of the case, as shown in its answers to interrogatories, was that Dile committed trademark infringement and unfair competition by using the trademark “Kirby” in his advertising and by making various alleged misleading representations in his advertising and sales receipts. At the hearing Kirby first revealed a new theory of the case; that is, that Dile allegedly engaged in trademark infringement and unfair competition by retaining the trademark “Kirby” on the rebuilt vacuum cleaners where such rebuilt vacuum cleaners were not assembled in their entirety by Kirby with “genuine” Kirby parts (manufactured by or for Kirby). In addition, at the hearing Kirby first raised an issue concerning the quality of Dile’s rebuilt Kirby vacuums apparently arguing that Dile’s rebuilt Kirby vacuums were inferior to Kirby’s new vacuums and, thus, by retaining the “Kirby” trademark on such rebuilt vacuums Dile was injuring Kirby’s good name and reputation.
The Supreme Court has noted that
Rules 26 to 37, the discovery-deposition provisions of the Federal Rules, were intended to insure “proper litigation”, Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), by making the “trial less a game of blind-man’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed. 1077 (1958).
Goldman v. Checker Taxi Co., 325 F.2d 853, 855 (7th Cir. 1963). Rule 26(e) of the Federal Rules of Civil Procedure specifically requires supplementation of responses to interrogatories. The rule states in relevant part:
(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement' his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
Kirby explains its failure to supplement by maintaining that it was not until shortly before the March order to show cause hearing that it discovered the trademark infringement and unfair competition associated with the rebuilt vacuums. By a letter to Dile’s counsel dated March 8, 1979 (which was read into the record), Kirby offered to supplement its prior interrogatory answers to identify the witnesses and exhibits it intended to use at trial. Since Kirby had made a request for supplementation to Dile, Kirby’s offer to supplement was predicated on a simultaneous supplementation. Dile never responded to this letter and Kirby claims that if he had he would have received the information that disclosed Kirby’s position with respect to the rebuilts. This letter indicated nothing about a new theory in the case, however, and furthermore Rule 26(e) of the Federal Rules of Civil Procedure does not require such a simultaneous supplementation of answers to interrogatories.
While the district court has wide discretion concerning discovery and evidentiary issues at trials and hearings, this discretion is not limitless.
A rule of thumb as to the meaning of the abuse of discretion standard provides that the trial court’s exercise of discretion should not be disturbed unless there is “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.”
Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976).
We find that, considering all the factors and circumstances of this case, the district court’s actions constituted an abuse of discretion.
B. Dile’s Deposition
A dispute arose between the parties over the deposition of Kenneth A. Hook, Kirby’s in-house counsel, and over Kirby’s noticing of a second deposition of Dile. Dile failed to appear for the deposition and the district court held him in contempt and precluded him from testifying at the order to show cause hearing as a punishment for contempt pursuant to Rule 37 of the Federal Rules of Civil Procedure. Dile contends that this order constituted an abuse of the district court’s discretion. Our holding on the previous issue makes it unnecessary to review this order.
III. Appeal from Contempt Finding and Order Modifying the Injunction
A. Modification of Injunction
Due to our reversal of the order granting the preliminary injunction, it is unnecessary for us to reach the issues concerning the order modifying the injunction. Since the injunction itself has been invalidated, the modification also falls.
B. Contempt Judgment
The district court found Dile to be in civil contempt. Contrary to the general rule regarding criminal contempt, a civil contempt judgment may fall if the underlying injunction is invalidated. The Supreme Court stated in United States v. United Mine Workers, 330 U.S. 258, 295, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947), that “[t]he right to remedial relief falls with an injunction which events prove was erroneously issued.”
Several other circuits have held specifically that a civil contempt judgment is invalidated if the underlying injunction is determined to be invalid. These courts have distinguished between “coercive” civil contempt and “remedial” civil contempt in their analysis, but have come to the conclusion that neither can survive the invalidation of the underlying injunction.
The order finding Dile in contempt was clearly “civil” contempt. Kirby asked that Dile be held in criminal contempt but the court specifically refused to so hold. In addition, it appears that the contempt order is of the “remedial” nature as its purpose was to compensate Kirby for the costs incurred in the contempt hearing (the court originally fined Dile $500 but, on Dile’s request to reconsider, changed the order to require a $500 fine upon the next violation). The contempt judgment is for remedial purposes and, therefore, must fall as a result of our decision invalidating the underlying injunction. See United States v. United Mine Workers, supra, at 295, 67 S.Ct. at 696.
IV. Conclusion
Under all the facts and circumstances of this case, we find that the district court abused its discretion in allowing Kirby to introduce at the hearing the undisclosed witnesses and exhibits and to use a new theory of the case. The granting of the preliminary injunction is REVERSED, the contempt judgment is VACATED, and the case is REMANDED for further proceedings.
. Dile does not rebuild the Kirby vacuum cleaners himself but rather purchases rebuilt Kirby vacuum cleaners from the Palomar Vacuums Company.
. Paragraph 3 of the preliminary injunction provides:
3. Defendant shall include ih any advertisement and/or commercial which uses the word “Kirby” or depicts a Kirby Product, either orally, visually and/or in writing, a statement in clearly legible and/or audible form that the seller “is not affiliated or connected with, or authorized by, the manufacturer of the Kirby vacuum cleaner to sell or service that product.” If the word “Kirby” is used orally, then the aforesaid statement shall be oral. If the word “Kirby” is written, then the aforesaid statement shall be written in the same type, style and size as that used for the word “Kirby.” If a Kirby Product is depicted, then the aforesaid statement shall be prominently written. With respect to television commercials, if the aforesaid statement is required to be' in writing it shall remain continuously visible on the screen without any accompanying written material for no less than three (3) seconds.
. On November 26, 1979, Kirby moved this court for a dismissal of the November 8 appeal on the ground that the court lacked jurisdiction since Dile failed to file a timely notice of appeal from the July 12 order. On January 9, 1980, the court denied the dismissal motion.
. Our jurisdiction over the appeal from the order granting the preliminary injunction is found in 28 U.S.C. § 1338(a), as to trademark infringements, and 28 U.S.C. § 1338(b) as to the unfair competition claims since they are joined with substantial and related claims under the Trademark Laws of the United States. The court has jurisdiction over the appeal from the order refusing to modify the injunction, under 28 U.S.C. § 1292(a)(1).
. The letter, dated March 8, 1979, read as follows:
David N. Ramras, Esq. 1110 East McDowell Road Phoenix, Arizona 85006
Re: The Scott & Fetzer Company v. Virgil Dile
Dear Mr. Ramras:
As you may recall, we each propounded interrogatories concerning the witnesses to be presented at the show cause hearing and the subject matter of their expected testimony. We are prepared at the present time to supplement our responses in that regard. However, in view of the fact that identical directions for supplementation were in our respective inter- . rogatories, we are .entitled to the same information from you. Therefore, we believe that the appropriate procedure is for supplemental answers to be exchanged simultaneously. Please advise me in writing at your earliest convenience as to whether you are prepared to exchange such supplementations, and if you are, the time at which you propose to make the exchange.
You may also recall that we each propounded interrogatories concerning the exhibits to be introduced at the show cause hearing. We are still in the process of determining what exhibits we intend to proffer and are willing to make the same type of exchange as set forth above when we complete our determination.
Very truly yours,
Barry L. Springel
cc: G. Mark Cord, Esq.
. “Violations of an order are punishable as criminal contempt even though the order is set aside on appeal .... ” United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947).
. The most significant difference between criminal and civil contempt concerns the purpose and character of the sanction that is imposed in each. The purpose of criminal contempt is to vindicate the authority of the court, and the order is punitive. In contrast, the objective of a civil contempt decree is to benefit the complainant and the sanction imposed is remedial. Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911).
. Smith v. Sullivan, 611 F.2d 1050, 1054 (5th Cir. 1980); Blocksom and Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir. 1978) (civil contempt may be defended on the ground that the underlying order was erroneously issued); ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1356 (5th Cir. 1978) (an order of civil contempt cannot stand if the underlying order on which it is based is invalid); Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1342-45 (3d Cir. 1976).
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_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.
STINSON v. NEW YORK LIFE INS. CO.
No. 9568.
United States Court of Appeals District of Columbia.
Argued Jan. 22, 1948.
Decided March 15, 1948.
Mr. Harry A. Finney, of Washington, D. C., with whom Messrs. John R. Fitzpatrick and Edward J. Lynch, both of Washington, D. C., were on the brief, for appellant.
Mr. G. Bowdoin Craighill, of Washington, D. C., with whom Messrs. John S. Flannery and A. Murray Preston, both of Washington, D. C., were on the brief, for appellee. Messrs. Caesar L. Aiello and John E. Larson, both of Washington, D. C., entered appearances for appellee.
Before EDGERTON, CLARK, and WILBUR K. MILLER, Associate Justices.
CLARK, Associate Justice.
Appellant is the beneficiary designated in a policy of life insurance which was issued by appellee on November 24, 1942, to the now deceased husband of appellant. At the time the policy was issued the decedent was serving as a Major in the Quartermaster Corps, United States Army, and was stationed at Camp Lee, Virginia. Appellant averred in her complaint that under the terms of the policy the insurer, appellee here, agreed to pay, upon receipt of due proof of the death of the insured, to appellant, or in the event of her prior death, to the insured’s mother, the sum of ten thous- and dollars. The complaint recites that the insured, Jack L. Stinson, met his death October 2, 1945, by accidentally falling from a window of the Hotel du Nord in Reims, France. It is further averred that appellant properly presented proof of death of the insured and applied for payment in accordance with the terms of the policy, which was refused.
Appellee answered and raised as a complete defense to all except a restricted recovery (which involved a return of the premiums paid, with interest) a rider captioned “Additional conditions relating to War and Aviation,” which was attached to and made a part of the policy. The pertinent provisions of this rider relied upon by appellee are as follows:
“The only amount payable under this policy shall be the restricted amount hereinafter defined if the death of the Insured shall occur in the circumstances set forth in any one or more of the following clauses (1), (2), (3) or (4), namely “(1) outside the Home Areas while the Insured is in the military or naval forces of any country engaged in war;
******
“Said restricted amount shall be a sum equal to the premiums which shall have fallen due hereunder prior to the date of death of the Insured and been paid to and received by the Company, together with compound interest at the rate of three per cent per annum, plus the reserve on any outstanding dividend additions, and any outstanding dividends, including dividend deposits, and less any indebtedness hereon.
íjí ?}c ;jc
“Wherever used in this Policy,
“ ‘Home Areas’ means the forty-eight states of the United States of America, the District of Columbia, the Dominion of Canada and Newfoundland;
“ ‘War’ includes undeclared war;
“ ‘Military or naval service’ includes service in the air forces of a country, including air training forces and forces charged with the operation or maintenance of any kind of aircraft, and ‘military or naval forces’ include any such air forces;
The appellee admitted liability for a “restricted amount” of $880.59, and made tender of that sum, which was refused.
Appellant filed interrogatories, pursuant to Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to determine whether the appellee had continued to write into its new policies of insurance, after the surrender by Japan, the same conditions relating to war and aviation, and also to learn, provided that practice had been discontinued, the date of discontinuance. Appellee objected to the interrogatories and the trial court sustained the objection; appellant contends this was error.
Appellee then filed a motion for summary judgment, contending that there was no genuine issue as to any material fact and that as a matter of law appellee was entitled to judgment. Agreeing that no material fact was in dispute, appellant filed objections to appellee’s motion together with her own motion for a summary judgment. By agreement the two motions were heard jointly, and the trial court then granted appellee’s motion, but awarded appellant $880.59. Judgment was entered in accordance therewith, and from that judgment this appeal was taken.
We face the necessity of interpreting a contract. Our sole duty is to find out what was intended by the parties according to the expressed or apparent intent manifested by the language employed, and give effect to that intention if it can be done consistently with legal principles. In attempting to judicially determine the probable intent of the parties, consideration is directed to the purpose of the contract and the circumstances surrounding its execution. Subjective analysis of the terms of the contract is of little benefit, for words studied out of context are usually variable in meaning. Objective analysis may not produce an indisputable result, but it is the method we must adopt as the one calculated to produce a greater degree of fairness in the result.
Generally speaking, contracts should not be so narrowly or technically construed as to relieve the obligor from a liability fairly within the scope or spirit of their terms, nor should they be so loosely construed as to frustrate their obvious design. A court has no basis for relieving one party from contract provisions to which he has agreed, merely because they operate disadvantageously as to him. With particular regard to the type of contract before us, it is a well-known rule of insurance law that where an insurance contract is ambiguous and fairly susceptible of two or more interpretations, the interpretation most favorable to the insured will be adopted. And unless it is obvious that the terms were intended to be used in their technical connotation, they will be given the meaning that common speech imports. We must attempt to ascertain and effectuate the lawful intention of the parties, and, in the light of these precepts, we proceed to a determination.
It is conceded by appellant that the insured died outside the “Home Areas” while serving in the military forces of the United States. Clause (1) of the rider contained additional modifying words conditioning the exemption of liability, however, and it is the phrase, “of any country engaged in war,” which requires interpretation. We must determine, therefore, whether the United States was a “country engaged in war” when the insured met his death on October 2, 1945. No identical provision has previously received judicial consideration by an appellate court, although the last two wars involving the United States have produced an abundance of litigation centering on similar war risk exclusion clauses. The decisions are not particularly helpful for the reason that they construe clauses making “status” of the insured, or “cause of death” of the insured, the determining factors. Here we have a “status” clause extended to include also the “war status” of the country. Excellent discussions and annotations reviewing some or many of the prior related adjudications are available, which serve mainly to highlight the problems inherent in judicial consideration of the variously phrased war risk exemption clauses.
In a memorandum opinion the trial court expressed the view that the term “engaged in war” has a meaning so well recognized and of such long historical acceptation that it must be presumed to have been clearly understood by both parties that the United States continues to be engaged in war until the legislative or executive authority, or both, recognize and declare that the nation is no longer so engaged. The appellee’s argument to us is principally based on the premise that whether the United States is engaged in war is wholly a political question, the determination of which rests solely with the legislative and executive branches of our Government, and their pronouncements are binding upon the judiciary. Appellee urges strongly that we must adopt the view expressed by the lower court or run counter to well established precedent. That argument requires inspection.
The meaning of the phrase “engaged in war” may very according to the purpose for which it was employed and the manner in which it was stated in relation to that purpose. The clause containing that phrase in the contract before us obviously purported to state a condition of non-liability for insurance coverage otherwise provided. The attempt was to define a period of non-liability, dependent on the military status ■of.the insured and the war status of the country he served, by the use of relative terms, since it was impossible to forecast with definiteness the duration of that period.
It is essential to note that fixation of the dates when (regarding World War II only, for the moment) this country became engaged in war and ceased, or will cease, to be engaged in war, depends entirely on the standpoint from which it is viewed. From the standpoint of public law we accede to the view urged upon us here by appellee, and that adopted by the trial court. In Citizens Protective League v. Clark, 81 U.S.App.D.C. 116, 121, 155 F.2d 290, 295, decided May 2, 1946, this court said: “Appellants say that the war has terminated and that, therefore, the [Enemy Alien] Act, 50 U.S.C.A. § 21 et seq., even if valid, is not in effect. No peace treaty has yet been signed with Germany, and the state of war has not been terminated by act of Congress or by Executive Proclamation. Cases involving the termination of other wars dispose of appellants’ point. (Citing cases.) It is not for the courts to determine the end of a war declared by the Congress.”
In the Clark case we were treating a matter of public law; here we are concerned with a private contract, and a distinction must be maintained. Professor Manley O. Hudson, in his writing on the duration of the first war between the United States and Germany, made this observation, “As to the termination of a war, one date may be selected for dealing with a question relating to the exercise of special governmental powers, another date may serve in dealing with commercial questions, and a third date may be taken in the construction of a statute or contract provision. Different dates may also be taken by international courts and municipal courts, for the former may be less influenced by the political action of a single government. If there is no half-way house between war and peace, a given situation may be treated for some purposes as being a state of peace, and for other purposes as being a state of war.” And the following passage appears in the decision of the Michigan Supreme Court in Kneeland-Bigelow Co. v. Michigan Central Railroad Co., 1919, 207 Mich. 546, 174 N.W. 605, 608; “ ‘The existence of a state of war affects different contracts in different ways. Some contracts are avoided or dissolved; others are rendered unenforceable for the time being; others, again, remain unaffected. The particular condition of each contract materially affects the consideration of each case.’ Trotter on Con. During and After War (3d Ed.) 7.” There the court held a private contract between a shipper and a railroad company would remain unenforceable, by reason of the interposition of federal control over the railroads (effected by authority of the sovereign war power), until such control was removed, or until the legislative or executive departments declared the termination of war, “even though actual warfare has long since ceased.” In The Elqui, D.C.E.D.N.Y. 1945, 62 F.Supp. 764, this statement appears (at page 767 of 62 F.Supp.): “Here is not involved a contract between private parties in which it might be said that the term ‘for the duration of the present European war’ was used in its ordinary or lay concept, referring to the cessation of actual hostilities. The language is employed in an official decree of a government,'presumably drawn with all the consideration and formality ordinarily accorded such a document. In the absence of proof to the contrary, this Court must therefore assume that those who drafted this document had in mind the technical meaning of ‘for the duration of the present European war’ which must be construed to mean the formal signing of a peace treaty or a proclamation by the sovereign that the war has been officially recognized as being at an end.”
Very recently the Supreme Court held that the Housing and Rent Act of 1947 is a constitutional exercise of congressional war power. Appellee directs our attention to this statement by Mr. Justice Jackson (concurring) : “But I find no reason to conclude that we could find fairly that the present state of war is merely technical. We have armies abroad exercising our war power and have made no peace terms with our allies not to mention our enemies. * * *” In view of the distinction we have noted, that the question of war’s duration invokes consideration from a public law standpoint which differs from a private law standpoint, we doubt the applicability of Mr. Justice Jackson’s statement to the instant case.
Although appellee contends there is a “legal meaning” in the phrase “engaged in war,” and that such meaning is commonly understood, the argument in support of that contention fails to disclose any specific act or pronouncement by one of the political departments which has marked or will mark the time when this country ceases to be engaged in war. By analogy to the several events occurring after the fact of surrender in World War I, which would qualify as political determination of the end of war within appellee’s argument, apparently we are left to speculate on what act or pronouncement is sufficient to end this country’s engagement in World War II.
The trial court said further, in the memorandum opinion, that “whatever force there is to the contention of plaintiff that the provision under consideration is ambiguous exists, if at all, only as applied to a situation where the death of an insured in the military service of the United States and outside the Tiome areas’ occurred after the declaration that hostilities have ended and before legislative or executive determination that the state of war is over, not to any time prior to the declaration by the President that hostilities have ceased. I cannot, therefore, say that such provision is ambiguous as applied to the instant case.”
We cannot agree with that statement, however. President Truman officially declared the cessation of hostilities in World War II “effective twelve o’clock noon, December 31, 1946,” but that proclamation was for public purposes, and did-n’t necessarily apply to private contracts. Even if it did, “cessation of hostilities” is not included in the language of this contract, nor can we interpolate such language.
The terms of this contract were devised by appellee to circumscribe its liability, and the contract was presented to the insured in fixed form. The terms used did not result from mutual negotiations and concessions, and it is not unreasonable to apply certain rules we have stated. Appellee presumably had the aid of legal counsel in preparing the contract while the insured presumably had none when he received it. Since the insurer failed to make it obvious at that time that the words used were intended to connote a technical meaning, we must regard them as bearing the meaning common speech imports.
The insured was a layman who had entered active duty in the military service two years prior to the time this contract was executed. To the layman, and to the soldier, the words “engaged in war” convey the thought of actual warfare, terminated by capitulation of the enemy forces. The aftermath of actual warfare necessitates political and legal cognizance of a “state of war,” but that is something apart from the common understanding of the time when the country ceases to be “engaged in war.” President Truman’s message to Congress, delivered September 6, 1945, epitomizes this difference in thinking, for early in his message he said, “The end of the war came more swiftly than most of us anticipated.” Later; in the same message, when speaking of certain wartime statutes made effective “in time of war,” “during the present war,” or “for the duration of the war,” he said, “The time has not yet arrived, however, for the proclamation of the cessation of hostilities, much less the termination of the war.” And on November 11, 1918, President Wilson, in an address to Congress, read the terms of the armistice and declared: “The war thus comes to an end; for having accepted these terms of armistice, it will be impossible for the German command to renew it.”
It can hardly be questioned that the spontaneous celebrations which occurred among the citizenry and troops of the victorious allied forces following announcement of the unconditional surrender by Japan were nothing more than exuberant jubilation occasioned by the commonly expressed thought that the war was over.
Appellee argues that the insuréd, as a reasonably intelligent man already in military service, can be presumed to have contémplated the necessity for the occupation of enemy lands, after the anticipated defeat of the enemy armies on the field of battle. That is a reasonable presumption, but appellee did not make it explicit, in the contract, that “engaged in war” included such consequential service. And we doubt, seriously, that any soldier considers occupation duty otherwise than as a consequence of war. “Engaged” and “war” have a meaning intimately related to actual warfare in the mind of a soldier, and while he may well contemplate occupation duty following the period of actual warfare, it requires no elaboration to point up his distinction of war and the consequential duty it may entail.
Appellee’s argument goes much further, however. The insured may have lived to serve among occupying forces and be returned to this country today. If that were the case, and the insured had taken a trip to Bermuda or Mexico, on leave from the service but still occupying military status, and had accidentally fallen from a hotel window in either place, appellee is apparently prepared to argue that the exemption clause in issue here would be applicable to that situation. (It is not argued here that the cause of death is an extraordinary hazard of war or an incident of war, and could not be, since a man could as readily fall, accidentally, from a hotel window in St. Louis or Salt Lake City, or in Bermuda or Mexico, as in Reims, France.) Yet, for the reason that war has not been terminated, in the political sense, appellee would attempt to escape full liability under the exemption clause in this insurance contract. Again we express grave doubt that the insured received understanding that the phrase “engaged in war” would extend so far to exempt full performance of the insurer’s obligation.
It is not inappropriate to note that appellee, represented by different counsel, used a far different argument in the case of New York Life Ins. Co. v. Bennion. The company had issued a life insurance policy covering double indemnity for accidental death to Bennion, but excluded from its coverage death resulting from “war or any act incident thereto.” The insured was in command of the battleship West Virginia, and was killed at his post of duty during the Japanese attack December 7, 1941, on Pearl Harbor, where his ship was anchored. The joint resolution of Congress declaring war was approved by President Roosevelt, and became effective, on December 8, 1941
The company denied liability for double indemnity, arguing in part that whether a country was engaged in war was a question of fact, which must be determined not by what Congress had or had not done but by the fact of whether the country was engaged in a “shooting war.” The Circuit Court of Appeals, Tenth Circuit, reversing the lower court, held the exemption was applicable, on the ground that war in the grim sense of reality did exist on December 7, 1941, at Pearl Harbor, and that the parties must have intended such effect for the exclusion clause. We think that argument and that holding may as well apply to the question of when this country ceased to be engaged in war. In the “grim sense of reality,” and in common understanding, this country was no longer engaged in war on October 2, 1945, a date subsequent to the unconditional surrender of all of the enemy forces opposing this country and its allies in World War II.
In the light of the many adjudications subsequent to World War I, wherein it was held that ambiguous exemption clauses will be resolved in favor of the insured, that “engaged” and “war” are words which have been held to import various meanings, and that interpretation of such words will rest in common understanding in the absence of indicia that technical meaning was attached, it was particularly incumbent upon the insurer to make more obvious the meaning of the phrase “engaged in war” if it was to extend exemption past the time when enemy forces capitulated and actual warfare ceased. Otherwise the courts must imply that the insurer actually intended only to exclude liability during the continuation of the extraordinary risks incident to actual warfare, which defy actuarial prediction. An attempt, by the use of such a bald phrase, to escape from liability for death resulting from ordinary hazards, at a time when the extraordinary hazards no longer prevail, will seldom meet judicial condonation. We appreciate the fact that insurers face no small problem in framing exclusion clauses, but their draftsmanship does not bear too onerous a burden to make more explicit, to the minds of laymen, the extent of the meaning of such a phrase as “engaged in war.” We need not emphasize the ease with which ambiguity inherent in that phrase, in this manner of usage, could have been avoided.
It is interesting to observe that in a paper read before the section of Insurance Law, Illinois State Bar Association, March 20, 1946, an insurance counselor reviewed many war risk exclusion clause cases, and noted that the question presented here was bound to arise. In surmising the result of the adjudication of this question he said: “It cannot be denied that if we apply the test such as used by the Supreme Court in the Aschenbrenner case and assuming that the reference to war was not used in its technical sense but should be given the meaning which common speech imports, then the war must be deemed to have come to an end with the unconditional surrender of our enemies.”
The conclusion we reach makes it unnecessary to determine whether the trial court committed error in sustaining the objection to appellant’s interrogatories.
The judgment of the District Court is reversed and the case remanded for proceedings not inconsistent with this opinion. Reversed and remanded.
Davison Chemical Co. v. Baugh Chemical Co., 1918, 133 Md. 203, 104 A. 404, 3 A.L.R. 1.
Aschenbrenner v. United States Fidelity & Guaranty Co., 1934, 292 U.S. 80, 54 S.Ct. 590, 78 L.Ed. 1137; Stipcich v. Metropolitan Life Ins. Co., 1928, 277 U. 5. 311, 48 S.Ct. 512, 72 L.Ed. 895; Mutual Life Ins. Co. of New York v. Hurni Packing Co., 1923, 263 U.S. 167, 44 S. Ct. 90, 68 L.Ed. 235, 31 A.L.R. 102.
Aschenbrenner v. United States Fidelity & Guaranty Co., supra, note 2; Neighbors v. Life & Casualty Ins. Co., 1930, 182 Ark. 356, 31 S.W.2d 418; Tupper v. Massachusetts Bonding & Ins. Co., 1923, 156 Minn. 65, 194 N.W. 99.
When the trial court filed the memorandum opinion in this case February 6, 1947, it was stated therein, “No identical provision appears to have been used in policies of insurance which have been the subject of previous judicial consideration.” The trial court was unaware that Durham v. New York Life Ins. Co.,* involved an identical provision; the District Court of the United States for the District of Utah gave judgment for plaintiff for the full policy value January 3, 1947. An appeal was taken to the United States Circuit Court of Appeals, Tenth Circuit, wherein oral argument was heard January 7, 1948. Also, Ziegler v. New York Life Ins. Co., tried before the Circuit Court of Cook County, Illinois, involved an identical provision. The court granted plaintiff’s motion for summary judgment for the full policy value September 19, 1947. The case has been appealed to the Illinois Appellate Court
No opinion for publication.
Day, The Applicability of War Risk Exclusion Clauses to Death from Ordinary Causes, 19 Rocky Mt.L.Rev. 242 (1947); Price, War and Aviation Clauses in Life Insurance Policies, 14 Ins.Counsel J. 10 (1947); Barton, The War and Avi.ation Clauses in Life Insurance Policy, .24 Neb.L.Rev. 264 (1945); Note, 15 Geo. 'Wash.L.Rev. 191 (1947); Note, 56 Yale L.J. 746 (1947); 25 Chi-Kent Rev. 171 (1947); 35 Geo.L.J. 401 (1947); 12 Mo. L.Rev. 212 (1947). See Coit v. Jefferson Standard Life Ins. Co., 1946, 28 Cal.2d ;.13, 168 P.2d 163, 168 A.L.R. 673.
See Notes, 1947, 168 A.L.R. 685; 1942, 137 A.L.R. 1263.
Cases cited: The Protector, 1872, 12 Wall. 700, 20 L.Ed. 463; McElrath v. United States, 1880, 102 U.S. 426, 26 L Ed. 189; Hijo v. United States, 1904, 194 U.S. 315, 24 S.Ct. 727, 48 L.Ed. 994; Kahn v. Anderson, 1921, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469.
Hudson, The Duration of the War between the United States and Germany, 39 Harv.L.Rev. 1020, 1021 (1926).
Woods v. Gloyd W. Miller Co., 333 U. S. 138, 68 S.Ct. 421.
Pub.L. 129, 80th Cong., 1st Sess., June 30, 1947, 50 U.S.C.A.Appendix, § 1881 et seq.
333 U.S. 138, 68 S.Ct. 425.
For a discussion of these events (with citations), see Hudson, The Duration of the War between the United States and Germany, 39 Harv.L.Rev. 1020, 1029-1038 (1926),
Proclamation 2714, 50 U.S.C.A.Appendix, § 601 note, 12 Fed.Reg. 1 (1947).
Sheets v. Selden, 1868, 7 Wall. 416, 74 U.S. 416, 19 L.Ed. 166; Henrietta Mills Inc., v. Commissioner of Internal Revenue, 4 Cir., 1931, 52 F.2d 981.
91 Cong.Rec. 8377 (1945).
Id. at 8378.
Id. at 8380.
56 Cong.Rec. 11537 (1918).
Id. at 11538. “ * * * but he [President Wilson] spoke of actual hostilities, as everyone knew, and not of the technical state of the war.” H.R.Rep. No. 801, Part 2, 66th Cong., 2d Sess. (1920) p. 2.
10 Cir., 1946, 158 F.2d 260'.
55 Stat. 795 (1941), 50 U.S.C.A.Appendix, Note preceding § 1.
Also, in Stankus v. New York Life Ins. Co., 1942, 312 Mass. 366, 44 N.E. 2d 687, it was held that the death of a seaman on a United States destroyer, sunk by a torpedo in the North Atlantic in October, 1941, was within the meaning of a double indemnity exemption clause identical to that in the Bennion case.
The court takes judicial notice that on the 4 th, 7th and 8th days of May, 1945, the German ILgh Command surrendered unconditionally to the Allied Powers all military forces which were then under German control. For texts of the documents of surrender, see 13 Dep’t State Bull. 105-67 (July 22, 1945), U.S. Cong.Serv., 79th Cong., 1st Sess. (1945), pp. 1014-1016. And further, that on the 2d day of September, 1945, the Japanese Government proclaimed the unconditional surrender to the Allied Powers of the Japanese Imperial Headquarters, all Japanese armed forces, and all armed forces under Japanese control wherever situated. For text of surrender document, see 13 Dep’t State Bull. 362-65 (September 9, 1945), U.S.Cong.Serv., 79th Cong., 1st Sess., (1945) pp. 1017-1018.
Price, War and Aviation Glauses in Life Insurance Policies, 14 Ins.Counsel J. 10 (1947).
Id. at 17.
Aschenbrenner v. United States Fidelity & Guaranty Co., 1934, 292 U. S. 80, 54 S.Ct. 590, 78 L.Ed. 1137. Immediately preceding the statement quoted there appears this pertinent passage from the Aschenbrenner case: “The phraseology of contracts of insurance is that chosen by the insurer and the contract in fixed form is tendered to the prospective policy holder who is often without technical training, and who rarely accepts it with a lawyer at his elbow. So if its language is reasonably open to two constructions, that more favorable to the insured will be adopted, (citing cases); and unless it is obvious that the words are intended to be used in their technical connotation they will be given the meaning that common speech imports." (Emphasis added by Price.)
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_trialpro | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
HAMPTON et al. v. WILLIAMS et al.
Circuit Court of Appeals, Eighth Circuit.
May 22, 1929.
No. 352.
Joseph W. Howell, of Tulsa, Okl., for petitioners.
William M. Matthews, of Kansas City, Mo., for respondents.
Before STONE, KENTON, and TAN VALKENBURGH, Circuit Judges.
STONE, Circuit Judge.
This is an original proceeding in this court seeking orders of prohibition against the judge of the Eastern District of Oklahoma and against a special master, appointed by him, prohibiting them from exercising further jurisdiction in the ease of Georgia Yalliere Hampton et al. v. Sidney T. Ewert et al., and also an order of mandamus against the clerk of that court to require him to transfer the record and papers in said case to the clerk of the District Court for the Northern District of Oklahoma.
The petition alleges that the above case is a civil action concerning mining leases on land; that such land was within the Eastern district when the action was commenced (September 17, 1923) and within the Northern District as subsequently created (Act of February 16,1925, 43 Stat. 945); that there was a final hearing thereon before Judge Williams, a judge of the Eastern District, which hearing was and the ease submitted during March 1925, resulting in a memorandum opinion rendered November 20, 1925, upon which a final deeree, favoring defendants, was entered December 1, 1925; that appeal was taken to this court resulting in reversal and remand for proceedings in accordance with the opinion of this court (Hampton v. Ewert, 22 F.(2d) 81); that petitions for rehearing were subsequently filed in this court and denied; that petitions for certiorari were filed in the Supreme Court and denied (276 U. S. 623, 48 S. Ct. 303, 72 L. Ed. 737); that thereafter, the mandate from this court was spread upon the records of the District Court for the Eastern District on April 4, 1928; that, on June 22, 1928, these petitioners (plaintiffs in the above case) filed with the clerk of the Eastern District (one of these respondents) a notice that they desired and requested the transfer of such case to the Northern District, at the same time depositing with said clerk their check to cover costs of such transfer; that, thereafter (June 25, 1928), said clerk informed petitioners that an order of transfer would be necessary and, assuming petitioners would file a motion for such purpose, he (the clerk) had placed such motion on the next motion docket for July 6, 1928; that petitioners (on July 6, 1928) informed the clerk that they had not filed such motion as they deemed the notice sufficient to operate as a transfer of the case; that, with full knowledge that petitioners deemed the notice sufficient and had not and did not intend to file any motion for an order of transfer, the clerk wrote petitioners (on Saturday, July 7, 1928) that he thought such order necessary and (on Monday, July 9, 1928) presented the motion docket to Judge Williams' who proceeded as if such motion had been filed and denied same for want of prosecution; that, thereafter (July 9, 1928), Judge Williams appointed Malcolm E. Rosser (respondent herein) as special master to take an accounting in said case and to report his findings and conclusions by October 20,1928; that the filing of the above notice was sufficient (section 6, Act Eeb. 16, 1925, 43 Stat. 945, 946) without more to operate as a transfer of the case to the Northern District, requiring only transmission of the record and papers by the clerk of the Eastern District to the clerk of the Northern District and ending, upon the filing thereof, all jurisdiction of the court of the Eastern District to proceed further therein. It is to prevent such further proceeding by that court and by the special master that the writ of prohibition is sought and it is to compel such transmission of record and papers by the clerk that the writ of mandamus is asked.
Separate response has been filed by each of the respondents — that of respondent Rosser being an adoption of the response of Judge Williams. It is unnecessary to set forth or even summarize the responses. Such matters therein as are material to the determination of this action will be stated hereinafter in connection with discussion of the issues raised here.
While the issues are argued under several headings, they may be regarded as presenting two matters: First, the propriety of the remedy of prohibition; and, second, whether the right of transfer given by the statute (section 6, Act Feb. 16, 1925, 43 Stat. 945, 946) can be and has been waived by the petitioners. I. Whether prohibition is a proper remedy depends upon whether a question of jurisdiction is involved. This involves the construction of section 6 of the Act 'of Feb. 16,1925 (43 Stat. 945, 946). Before this act, Oklahoma had been divided into the Eastern and Western Districts. This act created the Northern District to consist of certain named counties in the Eastern and in the Western Districts. Section 6 thereof provides for the transfer, from the Eastern and Western Districts to the Northern District, of civil cases pending at the time of the organization of the Northern District. It is as follows (section 6, 43 Stat. 946):
“See. 6. Any party to any civil action, suit, or proceeding, including proceedings in bankruptcy, which is pending in the said eastern or western district and the prescribed venue of whieh would have been in said northern district had such district been constituted at the time such action, suit, or proceeding was instituted, may, by filing notice of such desire in the office of the clerk of such eastern or western district as the case may be, cause such action, suit, or proceeding to be transferred to said northern district, and upon the filing of such notice the cause shall proceed in the said northern district as though originally brought therein. The clerk in whose office such notice may be filed shall forthwith transmit all the papers and documents in his court pertaining to such cause to the clerk of said northern district and he shall also, with all reasonable dispatch, prepare and transmit to such last-named clerk a certified transcript of the record of all orders, interlocutory decrees or other entries in such cause, with his certificate under the seal of the court that the papers sent are all that were on file in said court belonging to the cause. For the performance of his duties under this section the clerk so transmitting and certifying such papers and records shall receive the same fees as are now allowed by law for similar sendees to be taxed in the bill of costs and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth constitute a part of the record in the cause in the court to whieh the transfer shall be made. With such transcript shall be remitted all- deposits in the hands of the clerk to the credit or account of such cause. The clerk receiving such transcript and original papers shall file the same. In ease the permissible prescribed venue of any such action, suit, or proceeding would, at the option of the plaintiff, have been in either the said eastern district or in the said western district, though said northern district had then been constituted, then such suit, action, or proceeding shall not be removed to said northern district except upon consent of all of the parties thereto whieh consent shall be filed with the clerk in lieu of the notice of transfer above specified and shall have the same effect.”
Respondents contend that transfer under this section is a question only of venue and not of jurisdiction. A question of venue may ripen into one of jurisdiction. If a controlling statute provides that upon the occurrence or doing of certain things the venue in one court shall cease and that of another shall begin, such happening or performance takes jurisdiction away from the one court and lodges it in the other to the extent contemplated by the statute and any attempt by either court to act therein beyond such limits is in excess of its existing jurisdiction and may be-prevented by the writ of prohibition. Section 6 recognized the jurisdiction of the ' Eastern and "Western Districts over civil ac- - tions pending at the time the Northern District might he organized. It prescribed the .method for transferring to the Northern District sueh of them as might have been originally brought in the Northern District had that District existed when such actions were commenced. The present action is of that character. Not only is the method clearly stated in the statute, but, also, the effect intended thereby. The method is “by filing notice of sueh desire [to transfer] in the office of the clerk of such eastern or western district.” The effect of such filing is to “cause sueh action, suit, or proceeding to be transferred to said northern district, and upon the filing of such notice the cause shall proceed in the said northern district as though originally brought therein.” To assure this effect, it is required that the clerk of the district where the notice is filed “shall forthwith transmit all the papers and documents in his court pertaining to such cause to the clerk of said northern district and he shall, also, with all reasonable dispatch, prepare and transmit to sueh last-named clerk a certified transcript of the record of all orders, interlocutory decrees or other entries in sueh cause. * * *” This quoted language leaves room for no doubt that the bare filing of a proper notice was all that was required by the statute to transfer jurisdiction of the ease to the North- . em District and to terminate the jurisdiction of the other district unless sueh right of transfer were subject to waiver and had been waived and such waiver insisted upon by the other party.
II. Respondents insist that the right to transfer was waived by petitioners and set up allegations of fact, in their responses, which they urge as constituting waiver. This necessitates determination of whether the right can be waived and, if it can, whether it was by petitioners.
We think it can be waived. Such a suit was, when filed, -within the jurisdiction of the eastern district. The passage of the act creating the Northern District affected this jurisdiction in no way. That act went no further than to give to any party to sueh a suit the right to transfer. If no party desired to exercise sueh right, the cause proceeded as though the act had not been passed. The right of transfer thus given was a privilege. .As sueh, it might be waived and thereby lost. The right to transfer, in all sueh eases," came into existence when the Northern District was organized, which was April 1, 1925 (Lewis v. United States [C. C. A.] 22 F.(2d) 760, 763). There is no requirement, express or implied, in the statute that sueh right should be exercised within any period thereafter or even promptly thereafter. The right continued to exist until it was exercised or lost, through waiver. Here, the other parties are insisting upon a waiver and have promptly done so.
It remains to determine whether such waiver exists. This requires examination of the facts. No express waiver is urged. It is insisted that such is shown by aets in connection with the litigation which are inconsistent with a desire to transfer.
Either the petition, the responses or the affidavits herein show the matters following — ■ few of which are in dispute.
Just prior to the organization of the Northern District (April 1,1925) there was a final hearing and submission of this ease to Judge Williams in the Eastern District. This was the status of the litigation when the right to transfer this case came into existence, on April 1,1925. What occurred thereafter bears upon the matter of waiver. April 8, 1925, Judge Williams made a restraining order, on the motion of petitioners herein for a temporary injunction, preventing payments of money by one of the defendants in that suit to another defendant and set June 30,1925, as hearing day on the temporary injunction. This restraining order was continued in force by orders made June 30,1925, and September 28, 1925. On November 20, 1925, the court handed down an opinion with findings of fact and conclusions of law favoring defendants. December 1; 1925, decree was entered thereon dismissing plaintiffs’ (petitioners here) complaint. On January 27, 1926, an appeal was perfected to this court by plaintiffs. Thereafter, plaintiffs (petitioners here) renewed their application for a receiver (filed November 21, 1924) and on August 4, 1926, Judge Williams appointed a receiver who qualified. After passing through this court and an unsuccessful application for certiorari to the Supreme Court, mandate issued and was filed in the District Court for. the Eastern District on March 6, 1928, resulting in reversal of the decree of December 1, 1925, and instructions to proceed in accordance with the opinion. June 22, 1928, the notice of transfer was filed.
We think the above undisputed facts show ,a waiver. For almost eight months, petitioners permitted the ease to remain on submission awaiting decision by Judge Williams. During all of that time they could have had this case transferred. They were not only •silent, but they sought from Judge Williams and obtained injunctive relief within a few
days after their right of transfer came into existence. While the appeal was pending they sought from Judge Williams and obtained the appointment of a receiver to conserve funds in dispute. Such acts are inconsistent with and opposed to any desire to transfer the ease. They are consistent only with an intention to and amount to the further prosecution of the suit in the court in which it then was. Congress did not intend that a party could voluntarily proceed in the court where the suit was filed until he became dissatisfied and then transfer the case. It gave him the privilege to go ahead in one or the other court, as he desired, but he could not experiment with both.
We think this waiver destroyed the right to transfer where the other parties are relying upon the waiver, as is here shown by their presence and acquiescence in the order appointing the special master and the appearance here for respondents by one of their counsel.
The mandamus is controlled by the same considerations as those above stated regarding the prohibition.
The result is that the writs should be denied.
While what has been said disposes of this case, it seems advisable to advert to another matter in order to remove all doubt as to the effect of the previous decision (22 F.(2d) 81) of this court.
It would seem necessary, from the repeated language in the brief for respondent, to remove an erroneous impression that seems to have been acquired, or is, at least, asserted, and that is that this ease was remanded for a new trial. If the order and mandate so stated, they did not conform to the directions of the opinion. We presume the order followed substantially the language of the opinion. In that opinion and the decision rendered thereunder, all the issues were resolved in favor of the appellants. The leases under which appellees had operated were declared void and it followed, of course, that appellees must respond in damages for the removal of the ores from the property of appellees. This would involve an accounting disclosing the amount so removed and the legitimate cost and expense of removal; also the specific amount recoverable against the individual appellees. In all these respects there was not before this court on appeal the necessary data from which a satisfactory conclusion could be reached. There was involved the claim against the Ewert estate, which has now been settled, and is removed’ from the controversy. Also the operation by Skelton, and afterwards by the Skelton Lead & Zinc Company, and by the Welch Mining Company. Skelton is now deceased and Ms estate is involved. The relationsMps between these parties are so interlaced and complex that it requires the investigation before a master to determine the amount to be recovered from each. It was for this reason and for tMs purpose that the case was remanded and the further proceedings referred to are such ascertainments by way of accounting.
The writs are denied at the costs of petitioners.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_concur | 1 | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court.
UNITED STATES of America, Plaintiff-Appellee, v. Jose PEREZ and Vivian Perez, Defendants-Appellants.
Nos. 73-1436 and 73-1437.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Nov. 14, 1973.
Decided March 18, 1974.
Charles O. Thomas, Kansas City, Kan., for defendants-appellants.
Monti L. Belot, III, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., Richard L. Meyer and Thomas A. Hamill, Asst. U. S. Attys., Topeka, Kan., on the brief), for plaintiff-appellee.
Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
HOLLOWAY, Circuit Judge.
Jose and Vivian Perez appeal their convictions for distributing or dispensing heroin and for possession of heroin, a controlled Schedule I substance. 21 U.S.C.A. §§ 841(a)(1) and 844. Vivian was convicted on count 1 for distributing or dispensing a quantity of heroin; Jose was convicted on count 2 for distributing or dispensing a separate quantity of heroin; and they were jointly convicted of possession of other heroin on count 3. While we agree with two claims of error asserted by the defendants, on this record we believe those errors were harmless and affirm.
These cases developed from a lead to Jose and Vivian Perez by an unnamed informant. The government claimed the privilege of protecting the identity of the informer and he did not testify at the trial. His name and whereabouts were the subject of cross-examination, but the trial court sustained objections based on the claim of privilege. No issue is directly raised on appeal based on the failure to have the informer present at the trial. There are serious arguments made, however, that the right of confrontation and the hearsay rule were violated by the admission of testimony of government witnesses as to statements the informer made to them. These contentions are discussed later.
The government proof tended to establish these facts. On October 2, 1972, Scott, an undercover agent of the Bureau of Narcotics and Dangerous Drugs, made contact through the informant with Jose and Vivian. During conversation with Scott, Vivian explained that they would provide Scott with drugs and he then would repay them as he obtained money for selling the drugs. Vivian said that if he was honest with them he could make a lot of money for himself.
Arrangements were made for purchase of some heroin and later that day Vivian delivered a tinfoil packet of heroin to Agent Scott at a Safeway parking lot in Kansas City, Kansas. Vivian was not paid at that time but told Scott that the price for the heroin was $450.
The next day Scott made further contact with Jose. Arrangements were later made for a meeting with Jose at the Kansas University Medical Center. This contact occurred on October 4 and Jose there delivered another package of heroin to Scott. This transaction involved approximately 22 grams of heroin which was of a much purer nature than that normally found on “the street.” Scott testified that this material would probably make 800 dosage units at the street level, worth about $8,000 currently in Kansas City.
On October 7 a search pursuant to a warrant was carried out at the residence where Jose and Vivian were living. The search uncovered approximately 3 grams of heroin. On the back porch adjoining the house approximately 13.6 grams of lactose were found, a cutting substance used with heroin. A set of scales was seized and a quantity of money was found in a lady’s coat, including $380 of the $450 in bills paid to Jose on October 4.
The principal defense was entrapment. Jose testified he came to Kansas City with his wife to try to break the heroin habit and find a job. In Ft. Worth, he could not break the habit because when he would come out the door of the clinic, there would be pushers waiting to sell heroin. When he came to Kansas City he joined the methadone center at Kansas University Medical Center and got a maintenance job at the Kansas University.
While Jose and Vivian were attending this clinic Jose was given heroin by Mike James. Jose said he had come on James in a restroom where he was preparing to inject himself with heroin. James offered him heroin, which he accepted. Both Jose and Vivian became readdicted.
Dr. McKneely of the Kansas University Medical Center staff verified that Jose and Vivian had been patients at the clinic. He said his records showed Jose had begun attending the clinic in February, 1972, and had attended at various times into the summer. He also said they both returned to the clinic in October.
Jose testified that he did not pay James for the first heroin he received at the clinic. He said he subsequently made some purchases of it from James for about a month until the addiction was pretty well advanced. When Jose went to James’ home on one occasion, James said his supply had run out and asked if Jose knew where to buy heroin, perhaps in Texas. James said that since his supply “had been busted, did I want to go and buy some and then I could get what I needed.” Jose accepted this suggestion and brought some heroin for James, who gave Jose a part of it for his personal use. The money for the heroin from Texas was supplied by James, who had been “pushing before.” Jose said he made several other trips for James to Texas and that on each occasion James gave him the money.
Jose testified that finally they had no money and that he and James were both ill and desperate. James asked if Jose could get heroin in Texas on credit which Jose did. He said he brought it to Kansas and gave it to James. James then called Jose and said he had the money to pay for the heroin purchased on credit, and that was the day “he introduced me to Agent Scott.” Jose said James persuaded him to take the heroin to Agent Scott and that was why he took the heroin to him, “so that we could then pay for the credit owed in Texas.”
Agent Sawyer of the Bureau testified that the informer had been arrested on September 28, 1972, and immediately was employed as a government informer. The informer was a drug user and a pusher. He entered a plea to the charge against him and received probation. As noted, the first contact arranged by the informer for Scott to see Vivian and Jose was on October 2, 1972. Jose said this occurred at James’ home and that Scott, Mike James, James’ wife and Vivian were there also.
. Jose said that he brought the heroin from Texas because his habit was “pretty heavy” and his wife was also addicted against. He testified that the 3 grams of heroin found in their home were for his personal use. (As stated the jury found the defendants guilty of simple possession of the 3 grams of heroin and did not find them guilty of possession with intent to distribute it). They were using 4 or 5 grams of heroin daily. Jose also denied that he had ever gotten heroin for any one except James and Scott in his life. And he testified he was not selling heroin to obtain the money to buy heroin with, and was working sometimes during this period.
Vivian did not testify. Jose and Mc-Kneely were the only defense witnesses. Except as the testimony of Jose conflicted with it, the government proof was generally undenied.
First, defendants argue that the trial court erred by admitting hearsay testimony through Agent Scott. On redirect Scott was asked to describe the relationship between the defendants and the informant. The trial court overruled a hearsay objection to Scott’s testimony repeating statements by the informer. The court stated that a lot of other evidence about the informant had been admitted and that he thought that Vivian’s counsel had opened up the subject.
Agent Scott was then permitted to testify that the informant stated to him that he had occupied a position very similar to that which Scott later occupied; that “. . . . the defendants had been giving drugs to the informant to sell for them just in the same manner in which I began to take drugs for them, to sell for them.” Complaint is also made that other similar hearsay was erroneously admitted as to statements by the informant describing actions by the defendants.
We must agree that the admission of such testimony was error. It is true that defense counsel cross-examined in some particulars about the informer and his relationship with Agent Scott. However, we cannot agree that the defendants had opened up the subject of proof by whatever means, and that they had waived all objections based on their right to confrontation and the hearsay rule. The testimony went to the jury on the question of guilt and involved extrajudicial statements by the informer who did not confront the defendants in court, and was not subject to cross-examination or under oath. It was inadmissible. Dennis v. United States, 302 F.2d 5, 10 (10th Cir.); La Placa v. United States, 354 F.2d 56, 59 (1st Cir.), cert. denied, 383 U.S. 927, 86 S.Ct. 932, 15 L.Ed.2d 846; see United States v. Brown, 411 F.2d 1134, 1138 (10th Cir.). And since these basic rights were infringed, the Sixth Amendment guaranty of confrontation was denied. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297; Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed. 2d 476; Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193.
For these reasons we must agree that admission of the informer’s statements was error in these circumstances. However, for reasons detailed later, we are satisfied that on this record the constitutional error was harmless.
Secondly appellants argue that prejudicial and improper closing argument was made by government counsel and that the trial court erred in not granting their motions for a mistrial.
In closing government counsel argued that this was one of the most flagrant violations of federal law in drug trafficking that he had seen in the city in recent years. He further asserted that the heroin sold to the agent was the highest quality of heroin seen on the streets of Kansas City. The comments are set out in the margin. At the conclusion of the government argument and shortly after making of the last comment in question, both defense counsel moved for a mistrial. The trial court denied the motions, and no admonition was given to the jury.
It is clearly improper for counsel to make such a statement of his personal belief concerning the issues for trial. See United States v. Fancutt, 491 F.2d 312 (10th Cir., Feb. 5, 1974); United States v. Martinez, 487 F.2d 973, 977 (10th Cir.). Convictions have been reversed for similar improper statements by the prosecutor. See United States v. Grunberger, 431 F.2d 1062 (2d Cir.). It is true that it is also improper to make argument concerning the facts not warranted by the record. See Marks v. United States, 260 F.2d 377, 383 (10th Cir.), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302. However we are not persuaded that the comments here were out of line with the testimony admitted as to the quality of the heroin.
There was some support for the comment on the quality of the heroin. We are, therefore, not persuaded that the argument was improper or prejudicial on this score. The statement of personal belief on the seriousness of the law violations was, however, clearly improper. We have repeatedly warned that such conduct may bring reversal. Nevertheless we must consider the case as it was submitted to this jury since errors not affecting the substantial rights of the parties are disregarded. 28 U.S.C.A. § 2111.
The most serious question before us is whether the errors were harmless. As stated, we are persuaded that admission of the informer’s statement was in violation of the right of confrontation as well as the hearsay rule. Thus the Sixth Amendment is involved and “ . . . . before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. Thus we turn back to the informer’s statements repeated by the agent.
The informer’s statements repeated by Agent Scott in substance were that the defendants had been giving drugs to the informant to sell for them in the same manner, just as they later did to the agent. Such proof was undoubtedly beneficial to the government case. It covered both defendants and was in different and stronger terms than the admissions made by Jose about his activities. However, during Jose’s testimony he admitted that he had a relationship of a similar nature with James, the admissions however not including Vivian. He admitted that he made several trips to Texas to get heroin for James. Also Vivian’s and Jose’s sales as proven stand out and began shortly after meeting Agent Scott. And the testimony by Jose that James “persuaded” him to take heroin to Scott, like the entrapment defense overall, was weak.
We are admonished against giving too much emphasis to “overwhelming evidence” of guilt in evaluating the effect of constitutional errors. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284. Nevertheless, we believe that the errors were harmless beyond a reasonable doubt in this case in view of the amount of the government proof, the admissions made by Jose and the weakness of the entrapment defense. Therefore, as to both the admission of the informer’s hearsay statements and the prosecutor’s statement of personal belief, we are satisfied the errors were harmless.
Third, the defendants say that the trial court erred in not submitting a proposed instruction limiting the consideration of proof of other offenses, relying on United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241. Their instruction would have charged that any evidence of other probable violations had been admitted for the limited purpose of enabling the jury to evaluate the defendants’ claims of entrapment.
However, the trial court clearly instructed the jury that the defendants were on trial only for the acts alleged in the indictment and that the jury should consider only whether the defendants had committed those acts. We are satisfied that the charge properly limited the use of the proof for this case. Moreover the main issue for the jury was entrapment. As to it consideration of proof of other heroin transactions was not improper since the defense turns on whether the defendants were predisposed to the criminal conduct, or whether it was implanted in their minds by government agents. United States v. Russell, 411 U.S. 423, 434-436, 93 S.Ct. 1637, 36 L.Ed.2d 366.
In substance the defendants say the jury should have been told to consider the proof of other offenses only on the question of predisposition and the entrapment defense. Since this was the main issue submitted anyway, there could have been no substantial harm. See Corcoran v. United States, 427 F.2d 16, 17 (9th Cir.). In the context of this case the instructions were adequate and no prejudicial error occurred.
Fourth, the defendants argue that the trial court erred in failing to give their requested instruction on entrapment.
Defendants say that in essence they are claiming that after the informant was arrested, he had to produce a dealer to the government to insure he would maintain his freedom. They argue that he therefore induced Jose to procure a supply of heroin, part of which was subsequently delivered to the agents, and that the inducement by the informer subsequently led to the course of conduct with regard to the delivery of heroin, for which the defendants were indicted. Pointing to Sherman v. United States, 356 U.S. 369, 374, 78 S.Ct. 819, 2 L.Ed.2d 848, they say it should have been explained in the instructions that entrapment may include a course of conduct which was the product of inducement by government agents.
We are satisfied, however, that the charge given on entrapment was proper under the latest pronouncement of the Supreme Court. See United States v. Russell, supra, 411 U.S. at 427 n. 4, 434-436, 93 S.Ct. 1637, 36 L.Ed.2d 366; see also United States v. Hayes, 477 F.2d 868 (10th Cir.). Lack of the particular explanation sought was not prejudicial.
We are convinced that there was no prejudicial error and the judgment is affirmed.
. Count 3 of the indictment charged that Jose and Vivian knowingly and intentionally possessed with intent to distribute three grams of heroin in violation of 21 U.S.C.A. § 841(a)(1). However the court also instructed on the lesser included offense of simple possession as a violation § 844 and the jury found the defendants guilty of the lesser included offense. As to this conviction on count 3, defendants’ brief makes no request for reversal for retrial.
. At one point the government brief states that the testimony of the Agent was hearsay insofar as he recited the relationship between the informer and defendants. (Appel-lee’s Brief, p. 4) It argues that there was no prejudicial error.
This followed a government contention also made that by raising the defense of entrapment in cross-examination of Agent Scott about the informant, the defense counsel had opened the door to redirect inquiry by the prosecution to refute such inference. Thus the argument is that the testimony of Agent
Scott as to the informant — defendants relationship was properly admitted. The proof was not, however, so limited by instructions in the way it went to the jury and we must consider its effect as bearing on guilt.
. We realize, of course, that the view has been expressed that the confrontation clause does not embrace all of the limitations of the federal hearsay evidentiary rule. See e. g., Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 27 L.Ed.2d 213 (Opinion of Mr. Justice Stewart) ; United States v. Cerone, 452 F.2d 274, 283 (7th Cir.), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240. Here, however, we are convinced that the error was one of constitutional magnitude in any event. See Favre v. Henderson, supra.
. With respect to his personal views of the case the government attorney said:
“ . . . . Ladies and gentlemen of the Jury, we don’t need the informant to make this case. This is one of the most flagrant violations of federal law in drug trafficking that I have seen in this city in recent years.”
And in regard to the quality of the heroin he said:
“ . . . .It was this informant that tricked these poor innocent kids into this and as a result of this tricking they were able to obtain the highest quality of heroin that has been seen on the streets in Kansas City in a quantity of approximately eighty-five grams, which is worth $25,000.00.” V ífc H*
“Ladies and gentlemen, these two defendants have brought some of the highest quality heroin into this city that has been seen in recent times and they have dealt in large quantities.”
. There were no motions to strike the remarks or to admonish the jury to disregard them. The motions were only for a mistrial, made and denied out of the hearing of the jury.
. As the government argues it is incumbent on the defendant promptly to object to such argument. See United States v. Ward, 481 F.2d 185 (5th Cir.) ; United States v. Elmore, 423 F.2d 775, 780 (4th Cir.), cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54. However where there may be unfair prejudice, the failure to object may not constitute waiver. See United States v. Grunberger, supra, 431 F.2d at 1068-1069. We, therefore, have examined the improper statement here to determine the possibility of prejudicial effect, although the objection and motions for a mistrial were not made until the close of the government’s argument.
. In connection with the heroin sold by Jose to Agent Scott, the Agent testified that the substance was of a much purer nature than that normally found on the street. As to the heroin sold by both Vivian and Jose, he testified that the substance “ . . . was relative high quality, particularly for this area.”
. On count 3 there was an issue whether defendants possessed the 3 grains of heroin, found during the search, with the intent to distribute. However on this count the jury-found the defendants guilty only of simple possession.
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
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
CENTRIFUGAL CASTING MACHINE CO., INC., Plaintiff-Appellee, v. AMERICAN BANK & TRUST CO., and Banca Nazionale del Lavoro, Defendant-Appellee, and Republic of Iraq, State Machinery Trading Company, Baghdad, Iraq, Central Bank of Iraq, and Bank of Rafidain, Defendants, United States of America, Intervenor-Appellant.
No. 91-5150.
United States Court of Appeals, Tenth Circuit.
June 11, 1992.
Douglas Letter, Appellate Litigation Counsel, Dept, of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Tony M. Graham, U.S. Atty., Tulsa, Okl., William Hoffman and Susan Klavens Hutner, Office of Foreign Assets Control, U.S. Dep’t of the Treasury, Washington, D.C., with him on the' briefs), for intervenor-appellant.
Richard A. Schneider, of King & Spald-ing, Atlanta, Ga., and Terry L. Weber, of Lasorsa, Weber & Miles, P.C., Tulsa, Okl., (Paul E. Swain, III, of Boone, Smith, Davis, Hurst & Dickman, and Rodney A. Edwards and Robert S. Erickson, of Jones, Givens, Gotcher & Bogan, P.C., Tulsa, Okl., with them on the brief), for Centrifugal Casting Mach. Co., Inc., American Bank & Trust Co., and Banca Nazionale Del Lavoro, plain tiff-appellee.
Before SEYMOUR and BARRETT, Circuit Judges, and HUNTER, Senior District Judge.
Honorable Elmo B. Hunter, United States Senior District Judge for the Western District of Missouri, sitting by designation.
SEYMOUR, Circuit Judge.
' The United States appeals from the judgment entered in one of two consolidated diversity actions involving a letter of credit and a standby letter of credit. The letters were issued in connection with a contract between plaintiff-appellee Centrifugal Casting Machine (CCM) and State Machinery Trading Company (SMTC), an agency of the Iraqi government, under which CCM was to provide cast ductile iron pipe plant equipment to SMTC for a total contract price of $27,390,731. The contracting parties agreed that the payment mechanism from SMTC to CCM was to be an irrevocable letter of credit for the benefit of CCM in the contract amount, out of which CCM was entitled to draw ten percent as a down payment. This letter was issued by Central Bank of Iraq and confirmed by defendant-appellee Banca Nazionale del Lavoro (BNL).
The parties further agreed that a standby letter of credit in the amount of the $2.7 million down payment would be issued on behalf of CCM for the benefit of an agent of SMTC, and would be available to repay SMTC the amount of the down payment upon the requisite proof that CCM had not performed under the contract. This standby letter was issued by BNL to defendant-appellee American Bank of Tulsa (ABT), CCM’s bank, as account party, and made payable to Rafidain Bank, which in turn issued a $2.7 million guarantee to SMTC. CCM drew its down payment under the letter of credit and deposited that amount with ABT as security to protect ABT against any obligation it might incur on the standby letter of credit. Although an attempt was subsequently made on behalf of SMTC to draw on the standby letter of credit, the attempt was not accompanied by proof of nonperformance by CCM, and was not honored before the expiration date set out in that letter.
The suits below involved claims to the $2.7 million down payment by CCM, ABT, and BNL, the bank that had confirmed the letter of credit in favor of CCM and had issued the standby letter of credit in favor of SMTC. The United States intervened, asserting that Iraq had a property interest in the down payment and therefore in the money deposited by CCM in ABT. The United States claimed that the bank account was a blocked account under the regulations implementing the Executive Orders freezing assets of the Iraqi government.
The district court ruled that no valid draw had been made on the standby letter of credit, that this letter had expired by its own terms, and that CCM, ABT and BNL had no liability thereunder. As a result of that ruling, ABT declared that it no longer claimed an interest in the $2.7 million down payment and was granted leave to inter-plead the amount. The remaining parties resolved their claims to this money in a confidential settlement of disputes. Accordingly, the district court dismissed their claims against each other with prejudice, released the amount from interpleader, and ordered ABT to disperse it in accordance with the settlement. In so doing, the court rejected the claim by the United States. The United States appeals, and we affirm.
I.
Following Iraq’s invasion of Kuwait on August 2, 1990, the President issued two Executive Orders blocking any transfer of property in which Iraq holds an interest. See Exec. Order No. 12,722, 55 Fed.Reg. 31,803 (1990); Exec. Order 12,724, 55 Fed. Reg. 33,089 (1990). These orders are implemented by regulations promulgated by the Secretary of the Treasury, through the Office of Foreign Assets Control. See 31 CFR §§ 575.201-.806 (1991). Under these regulations, “no property or interests in property of the Government of Iraq that are in the United States ... may be transferred, paid, exported, withdrawn or otherwise dealt in.” Id. § 575.201(a).
The United States contends on appeal that the freeze of Iraq’s assets furthers national policy to punish Iraq by preventing it from obtaining economic benefits from transactions with American citizens, and by preserving such assets both for use as a bargaining chip in resolving this country’s differences with Iraq and as a source of compensation for claims Americans may have against Iraq. We agree that these policy considerations are compelling and that we are therefore required to construe Iraqi property interests broadly. However, we are not persuaded these policies would be furthered by construing the circumstances here to give rise to a property interest on behalf of Iraq that would not otherwise be cognizable under governing legal principles. Iraq would not be punished if denied use of an asset in which it could not claim a property interest in any event. Likewise, compensation and bargaining through use of such an asset would not be to Iraq’s detriment.
We perceive the gist of the United States’s argument- to be that the asset at issue is a down payment Iraq made on a contract that CCM has not performed. Therefore, it is argued, Iraq has a property interest in this asset on the basis of a purported breach-of-contract claim under principles of rescission and restitution. This analysis, however, runs directly contrary to the legal principles governing the financial mechanisms chosen by the contracting parties to facilitate payments under the contract.
II.
We begin by observing that CCM received the funds at issue by drawing on an irrevocable letter of credit. We must therefore determine the particular characteristics of that financial instrument and ascertain the nature of the interest that it conveys. Because the term “letter of credit” is not defined in either the Executive Orders or the implementing regulations, we give it the meaning ordinarily attributed to it by courts and parties dealing with this document. See Propper v. Clark, 337 U.S. 472, 480, 69 S.Ct. 1333, 1338, 93 L.Ed. 1480 (1949).
“[A] letter of credit involves three- parties: (1) an issuer (generally a bank) who agrees to pay conforming drafts presented under the letter of credit; (2) a bank customer or ‘account party’ who orders the letter of credit and dictates its terms; and (3) a beneficiary to whom the letter of credit is issued, who can collect monies under the letter of credit by presenting drafts and making proper demand on the issuer.”
Arbest Const. Co. v. First Nat’l Bank & Trust Co., 777 F.2d 581, 583 (10th Cir. 1985). A letter of credit thus involves three legally distinct relationships, that “between the issuer and the account party, the issuer and the beneficiary, and the account party and the beneficiary (this last relationship being the underlying business deal giving rise to the issuance of the letter of credit).” Id. In this case, CCM was the beneficiary of the letter which was issued by Central Bank of Iraq to fund the contract, BNL was the confirming bank which then became directly liable to CCM, and SMTC was the bank customer or account party.
■ Two interrelated features of the letter of credit provide it with its unique value in the marketplace and are of critical importance in our consideration of the United States’s claim here. First, “[t]he simple result [of a letter of credit] is that the issuer substitutes its credit, preferred by the beneficiary, for that of the account party.” Id,.; see also Republic Nat’l Bank v. Fidelity & Deposit Co., 894 F.2d 1255, 1258 (11th Cir.) (letter gives beneficiary irrevocable right to payment, not from account party, who might become insolvent or refuse to pay, but from bank), cert. denied, - U.S. -, 111 S.Ct. 308, 112 L.Ed.2d 261 (1990); Airline Reporting Corp. v. First Nat’l Bank, 832 F.2d 823, 826 (4th Cir.1987) (issuer replaces customer’s promise to pay with its own promise to pay); Pringle-Associated Mortgage Corp. v. Southern Nat’l Bank, 571 F.2d 871, 874 (5th Cir.1978) (beneficiary’s claim based on letter of credit, not on agreement between issuer and account party and not on the underlying contract). The issuing bank thus pays the beneficiary out of its own funds, and then must look to the account party for reimbursement. See generally Republic Nat’l Bank, 894 F.2d at 1257-58; Okla.Stat. tit. 12A, § 5-114(3) (issuer which has honored demand for payment entitled to immediate reimbursement).
Second, the issuer’s obligation to pay on a letter of credit is completely independent from the underlying commercial transaction between the beneficiary and the account party. See Ward Petroleum Corp. v. FDIC, 903 F.2d 1297, 1299-1300 (10th Cir.1990). Significantly, the issuer must honor a proper demand even though the beneficiary has breached the underlying contract, see id. at 1299; Okla. Stat.Ann. tit. 12A, § 5-114 Okla. comment (1); even though the insolvency of the account party renders reimbursement impossible, see Wood v. R.R. Donnelley & Sons Co., 888 F.2d 313, 318 (3d Cir.1989); and notwithstanding supervening illegality, impossibility, war or insurrection, see KMW Int’l v. Chase Manhattan Bank, N.A., 606 F.2d 10, 16 (2d Cir.1979). This principle of independence is universally viewed as essential to the proper functioning of a letter of credit and to its particular value, i.e., its certainty of payment. See, e.g., Ward Petroleum, 903 F.2d at 1299; Wood, 888 F.2d at 318; Tradax Petroleum Am., Inc. v. Coral Petroleum, Inc. (In re Coral Petroleum), 878 F.2d 830, 834 (5th Cir.1989); FDIC v. Bank of San Francisco, 817 F.2d 1395, 1398 (9th Cir.1987); KMW Int’l, 606 F.2d at 16. “Parties to a contract may use a letter of credit in order to make certain that contractual disputes wend their way towards resolution with money in the beneficiary’s pocket rather than in the pocket of the contracting party.” Itek Corp. v. First Nat’l Bank, 730 F.2d 19, 24 (1st Cir.1984); see also Ward Petroleum, 903 F.2d at 1299.
This assurance of payment gives letters of credit a central role in commercial dealings, see Bank of San Francisco, 817 F.2d at 1398-99, and gives them a particular value in international transactions, “in which sophisticated investors knowingly undertake such risks as political upheaval or contractual breach in return for the benefits to be reaped from international trade,” Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 474 (5th Cir.1985). “Law affecting such an essential instrument of the economy must be shaped with sensitivity to its special characteristics.” Bank of San Francisco, 817 F.2d a.t 1399; see Pringle-Associated Mortgage, 571 F.2d at 874. Accordingly, courts have concluded that the whole purpose of a letter of credit would be defeated by examining the merits of the underlying contract dispute to determine whether the letter should be paid. Andy Marine, Inc. v. Zidell, Inc., 812 F.2d 534, 537 (9th Cir.1987); Itek, 730 F.2d at 24 (resort to underlying contract dispute risks depriving beneficiary “of the very advantage for which he bargained, namely that the dispute would be resolved while he is in possession of the money”).
III.
Because of the nature of a letter of credit, we conclude that Iraq does not have a property interest in the money CCM' received under the letter. The United States contends in essence that Iraq has a property interest in this money because it was allegedly a contract payment made by Iraq, which Iraq should recover because CCM breached the contract. In so arguing, the United States makes a breach of contract claim on behalf of Iraq that Iraq has never made, creates a remedy for the contracting parties in derogation of the remedy they themselves provided, and, most importantly, disregards the controlling legal principles with respect to letters of credit.
First, the payment to CCM under the letter of credit was made not by Iraq, but by the confirming bank, BNL. Indeed, there is no way of ascertaining on the record before us whether Iraq has ever reimbursed the draw on the letter of credit, leaving open the possibility that Iraq has never actually paid out funds representing the down payment. Second, we know of no legal authority for the proposition that a potential breach of contract claim, prior to the commencement of litigation, gives a putative plaintiff a legally cognizable property interest in the assets of the putative defendant. Finally, no authority supports the argument that Iraq, as the account party on a letter of credit, has a property interest in the beneficiary’s payment on the basis of the beneficiary’s alleged breach of the underlying contract. To the contrary, such a holding would defeat the principle of independence universally recognized by the courts as crucial to the letter of credit’s integrity as a financing device. Determining whether an account party has a property interest in a letter-of-credit payment to a beneficiary by referring to a dispute over the underlying contract is not materially different from the unacceptable practice of resorting to the contract to ascertain whether payment was proper in the first place. Reliance on the contract in either circumstance is antithetical to the unique value of the letter of credit, because certainty of payment would be undermined by concluding that the account party has a right to that payment by virtue of the underlying contract prior to litigation on that contract. The beneficiary’s bargained-for right to retain the payment pending contract litigation would be effectively defeated.
The United States’s reliance on Itek Corp. v. First Nat’l Bank, 704 F.2d 1 (1st Cir.1983), is misplaced because that case is factually distinguishable in significant respects. There, the court was concerned with essentially identical Executive Orders and regulations freezing the assets of Iran. Under the letter of credit at issue in that case, unlike the one here, the Iranian entity was the beneficiary of the letter rather than the account party. The court held that, under the governing principles we have set out above, Iran had a legally cognizable beneficial interest in that letter of credit. Id. at 8. The court further held that as a result of the blocking regulations, the district court could not, by ruling that Iran had made no conforming draw on the letter of credit prior to its expiration, extinguish this beneficial interest and thus “transfer” that interest to the account party. Id. at 8. The case is inapposite to the issue presented by this appeal.
In rejecting the United States’s position, we reiterate our recognition that blocked Iraqi property interests are to be broadly construed so as to effectuate the purposes underlying the blocking orders. We nonetheless are not at liberty to restructure the essential characteristics of a letter of credit in order to create a property interest that would not be recognized under the rules applicable to that internationally recognized financing instrument. Because those rules do not establish that Iraq has a legally cognizable property interest in the payment made to CCM under the letter of credit, the policies underlying the blocking of Iraqi assets are simply not implicated. The national interest is not furthered by creating a property interest out of conditions that would not otherwise generate such an interest, particularly when we must do so at the expense of a critical and unique device of international trade.
AFFIRMED.
. "The essential function of [a letter of credit] is to assure a party to an agreement that he will receive the benefits of his performance.” Wood v. R.R. Donnelley & Sons Co., 888 F.2d 313, 317 (3d Cir.1989).
“A variation on this arrangement is present where, as here, the bank issues a ‘stand-by’ letter of credit. The beneficiary of an ordinary letter may draw upon it simply by presenting documents that show that the beneficiary has performed and is entitled to the funds. In contrast, a 'stand-by' letter requires documents that show that the customer has defaulted on some obligation, thereby triggering the beneficiary's right to draw down on the letter."
Id.
. This portion of the district court’s ruling has not been challenged on appeal.
. We note that the parties have not addressed the law applicable to diversity actions in which the United States asserts a claim on the basis of Executive Orders implemented by federal regulations. The forum state, Oklahoma, has passed its version of the Uniform Commercial Code (UCC), see Okla.Stat. tit. 12A, §§ 1-101 to 9-507 (1981), Article 5 of which covers letters of credit, see id. §§ 5-101 to -117. The letter of credit itself éxpressly provides that it is subject to the Uniform Customs and Practice for Documentary Credits (1983 Revision), International Chamber of Commerce Publication No. 400 (UCP). See App. at 10. The UCP is not legislation or a treaty, but a set of rules, generally viewed as customary rules of law, that may be incorporated into the private law of a contract between parties. See (UCP) Introduction & Bibliography, 2 (1989); see also Trans Meridian Trading Inc. v. Empresa Nacional de Comercializacion, 829 F.2d 949, 954 (9th Cir. 1987). We need not decide which law applies, however, because the same governing principles with respect to letters of credit are found in the law of the forum state, and in the law embodied in the UCP, either or both of which we would draw upon were we required to formulate federal common law in this appeal. See FDIC v. Bank of San Francisco, 817 F.2d 1395, 1398 (9th Cir. 1987).
. “A ‘confirming bank’ is a bank which engages either that it will itself honor a credit already issued by another bank or that such a credit will be honored by the issuer or a third bank." Okla.Stat. tit. '12A, § 5-103(l)(f). Here, BNL agreed to honor the credit itself. See App. at 10. “A confirming bank by confirming a credit becomes directly obligated on the credit to the extent of its confirmation as though it were its issuer and acquires the rights of an issuer." Id. § 5-107(2).
. The UCC contains an exception for cases of fraud. See Okla.Stat. tit. 12A, § 5-114(2) (court may enjoin issuer from honoring fraudulent demand for payment). "[T]his exception must be narrowly construed or it will swallow up the rule.” Ward Petroleum Corp. v. FDIC, 903 F.2d 1297, 1301 (10th Cir.1990). The United States does not contend that this exception is applicable here.
. As noted above, the parties themselves provided, through a standby letter of credit in favor of the agent of SMTC, a remedy by which SMTC could recover the down payment in the event of a breach by CCM. The parties further agreed to an expiration date for this standby letter of credit. The district court ruled that this letter expired under its own terms before a proper draw was made upon it. The United States does not appeal this ruling.
. Rather, the position of Iran in Itek is analogous to Iraq’s position as beneficiary of the standby letter of credit in this case. We emphasize that the United States has not challenged on appeal the district court’s ruling that any right on behalf of Iraq to payment under the standby letter of credit was extinguished when the letter expired.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_respond1_7_5 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Richard S. ROBIE, Defendant, Appellant, v. Edwin I. OFGANT, Plaintiff, Appellee.
No. 5968.
United States Court of Appeals First Circuit.
Heard May 2, 1962.
Decided July 12, 1962.
James D. St. Clair, Boston, Mass., with whom Blair L. Perry and Hale & Dorr, Boston, Mass., were on brief, for appellant.
Thomas J. Carens, Boston, Mass., with whom Robert J. Sherer, Boston, Mass., and Roche & Leen, Boston, Mass., were on brief, for appellee.
Before HARTTGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.
ALDRICH, Circuit Judge.
This is an action for breach of an alleged oral contract made, if anywhere, in Massachusetts. The plaintiff is now a citizen of Puerto Rico, the defendant of Massachusetts. Both parties are experienced automobile dealers. In 1958 they were associated in an unsuccessful Miami agency. Plaintiff informed defendant that there was a better opportunity in San Juan, Puerto Rico if defendant would finance it. After defendant allegedly promised to provide the financing plaintiff moved to San Juan and took steps to start the business. Defendant did not perform. Plaintiff brought suit and obtained a verdict. Defendant appeals, claiming the evidence was too indefinite as to terms to permit a finding that any contract was entered into, and alleging various errors with respect to damages.
The evidence favorable to the plaintiff would warrant the following. In July 1958 plaintiff went to San Juan to investigate the possibility of a Chrysler distributorship. On his return he telephoned defendant and sought to interest him. He told defendant that it would require an outlay of $250,000, and that he did not have any money. At defendant’s suggestion plaintiff went to Detroit and obtained a franchise agreement. Defendant then stated that he would put in $125,000 as capital and make available an equal amount through a finance corporation he controlled. Plaintiff accepted this modification. The parties discussed a prospectus of estimated business. It was agreed that plaintiff would receive a salary of $18,000 a year from the corporation and 25 per cent of the profits. Plaintiff stated that he and his wife would move immediately to Puerto Rico, but nothing was said about defendant’s bearing this expense. During the conference defendant telephoned his attorney, a Mr. Ryan, and informed him that he and plaintiff “have completed some arrangements here on a deal in Puerto Rico for the Chrysler distributorship, and I wondered if you could go down next weekend to take care of the details and get this thing set up?” Defendant told plaintiff that what they had discussed was “substantially agreeable” and that Mr. Ryan “would finalize everything.” He instructed plaintiff “to get the deal going.”
Thereafter counsel in San Juan received detailed instruction from Ryan to form a Puerto Rico corporation containing the names of both parties. Defendant was to supply cash in the amount of $125,000, but the apportionment between capital and indebtedness was left to be later determined. It was understood that the eventual corporate officers and directors were to be defendant, plaintiff, and a number of defendant’s designees. The first corporate meeting was held, a building was leased, employees were hired, and the company started doing business, all with defendant’s approval but without any expenditure by him. Seemingly this was done on credit, on advances from plaintiff, and with profits from completed sales.
On October 6 defendant informed plaintiff that he was no longer interested in being the sole investor. He gave plaintiff the names of two persons in New York and Miami. Plaintiff called upon both, but failed to interest them. On October 25 plaintiff, defendant and two possibly interested Puerto Ricans met in Boston, following which defendant stated that he would make no commitment at all, although he might consider a limited investment at some future time. Plaintiff stated that the company had $12,000 in immediate bills. Defendant gave plaintiff a check for $5,000 and took back a note. The Puerto Ricans thereafter decided not to invest. Plaintiff endeavored to find other investors, and apparently succeeded in mid-January. However, at that time he became employed in another capacity, and claims no damages after that date. Pausing here parenthetically, we think it clear that defendant committed a total breach at least by October 25, and that his leaving the door informally open thereafter was of no legal consequence.
We see nothing in defendant’s point that the agreement lacked specificity. “The courts * * * of Massachusetts, are slow to turn a plaintiff out of court for the reason that the promise given and relied on was so vague that it can be given no effect.” Weiner v. Pictorial Paper Package Corp., 1939, 303 Mass. 123, 131, 20 N.E.2d 458. Agreements far less complete than this one have been enforced. Cygan v. Megathlin, 1951, 326 Mass. 732, 96 N.E.2d 702; Shayeb v. Holland, 1947, 321 Mass. 429, 73 N.E.2d 731. It is true that the details of the loans had not been determined, nor the extent that defendant’s capital participation would be represented by stock and by indebtedness. But we think that the jury could be permitted to find that since defendant’s chief contribution was the financing, plaintiff’s share of the net profits was to be computed before all financing charges. Logan v. Dockray, 1888,146 Mass. 296, 15 N.E. 635. Hence it was a matter of indifference whether or how defendant divided his share, if any, between dividends and interest. Nor was the agreement illusory because no term was stated for plaintiff’s employment. Even though there was no specified term, having in mind that plaintiff was the finder and entrepreneur we think the jury could well find an implied undertaking that defendant’s support, and plaintiff’s participation, would last a reasonable length of time. This was not a case of simple employment. Plaintiff had furnished consideration in obtaining the distributorship and his returns could not be cut off by discharging him forthwith. Cf. Allied Equipment Co. v. Weber Engineered Products, Inc., 4 Cir., 1956, 237 F.2d 879; Jack’s Cookie Co. v. Brooks, 4 Cir., 1955, 227 F.2d 935, cert. den. 351 U.S. 908, 76 S.Ct. 697, 100 L.Ed. 1443.
The Statute of Frauds defense is not worth discussing. Defendant cites no authority for the proposition that an agreement to form and finance a corporation of which he was to be sole stockholder as a means of conducting a joint enterprise with plaintiff was a promise to pay the debt of another. This would be a radical extension of Guinn Co. v. Mazza, D.C. Cir., 1961, 296 F.2d 441. We find the suggestion singularly unappealing. See P. Berry & Sons, Inc. v. Central Trust Co., 1924, 247 Mass. 241, at pp. 244, 245, 142 N.E. 58, at p. 59, where the court said, “[This] section * * * does not apply where the promisor receives something from the promisee for his own benefit.”
Plaintiff tried his case, so far as damages were concerned, with no apparent unitary concept. We pass the fact that the evidence was introduced in substantial measure unsystematically, for which the court chided both counsel, except to say that the burden was primarily on the plaintiff. The more fundamental diffi-eulty was the lack of a legal as distinguished from a factual pattern. Thus, while the sole agreement was for the corporation to pay plaintiff at the rate of $1500 a month, plus 25 per cent of the profits, plaintiff sought the salary, the cost of moving to Puerto Rico and his entire living expenses. In addition he sought reimbursement for all corporate and pre-incorporation bills paid for by him, and payment for various unpaid bills without showing that he was legally responsible.
Plaintiff’s position is that he is entitled to be made whole. There is no question about that, but there are two other principles — his damages must be proven, that is, they must not be speculative, and he must not be made more than whole. The true measure of damages in this case is the salary plaintiff would have received, and his share of the profits, had defendant fully performed for such period as the jury should find it was reasonable to hold defendant was obligated, less whatever diminution should be attributed because of plaintiff’s duty to mitigate damages. No evidence was introduced as to profits. As this was an untried business, this was a typical speculative area. See Narragansett Amusement Co. v. Riverside Park Amusement Co., 1927, 260 Mass. 265, 157 N.E. 5243 and cases cited. But cf. Standard Machinery Co. v. Duncan Shaw Corp., 1 Cir., 1953, 208 F.2d 61. However, plaintiff was permitted to show, in addition to his salary, not only his moving costs, but the full living expenses of himself and his wife from arrival until mid-January. Had there been no breach of defendant’s obligation plaintiff's moving and living costs would plainly have been his own responsibility. It has been said that in case of breach of performance and a party’s inability to prove the amount of benefits he might have received under the contract he may recover his reasonably incurred expenses as a substitute, subject to elimination upon proof, with the burden on the defendant, that in fact there would have been no profits. Restatement, Contracts, § 333 (1932). A rebuttable presumption, in other words, is established that plaintiff’s returns would at least have equalled his expenditures. This shifts, pro tanto, inequities due to possible difficulties of proof to the defaulting party. We think this is a fair approach, but it must be properly applied. In the first place the expenses so recovered must be reasonable, and directly related to the contract, with the burden on the plaintiff. Certainly plaintiff would have had some living expenses wherever he had lived. It is only the excess which could be charged against the contract. Restatement section 333(b), supra. In the second place, this principle must not permit a double recovery. There is no duplication between net profits and incurred expense, because net profits, by definition, means above expense. Cf. United States v. Behan, 1884, 110 U.S. 338, 4 S.Ct. 81, 28 L.Ed. 168; see also Standard Machinery Co. v. Duncan Shaw Corp., supra; 5 Williston, Contracts (Rev. ed.) § 1363A. But to award expenses (we are not here referring to the corporate bills paid by plaintiff) in addition to gross receipts is necessarily duplicitous, for gross receipts were intended to cover all expenses. It is true that plaintiff did not recover all of his possible gross receipts, viz., his share of the profits, had there been any. But he did recover his full salary, which was part of his promised receipts. Even the Restatement rule cannot be stretched to permit a presumption that his incurred expenses would have been met simply by the unestablished portion of what might have been his gross receipts. Section 333(c), supra.
There remains a question of whether defendant adequately saved his rights as to damages. He did not, so far as the court’s charge was concerned, having made no pertinent requests or registered any objections. With respect to admissibility, all damage evidence was admitted de bene. At the end of plaintiff’s case defendant moved to strike in a carefully itemized motion. In denying this motion in its entirety and without explanation we think the court ruled that all of this evidence could be considered as cumulative and not in the alternative. This is confirmed by the fact that in its charge the court said nothing to the jury about duplication and the necessity of eliminating items. Cf. W. H. Elliott & Sons Co. v. E. & F. King & Co., 1 Cir., 1961, 291 F.2d 79. (It is also confirmed by the size of the verdict.) The unconditional denial of the defendant’s motion to strike was prejudicial error. We are unable to compute a proper remittitur. There must be a new trial on the issue of damages.
Judgment will be entered vacating the judgment of the District Court, setting aside the verdict as to damages, and remanding the action to that court for further proceedings not inconsistent herewith.
. An essential feature of tlie transaction was an undertaking by the CIT Credit Corporation to finance all new cars. This was to require defendant’s personal endorsement, but plaintiff did not inform defendant of that until September. Defendant immediately objected. CIT then stated that it would be satisfied with defendant’s endorsement on a so-called conversion guarantee basis. To this defendant agreed. Shortly after CIT had prepared such an agreement defendant announced that he was no longer interested in being the sole investor. Defendant makes much of the endorsement requirement and of its concealment. Under all the circumstances, however, the jury could have found that defendant assented to the modified form and that this was not the ground for his withdrawal. We shall not further consider it.
. The extent to which defendant may be entitled to credit for this payment will depend upon a final accounting- between the parties under the principles hereinafter outlined.
. At the same time, we are not overly impressed with defendant’s excuse, “I have had experience with schedules.” It should normally be possible, where claims are liquidated, to reach some pre-trial agreement that does not waive either defendant’s rights of cross-examination or his objections to the admissibility of particular items. We suspect that what defendant may have feared was not schedules, but the danger that a schedule would become an exhibit.
. In addition, of course, plaintiff is entitled to be repaid for bills properly charged to the corporation which he paid out of his own pocket. These may be regarded as loans to the corporation with defendant’s assent. Whether this might include any matters incurred after October 25 we will not determine on this record. Conceivably, too, in view of defendant’s total breach, plaintiff might recover for unpaid bills as to which he incurred personal responsibility in furtherance of the enterprise. But this is not to say that he could subsequently volunteer personal responsibility simply to effectuate recovery. Local incorporating counsel obviously should be compensated, but we do not find on the present record any basis for plaintiff’s recovering their charges in this action.
. § 333. When Damages May Be Measured By Expenditures in Part Performance.
The amount of the plaintiff’s expenditure, reasonably made in performance of the contract or in necessary preparation therefor, is included in compensatory damages, with the following limitations:
(a) Such expenditures are not recoverable in excess of the full contract price promised by the defendant.
(b) Expenditures in preparation are not recoverable unless they can fairly be regarded as part of the cost of performance in estimating profit and loss.
(c) Instalments of the contract price already received and the value of materials on hand that would have been consumed in completion must be deducted.
(d) If full performance would have resulted in a net loss to the plaintiff, the amount of this loss must be deducted, the burden of proof being on the defendant.
. We do not pass on the question, other than to express doubt, whether after defendant’s repudiation on October 25 any further expenses could have been incurred against him.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_constit | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
LOCAL 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. MEENAN OIL CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 208, 209, Docket 25306, 25307.
United States Court of Appeals Second Circuit.
Argued April 17, 1959.
Decided May 14, 1959.
Samuel G. Cohen, New York City (Jack Last, New York City, of counsel), for petitioner Local 553.
Hannon, Evans, Nolan & Halpin, New York City (Jerome T. Nolan, New York City, of counsel), for petitioner Meenan Oil Co., Inc.
Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel and James C. Paras, Attys., Washington, D. C., for respondent.
Before CLARK, Chief Judge, and SWAN and MOORE, Circuit Judges.
SWAN, Circuit Judge.
These cases are before us upon separate petitions of Local 553, hereafter referred to as the Union, and Meenan Oil Co., Inc., which employs members of the Union. It will be referred to as the Company. The petitioners seek to have set aside a decision and order of the National Labor Relations Board which holds that the Union and the Company have engaged in unfair labor practices and orders them to take remedial action. The Board’s answer to the petitions requests the court to enforce its order.
The Board found that the Company and the Union violated section 8(a)(1), (2) and (3) and section 8(b)(1)(A) and (2) of the Act, 29 U.S.C.A. § 158, by entering into, maintaining and enforcing their 1956 collective bargaining contract which the Board held delegated to the Union final control over the employees’ seniority status. The Board further found that the Union used its control over seniority to cause the Company to discriminate against an employee named Wolny, and that both petitioners thereby violated the same provisions of the Act.
The Company is engaged in the business of selling fuel oil. Since the volume of its business is dependent upon the demand for heating oil, it is inherently a seasonal business which reaches its peak during the months of October to May. In this period it employs the maximum number of drivers. Only a limited number of them are able to maintain year-round employment with the Company. Seniority controls the retention of jobs during the slack summer period, as well as the allocation of driving assignments and shift preferentials during the entire year. The collective bargaining agreement contains the seniority provision set forth in the margin. The Board takes the position that this provision delegates to the Union final control over the seniority status of the Company’s drivers. It relies upon N.L.R.B. v. International Brotherhood of Teamsters, etc., 8 Cir., 225 F.2d 343, 347 which held that delegation to a union of complete control over seniority is violative of the Act “because it tends to encourage membership in a Union.” In accord is N.L.R.B. v. Dallas General Drivers, etc., 5 Cir., 228 F.2d 702, 706. The petitioners apparently concede the correctness of these decisions but maintain that the seniority provisions considered in them differ from the provision under consideration in the case at bar because here the contract provision merely vests the shop steward with ministerial functions to be performed according to an objective standard.
We disagree with the Board’s interpretation of section 10 of the contract and agree with that advanced by the petitioners. Concededly the Company’s business .is seasonal. During the slack season many drivers of its trucks are laid off and take other employment. Some may never return; others will return to the Company’s employ and do not wish to lose their seniority status by reason of .the summer lay-off. To the employer it is important to know by October 15 how many may be expected to return and be available for work. Section 10 of the contract was devised to meet the needs of both the employees and the Company. It requires the drivers who have been laid off during the summer to sign the “seniority roster” by 8 A.M. on October 15 and requires the Company to “accept the certification of said shop steward as to ’ the availability of such men when called by the employer.” The certification is purely a ministerial act to be performed according to an objective standard. The shop steward is vested with no discretion to determine whosé names may appear on the list or the order in which they shall be rehired by the Company. He merely certifies that such men as have signed the seniority roster have done so by 8 A.M. on October 15 and are therefore available for work when and if the employer seeks to hire additional drivers. This seems to us to be an entirely reasonable provision to include in a collective bargaining contract.
The Board further argues that the practice as revealed by the record establishes that the Company in fact surrendered seniority control to the Union. This is based on the Conklin and Wolny episodes. Conklin’s position on the list certified by the shop steward was below that of other men to whom he was senior. Wolny’s name, although he showed up at the plant on the morning of October 15, was not on the list. Superintendent Slater of the Company questioned shop steward Johnson as to these matters. He explained that Conklin had signed late and that Wolny had not signed at all. These explanations and Mr. Slater’s testimony refute in our opinion the Board’s contention that the Company in fact surrendered seniority control to the Union. Nor can we accept the argument that application of the seniority provision to Wolny was discriminatory. While working for another employer Wolny had disregarded a strike-call and the Union had imposed a fine of $500 which he refused to pay. Johnson, who preferred the charges that led to the fine, had developed such animus against Wolny that possibly he might have refused to certify Wolny’s name had he signed the seniority roster. In an affidavit Johnson stated: “If Wolny would have demanded to sign the seniority list, I would not have permitted him to sign until I had called the Union at about 9 A.M. to get advise [sic], in view of my understanding that he quit the past season.” Much was made of this statement by the Trial Examiner in his Intermediate Report. We regard the statement as irrelevant. The fact that Johnson might have discriminated against Wolny is no evidence that he or the Union committed any discriminatory act. Johnson’s only act, namely, omitting Wolny’s name from the roster was ministerial in character and in strict accordance with the seniority provision of the contract, since Wolny had not signed.
For the foregoing reasons the petitions are granted and the Board’s order is set aside.
. “Section 10. Dealers with more than one depot will establish a seniority list for each classification in each depot. It is understood and agreed, however, that men formerly employed in a depot either temporarily or permanently closed, must be placed at the end or other single steady list.
It is further understood and agreed that during the dull season of the year preference shall be given to the chauffeurs on the seniority list and that the Shop Steward shall be the No. 1 man on that list, except as provided in Section 2, paragraph 1.
During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and mai/ntain his full seniority rights during that period. Any man so described must report to the Shop Steward not later than 8 A.M. on October 15 and sign the seniority roster in order to protect his seniority, and, the Employer agrees to accept the certification of said Shop Steward as to availability of such men when called by the Employer. If October 15 falls on a Saturday or Sunday, the reporting day shall be the neait work day. Any man failing to report as above specified shall forfeit all seniority rights.
-No' Shop Steward has the right to tie up a' bar unless authorized' by the delegate, who so authorized in full accordanee -with the terms and provisions of this contract.” (Emphasis supplied.)
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer: |
songer_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.
DUNN et al. v. JEFFERSON STANDARD LIFE INS. CO.
No. 9950.
Circuit Court of Appeals, Fifth Circuit.
Nov. 19, 1941.
Motion to Retax Costs Denied Jan. 19, 1942.
See 125 F.2d 98.
Walter F. Brown, of Houston, Tex., for appellants.
Gaius G. Gannon, of Houston, Tex., for appellee.
Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.
PER CURIAM.
A careful 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”, as required by Section 391, 28 U.S.C.A., makes it dear that the proceedings in the court below were conducted in strict accordance with Rule 61, Federal Rules, Civil Procedure, 28 U.S.C.A. following section 723c, which requires “the court at every stage of the proceeding must disregard any error or defect * * * which does not affect the substantial rights of the parties”, and that the judgment must be affirmed.
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_typeiss | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
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 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_circuit | C | 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.
INSURANCE COMPANY OF NORTH AMERICA v. Daniel Lee McCLEAVE et al. Appeal of COMMITTEE ON CAMPS AND CONFERENCES OF the SOUTHERN NEW JERSEY ANNUAL CONFERENCE OF the UNITED METHODIST CHURCH (formerly known as Conference Center Commission in No. 71-1594. Appeal of BOARD OF TRUSTEES OF the SOUTHERN NEW JERSEY ANNUAL CONFERENCE OF the UNITED METHODIST CHURCH in No. 71-1595. Appeal of the BOARD OF EDUCATION OF the SOUTHERN NEW JERSEY ANNUAL CONFERENCE in No. 71-1596.
Nos. 71-1594 to 71-1596.
United States Court of Appeals, Third Circuit.
Argued April 17, 1972.
Decided May 10, 1972.
Prank F. Neutze, Jr., Cummins & Neutze, Pennsauken, N. J., for appellants.
William G. Bischoff, Taylor, Bischoff, Williams & Martin, Camden, N. J., for appellees.
Before ADAMS, GIBBONS and MAX ROSENN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
On July 28, 1955, while attending a camp operated by the defendants in this action other than himself, Daniel Me-Cleave, then a minor, sustained an injury which resulted in the loss of sight in one of his eyes. The operators of the camp had in effect at that time insurance policies with both the Insurance Company of North America [I.N.A.], the plaintiff here, and Continental Casualty Co. Timely notice of the injury was given to Continental which proceeded to make payments of hospital and medical expenses pursuant to the policy issued by it. Notice of the accident was not given to I.N.A., however, until September 9, 1968, more than thirteen years following the occurrence when Daniel McCleave issued a claim against the operators of the camp. I.N.A. then opened a file and began to investigate the claim. The investigation proved to be difficult because of the dimmed memories of those who had been present at the camp when the incident occurred, and because Continental had destroyed its files concerning the matter.
In June, 1969, Daniel McCleave filed suit in the New Jersey Superior Court against the other defendants in the present action based on the events occurring in 1955. The papers were forwarded by the defendants in the New Jersey action to I.N.A. which referred the matter to its counsel. By letter dated August 8, 1969, I.N.A. informed its assured that I.N.A. reserved all its rights to investigate and conduct the defense of the New Jersey suit brought by Daniel Mc-Cleave without waiving any of its defenses under the contract — late notice being one such defense.
In 1970, I.N.A. commenced the present action in the district court under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, against Daniel McCleave and the operators of the camp, requesting the court to declare that there was no coverage under the policy issued by I.N.A. for the injuries sustained by Daniel McCleave in 1955. After a trial without a jury, the district court entered judgment for I.N.A., and the defendant-operators of the camp appeal.
The only contention advanced by the appellants is that since I.N.A. waited eleven months before it sent a Reservation of Rights letter to the operators of the camp, it is now estopped from relying on the operators’ delay in notifying I.N.A. of the occurrence of the accident. Although a serious issue is raised by I. N.A. that the appellants waived their es-toppel defense by failing to litigate the question at the trial, in view of the disposition we make of the case, it is unnecessary to decide the waiver question.
It is a well established rule that the party seeking to take advantage of the doctrine of estoppel must have relied to his detriment on some action or inaction by the other party. See, 1 Williston on Contracts § 139 (3d Ed. 1957). And that concept is not foreign to this Court. “The appellants failing to show that they acted to their detriment in reasonable reliance on manifestations by RFC ... no question of estoppel is presented.” Bailis v. Reconstruction Finance Corp., 128 F.2d 857, 859 (3d Cir. 1942) (Emphasis added). See also, Allied Steel Construction Co. v. Employers Casualty Co., 422 F.2d 1369, 1371 (10th Cir. 1970).
The operators of the camp have failed to show any prejudice suffered by them as a result of their apparent assumption that I.N.A. would not disclaim coverage. Thus, the doctrine of estoppel may not now be invoked to defeat I.N.A.’s action for declaratory judgment.
Accordingly, the judgment of the district court will be affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_respond2_1_4 | J | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
ANDERSON CO. et al. v. LION PRODUCTS CO., Inc., et al.
No. 3727.
Circuit Court of Appeals, First Circuit.
April 24, 1942.
George T. Bean, of New York City, and Fish, Hildreth, Cary & Jenney, of Boston, Mass. (Melvin R. Jenney, of Boston, Mass., and Edgar F. Baumgartner and Kenyon'& Kenyon, all of New York City, on the brief), for appellants.
Arthur D. Thomson, of Boston, Mass. (Thomson & Thomson, of Boston, Mass., on the brief), for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAHONEY, Circuit Judge.
The plaintiffs, The Anderson Company and Productive Inventions, Inc., Indiana corporations, brought suit in the district court for the infringement of three patents, namely: Nilson and Prince No. 1,597,999, hereinafter called the Nilson patent, Anderson No. 1,853,715 and Anderson No. 1,950,-588. The defendants, Lion Products Co., Inc., a Massachusetts corporation, and Max Zaiger, a resident of that state, pleaded the defenses of invalidity and non-infringement. The district court held the patents invalid for lack of invention, entered its judgment for the defendants and the plaintiffs have appealed. The plaintiffs have not in their briefs or in the oral argument before us pressed the appeal on the first two patents, and the appeal is now limited to the judgment in so far as it relates to patent No. 1,950,588. Without giving further consideration to them, we affirm the judgment of the district court on patents Nos. 1,597,-999 and 1,853,715.
The plaintiff, Productive Inventions, Inc., is the owner by assignment of patent No. 1,950,588 issued March 13, 1934 to John W. Anderson, and the plaintiff, the Anderson Company, has been since December 1, 1936, and now is the exclusive licensee of the plaintiff, Productive Inventions, Inc., under said patent.
The patent under consideration concerns a windshield wiper consisting of a U-shaped or channel holder with side portions bent or curved outwardly at the outer edges so that the open side of the holder is flared, an enlarged head of single ply, triangular in cross-section, with longitudinally extending arrises or sharp edges, and an integral flexible flange connecting the head portion with the holder. The specification states that this windshield wiper has both the advantages of a single ply and a multi-ply wiper and is particularly efficient under all weather and climatic conditions. It is asserted that water, moisture and snow do not get in and freeze as in the multi-ply heads, and dirt and other elements cannot penetrate between the plies and cause deterioration of the wiper element. It states that the wiper and holder are so constructed that the wiper element is at all times maintained in operative contact with the surface to be wiped and is so supported by the flared edge that it does not at any time lie flat with the glass but has a scraping or cleaning effect as it travels across the windshield.
All five claims are in issue and are as follows :
“1. In a device of the kind described and in combination, a wiper element and holder therefor, said wiper element consisting of an enlarged head portion provided with a flexible body arranged on the head and operating to connect the head to its holder, said holder consisting of a channel-shaped element having its sides adjacent the closed end spaced a distance substantially equal to the thickness of the body of the wiper element, the outer free edges of the sides of the channel being outwardly flared, the wiper element being so disposed in its holder that a portion of the body constitutes a flexible hinge portion connecting the head and holder which may overlie and contact with the flared over edge of the adjacent channel side when the wiper element is flexed toward that side.
“2. In a device of the kind described and in combination, a single ply wiper element and holder therefor, said wiper element consisting of a head portion of triangular cross-section provided with a flexible body of less thickness than the width of the head portion extending from the base of the head and operative to connect the head to its holder, said holder consisting of a channel-shaped element having its sides adjacent the closed end spaced a distance substantially equal to the thickness of the body- of the wiper element, the outer free edges of the sides of the channel being outwardly flared, the wiper element being so disposed in its holder that the shoulders on the underside of the head lie adjacent the free edge of the adjacent channel side when the wiper element is flexed toward and into engagement with that side.
“3. A wiper blade comprising a head which is substantially triangular in cross section, the opposite sides of said head having longitudinally extending arrises, and an integral flexible body extending from the base of the head in a plane substantially perpendicular to said base.
“4. A wiper blade comprising a head which is substantially triangular in cross section, the opposite sides of said head having longitudinally extending arrises, an integral body extending from the base of the head and being positioned within the marginal edges of said base, said body being arranged in a plane substantially perpendicular to said base and being flexibly connected to said head.
“5. A windshield wiper blade comprising a head which is substantially triangular in cross-section, the opposite sides of said head having longitudinally extending arrises, and a body of relatively narrow cross-section connected to said head and extending from the base thereof between the lateral extremities of the head, said body being capable of yielding to permit the lateral movement of said head with relation to said body as the head is moved in opposite directions across the-surface of a windshield.”
The district court - held that the flared edges described in plaintiffs’ claims 1 and 2 were anticipated by the Nilson patent. In reaching the conclusion that the Nilson patent was invalid, reliance was placed upon the Lane patent No. 948,630 (a window cleaner and holder with a flared edge on one side)', Conant No. 1,062,322 (a window cleaner and holder with flared edges) and Green No. 1,397,511 (a windshield cleaner and holder with flared edges). We do not give great emphasis to the latter three patents but in so far as they refer to the flared edges they buttress the holding of invalidity of the claims now under consideration. An examination of the specification and the single claim of the Nilson patent discloses very clearly the idea of flared or curved edges. The improvement there described is the U-shaped holder with edges receding away from each other so that the flexible portion of the head and the curved edges of the holder come into gradual contact instead of the usual abrupt contact found in the operation of holders without flared edges. The same idea of curved edge or edges is found in the patents to which reference has been made. In all of these patents the purpose of the flared edges is to assure the gradual contact of the wiping portion and the holder.
It is strenuously urged by plaintiffs that the lower court failed to perceive the true nature of claims 1 and 2. They do not deny that the principle of flared edges is to be found in the Nilson patent. They contend, however, that what is new in claims 1 and 2 is not the flared edges per se but the cooperation between the flared edges and the enlarged head of triangular cross-section which permits a shoulder of the wiper element to rest against the flared edge of the holder, thus preventing too great a flexing of the head. This they say is a new function. The asserted advantage derived from the cooperation of the head and the flared edges is that the head is always maintained in a proper position, even under abnormal weather conditions, and that the head is more easily reversed on the return stroke of the wiper, with the result that a more efficient cleaning of the windshield is at all times assured. The purpose of the flared edges in the prior patents, they urge, is to prevent the cutting of the wiper blade and that no thought was given in those patents to the unitary operation of the holder and the wiper element. We do not find that the true import of claims 1 and 2 was misconceived by the lower court. As it said, 36 F.Supp. 474, 478: “They [claims 1 and 2] cover the alleged invention of the curved edges of the holder, already described in the Nilson patent, and tlvese flared edges performed the samre function here.” (Italics supplied.) It seems clear that the argument advanced by plaintiffs was considered and rejected. We are constrained to conclude, as did the district court, that the testimony of plaintiffs’ expert concerning the “pressure of the blade on the windshield, frictional resistance, the locus of flexure, angle of flexure, disposition of strain” was merely an explanation of how “the wiper worked as it proceeded across the windshield. It did not aid in revealing any new and useful function performed by the claimed combination.” The fact that Anderson saw more clearly or described more adequately the cooperation of the holder and the wiper element does not alter the fact that the same principle is found in operation in the prior patents. No new function was produced by him. Bailey v. Sears, Roebuck & Co., 9 Cir., 1940, 115 F.2d 904, 906 certiorari denied 62 S.Ct. 82, 86 L.Ed.-.
Claims 1 and 2 were held invalid for the further reason that they claim too much. The lower court held that the enlarged head portion with the flexible body in claim 1 and the head portion of triangular cross-section with the flexible body and the added element of shoulders to stop flexing in claim 2 did not constitute invention. It said that even if it assumed that they were invention, the claims would still be invalid because included within them were the flared edges. Lincoln Engineering Co. v. Stewart-Warner Corp., 1938, 303 U.S. 545, 549, 58 S.Ct. 662, 82 L.Ed. 1008. Plaintiffs argue that claims 1 and 2 do not fall within the Lincoln Engineering Co. case because, as noted, the cooperation between the flared edges and the head portion of the wiper is a new function. What we have said above disposes of plaintiffs’ argument.
Claims 3, 4 and 5 were held invalid for lack of invention. They refer to the wiper blade and flange or body. No reference is made to a holder with flared edges in these claims. While the lower court cited the French patent to Eyquem, No. 589,365 (1925) as disclosing a channel shaped holder “embracing a wiping organ made up of a rubber blade comprising .longitudinal ribs and grooves forming arrises as described in claims 3, 4, and 5” and while it cited other patents which have enlarged heads or wiping edges, it did not rely upon them for its conclusion. The court said: “Assuming, and granting, that the Anderson head is better, the same idea is there in Eyquem, and that is enough. If Anderson depended alone upon this feature for patentability, and Eyquem did not precede him, I could not find that substituting several wiping edges in a single head for multi-ply edges, which were old, reflects any uncommon talent. It is display in my opinion of the skill of the calling.” We agree with this conclusion.
A mere aggregation of parts and processes already known in the art will not support the grant of monopoly which the patent law gives to inventive genius. A new combination of old elements alone is not patentable, and a mere utilization of what is known in the prior art even though the result is an improvement over what has gone before and even though the finished product is different in shape and form is not invention. Something more is required. Invention cannot be claimed unless the patentee can show by his achievement that spark of ingenuity which distinguishes invention from mere improvement. Cuno Engineering Corporation v. Automatic Devices Corporation, 1941, 314 U.S. 84, 62 S.Ct. 37, 86 L. Ed. -; Mantle Lamp Co. v. Aluminum Products Co., 1937, 301 U.S. 544, 57 S.Ct. 837, 81 L.Ed. 1277; Hotchkiss v. Greenwood, 1851, 11 How. 248, 13 L.Ed. 683.
We have carefully examined the record and have found that while the Anderson patent is concededly an improvement over the Nilson and Eyquem patents and while it may be conceded that the single ply blade is an improvement over the multi-ply wiper, the stringent test of invention has not been met.
The plaintiffs rely on cases in which reference is made by the courts to the commercial success of the patented article to’ prove invention. These cases are not in point. Mere improvement of a product though it meets with popular acceptance as manifested by commercial success is not a substitute for invention. Commercial success can only aid the court in finding patentability when lack of invention is far more doubtful than it is in this case. Altoona Publix Theatres, Inc., v. American Tri-Ergon Corp. et al., 1935, 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005, It is, of course, true that a court looking back may lose sight of inventive genius because of the simplicity of the finished product. We are satisfied, however, in the case before us, that Anderson, though he may have achieved an improvement in the wiper blade and holder, has not produced anything which merits the protection of the patent law.
Since we have determined that the patent in issue is invalid because of lack of invention, it is unnecessary to consider the question of infringement.
The judgment of the District Court is affirmed, with costs to the appellees.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer: |
songer_initiate | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
EPPENAUER et al. v. OHIO OIL CO. COMPTON et al. v. SAME.
Nos. 8519, 8630.
Circuit Court of Appeals, Fifth Circuit.
Aug. 2, 1938.
Dan Moody, of Austin, Tex., C. W. Trueheart, of San Antonio, Tex., Robert G. Hughes and D. B. Hardeman, both of San Angelo, Tex., and Ed. M. Whitaker, of Midland, Tex., for appellants.
• William Pannill, of Houston, Tex., for appellee.
R. G. Hughes and D. B. Hardeman, both of San Angelo, ‘ Tex., Ed. M. Whitaker and Jno. Perkins, both of Midland, Tex., and Robert E. Cunningham, of El Paso, Tex., for appellants.
William Pannill and R. C. Gwilliam, both of Houston, Tex., for appellee.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
Rehearing denied Sept. 20, 1938.
FOSTER, Circuit Judge.
These two cases were argued separately but may be conveniently disposed of by one opinion as the facts are to some extent similar and both are controlled by the same principles of law. The suits were brought originally by Marathon Oil Co., to quiet its title and possession under certain oil and gas leases covering large tracts of land in Pecos County, Texas; to remove clouds upon its title and for injunctions to prevent further acts of defendant of a similar nature. Later Ohio Oil Co., appellee, acquired all the rights of Marathon Oil Co. and was substituted as plaintiff in its stead. There was judgment for plaintiff in both cases.
There is no doubt the suits were cognizable in equity. Applications for surveys, the field notes resulting therefrom and the assignments of the rights of the parties, hereafter referred to, were all officially of record and constituted clouds upon plaintiff’s titles. No patents issued until after the suits were begun. As to the few that were then granted collusion is charged between employees of the Land Office and the parties in interest. Jurisdiction of the court properly attached in both suits on the ground of diversity of citizenship and sufficient amount in controversy.
Under the laws of Texas any person discovering an unsurveyed area of free school land, not so listed on the records of the Land Office and not in actual conflict on the ground with land previously sold or appropriated, may apply to the county surveyor to have the land surveyed. After the field notes of the survey are returned to the Land Office, approved and filed with the State Land Commissioner, the applicant has a preference right for 60 days thereafter to purchase a mineral lease on the land from the' State. Chapter 271, Acts of the Texas Legislature, 1931, Vernon’s Ann.Civ.St.Tex. art. 5421c.
In No. 8519 the suit is against A. R. Eppenauer, H. W. Compton, Bob Reid, Mrs. Pearl Norris, H. E. Christie, S. J. Brendel, and some seven other persons, who have not appealed. The bill alleged that plaintiff is the owner in possession under mineral leases, of large tracts of land in Pecos County, Texas, described generally as the I. & G. N. Ry. Co. Surveys Nos. 61, 62, 63, 64 and 65; the T. I. & Mfg. Co. Survey No. 545; a part of the Runnels County School Land Survey No. 3; Sections 30 and 32 of Block 194 G. C. & S. F. Ry. Survey; 1767.5 acres granted to I. G. Yates under certificate No. 12341 and 446.9 acres in the I. G. Yates Survey 34%. The bill further alleged that Eppenauer and other named defendants had filed applications for surveys, contending that certain parcels of land belonging to plaintiff in said surveys, were vacant free school land; had assigned rights thereunder to others; and that there were no vacancies in the land covered by plaintiff’s leases. Plaintiff contends that its title to the land it now holds under mineral leases has been judicially determined by the Supreme Court of Texas in the cases of Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792, and Douglas Oil Co. v. State of Texas, California Case, 122 Tex. 377, 61 S.W.2d 807 in which the State recovered 561 acres of land, covered by the terms of its leases, as vacant.
In No. 8630 the suit was brought against H. W. Compton, Bob Reid, W. H. Bland and some 12 other persons who have not appealed. The bill alleged that plaintiff is the owner of oil and gas leases on land generally described as sections 31 and 33 of Block 194 G. C. & S. F. Ry. Co. Survey; Fred Turner, Jr.’s Surveys, Nos. 1 to 6 inclusive; 446.9 acres of the I. G. Yates’ Survey 34%. In other respects the allegations are similar to those in suit No. 8519., Plaintiff also relies in this case on the decisions in Turner v. Smith and Douglas Oil Co. v. State of Texas, supra.
The records are so voluminous in both cases that it would be practically impossible to make a condensed statement of the facts appearing in detail in the transcripts. It is sufficient to say that the district court found as facts in both cases, after a careful review of the evidence, that no vacancies as contended by defendants existed. The district court also held that any person now seeking to acquire rights to vacant land from the State within the lines of survey fixed by the decisions of the Supreme Court of Texas above cited, is bound under the doctrine of stare decisis obtaining in Texas.
The case of Turner v. Smith et al., 122 Tex. 338, 61 S.W.2d 792, was begun by Turner in a district court of the state in an action to mandamus the county surveyor to make a survey under the provisions of Art." 5323 .of the Revised Statutes, now superseded by Chapter 271 of 1931, above quoted. The surveyor impleaded Mrs. A. G. Smith and I. G. Yates, parties from whom plaintiff obtained leases. The Attorney General- of Texas attempted to intervene' for the State, praying for a judgment decreeing the area described in plaintiff’s petition to be vacant public free school land. This intervention was wrongfully stricken from the record. See Camp v. Gulf Production Co., 122 Tex. 383, 61 S.W.2d 773. Judgment rendered in favor of Turner by the district court was,, reversed by a court of Civil Appeals, Smith v. Turner, 13 S.W.2d 152. The Supreme Court reversed this judgment and reinstated the judgment of the district court. After the decision of the Supreme Court, the State of Texas, through its Attorney General, brought suit for the benefit of Turner, to recover the land in controversy for him. The case of Turner v. Smith was submitted and argued together with two other cases, Douglas Oil Co. v. State of Texas, California Case, 122 Tex. 377, 61 S.W.2d 807 and Douglas Oil Co. v. State of Texas, Whiteside Case, 122 Tex. 369, 61 S.W.2d 804. Both of the Douglas Oil- Co. Cases were begun by the state of Texas, through the Attorney General, by actions in trespass to try title to recover land alleged to be vacant, for the benefit of the state.
The form in which these suits were brought is immaterial. They were in fact boundary suits. The Supreme Court in the cases above cited considered the various conflicting surveys within which the land covered by plaintiff’s leases is located and fixed the correct lines on the ground. Plaintiff’s title has therefore been validated by the Supreme Court of Texas. Under the doctrine of stare decisis obtaining in Texas all parties thereafter claiming vacancies in conflict with the decisions of the Supreme Court are bound by them whether parties to the suits or not. This is the settled law of Texas, which we are bound to follow. Texas Jurisprudence, Vol. 26 § 368 and authorities cited therein.
We concur in the conclusions of the district court. The records present no reversible error. In each case the judgment appealed from is 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_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.
GRANITO v. UNITED STATES.
No. 10564.
United States Court of Appeals District of Columbia Circuit.
Argued June 19, 1950.
Decided July 3, 1950.
Mr. Hans A. Nathan, Washington, D. C., for appellant.
Mr. Richard M. Roberts, Asst. U. S. Atty, Washington, D. C., with whom Messrs. George Morris Fay, U. S. Atty, Harold H. Bacon and Joseph M. Howard, Asst. U. S. Attys, all of Washington, D. C., were on the brief, for appellee.
Before CLARK, PROCTOR, and BAZELON, Circuit Judges.
PER CURIAM.
We find no error in the record on this appeal. The credibility of the complaining witness’ story of how appellant unlawfully came into possession of his automobile was a matter peculiarly within the province of the jury. Likewise the court’s instructions were in all respects adequate for the purposes of this case.
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_origin | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Michael W. HURLEY, Plaintiff-Appellant, v. PATAPSCO & BACK RIVERS RAILROAD COMPANY, a body corporate, Defendant-Appellee.
No. 89-2909.
United States Court of Appeals, Fourth Circuit.
Argued June 8, 1989.
Decided Nov. 1, 1989.
Gerald Francis Gay (Herbert J. Arnold, Arnold, Beauchemin & Tingle, P.A., Baltimore, Md., on brief), for plaintiff-appellant.
Rudolph Lee Rose (Robert T. Franklin, P. Matthew Darby, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for defendant-appellee.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation; WIDENER and CHAPMAN, Circuit Judges.
PER CURIAM:
The questions presented are whether the district court erred in granting appellee’s motion for a directed verdict at the end of appellant’s case and in granting appellee’s motion in limine to exclude certain evidence. We find no error, and accordingly affirm.
I.
Appellant Michael W. Hurley has been employed by appellee railroad company since July 7,1974, as an expert machinist in the Locomotive Repair Shop. Prior to this employment, he completed a four year apprenticeship program involving 8,000 hours of training. Appellant is the only employee in the shop who is qualified to operate the Reed-Prentice lathe. As such, appellant manages his own schedule and determines how each lathe job will be set up. He conducts his own inspections of the lathe and is responsible for ensuring that it is safe to operate.
On October 21, 1985, appellant began using the lathe to file down a sheave, a piece of equipment designed to hold multiple fan belts. As was his standard practice, appellant secured the sheave in the lathe with a C-clamp. Because he was cold, he wore a loose-fitting sweater he had brought from home. At approximately 8:50 a.m., he “leaned in to file the burrs off the sheave.” Testimony of Michael W. Hurley, Joint Appendix (“J.A.”) at 67. His sweater was caught on the C-clamp, and appellant was pulled into the lathe. He suffered a collapsed right lung, left rib fractures, and a fractured left scapula.
Appellant brought this action in the District of Maryland pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51. Prior to trial, the district court granted appellee’s motion in limine and excluded all evidence concerning alternative designs for the lathe, including alternative guarding procedures. Thus, appellant was precluded from presenting evidence that other lathes on appellee’s premises were equipped with guards over the clamp.
The case was tried to a jury on November 30 and December 1, 1988. Appellant’s primary contention at trial was that appel-lee provided inadequate lighting and that this negligence caused appellant’s injuries. The Reed-Prentice lathe receives light from two sources: a series of overhead lucalux lights and daylight through a large bank of windows eight to ten feet from the lathe. Unlike some of the other machines in the shop, the Reed-Prentice lathe did not have an individual fluorescent light.
Appellant testified that the windows were dirty and had not been cleaned for years. Appellant also testified that, as a result of the poor lighting, his body cast a shadow over the lower part of the lathe and that there was no direct illumination at the point where his sweater was pulled into the lathe. He further testified that he had requested individual lighting for the Reed-Prentice lathe four or five years before the accident. He never repeated this request.
At the close of appellant’s case, appellee moved for a directed verdict pursuant to Fed.R.Civ.P. 50(a). During argument on this motion, the district court judge repeatedly asked appellant’s counsel to indicate what evidence there was of negligence by appellee. See J.A. at 133-135, 152, 164. After argument, the court granted appel-lee’s motion. The court emphasized appellant’s status as a highly trained employee with exclusive responsibility for the safe operation of the Reed-Prentice lathe. The court also found that a four or five year old request for direct lighting was not legally sufficient evidence to support an inadequate lighting claim. The court concluded that the evidence left no doubt that appel-lee was not negligent and that appellant was solely responsible for the accident.
II.
An FELA claim must survive a motion for a directed verdict and proceed to the jury if “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). But the plaintiff still has the burden of proving some act of negligence by the railroad. See Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 243, 4 L.Ed.2d 198 (1959); Ambold v. Seaboard Air Line R.R. Co., 345 F.2d 30, 33 (4th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965). Even viewing the facts in the light most favorable to appellant, we cannot find any legally sufficient evidence of appellee’s alleged negligence.
Appellant operated the Reed-Prentice lathe under these lighting conditions without incident for many years before the accident. Although he once requested direct lighting, he did not consider the request important enough to mention again. Appellant was the only employee qualified to operate the Reed-Prentice lathe. Without notice from appellant as to possibly dangerous conditions not evident to a layperson, appellee had no opportunity to correct these conditions and cannot be found negligent. Cf. Inman, supra, 361 U.S. at 140, 80 S.Ct. at 243 (considering the absence of similar accidents in the past and the absence of complaints about the allegedly dangerous conditions probative of an absence of negligence by the railroad).
The only evidence appellant presented in support of his inadequate lighting claim was his own testimony and three photographs taken in the repair shop on October 21, 1985. The district court found that the jury could not discern from the photographs the amount of light in the repair shop generally or at the Reed-Prentice lathe. See J.A. at 165. Even if the amount of light were discernible from the photographs, appellant presented no evidence that the light was inadequate for safe operation of the lathe. He did not, for example, present the testimony of an expert witness regarding the proper lighting conditions for safe operation of a Reed-Prentice lathe. His own conclusory assertions that the lighting was inadequate are not sufficient to survive a motion for a directed verdict. Appellant’s evidence in this case was such that the jury could have reached a verdict in his favor only by speculating. As such, the district court’s granting of appellee’s motion for a directed verdict was proper and must be affirmed. See Kuberski v. New York Central R.R. Co., 359 F.2d 90, 92 (2d Cir.1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1475, 18 L.Ed.2d 600 (1967).
Furthermore, appellant never provided an evidentiary link between the allegedly inadequate lighting and his accident. He presented no evidence as to why the lighting in the repair shop made operation of the lathe dangerous or how direct lighting could have prevented this accident. Indeed, appellant testified that he had worked the 3:00 p.m. to 11:00 p.m. shift and had never had a similar accident, in spite of the lack of any natural illumination from the windows after sundown.
Given the evidence presented, the district court properly concluded that plaintiffs negligence was the sole proximate cause of the accident. Appellant was injured because he wore a loose-fitting sweater and “leaned in” too close to the lathe. Absent speculation, no act or omission of appellee can be said to have played any role in causing appellant’s injuries. When an employee’s own negligence is the sole proximate cause of his injuries, the employer cannot be found liable pursuant to FELA. See Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520 (1944); Barnett v. Terminal R.R. Assoc. of St. Louis, 228 F.2d 756 (8th Cir.), cert. denied, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476 (1956). Thus, the district court properly granted appellee’s motion for a directed verdict.
III.
Appellant contends that the district court erred in excluding testimony by appellant that he observed guards covering the rotating machine chuck on another lathe in another machine shop on appellee’s premises. In support of this contention, appellant notes Eggert v. Norfolk & Western Ry. Co., 538 F.2d 509 (2d Cir.1976). In Eggert, the plaintiff fell and struck his knee on a brake valve lever. The court held that “evidence of the practices of other railroads with respect to brake valve guards is highly relevant since the existence of alternatives would be significant on the issue of whether defendants acted reasonably in the present case.” Id. at 512.
The significance of such evidence, however, is directly related to the similarity between the two situations being compared. In this case, plaintiff was the only employee qualified to operate the Reed-Prentice lathe. That lathe was unlike any other lathe operated on appellee’s premises. Absent some evidence of similarity between the lathe observed with a guard and the Reed-Prentice lathe, evidence with respect to the guarded lathe is irrelevant to the issue of appellee’s negligence. Without additional evidence, appellant would be asking the jury to speculate that, because a different lathe had a guard, appellee should have provided a guard for the Reed-Prentice lathe. The district court properly excluded this unsupported and speculative testimony.
IV.
We think the district court correctly granted appellee’s motion to exclude evidence of guards on other lathes and appel-lee’s motion for a directed verdict at the end of appellant’s case. The judgment of the district court is therefore
AFFIRMED.
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_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".
SHEPARD v. UNITED STATES.
No. 564.
Circuit Court of Appeals, Tenth Circuit.
Jan. 9, 1933.
C. L. Kagey, of Wichita, Kan., and Harry W. Colmery, of Topeka, Kan. (Hal M. Black, of Wichita, Kan., Harry S. Class, of Denver, Colo., L. M. Kagey, of Wichita, Kan., L. W. LundbJade, of Beloit, Kan., A. E. Crane and Balfour S. Jeffrey, both of Topeka, Kan.,. Kagey & Black, of Wichita, Kan., Kagey,, Lundblado & Kagey, of Beloit, Kan., and Doran, Kline, Colmery & Cosgrove, of Topeka, Kan., on the brief), for appellant.
S. M. Brewster, U. S. Atty., and L. E. Wyman, Asst. U. S. Atty., both of Topeka, Kan. (Donald Little and Dan B. Cowie, Asst. U. S. Attys., both of Topeka, Kan., on the brief), for the United States.
Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.
COTTERAL, Circuit Judge.
Charles A. Shepard was convicted of murdering his wife, Zenana Shepard, by poisoning, June 15,1929, on the United States Military Reservation, at Fort Riley, Kan. The verdict of the jury was returned without capital punishment and the defendant was sentenced to life imprisonment. He appeals, relying on eight assignments of error, which embrace complaints of: (1) The exclusion of jurors; (2) refusal to direct a verdict for the defendant; (3) the admission of incompetent evidence; and (4) prejudicial comments on the evidence.
1. The defendant exhausted his peremptory challenges. Ten additional jurors wore excused by the court, and others were called and retained. Those excused had read an article printed in the Kansas City Star, purporting to emanate from the defendant, shortly before the trial. One of them, interrogated by the court and counsel for both ■sides, believed the article was a statement by the defendant, and answered he thought it would be considered. The others of those jurors were’examined solely by the court, all had read the article, and they were excused -without allowing inquiry from counsel for the defendant. The objections were to the excuse of these jurors, and to the denial of a motion, to quash the panel on that ground.
The view of the court was reflected in a remark that the defendant may not put his statement in a newspaper, get it to the jurors, and ask them to sit in the case. We quite agree it was not permissible for the defendant to create an atmosphere favorable to his defense and be tried by jurors subject to such influence. The newspaper article was introduced for the use of the court, but is not in the récord. The trial court has the duty to pass on the qualifications of the jurors. Its action is- not reviewable, unless it discloses an abuse of discretion. While there was no showing that the defendant wrote or inspired the article, the court had the discretion to- determine its effect; and no error arose because the court examined the jurors. Remus v. United States (C. C. A.) 291 F. 501; Assaid v. United States (C. C. A.) 10 F.(2d) 752; Hopt v. Utah, 120 U. S. 430, 435, 7 S. Ct. 614, 30 L. Ed. 708; Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 646, 6 S. Ct. 590, 29 L. Ed. 755. In any event, the defendant'has no ground of complaint, as he was tried before an impartial jury. Hayes v. Missouri, 120 U. S. 68, 7 S. Ct. 350, 30 L. Ed. 578; Howard v. Kentucky, 200 U. S. 164, 26 S. Ct. 189, 50 L. Ed. 421.
2. The motion to direct a verdict is based on the insufficiency of evidence to warrant the conviction. The prosecution claims the defendant poisoned his wife, with the motive of marrying Grace Brandon, with whom he had become enamored. We condense the evidence of guilt to the point that will illustrate its sufficiency.
The defendant and his wife were married .•at Los Angeles, in 1916. He is a medical officer in the United States Army, and was commissioned as a major during the World War. 'Since that time he has been stationed at various posts, and in 1928 was transferred to Fort Riley, Kan. His wife accompanied him. In that year, leaving his wife at Fort Riley, She took a flight surgeon’s course at Brooks Field, near San Antonio, Tex. While there, he met Grace Brandon and took her to dinners, dances, theaters, and other places of entertainment. He told her he and bis wife were not cong-enial, but kept up appearances for the sake of his rank and reputation. In November, 1928, at Neuvo Laredo, Mexico, he asked Miss Brandon to marry him if he should get a divorce; and she assented. The promise was repeatedly made. He protested his love for her, and frequently made her gifts of candy, flowers, jewelry, and other articles. He asked her to write to him at Junction City, Kan., where he rented a post office box. He wrote to her often, occasionally several times a day, until after his arrest.
In his letters he spoke of their marriage, and shortly before his wife became ill he wrote Miss Brandon his wife had changed her mind about a divorce, and he was depressed because of her request for an excessive financial settlement; also, that he had made over to Miss Brandon his life insurance of about $30,000. The correspondence with her was addressed in affectionate terms. In May, 1929, a few days before Mrs. Shepard became ill, he ordered a canary bird sent to Miss Brandon, but it did not reach her until two days before Mrs. Shepard’s illness began.
Soon after his return from San Antonio in December, 1928, the defendant obtained some bichloride of mercury tablets from the pharmacist at the post dispensary. He obtained other such tablets there in March, 1929, and in the following month he obtained a prescription for a like tablet dissolved in eight ounces of alcohol. In his. statement made to the agents of the Department of Justice he denied the fact, but in his testimony said all doctors carried the tablets for disinfectant purposes. He also obtained from the dispensary about two hundred empty capsules. He had access to the dispensary and had the keys to it every five or six days, as officer of the day.
Mrs.' Shepard enjoyed good health. In the afternoon of May 20, 1929, she went to Junction City to mail a letter. After her return defendant gave her a ginger ale highball. Later that evening, Mrs. Gertrude Skow, in answer to a call from Mrs. Shepard during her absence, telephoned the Shepard home and talked with the defendant, who told her that Mrs. Shepard was desperately ill and the doctor was there. She and Mrs. Constance Gates, another friend of Mrs. Shepard (both wives of army officers), called at the Shepard home but did not see her, and were told by the defendant she had gotten some bad liquor. Major Edward J. Striekler, a psychiatrist summoned by defendant, called at 8 o’clock. At about 9 o’clock, defendant called Mrs. Skew, asking her to stay with Mrs. Shepard until he could go for a nurse. He met Clara Brown, a nurse from Topeka, at Junction City, and she arrived that night. He told the nurse Mrs. Shepard had a nervous breakdown, and she need not keep a record of the ease. Mrs. Shepard was found delirious and vomiting, and her eyes were dilated. The defendant prepared capsules for Mrs. Shepard and the nurse gave them to her, one at a time. He said the capsules contained sodium bicarbonate and luminol. There were others he said contained bismuth.
The next day, the defendant told Alice McDonald he did not think the patient would get well. Mrs. Shepard suffered and had hemorrhages. Defendant told Major Martin Du Frenne he thought she was a chronie alcoholic, and had a chronie appendix. He also told Major Paul R. Hawley she had heart trouble. But no evidence was found of either condition. Her mouth became sore and foul and a dentist prescribed a wash containing mercuric chloride, but she used only a little of it. She lingered until she died on June 15, 1929.
The defendant opposed an autopsy asked by the officers, but yielded when it was ordered by General Symonds. The viscera were examined by several specialists and revealed the presence of mercury, taken in small doses. They agreed it was the cause of the dqath. This is practically conceded by counsel for the defendant.
Shepard went with the remains to Los Angeles for cremation. Before he left, he, advised Miss Brandon of the time of his departure, and stated that he would be at the Roslyn Hotel. He wired her the night of his arrival. On Juno 29, he wired General Ireland a request for a transfer to the hospital at Fort Sam Houston, near San Antonio. He wrote to Miss Brandon while en route from Los Angeles to Port Riley. Immediately after his return, he obtained leave to go to Denver to sell some lots, but went directly to San Antonio, arriving there on June 30. The day previous, he wired Miss Brandon from Waco he would telephone her on arrival at hotel, signing, “Love, Charlie.” He met her and while driving with her, proposed a secret marriage. On her refusal, they fixed their wedding date for August, 1930. He continued to send her gifts and bought her a car. He made repeated efforts to obtain a transfer to San Antonio.
There was such an array of circumstances pointing to defendant’s guilt as to leave no doubt of its sufficiency to withstand the motion for a directed verdict.
3. The main testimony objected to was that of Sergeant J. C. Glesser and the nurse, Clara Brown, admitted in rebuttal. The sergeant testified that on the fourth or fifth day of her illness, Mrs. Shepard said she believed she was being poisoned. Nurse Brown testified Mrs. Shepard said on the second day of her illness “she was being poisoned,” and “Doctor Shepard has poisoned me.”
The testimony of these witnesses was not admissible as dying declarations. There was testimony that Mrs. Shepard said she would not get well, had made threats of suicide, and did not want to recover; and it is a fair inference she believed, she would not recover. But there is no' evidence that she believed death was impending or about to ensue. Death need not actually follow as anticipated, but it is necessary that the patient believe it to be imminent. It is then an exception to the rule excluding hearsay arises, the temptation to falsehood being removed. Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917; Wigmore on Evidence (2d Ed.) vol. 3, §§ 1440,1441. The testimony of Sergeant Grosser was that the statement of Mrs. Shepard was not one of fact but opinion, and for that reason it was not admissible as a dying declaration. Wigmore on Evidence (2d Ed.) vol. 3, § 1447 ; 30 C. J. p. 274; Ehrhardt v. People, 51 Colo. 205, 117 P. 164.
But we are convinced the declarations were admissible to rebut the theory of suicide, advanced by the defense. The statements imputed to Mrs. Shepard that she contemplated suicide and did not expect or want to get well, reflected the state of her mind and tended- to show the poison was self-administered.' To rebut that testimony, the declarations that her .husband had poisoned her and she believed she had been poisoned were clearly competent as tending to show a different state of mind. State v. Kuhn, 117 Iowa, 216, 90 N. W. 733; 30 C. J. p. 165; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 S. Ct. 909, 36 L. Ed. 706; State v. Hayward, 62 Minn. 474, 65 N. W. 63; Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235.
It is argued that as the testimony was not of dying declarations, it was error to admit it, unless the jury was instructed as to the purpose for which it might be considered. There is authority for the contention. It was held error to omit the instruction whore the evidence was long or involved, in a conspiracy case. Minner v. United States (C. C. A.) 57 F.(2d) 506. But the general rule, which should be applied here, requires the adverse party to request such an instruction when he desires the benefit of it, and it was not done in this case. Butler v. United States (C. C. A.) 53 F.(2d) 800; Moffatt v. United States (C. C. A.) 232 F. 522; Hallowell v. United States (C. C. A.) 253 F. 865; Id. (C. C. A.) 258 F. 237, certiorari denied 249 U. S. 615, 39 S. Ct. 390, 63 L. Ed. 803; Id., 251 U. S. 559, 40 S. Ct. 180, 64 L. Ed. 413; Stassi v. United States (C. C. A.) 50 F.(2d) 526. Instead, when the instructions were finished, counsel for the defendant stated he was satisfied with them. This foreclosed objections to them. Mann v. United States (C. C. A.) 49 F.(2d) 131; Najera v. Bombardieri (C. C. A.) 46 F.(2d) 281; Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545.
Objection is urged to the introduction in evidence of various letters which were written by defendant to Miss Brandon, those he wrote to the concerns from which the gifts were obtained by him for her, and to the articles sent to her. The argument is the court abused its discretion in admitting' those exhibits. The obvious answer is they tended to establish a motive on defendant’s part to penetrate the crime charged. There is no force whatever in the objection.,
The account given by the defendant to tfie agents of the Department of Justice is assailed. He stated he was advised as to his constitutional rights and made his statement freely and voluntarily. An admission given under such circumstances is properly received in evidence. Perovich v. United States, 205 U. S. 86, 91, 27 S. Ct. 456, 51 L. Ed. 722; O’Neill v. United States (C. C. A.) 19 F.(2d) 322.
The introduction of Mrs. Shepard’s letters to her kin and mother were also questioned. They were offered to show the frame of her mind as being opposed to suicide. They were admissible on the same grounds as were her conversations.
4. Finally, it is urged that the court, indulged in prejudicial comments upon the evidence, in ruling upon the objections. Those pointed out by counsel do not sustain their complaint. There were unwarranted remarks to counsel in different instances, but they were insufficient to constitute reversible error.
The charge to the jury is assailed, in that it reviewed the evidence in favor of the prosecution in more detail than that favoring the defense. This was a natural course, in view of the burden to establish the offense by circumstantial evidence. But it suffices to say that the charge was accepted as satisfactory by the defendant’s counsel.
We are of the opinion that the record discloses no material error, and for that reason the judgment in this ease is 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_procedur | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Alberto MEJIA, Defendant-Appellant.
No. 87-4120.
United States Court of Appeals, Fifth Circuit.
April 25, 1988.
Rehearing and Rehearing En Banc Denied July 6, 1988.
Michael J. Osman, Miami, Fla., for defendant-appellant.
John A. Broadwell, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for plaintiff-appellee.
Before THORNBERRY, WILLIAMS and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Alberto Mejia appeals a judgment of conviction on a four-count indictment relating to the importation and distribution of a large quantity of cocaine. We affirm.
I.
The government’s indictment charged that Alberto Mejia, under the cover of a cattle export business, engaged with others in a criminal enterprise to import large amounts of cocaine into the United States. The government indicted and tried Mejia on counts of (1) conspiracy to import 1,197 pounds of cocaine from Panama, in violation of 21 U.S.C. §§ 952(a), 963; (2) aiding and abetting that importation, violating 21 U.S.C. § 952(a), 18 U.S.C. § 2; (3) conspiracy to distribute the cocaine, abridging 21 U.S.C. §§ 841(a)(1), 846; and (4) attempt to possess the cocaine with intent to distribute, contrary to 21 U.S.C. §§ 841(a)(1), 846. A jury found Mejia guilty on all four counts, and the trial judge sentenced him to an aggregate twenty-five year term of imprisonment followed by a mandatory three-year special parole term. Mejia appeals his conviction on two grounds. First, he charges that the evidence presented by the government was insufficient to support his conviction. Second, Mejia challenges the district court’s exclusion of testimony from his Miami attorney as hearsay. The facts will be discussed below in more detail when we consider each of appellant’s assignments of error.
II.
Mejia’s principal challenge on appeal is that the evidence is insufficient to convict him. He presents two distinct arguments. First, he contends that the standard of review for sufficiency of the evidence claims announced in United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983), may not be applied retroactively to an offense committed before the Bell decision. Second, Mejia argues that, under any standard, the government’s evidence of his guilt is insufficient to support his conviction.
A.
Mejia first addresses the proper standard we should use to assess his claim that the government presented insufficient evidence to support the jury’s conviction. He argues that the more recently announced, less stringent standard announced in Bell may not be applied retroactively to crimes committed before the date of the Bell decision. Bell requires us to view the evidence in the light most favorable to the verdict and affirm if the verdict is supported by substantial evidence. Mejia contends that his case must be reviewed according to a stricter, pre-Bell standard, which required reversal unless we determine that the trier of fact could reasonably have found that the evidence excluded every reasonable hypothesis except that of guilt. See, e.g., United States v. Squella-Avendano, 478 F.2d 433, 437 (5th Cir.1973); United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).
Mejia bases this argument on the Constitution’s prohibition against application of ex post facto laws, U.S. Const, art. I, § 9, cl. 3. Mejia’s argument is meritless. The Supreme Court has made it clear that “no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offense or the ultimate acts necessary to establish guilt.’ ” Miller v. Florida, — U.S. —, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351 (1987) (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)).
A change in the standard of review is properly characterized as procedural rather than substantive because it neither increases the punishment nor changes the elements of the offense or the facts that the government must prove at trial. See id. We have consistently applied Bell to criminal conduct that occurred before the Bell decision was announced. E.g., United States v. Vergara, 687 F.2d 57 (5th Cir.1982); United States v. Sudderth, 681 F.2d 990 (5th Cir.1982); United States v. Hartley, 678 F.2d 961 (5th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983).
B.
Having determined our standard of review, we now consider the substance of Mejia’s claim that the record evidence is insufficient to support his conviction. For this purpose we accept the evidence in the light most favorable to the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
The government sought to prove that Mejia participated in an elaborate scheme to fly large quantities of cocaine from Panama to New Iberia, Louisiana under the cover of a cattle exporting business. The initial steps to start the cattle exporting business from New Iberia, Louisiana airport were taken by John Reyes. Reyes asserted that he represented Panama Inex-port, a company interested in exporting Brahman cattle from Louisiana to Panama. He made preliminary arrangements with the New Iberia airport officials to export cattle.
In April of 1982, Reyes contacted Carlos Herrera, an employee of the Fair Air charter cargo airlines, for assistance in chartering an airplane for cattle shipments to Panama. Reyes explained that shipments would originate in New Iberia, Louisiana, because, Reyes contended, Louisiana cattle had a better reputation than Florida or Texas cattle. Reyes declined Herrera’s suggestion that the cattle could be transported much cheaper if they were trucked to Miami and flown to Panama from there. Reyes arranged for five back-to-back flights from New Iberia to Panama at $30,-000 per flight.
Reyes next contacted a cattle dealer, Gordon Guilliot, and preliminarily arranged for him to purchase cattle for Panama Inexport. Reyes informed Guilliot that a company representative, Alberto Mejia, would conduct all future business transactions for Inexport. Guilliot and Mejia eventually purchased cattle in Texas and Florida and trucked them to Louisiana for shipment to Panama. Guilliot testified that Mejia knew very little about buying cattle.
The first thirty-seven head of cattle were flown from New Iberia to Panama on May 6. The company’s Panamanian contact, Jorge Baena, told the flight crew that the Panamanian Customs officials refused the cattle because they were improperly vaccinated, and the cattle were flown back to New Iberia. The United States veterinarian who prepared the cattle for export testified that the cattle had been properly vaccinated and the Panamanians had no reason to refuse them. The government portrayed this trip as a dry run designed to test what control the conspirators would have over the cargo during off-loading in Panama.
A second shipment of fifty head of cattle was prepared for export on May 17. In addition to the cattle, the crew loaded forty fifty-pound sacks of feed, one bundle of plastic feed sacks, and two cardboard boxes containing stitching machines. Though Mejia argued that the plastic bags were required to protect the feed from moisture, the government presented evidence that this practice was unusual as well as unnecessary. The feed was stored in a dry facility before being loaded into the cargo area of the airplane, which was also completely dry. Mejia himself went to the feed store with Jaime Castillo, Mejia’s translator and business partner, to purchase these bags. It was the only time he accompanied Castillo on these errands. Mejia also personally saw that the feed bags and stitching machines were on the airplane; he helped move them to the front of the plane to balance the load before takeoff.
This shipment of cattle was successfully unloaded in Panama, but the feed bags were not. Baena explained to the flight engineer that the Panamanians had rejected the bags of feed because they were wet. When the plane returned from Panama on May 18, Mejia, Castillo, and others were waiting at the airport in New Iberia. Before the plane landed, Mejia told one of the workmen at the New Iberia livestock facility that he was going into town to pick up feed for the next load of cattle. Mejia never bought the feed, and though unin-dicted for some two years, was not seen again until shortly before his trial.
Customs agents arrived at the airport shortly after the plane landed. Their search of the airplane revealed 490 small packages of cocaine stuffed into the feed bags. Each feed bag was inside one of the plastic bags Mejia had purchased in Lafayette, and the top of each plastic bag was stitched closed. The 490 smaller packages of cocaine weighed 1,197 pounds; the cocaine was sixty to ninety-seven percent pure, with an estimated street value of $50,000,000.
When federal agents searched the residence in St. Martinville, Louisiana, that Mejia shared with Castillo, they found the house in disarray. Mejia’s clothes and other personal items had been left behind. In Castillo’s bedroom, the agents found several pages of hand written Spanish describing in great detail Panama Inexport’s mission in Louisiana. The government argues that this document, introduced as Government Exhibit No. 50, was a script for the Colombians to follow while they were in Louisiana — a means for the players to keep their cover stories straight. The document generally described the purpose of Panama Inexport and gave a detailed account of its personnel. For example, its second paragraph reads, “[Panama Inexport’s] general manager is Mr. John Reyes, about sixty-five years old, of medium height, always well dressed in a tie and jacket, very polite and well-mannered.” The document provided that Mejia “will be the direct representative of Panama Inexport, and in turn he will act as the inspector of the cattle to be received_ This way Mr. Mejia will always be together with Mr. Gordon Guillot [sic]. ...” The document directed Mejia to hire two cowboys from Panama to go with him to prepare the cattle.
People should get used to seeing the cowboys around the plane and the quarantine section, and if possible to cultivate the personnel working in quarantine. Mr. Mejia should take on the role of boss and coordinator and be above doing manual labor.... It is very important to ask Mr. Guillot [sic] for some decals and labels like the ones on his cars so that it will blend in with his. It is important that the cowboys always go in the truck and Mejia in the car.
The document further provided that the cowboys should ask Guilliot to take them into town to buy cowboy clothes and hats as soon as they arrived.
The latter part of the document, entitled “Secondary Line of Recovery,” outlined alternative escape plans. The document stated that Mejia was a sugar mill technician and had a plane nearby to enable him to obtain parts for a “very important repair.” The document further identified a “passive secondary” in the event of strange activity by Customs, such as more Customs officials than usual when the flight is about to arrive or the presence of dogs. In this event, the document advised “it is better to leave fast.” Finally the document listed an “alternate secondary,” which directed the conspirators to bribe the most suitable of the government personnel.
Mejia argues that the government presented no evidence of his knowledge of Exhibit No. 50. We conclude, however, that the jury could reasonably have concluded that Mejia’s behavior sufficiently conformed to that prescribed in Exhibit No. 50 that he was following the script and was a knowing participant in the conspiracy. Though Mejia’s behavior did not follow the script to the smallest detail, it did comport with the outline the document prescribed. For instance, Mejia played the role of the boss — he paid for everything the workers or the company needed, he stayed above manual labor, and he hired the cowboys. In addition, Mejia’s flight from the airport facility before the plane’s arrival conformed precisely to the document’s “passive secondary” plan of escape.
In addition to the inferences the jury was entitled to make from Government Exhibit No. 50, the jury was permitted to draw several other inferences from the evidence.
First, the nonsensical way Panama Inex-port chose to conduct its business, which seemed to guarantee financial disaster, supports the government’s argument that the company was a sham and existed for some purpose other than exporting cattle for profit. These abnormal, cost-enhancing business practices included trucking cattle from Texas and Florida to the remote New Iberia, Louisiana airport instead of flying the cattle directly from Houston and Miami to Panama. In addition, the company shipped the cattle very inefficiently. Though the aircraft’s cargo capacity was approximately 110 cattle, Panama Inexport sent only thirty-seven cows on the first trip and only fifty on the second. Considering the $30,000 cost of each flight, such inefficient use of the plane’s cargo capacity significantly increased the company’s cost basis in each animal.
Second, the fact that the New Iberia airport was chosen over Houston or Miami, against Panama Inexport’s economic interest, supports the government’s contention that the smugglers wished to conduct their business in an area where Customs inspectors would be less likely to inspect their cargo thoroughly. Third, Mejia’s involvement with the plastic bags is highly incriminating. The smugglers used these bags and stitching machines to enclose the re-sacked feed and help conceal the cocaine. Mejia bought these items himself and assisted in redistributing them on the plane. The clerk who sold Mejia the bags testified that, in his fifteen years of experience, this was the only time anyone had requested plastic protection for feed bags. He testified further that Mejia was his first and only customer to purchase a stitching machine. The jury was entitled to find that the only plausible reason Mejia had to purchase these materials and place them on the aircraft was to conceal the cocaine.
Fourth, Mejia followed other suspicious business practices on behalf of his company in regularly paying cash for large purchases. Although Mejia opened a checking account with a New Iberia bank, he paid $7,000 cash when he bought a used one-ton pick-up truck for the cowboys; he gave Gordon Guilliot $25,000 cash to buy cattle, and he paid cash for rental cars. The jury was entitled to infer that Mejia dealt in such large amounts of cash to avoid creating a paper trail of his activities and that a legitimate business would not have followed these practices.
Finally, the jury was entitled to consider as highly incriminating Mejia’s flight from the airport shortly before the Customs agents inspected the aircraft. This is particularly true in light of the evidence that he left his clothes and other personal belongings behind, relinquished plans to seek citizenship, abandoned the cattle export business, and left $13,904.70 in a checking account at the New Iberia National Bank. The physical items were later recovered by Mejia’s attorney; Mejia declined to re-enter the jurisdiction.
When all this evidence is considered together, it amply supports the verdict; the trial court did not err in entering judgment on it.
III.
Mejia also argues that the trial court improperly excluded testimony from his Florida counsel on grounds that it was hearsay. About two weeks after the cocaine was seized, Mejia asked attorney David O’Leary to help him retrieve the property he had left in Louisiana. At trial, Mejia sought to have O’Leary relate statements Mejia made to him in that meeting to rebut the government’s contention that his flight from Louisiana indicated a guilty conscience. Mejia argues that he was entitled to present evidence of an innocent state of mind as an exception to the hearsay rule under Federal Rule of Evidence 803(3). Whatever the merit of Mejia’s argument, his trial attorney failed to preserve this issue for appeal because he did not argue this hearsay exception to the trial court. “We have long held that, absent a showing of manifest injustice, a litigant may not raise a theory on appeal that was not presented to the district court.” United States v. Jackson, 700 F.2d 181, 190 (5th Cir.) (citations omitted) (defendant-appellant could not argue on appeal that testimony was not hearsay because it was not offered to prove the truth of the matter asserted when he did not argue this theory to the trial court), cert. denied, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983).
Even if the district court should have allowed O’Leary to relate Mejia’s statements to the jury, the failure to do so was at most harmless error because it was cumulative of O’Leary’s other testimony. The court allowed O’Leary to testify about what activities he undertook on Mejia’s behalf; the jury could infer that O’Leary took these steps at Mejia’s request. O’Leary further testified that Mejia was upset about the discovery of the cocaine. Mejia has failed to proffer what additional facts he intended to introduce through O’Leary’s testimony, so we are unable to evaluate Mejia’s requested relief on grounds that O’Leary’s testimony should have been admitted pursuant to Federal Rule of Evidence 803(3).
In the alternative, Mejia argues that the statement was not hearsay at all because it was not introduced to prove the truth of the matters asserted. This issue, too, defense counsel failed to raise to the trial court; it is therefore beyond our reach on appeal. See id. Accordingly, we find no error in the district court’s exclusion of this defense testimony.
IV.
Because the government presented sufficient evidence to the jury to support their guilty verdicts, and because the trial court committed no error in excluding hearsay defense testimony, the judgment of the trial court entered on the jury’s verdict is affirmed.
AFFIRMED.
. Mejia argued for the first time in his reply brief on appeal that Exhibit No. 50 should not have been admitted into evidence because it was hearsay. Because Mejia neither objected to this evidence at trial nor assigned its admission as error in his opening brief, we do not consider his argument. See Mississippi River Corp. v. Federal Trade Comm’n, 454 F.2d 1083 (8th Cir.1972); Finsky v. Union Carbide & Carbon Corp., 249 F.2d 449 (7th Cir.), cert. denied, 356 U.S. 957, 78 S.Ct. 993, 2 L.Ed.2d 1065 (1957).
. Federal Rule of Evidence 803 provides, in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical condition. — A statement of the de-clarant’s then existing state of mind, emotion, sensation, or physical condition....
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_district | C | 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".
MILENS v. BOSTIAN (two cases).
Nos. 12677, 12678.
Circuit Court of Appeals, Eighth Circuit.
Dec. 28, 1943.
A. J. Granoff, of Kansas City, Mo. (Julius C. Shapiro and Myer M. Rich, both of Kansas City, Mo., on the brief), for appellants.
Nelson E. Johnson, of Kansas City, Mo. (C. E. Thomson, of Kansas City, Mo., on the brief), for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
The referee in bankruptcy on February 4, 1943, in a summary proceeding in the Matter of Bessie Eichenberg, Bankrupt, entered an order and judgment determining that the bankrupt had an undivided one-fourth interest in the estate of her deceased brother, Harry C. Milens, that her trustee in bankruptcy was entitled to her interest, and that a purported renunciation of it, made by her, was void. The order and judgment voided the renunciation and required the administrator of the estate of Harry C. Milens to turn over to the trustee in bankruptcy “an undivided one-fourth (*4) interest in the estate of the said Harry C. Milens, deceased, subject to the payment of the valid debts of said estate, and the costs of administration therein, at such time as an order of distribution may be entered in said estate by the Probate Court of Jackson County, Missouri.” The order and judgment permanently enjoined the administrator from transferring this undivided interest to any person other than the trustee in bankruptcy. On petition to review, the order and judgment was affirmed by the District Court.
These appeals, one by the administrator of the estate of Harry C. Milens, deceased, and the other by an heir of the deceased, challenge the jurisdiction of the court of bankruptcy to enter the summary order and judgment.
The facts out of which the controversy arises are not in dispute. In 1935, in a State court of Missouri, L. E. Fenton obtained a judgment for $29,392.28 against Bessie Eichenberg, upon which nothing has been paid. On February 1, 1942, Harry C. Milens, her brother, died intestate, leaving her and her sister, Rebecca Westerman, and two brothers, M. G. Milens and Charles E. Milens, as his sole heirs. On February 5, 1942, the Probate Court of Jackson County, Missouri, appointed M. G. Milens administrator of the estate of Harry C. Milens, deceased. The estate was valued at more than $90,000. On May 25, 1942, Bessie Eichenberg executed a renunciation and disclaimer of any interest in the estate. This instrument was dated March 9, 1942, and was directed to and served upon M. G. Milens, administrator. No consideration was paid for the renunciation, and Bessie Eichenberg was insolvent when she executed it. On July 20, 1942, an involuntary petition in bankruptcy was filed against her. On August 5, 1942, she was adjudged a bankrupt, and William B. Bostian was appointed trustee in bankruptcy of her estate.
On September 19, 1942, the trustee filed with the referee a petition for the entry of the order and judgment which the appellants now challenge. The petition asserted, in substance, that the bankrupt’s renunciation of her interest in the estate of her deceased brother was a transfer of her property within one year of the filing of the petition in bankruptcy and while she was insolvent, and was void; that the trustee was entitled to her interest in the estate; and that M. G. Milens, administrator, unless restrained, would distribute the interest of the bankrupt to the other heirs of Harry C. Milens. An order was issued by the referee and served upon M. G. Milens, individually and as administrator, Charles E. Milens, Rebecca Westerman, and the bankrupt, directing them to show cause why the prayer of the petition should not be granted.
■ At the hearing upon the petition, M. G. Milens, as administrator, appeared specially and objected to the jurisdiction of the referee. Charles E. Milens also entered a special appearance and objected to the jurisdiction on the ground that he was an adverse claimant “to a right, title and interest in said estate of Harry C. Milens, Deceased, of the asserted one-fourth interest therein, of said bankrupt, when and as the same may be distributed, and become due and payable.” Rebecca Westerman did not appear, although she testified as a witness. The bankrupt filed a motion to dismiss the petition upon the ground that it stated no claim upon which relief could be granted, and because the court of bankruptcy was without jurisdiction of the subject matter.
The referee overruled the objections to his jurisdiction, denied the motion of the bankrupt to dismiss, and entered the order appealed from. He determined that the bankrupt had a vested equitable interest in her deceased brother’s estate which she could not transfer in fraud of her creditors; that she had, prior to her purported renunciation, signed a document evidencing her intention to accept her interest in the estate; that she was guilty of fraud and collusion in attempting to renounce her interest; and that the administrator of the estate of her deceased brother holds her undivided one-fourth interest in that estate in trust for the trustee in bankruptcy.
It is conceded that, at the time the order and judgment appealed from was entered, the estate of Harry C. Milens was being administered by the Probate Court of Jackson County, Missouri, that the assets of the estate were in the custody and possession of M. G. Milens as administrator, and that no decree of distribution had been entered.' It is also conceded that the courts of Missouri have not as yet determined what effect (if any) the renunciation by an heir of an interest in the estate of an intestate has upon the rights of creditors of the heir who renounces, or upon the rights of the other heirs of the intestate. The object of the summary proceeding brought by the trustee in bankruptcy was to obtain a determination that he alone was entitled to the share of the estate of Harry C. Milens which he (the trustee) asserted belonged to the bankrupt at the time of the filing of the petition in bankruptcy, and to make certain that he would ultimately secure possession of that share.
The referee and the District Judge were of the opinion that the right of Bessie Eichenberg to share in the estate of her deceased brother — which right they concluded she still owned at the time of the filing of the petition in bankruptcy — empowered the bankruptcy court to enter the order and judgment which is challenged. They determined that it was not necessary for the trustee in bankruptcy to bring a plenary suit to obtain the bankrupt’s share of her deceased brother’s estate.
We think that the case of Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876, indicates that summary jurisdiction cannot be sustained in the instant case. The Supreme Court said in that case (page 481 of 309 U.S., page 630 of 60 S.Ct., 84 L.Ed. 876): “Bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession. And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.”
Assuming that Bessie Eichenberg’s right to an undivided one-fourth share of her deceased brother’s estate was not affected by her renunciation, she had, at the time of the filing of the petition in bankruptcy, neither the possession nor the right to the possession of any of the property belonging to that estate. All of the property of the estate was in the possession and custody of M. G. Milens as administrator. He had been appointed by, and was subject to the jurisdiction of, the Probate Court of Jackson County, Missouri. He was not the agent or bailee of the bankrupt. He was the agent of the Probate Court, and as such held in custody the property of the estate for administration in accordance with the laws of Missouri and the directions of that court. Rollins v. Shaner, 316 Mo. 953, 292 S.W. 419, 421. In Cook v. McCoy, Mo.App., 118 S.W.2d 1043, 1046, it was held, in effect, that an heir is not entitled to his distributive share of an estate until all debts and charges against the estate have been paid and an order of distribution has been entered, and that an administrator is not liable to suit by an heir until that time. In Bank of Hamburg v. Tri-State Savings & Loan Ass’n, 8 Cir., 69 F.2d 436, page 438, this Court, after pointing out that, under the laws of Arkansas, an administrator was entitled to-the possession of the land belonging to a decedent, said: “With the above state of law in Arkansas as to the rights of possession in this administratrix, which began far more than four months before the petition in bankruptcy was filed, it seems to us there could be no such character of right of possession in this bankrupt sufficient to constitute a basis for possession in the bankruptcy court as a ground of jurisdiction. The probate court clearly had the sole right to jurisdiction over and possession of this land several years before the bankruptcy proceeding; the administration in the probate court is still in course with unpaid debts for which this land is liable; and nothing has been done by that court to, in any wise, weaken or affect its jurisdiction over and its right to exclusive possession of this land.”
Compare Marcell v. Engebretson, 8 Cir., 74 F.2d 93, 96, 97, and Thompson v. Terminal Shares, Inc., 8 Cir., 104 F.2d 1, 9. See also 11 U.S.C.A. § 46.
There is another reason why we think that the court of bankruptcy should not have proceeded summarily. No matter how improbable it is that the courts of Missouri will rule that the renunciation by an insolvent heir of his interest in the estate of an intestate is effective as against creditors, the question is one of State law which has not been settled. It is conceivable that the turn-over order made by the court of bankruptcy may conflict with the order of distribution ultimately to be entered by the Probate Court of Jackson County. We think that the possibility of such a conflict is to be avoided. The Supreme Court of the United States in Thompson v. Magnolia Petroleum Co., supra, 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876, was of the opinion that where a trustee, appointed by a court of bankruptcy, sought to recover property claimed by others, and his claim depended upon the title of the debtor to the property, and the title depended upon an unsettled question of state property law, the bringing of a plenary suit in a state court by the trustee was the course to follow.
We conclude that the court of bankruptcy lacked summary jurisdiction to enter the order and judgment appealed from against M. G. Milens, as administrator. The court of bankruptcy can, however, enjoin him, pending the bringing of a plenary suit by the trustee, from distributing the share of the estate of Harry C. Milens to which the trustee claims to be entitled. Steelman v. All Continent Corp., 301 U.S. 278, 287, 57 S.Ct. 705, 81 L.Ed. 1085; Thompson v. Magnolia Petroleum Co., supra, page 483 of 309 U.S., page 630 of 60 S.Ct., 84 L.Ed. 876. We conclude also that the controversy between the trustee and Charles E. Milens could not, over objection, be determined by the court of bankruptcy in a summary proceeding.
The order and judgment appealed from, in so far as it affects the appellants, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
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_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.
Robert I. ENGLE, Appellant, v. Emogene I. STULL et al., Appellees.
No. 20113.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 12, 1966.
Decided March 23, 1967.
Mr. James F. Bromley, Washington, D. C., with whom Mr. James C. Gregg, Washington, D. C., was on the brief, for appellant.
Mr. M. Michael Cramer, Washington, D. C., with whom Mr. II. Thomas Sisk, Washington, D. C., was on the brief, forappellee Stull.
Mr. Louis M. Kaplan, Washington, D. C., with whom Mr. Lawrence E. Carr, Jr., Washington, D. C., was on the brief, for appellee Long.
Before Fahy, Circuit Judge, Bastían, Senior Circuit Judge, and Coffin, Circuit Judge for the United States Court of Appeals for the First Circuit.
Sitting by designation pursuant to Section 291(a) Title 28 U.S.Code.
COFFIN, Circuit Judge:
This appeal is taken from a judgment of the District Court, sitting without a jury, awarding plaintiff $21,000 for injuries sustained in a motorboat collision on the Potomac River on August 12, 1962.
Viewing the evidence most favorably to plaintiff, the facts are the following. Plaintiff, then twenty years old, was a clerk-stenographer employed by the Department of the Air Force at the Pentagon. She and six other persons had been invited by defendant Long for a Sunday boating excursion on the Potomac.
Long, who operated a marina and boat maintenance service, owned a twenty-foot Century Coronado motorboat cruiser powered with a 250 horsepower engine, on which he had had some 800 hours of running time. Defendant Engle owned an eighteen-foot 1953 Chris-Craft boat, originally equipped with a 120 or 131 horsepower engine. Shortly before the date of the accident, Long had installed a new 230 horsepower engine in Engle’s boat and had taken it on test runs for about ten hours, during which time Engle had taken the wheel for two or three hours. One technique of testing was to turn the boat at high speed and cross its own wake. Long testified that on one such occasion he momentarily lost control. He advised Engle to “feel it [the new engine] out” before running it at high speed.
On the day of the accident, Engle and Long decided to cruise together in their respective boats, each carrying passengers. The day was clear and sunny, but the water was * slightly choppy, with waves of three to five inches. There were many other boats on the river. The two boats involved set out together, going downstream for a dining rendezvous at Sweden Point. After stopping once for gas at Alexandria, they stopped for a few minutes in midstream, then started up again. Long’s boat, which had turned around, had lagged behind Engle’s, but proceeded to overtake it. In the words, of the plaintiff, Long's boat was “skipping along”, “actually leaving the water at certain points”.
Immediately before the accident, Engle’s boat had passed Long’s and was one hundred feet ahead and fifty feet to the left. Both boats were going between thirty and thirty-five miles per hour. They held this position and speed for about a quarter of a mile, or twenty-five to thirty seconds. Two to three minutes, earlier, an outboard motorboat had passed them, a few hundred yards to the left of Engle’s boat, travelling in the opposite direction. There were approximately fifteen other boats within a two-block radius. At this point, defendant Long testified, he saw ahead of Engle’s boat a wake or wave from another boat, a little bigger than the chop they had encountered since leaving Washington — a foot high or smaller. He then saw Engle’s boat jump-across the wake, go out of control, turn sharply to the right in the trough of the-wake (toward Long), and overturn. Long remained “petrified” for an instant, then, when Engle’s boat was about twenty feet away, turned his boat to the right, so abruptly that one of his passengers sitting on the bow fell overboard. The left edge of-the bottom of the capsized Engle boat collided with the left front gunwale of Long’s boat.
Plaintiff was thrown into the water, where she remained for three quarters of an hour, during which she discovered that, her left thumb had been lacerated and was bleeding profusely. Diagnosis revealed that a digital nerve and tendon had been severed. Emergency surgery was-performed, as well as a subsequent operation to remove a neuroma, or tumor produced by the wild growth of nerve tissue. Plaintiff made some twenty-five visits to her doctors, pursued physical therapy treatment, bought drugs, and lost over three hundred hours of work. The trial court found that these items amounted to $1,564.70. She suffered, according to her surgeon, a permanent seventeen per cent disability in her thumb, and a permanent twenty-five per cent loss of function of her left hand.
She continues to suffer from both a deep aching myalgic or muscular pain and frequent acute neuralgic pain. The proportion of actual typewriting required by her job has increased since the accident. She tires more quickly, her productivity has decreased, and she is in frequent pain. Her supervisor often helps with her typing. Working in a security area, she finds it difficult and painful to tear up bulky documents for burning. Outside of working hours she has difficulty and pain in dressing, washing, doing household chores, carrying books to night school, and sleeping. Her life expectancy at the time of trial was fifty-five years.
The district judge, after making findings of fact summarizing the events above narrated, concluded that the negligence of defendant Engle was the sole proximate cause of plaintiff’s injury and awarded damages of $21,000.
On this appeal, defendant Engle attacks the sufficiency of the evidence to support the finding of negligence on his part and the absence of negligence on the part of defendant Long; certain rulings on evidence at the trial; and excessiveness of the damages.
We think that the evidence, the salient parts of which we have summarized, was sufficient to sustain the findings. Defendant Engle’s argument is that the accident could have been caused by his boat striking submerged debris and that plaintiff failed to meet her burden of introducing affirmative proof to remove causation from the realm of mere speculation. But the combination of Engle’s lack of experience in handling his boat, after the installation of an engine of nearly double the power of the former one; his knowledge that a wake can cause a fast-moving boat to go out of control; the heavy traffic on the river; his passing an outboard boat to his left; the existence of a wake ahead of him; and his unslaekening operation of his boat at thirty to thirty-five miles per hour seem to us to form a sufficient basis for a finding of negligence. There was, indeed, no evidence of any other cause of the accident. This is not a ease where plaintiff’s proof amounted to nothing more .than the occurrence of an accident.
As for the finding that defendant Long did not contribute to the accident, we cannot say that the district judge erred. Defendant Engle does not argue that Long was proceeding at too high a speed, that he was following Engle too closely, or that he was not keeping a proper lookout. He asserts, rather, that Long was negligent as a matter of law in hesitating for two or three seconds before turning and in failing to cut his throttle. There is no evidence that these measures would have avoided the accident nor, even if they would, must we assume that a reasonable man would have acted in a crisis on split-second timing.
This brings us to the rulings at trial. The most substantial contention is that the judge erred in allowing plaintiff’s counsel to use and refer to a Coast Guard accident report in impeaching Engle. Under the Motorboat Act of 1940, as amended, 46 U.S.C. § 526Z(c), accident reports must be filed with the Coast Guard, unless an operator is required to file these reports with a state which has conformed to federal criteria governing a numbering system for motorboats. One of these criteria is that the state require reports of accidents involving boats numbered by it and transmit such statistics to the Coast Guard. Federal Boating Act of 1958, 46 U.S.C. § 527a(c) (6). By regulation, individual accident reports submitted to the Coast Guard, “or copies or excerpts therefrom, will not be released.” 46 C.F.R. § 173.10-1 (b).
Maryland, the site of the accident alleged in the complaint, has an accident reporting law. Md.Ann.Code art. 14B, § 9 (Supp.1965). The law proscribes any reference to such reports in any judicial proceeding. Md.Ann.Code art. 14B, § 9(e) (Supp.1965).
Defendant Engle argues that, after he testified that he did not recall seeing a wake at the time of the accident, it was improper for plaintiff’s counsel to question him from and make reference to a Coast Guard report in which he had written that his boat had “hit a swell”.
Were all the predicates established for invoking the Maryland law, we think it .should be respected by the district court, notwithstanding the policy of the Federal Rules of Civil Procedure favoring the reception of evidence. Cf. Fed.R.Civ.P. 43 (a). We say this in the light of the principle of comity articulated in the Federal Boating Act of 1958, 46 U.S.C. §§ 527f, 527h(4), and the legislative history, S. Rep.No. 2340, 85th Cong., 2d Sess. (1958), U.S.Code Cong. & Admin.News, 1958, p. 5228, as well as policy reasons supporting state-created confidential relationships to induce full and accurate reporting of accidents.
The problem is that the Maryland statute is not in the case. To begin with, plaintiff, before trial, moved to compel the production by defendant Engle of •copies of accident reports filed with the Coast Guard and with the Maryland Tidewater Fisheries Commission. In opposing the motion, defendant claimed, first, that the reports were privileged and, seeond, that if they were not privileged, they could be secured “from the United States Coast Guard or from Maryland Tidewater Fisheries Commission.” The court, in its order to produce, characterized the motion as one to compel production of copies of statements given to the Coast Guard and ordered the documents named in the motion produced. In other words, before trial the focus was on reports filed both with the Coast Guard and with Maryland. There was no suggestion that no report had been filed directly with the Coast Guard.
The issue narrowed at trial where plaintiff’s counsel asked defendant Engle: “Now, after the accident, within 30 days from the date of the accident, didn’t you fill out and file a report with the United States Coast Guard concerning the causation of the accident?” Defendant answered, “Yes. I did.” At this point counsel objected to reference to any report filed with the Coast Guard.
While counsel proceeded to argue on the basis that the report required by the Coast Guard had in fact been filed with Maryland, the evidence before the district judge — ■ there being no attempt to change defendant’s answer — was solely to the effect that the report in question was one which had been filed with the Coast Guard. This being so, the district judge properly allowed the report to be used in questioning defendant Engle. The federal regulation, proscribing release by the department, was of the same order as the census legislation in St. Regis Paper Co. v. United States, 1961, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240. There the Court approved an order compelling the production of a citizen’s own file copy of his report to the Census Bureau, saying: “It [the Census Act] does not require petitioner to keep a copy of its report [to the Bureau] nor does it grant copies of the report not in the hands of the Census Bureau an immunity from legal process. Ours is the duty to avoid a construction that would suppress otherwise competent evidence unless the statute, strictly construed, requires such a result.” 368 U.S. at 218, 82 S.Ct. at 295. It specifically recognized that this form of proscription was not so broad as statutes similar to the Maryland statute in this case. Id. at 218, nn. 8, 9, 82 S.Ct. 289.
We do not see any injustice in applying this analysis to this case. Indeed, the use of the document in question can hardly be called even impeachment. Immediately prior to use of the document, this had been the testimony:
“Q. Now, did your boat hit a wake immediately before it went out of control? A. Did it strike a wake?
“Q. Yes, sir. A. There were wakes in the vicinity and I am sure that at the time or around that time that my boat went out of control that I was proceeding over wakes in the area. I do not recall whether I struck a wake at that time, I remember seeing wakes in front of me.”
After colloquy between court and counsel, this was the testimony:
“Q. Sir, did you tell this to the Coast Guard, that this is how the accident happened ? A. I recall filling out a Coast Guard report and giving them an explanation for what I thought possibly could have caused this accident, since they asked for one. I don’t feel that I stated that it definitely caused the accident.
“Q. Did you not state that a possible reason for the accident was that you hit a swell or a wake ? A. I did state that possibly I could have hit a swell and this could have caused the accident, yes.”
We cannot say on this record that the questioning from the document contradicted defendant’s testimony to the extent that any error, even if error was committed, was reversible, particularly in an action tried without a jury. To be sure, plaintiff’s counsel in argument struck a more positive note than the evidence justified, in saying that defendant reported “in the Coast Guard report, that he hit a wake.” But no objection was taken.
A second challenged ruling was that allowing an expert in motorboat operation to testify to the cause of the accident. There was no objection to his qualifications, nor, finally, to the basis in evidence of the components of the hypothetical question put to the witness. Objection was based on the allegation that causation was not a matter appropriate for expert opinion. But we do not think that common experience affords knowledge of such relevant matters, testified to by the expert here, as the distance from which a one-foot wake could be observed, the change in handling characteristics of a boat made to go faster than it was originally designed to go, the tendency of increased weight in the stern to make a boat “porpoise”, the relation between engine revolutions per minute and speed, the relatively safe position of a following boat being ahead of the wake of a leading boat, and the length of time to become familiar with the handling of a newly powered boat. We cannot say that the district judge erred in admitting this testimony as the expert’s opinion.
By the same token, had the district judge excluded the testimony, we should undoubtedly not have reversed. Cf. Salem v. United States Lines Co., 1962, 370 U.S., 31, 82 S.Ct. 1119, 8 L.Ed. 2d 313; Krizak v. W. C. Brooks & Sons, Inc., 4 Cir., 1963, 320 F.2d 37. The language of the latter case is appropriate to this: “Whether, in any given case, the expert testimony is necessary to aid the jury in its search for the truth.depends upon such a variety of factors readily apparent only to the trial judge that we must depend heavily upon his judgment.” 320 F.2d at 42.
The final trial ruling which is challenged was that preventing defendant’s counsel from seeing all the notes which plaintiff’s surgeon-witness had brought with him. All the records used by the doctor in his testimony on direct were made available to defendant’s counsel, and he was allowed to look over the shoulder of the witness as he testified. The remaining papers were described as containing letters from other doctors, and copies of bills. There was no attempt at pre-trial discovery. There was no showing of any particular reason for the production of these papers. The district judge’s refusal to allow examination of these papers lay well within her discretion.
The last issue is that of damages. Obviously one can characterize a cut on a thumb as not meriting an award of $21,-000. One can compare this with other verdicts and judgments for other injuries. But there is no rule of thumb that can furnish a sure guide to fairness. Given the evidence that the injury would cause the plaintiff, not merely annoyance and disability, but persistent and often acute pain for the expected fifty-five remaining years of her life, we cannot say that the damages were excessive as a matter of law.
Affirmed.
. The applicable standard of care is that of a reasonable operator, whether we refer to general principles of tort law or to the Inland Rules of the Road, 33 U.S.C. §§ 151-232, 221, and the Federal Motorboat Act of 1940, as amended, 46 U.S.C. §§ 526-526t, 5261.
. As defendant Long points out in his brief, a simultaneous effort both to stop and to turn sharply might well have caused a more serious accident.
. “The report of a boating accident herein required to be made shall not, during any judicial proceeding, be referred to in any way; it shall not be subject to subpoena nor admissible as evidence in any proceeding. Subject to these restrictions, information contained in a boating accident report and any statistical information based thereon will be made available upon request for official purposes to the United States Coast Guard and any federal agency successor thereto.” (Acts 1960, cli. 69, Section 2.)
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_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.
ALLIED STEEL, GENERAL CONTRACTOR; and Frank Solis, Owner, Plaintiffs-Appellees, v. CITY OF ABILENE; Meals on Wheels Plus, Inc.; Betty Blazier, Executive Director; Ben Hutchinson, Chairman, Board of Directors; Robert Bailey, Member, Board of Directors; Michael Morrison, Administrator, Housing and Community Development Division, City of Abilene; M.R. Newberry, Architect, Defendants-Appellants. ALLIED STEEL et al., Plaintiffs-Appellants, v. CITY OF ABILENE et al., Defendants-Appellees.
Nos. 89-1982, 89-1895.
United States Court of Appeals, Fifth Circuit.
Aug. 20, 1990.
Claudia Clinton, First Asst. City Atty., Harvey Cargill, City Atty., Abilene, Tex., for City of Abilene and Morrison.
Frank Scarborough, Hutchinson, Blazier, Bailey, Glandon, Erwin, Scarborough, Baker & Choate, Abilene, Tex., for Meals on Wheels.
Charles L. Black, Wagstaff, Alvis, Stubbeman, Seamster & Longacre, Abilene, Tex., for Newberry.
Michael H. Sussman, Sussman & Suss-man, Yonkers, N.Y., for plaintiffs-appel-lees.
Before REAVLEY, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:
Allied Steel (Allied), an Hispanic general contractor in the Abilene area, brought suit in the Northern District of Texas under 42 U.S.C. §§ 1981, 1983, 1985, 2000d, and 5301 et seq.; the due process and equal protection clauses of the fifth and fourteenth amendments to the United States Constitution; and Tex.Rev.Civ.Stat.Ann. art. 2368a.3, § 5 (now Tex.Loc.Gov’t Code Ann. § 271.027 (Vernon, 1988)). The issue was whether, in awarding a construction contract funded in part with Community Development Block Grant Funds which the federal government had allocated to the City of Abilene, the defendants had discriminated against Allied on the basis of national origin. The defendants are Meals on Wheels Plus, Inc. (MOW), a non-profit corporation; Ben Hutchinson, Chairman of its Board of Directors; Betty Blazier, its Executive Director; Robert Bailey, a board member; the City of Abilene; Michael Morrison, Administrator, Housing and Community Development; and M.R. Newberry, an architect.
I
After trial without a jury, the district court found no evidence that the defendants had discriminated against Allied. The court ordered the action dismissed on its merits, signing the judgment as “entered” on August 7, 1989. The clerk entered the judgment on the docket on August 8, 1989, pursuant to Fed.R.Civ.P. 58 and 79(a). More than thirty days later, on September 22, 1989, Allied filed a motion pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure (FRAP), to extend the time within which to file notice of appeal. Finding that Allied’s reasons for failing to file a timely notice of appeal constituted “excusable neglect,” the district court granted the motion ex parte that day. Allied filed notice of appeal on September 25th. On September 26th, the clerk docketed the order extending the time in which Allied might file notice of appeal.
On September 27th and 29th, the defendants separately filed motions to reconsider Allied’s motion to extend time. In their accompanying briefs, the defendants argued that the court had not granted them the opportunity that FRAP 4(a) allows to be heard on the motion. The district court denied those motions, and the defendants filed notice of appeal from the order that had extended the time within which Allied could appeal the district court’s judgment of dismissal.
The defendants next filed a motion in this court to dismiss for lack of jurisdiction Allied’s appeal of the district court’s judgment dismissing the action on the merits. Denying that motion on December 15,1989, a motions panel of this court rejected the defendants’ claim that because the district court’s granting Allied’s motion to extend ex parte without a hearing ‘ violated the procedural rules, Allied’s motion was void and the appeal should be dismissed as untimely. The panel held that although the district court should have provided the defendants an opportunity to respond before it granted Allied’s motion to extend the time in which to file a notice of appeal, that court had, nevertheless, satisfied the objectives of the rules by later considering, within sixty days of judgment, the defendants’ arguments in the briefs that accompanied their motions to reconsider. On January 24, 1990, that motion panel denied a motion to reconsider its December order. For purposes of oral argument and decision, this court consolidated Allied’s appeal from the district court’s . judgment and the . defendants’ appeal from the district court’s order granting Allied’s motion to extend time in which to file notice of appeal.
We hold that the district court erred in finding “excusable neglect,” in the absence of which Allied’s notice of appeal was untimely. Consequently, this court lacks jurisdiction, and we must dismiss this appeal.
II
Allied argues that the district court correctly found that Allied’s failure to file a timely notice of appeal resulted from “excusable neglect.” At the start of the thirty-day period within which Allied could appeal as of right, “an urgent business situation” arose which demanded Allied’s undivided attention: one of its customers defaulted on a substantial payment. Because of that “business-threatening”. circumstance, Allied argues, it neglected to authorize counsel to file a notice of appeal.
Allied also argues that it believed in good faith that it had sixty days within which to file its notice of appeal because its office manager had mistakenly construed the rule which the receptionist in Allied’s attorney’s office had related to her. The office manager gathered that the use of federal funds in MOW’s construction project brought the time for filing notice of appeal within the. sixty-day period that pertains when the United States is a party.
On the basis of those two arguments, the district court found that Allied had shown “excusable neglect.”
When a party fails to file a notice of appeal within thirty days following the district court’s entry of judgment, FRAP 4(a)(5) allows that party to request an extension of time during which to file such notice. The party must file that request not later than thirty days after the initial period allowed for filing notice of appeal expires. A district court which grants such a request may not expand the period for filing notice of appeal beyond the later of thirty days after expiration of the original filing period or ten days after entry of the order granting the request.
In this case the district court entered judgment for the City of Abilene on August 8, 1989. Allied had until September 7 to file a notice of appeal as of right. It did not file its motion to extend the time in which to file until September 22, fifteen days after the period had expired during which it could have filed a notice of appeal as of right.
Ill
We review extensions of time under FRAP 4(a) for abuse of discretion. Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir.1979). We give great deference to the district court’s determination of excusable neglect when the appellant applies for an extension during the initial thirty-day period in which the law permits appeal as of right. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). Although we are still deferential towards the district court once that period has expired, our deference need not, however, be as great.
The provisions of Rule 4(a) are mandatory and jurisdictional. Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Browder v. Director, Illinois Dep’t of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Lusted v. San Antonio Indep. School Dist., 741 F.2d 817, 819 (5th Cir.1984). The “excusable neglect” standard of that rule is intended to be a “strict one.” Chipser, 600 F.2d at 1063 (citing Stern, “Changes in the Federal Appellate Rules,” 41 F.R.D. 297, 298-99 (1967)). “A strict construction of Rule 4(a)(1) necessarily and logically compels us to erect a high threshold in our determination of ‘excusable neglect’ under Rule 4(a)(5).” Loosely interpreting “ ‘excusable neglect’ would convert the 30-day period for appeal provided in FRAP 4(a) into a 60-day one — a result clearly not intended by the Rule’s framers.” Parke-Chapley Constr. v. Cherrington, 865 F.2d 907, 911 (7th Cir.1989) (quoting Judge Friendly, a member of the Advisory Committee that drafted the Federal Rules of Appellate Procedure, in In re O.P.M. Leasing Services, Inc., 769 F.2d 911, 917 (2d Cir.1985)).
Failure to file a timely notice of appeal because of a “business-threatening circumstance” does not constitute “excusable neglect.” To accept that Allied's “economic crisis,” its “extraordinary” circumstance, constituted excusable neglect would be to eviscerate the rule that a party must appeal a judgment or order within thirty days following its entry. Almost any party to any dispute could argue truthfully that unique or extraordinary circumstances had distracted its attention. Cf. Bailey v. Sharp, 782 F.2d 1366, 1371 (7th Cir.1986) (Easterbrook, J., concurring) (Fed.R.Civ.P. 6(b) prohibits district court’s extending to eighteen days the ten-day period for serving motion for new trial under Fed.R.Civ.P. 59(b)). District courts would have no principled means of distinguishing among circumstances. Requiring courts constantly to adjudicate claims of extraordinary or unique circumstances would defeat the purpose of the time limitation in Rule 4(a)(1)— to provide a definite point at which, in the absence of a notice of appeal, litigation will cease. Pellegrino v. Marathon Bank, 640 F.2d 696, 698 (5th Cir.1981). Rule 4(a)(5) clearly indicates that potential appellants may not regard the period during which a district court may extend the time for filing a notice of appeal as a further period in which to ponder their options.
Furthermore, while its economic crisis may have distracted Allied, it nowhere argues that the crisis similarly distracted its attorney. Indeed, even if it had, such distraction would not render his ne-gleet “excusable.” United States v. Bowen, 310 F.2d 45 (5th Cir.1962) (“preoccupation of counsel with other matters does not dispense with the necessity for a compliance with the rules”). Additionally, the fact that a party represented by an attorney misconstrues a rule does not raise such party’s error to the level of excusable neglect. Campbell v. Bowlin, 724 F.2d 484, 488 (5th Cir.1984); see also Harlan v. Graybar Elec. Co., 442 F.2d 425, 426 (9th Cir.1971) (counsel’s misreading rule to allow sixty not thirty days in which to file notice does not show excusable neglect). Allied had an experienced attorney whom it should have consulted on procedural questions of appeal. Although Allied’s relying on a telephone conversation between its office manager and its attorney's receptionist in such an important matter as an appeal deadline was certainly neglect, that neglect cannot approach even the threshold of excusability.
In light of the jurisprudence, our analysis leaves this court no choice but to find that the district court abused its discretion in determining that Allied’s failure to lodge a timely notice of appeal resulted from excusable neglect. In the absence of excusable neglect, the district court’s granting Allied an extension of time within which to file a notice of appeal was reversible error, and Allied’s appeal must fail.
For the foregoing reasons, this appeal is DISMISSED. ’
. The district court granted the defendants’ motion to dismiss the complaint which Allied had alleged under Texas law.
. FRAP 4(a)(5) provides: "The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.”
. Allied based its motion for an extension of time in which to file notice of appeal upon a showing of "excusable neglect and good cause." The district court found excusable neglect. We do not need to consider the more lenient "good cause" standard because Allied did not request an extension before the thirty-day appeal period expired. Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 909-11 (7th Cir.1989).
The Committee Notes to FRAP 4(a)(5) provided in relevant part: "[t]he proposed amended rule expands to some extent the standard for the grant of an extension of time. The present rule requires a 'showing of excusable neglect.’ While this was an appropriate standard in cases in which the motion is made after the time for filing the notice of appeal has run, and remains so, it has never fit exactly the situation in which the appellant seeks an extension before the expiration of the initial time. In such a case ‘good cause,’ which is the standard that is applied in the granting of other extensions of time under Rule 26(b)[,] .seems to be more appropriate."
Had Allied applied for an extension during the thirty-day period following entry of judgment, the more lenient "good cause” standard might have accommodated the reasons it prof-erred for seeking an extension. See Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 n. 2; Parke-Chapley Constr., 865 F.2d 907, 909 n. 5; 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice, ¶ 204.13[l.-2] n. 25 (1990). We do not comment on the merits of that argument.
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_respond2_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
UNITED STATES, to Use of STALLINGS, et al. v. STARR et al.
Circuit Court of Appeals, Fourth Circuit.
July 5, 1927.
No. 2586.
Í. United States <@=>67(2) — Barge contractors’ performance bond given United States held not to cover claims of laborers and material-men (Hurd Act, amending Act Aug. 13, 1894 [Comp. St. § 6923]).
Performance bond, given by barge contractors to tlie United States pursuant to contract requiring bond “conditioned on the full and complete performance of the contractors under and in accordance with the terms of this contract,” held not to cover claims of laborers and materialmen, notwithstanding Hurd Act, amending Act Aug. 33, 1894 (Comp. St. § 6923), requiring that bond given for performance of contract shall contain an obligation guaranteeing payment of such claims.
2. Courts <@=>372(4) — Laborers’ and material-men’s rights under barge contractors’ performance bond given United States held determinable according to law as declared by federal courts.
Eights of laborers and materialmen under barge contractors’ performance bond given the United States are to be determined in the light of the law as declared by federal courts.
3. Bonds <@=>50 — Under North Carolina law, mere statutory requirement that bond contain particular obligation does not incorporate it therein.
Under law of North Carolina, the mere requirement of a statute that a bo^d contain an obligation does not of itself incorporate the obligation in the bond.
4. Bonds <§=>50 — Statutory provision that bond shall protect claims of laborers and material-men, whether such provision be incorporated in bond, or not, will be given effect.
A statutory provision that a bond given thereunder shall protect the claims of laborers and materialmen, whether such provision be incorporated in the bond or not, will be given effect.
5. United States <§=>67(2) — Bond guaranteeing under contract to build barges at contractors’ “own risk and expense” held not to cover laborers’ and materialmen’s claims, on theory that payment thereof was part of performance.
Barge contractors’ performance bond, given pursuant to contract requiring contractors “at their own risk and expense” to construct barges involved, held not to make surety liable for laborers’ and materialmen’s claim, on theory that payment thereof was one of contractors’ duties under contract.
6. United States <§=>67(3) — Finding that action on government contractors’ bond was not instituted within 12 months of final settlement held supported by evidence.
Finding of trial judge that action on government contractors’ bond was not instituted within 12 months of final settlement held supported by evidence.
7. Appeal and error <§=>1008(2) — Where Jury Is waived, findings of court, supported by substantial evidence, are binding on appeal.
Whore jury is waived, trial court’s findings have force and effect of verdict of jury, and are binding on appellate court, if supported by any substantial evidence..
8. United States <§=>67(3) — “Final settlement,” as affects time for suit on government contractors’ bond, means final determination by governmental authority of amount government owes or is entitled to.
“Final settlement,” as affects time of institution of suit on government contractors’ bond, does not mean an agreement between the contractor and proper government official adjusting the balance due, nor does it mean payment of balance due under contract, but rather the final determination by the proper governmental authority of the amount which the gov-eminent is finally bound to pay or entitled to receive under contract.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Settlement.]
9. United States <@=67(3) — Final settlement between government and contractor may have been made, notwithstanding balance due may be subject to change.
There may be a final settlement between government and contractor, so as to fix rights of creditor under statute, notwithstanding balance found to be due may be subject to change.
10. Appeal and error <@=1033(10) — Plaintiffs held not entitled to complain of order of judge setting aside order of predecessor containing conclusions of law favorable to plaintiffs,.
In materialmen’s action on government contractors’ bond where judge entered order setting forth certain conclusions of law, ^ referred case to auditor, settled bill of exceptions relating to matters which had occurred up to that time, and died before auditor reported, and where his successor set aside the order containing the conclusions of law, and with the consent of all parties granted new trial, held, plaintiffs, on review of adverse judgment, could not complain of order setting aside order of first judge containing conclusions favorable to them, in view of their failure to except and consent to procedure followed.
In Error to the District Court of the United States for the Eastern District of North Carolina, at Newbern; Isaac M. Meekins, Judge.
Action by the United States, to the use of Robert L. Stallings, trading as Stallings Bros., against Edward I. Starr and another, trading as Starr & Bennett, and others, wherein the Air Reduction Steel Company and others intervened. Judgment for defendants, and plaintiff and interveners bring error.
Affirmed.
Hugh H. Obear, of Washington, D. C., and R. E. Whitehurst, of Newhern, N. C. (A. D. Ward and Whitehurst & Barden, all of Newbern, N. C., Douglas, Obear & Douglas, of Washington, D. C., and Ward & Ward, of Newbern, N. C., on the brief), for plaintiffs in error.
Larry I. Moore, of Newbern, N. C., and Bynum E. Hinton, of Washington, D. C., for defendants in error.
Before WADDILL and PARKER, Circuit Judges, and BAKER, District Judge.
PARKER, Circuit Judge.
Starr & Bennett, hereinafter called contractors, on February 27, 1919, entered into a contract with the Director General of Railroads of the United States for the construction of four steel barges, and gave bond, with the Globe Indemnity Company as surety, for the faithful performance of the contract. This is an action instituted on the bond by Stallings Bros., as relators, to recover for materials furnished to the contractors. Sundry other furnishers of materials have intervened and been made parties to the action. In the court below a jury trial was duly waived by written stipulation, and the trial judge found the facts and rendered judgment in favor of the surety. By the exceptions to this judgment two questions are presented: (1) Whether the bond sued on covers the claims of laborers and materialmen; and (2) whether the action was instituted within 12 months of final settlement, as required by statute.
On the first question, it appears that the bond contained no provision obligating the surety to pay for labor or materials. The bond by reference incorporates the contract, but the contract contains no such obligation. The first paragraph of the contract provides that the contractors “at their own risk and expense” shall construct the barges contracted for, and shall furnish acceptable bond in the sum of $83,550, “conditioned upon the full and complete performance of the contractors under and in accordance with the-terms of this contract.” By a subsequent paragraph, the contractors agree to procure and keep in force “all such bond or bonds for the protection of claims and/or liens by laborers and/or materialmen, as may be required by the laws of the United States.” It appears, however, that no such bond was given.
. On the second question, the record shows that the action was instituted October 11, 1922. Judge Meekins found that on October 4, 1921, the barges had been completed, delivered, and accepted, and that on that date there was made by the proper government department and rendered to the contractors and their receiver a statement of the account under the contract, administratively determining the balance due to be $23,864.30; that on the same date the government issued and forwarded its voucher to the receiver of the contractors for the sum of $22,500, leaving a balance of $1,364.30 to be thereafter paid; and that the amount so determined was not thereafter changed, but was accepted as final payment of the balance due under the contract. ,
There was evidence to support this finding of the trial judge.' The record shows that on October 4, 1921, the chief of the Inland and Coastwise Waterways Service of the War Department, whose duty it was to make settlement under the contract, sent a letter to the receiver of the contractors, inclosing a statement of account, and showing that the government owed a balance to the contractors of $23,864.30. The letter was as follows:
“There is inclosed for your certification voucher R-337 covering proposed payment on contract NYCS-11 between the Director General of Railroads and Starr & Bennett. Please sign the voucher at point indicated by ‘X’ and return to this office, when cheek in the amount of $22,500 will be forwarded in accordance with the wording of the voucher.
“For your information there is inclosed statement of the account between the Director General of Railroads and Starr & Bennett as it appears on the books of the Inland and Coastwise Waterways Service as of October 3, 1921. It is believed that the statement is complete and includes all credits and charges. However, it is possible that additional charges will be discovered, as a number of small items have recently been reported by outside auditors who have just completed chocking the accounts of the New York Canal section. Any change in the statement will be reported to you.”
With the letter and statement went a voucher ' for $22,500, with the notations, “Payment on account of contract, * * *” and “This does not represent a complete settlement of balance due on the above contract.” The voucher for the $1,364.30 was sent to the receiver some time prior to February 7, 1922, exactly when does not appear, but on that date the receiver petitioned the superior court, by which he had been appointed, for authority to accept the voucher. The authority was granted, the receiver certified the voucher as correct, and on February 15, 1922, it was approved by the proper official of the War Department and paid by check of that date. It contained, among other things, the following notation:
“Final settlement on account NYCS No. 11. This payment represents the amount found due under contract, * * * and it is further agreed that this is a final payment and full and complete settlement of all disputed claims and all claims and demands * * * of every kind and character which the said Starr & Bennett has or may have against the United States, the Secretary of War, or the Director General of Railroads in any wise connected with or growing out of the contract, upon which this payment is made.”
We think that the learned District Judge was correct in holding that the bond in suit did not cover the claims of laborers and materialmen. It is true that on a contract such as this, the Hurd Act (Act Feb. 24, 1905, amending Act Aug. 13, 1894, 28 Stat. 278, 33 Stat. 811, U. S. Comp. Stat. § 6923), requires that tlie bond given for the performance of the contract shall contain an obligation guaranteeing the payment of such claims. But this requirement of the statute does not authorize a recovery by laborers and materialmen, where neither the bond itself nor the contract contains such obligation. Babcock & Wilcox v. American Surety Co. (C. C. A. 8th) 236 F. 340; U. S. v. Montgomery Heating & Ventilating Co. (C. C. A. 5th) 255 F. 683; U. S. v. Stewart (C. C. A. 8th) 288 F. 187; U. S., to use of Zambetti, v. American Fence Construction Co. (C. C. A.) 15 F.(2d) 450.
Of course, the rights of the parties in this case are to be determined in the light of the law as declared by the federal courts; but, as the bond hero considered was given within the state of North Carolina, it is worth while to note that the rule followed by the federal courts is the same as the rule followed by the courts of that state. Warner v. Halyburton, 187 N. C. 414, 121 S. E. 756; Ideal Brick Co. v. Gentry, 191 N. C. 636, 132 S. E. 800; Page Trust Co. v. Carolina Construction Co., 191 N. C. 664, 132 S. E. 804. Under the law of North Carolina, the mere requirement of the statute that a bond contain an obligation does not of itself incorporate the obligation in the bond; for, as said by Chief Justice Stacy in Ideal Brick Co. v. Gentry, supra:
“It is a principle too well established to require the citation of authorities that, 'as a party consents to bind himself, so shall he be bound.’ ”
A statutory provision that a bond given under the statute shall protect the claims of laborers and materialmen, whether such provision be incorporated in the bond or not, will be given effect. See Standard Electric Time Co. v. Fidelity & Deposit Co. of Maryland, 191 N. C. 653, 132 S. E. 808, construing chapter 100, Public Laws N. C. 1923. But, in the absence of some such statutory provision, the courts will not read into a bond an obligation which it does not contain.
It is insisted, however, that the bond is obligated to laborers and materialmen because the contract provides that the contractors shall furnish a bond for their protection as required by the laws of the United States. But the trouble is that the contractors did not furnish such bond. The same point was involved in the ease of Babcock & Wilcox v. American Surety Co., supra, in which Judge Carland, speaking for the Circuit Court of Appeals of the Eighth Circuit, in denying the contention, said (236 F. 342, 343):
“When all is said the ease is simply this: That Opdhal by his contract agreed to give a bond obligating himself to pay the claims of materialmen, hut he failed to give any such bond. The surety company signed the bond which was executed, and no other. The bond itself did not provide for the payment of materialmen, nor did the contract contain any such provision. The case is not difficult, unless we try to make it different from what it really is.”
To the same effect are U. S. v. Stewart, supra, and U. S., to the use of Zambetti, v. American Pence Construction Co., supra, in the latter of which cases the Circuit Court of Appeals for the Second Circuit treated the question as too well settled to permit of discussion.
Counsel for plaintiffs in error strenuously contend, however, that the provision of the contract that the contractors shall “at their own risk and expense” construct the barges is in effect an obligation imposing upon the contractors the duty to pay for labor and materials supplied them, and that, as the bond guarantees the performance of this as well as other provisions of the contract, recovery may be had thereunder. Without questioning for a moment the rule that laborers and materialmen may recover under the bond where the contract obligates the contractor to pay claims for labor and materials, we do not think that the provision of the contract relied on has that effect. Exactly the same question was before the Supreme Court of North Carolina in Warner v. Halyburton, supra, and what was said by Mr. Justice Hoke, speaking for the court in that case, is pertinent here:
•“The contract in question provides that the Construction Company shall build and complete the sehoolhouse at Apex, N. C., providing all the materials, etc., therefor at their own expense, at the price of $58,083. There is no stipulation in the agreement that the contractor shall pay either the laborers or the materialmen, and a perusal of the instruments throughout will show that they are merely designed to secure the satisfactory and proper completion of a turnkey job, so far as the municipality is concerned, and that no interest ultra is provided for or contemplated.”
In the Babcock & Wilcox and Stewart Cases, supra, the contracts required the contractors to “furnish” the materials, and in both cases the Circuit Court of Appeals for the Eighth Circuit held that the obligation to furnish was not an obligation to pay for material that might be furnished, and denied the right,of recovery under the bond. The same holding was made by the Supreme Court of Indiana in Greenfield Lumber & Ice Co. v. Parker, 159 Ind. 571, 65 N. E. 747, where the contract provided that the contractor “at his own proper cost and charges” should provide labor and materials. These decisions seem to be in harmony with the weight of authority. City of Sterling v. Wolf, 163 Ill. 467, 45 N. E. 218; Green Bay Lumber Co. v. Independent School Dish, 121 Iowa, 663, 97 N. W. 72; Fellows v. Kreutz, 189 Mo. App. 547, 176 S. W. 1080; Puget Sound Brick, etc., Co. v. School Dist., 12 Wash. 118, 40 P. 608; note to Ann. Cas. 1916A, 759.
The cases of Peake v. U. S., 16 App. D. C. 415, and Speir v. U. S., 31 App. D. C. 476, are distinguished from the ease at bar, in that in those cases the promise to pay laborers and materialmen was inserted in the contract. U. S., to use of Zambetti, v. American Fence Const. Co., supra; Babcock & Wilcox et al. v. American Surety Co., supra. And the same distinction exists as to the ease of Hartford Accident & Indemnity Co. v. Board of Education, 15 F.(2d) 317, decided by this court, which construed a bond given under a statute of West Virginia.
On the question whether the action was instituted within 12 months of final settlement, we have the finding of the District Judge that it was not so instituted, but that there was an administrative determination of the amount due more than 12 months beforehand. A jury trial having been waived, this finding has the force and effect of the verdict of a jury, and is binding upon this court if there is any substantial‘evidence to support it. George A. Fuller Co. v. Brown (C. C. A. 4th) 15 F. (2d) 672. We think that it is supported by such evidence. The letter of October 4th, quoted above, accompanied by the statement of account showing a balance due the contractors, was certainly evidence of such a final settlement as is contemplated by the statute. Final settlement as there used does not mean an agreement between the contractor and the proper government official adjusting the balance due, nor does it mean payment of the balance due under the contract. It means the final determination by the proper governmental authority of the amount which the government is finally bound to pay or entitled to receive under the eon-tract. Illinois Surety Co. v. Peeler, 240 U. S. 214, 36 S. Ct. 321, 60 L. Ed. 609; Arnold v. U. S. (C. C. A. 4th) 280 F. 338; U. S., to use of Union Gas Engine Co., v. Newport Shipbuilding Corporation (C. C. A. 4th) 18 F.(2d) 556. As said by the Circuit Court of Appeals for the Second Circuit in U. S. ex rel. Brown-Ketcham Iron Works v. Robinson, 214 F. 38:
“In determining the time when material-men may begin suit, it would not do to fix it at some day ‘after complete performance’ merely. Defective work, damages for delay, and other matters might give the United States some claim which it might not decide to prosecute until some time after the work was turned over, apparently complete. The date was, therefore, fixed relatively to ‘complete performance of the contract and final settlement thereof.’ We take it that those italicized words refer to the time when the proper government officer, who has the final discretion in such matters, after examination of the facts, satisfies himself that the government will accept the work, as it is, without making any claim against the contractor for unfinished or imperfect work, damages for delay or what not, and records that decision in some orderly way.”
We do not think that the statement in the letter of October 4th, that additional charges might be discovered, and that any ehango in the statement would be reported to the contractors or their receiver, precluded that letter and the accompanying statement being considered a final settlement within the meaning of the act. There may be a final settlement between the government and the contractor, so as to fix the rights of the creditor under the statute, notwithstanding the balance may be subject to change; for, when the government has clearly indicated that it has no further claim against the surety, a final settlement within the purview of the act has taken place. U. S. v. Title Guaranty & Surety Co. (C. C. A. 7th) 254 F. 958; Robinson v. U. S. (C. C. A. 2d) 251 F. 461.
The fact that the voucher for final payment was approved February 15, 1922, and that it contained the statement that it was final payment and full and complete settlement of all disputed claims, etc., is not inconsistent with the finding that on October 4th prior thereto there was a final settlement within the meaning of the statute — i. e., an administrative determination of the balance due the contractor — and that the government would not itself look to the bond. As appears from the Union Gas Engine Case, supra, the word “settlement” is used to convey different meanings even by officials of the government, and it is clear that, as used on the voucher, it referred, not to the administrative determination contemplated by the statute, but to final payment and the consequent extinguishment of “all claims and demands” of the contractors and their receiver. We cannot say, therefore, either that the finding of the trial judge is not supported by substantial evidence, or that any of the admitted facts are inconsistent therewith, and the exceptions thereto must be overruled.
This disposes of the ease upon the merits. It was urged, however, that the trial judge erred in setting aside an order of his predecessor, Judge Connor, which decided certain questions of law in favor of plaintiffs and interveners. In this connection it appears that at the inception of the case the parties filed a stipulation waiving a jury trial and agreeing that Judge Connor hear the evidence and find the facts bearing upon the right of plaintiffs and interveners to recover. Under this stipulation Judge Connor proceeded to hear the evidence and to enter an order setting forth certain conclusions of law and referring the case to an auditor to determine the nature, amount, and date of filing of the various claims. He did not, however, find the facts as provided in the stipulation, nor did he render any judgment in the case. At the time of the reference, as is the custom in North Carolina, he settled the bills of exceptions relating to matters which had occurred up to that time. He died before the auditor made his report.
After the appointment of Judge Meekins, defendant moved for a new trial on the ground that Judge Connor had not made a finding of facts in accordance with the stipulation, and that upon the existing record judgment could not be rendered which would give the parties a just and fair determination of the matters pending. Judge Meekins, being of opinion that the findings of Judge Connor had not been completed, and that a new trial was necessary to the doing of justice in the case, granted the motion and proceeded to hear the ease de novo. The plaintiffs and interveners did not at the time object or except to this action of the judge, but, on the contrary, gave their consent that he hear the evidence and pass upon their rights, and this consent was incorporated as one of the terms of the order granting the new trial. Not until later did they attempt to except to the order.
It is perfectly evident .that, although Judge Connor settled the bills of exceptions as to matters occurring prior to the order of reference, he had not completed the determination of the matters submitted to him under the stipulation of the parties. No judgment had been entered determining what any of the claimants was entitled to recover or what the defendant was bound to pay. Before this could be done, further action on the part of the judge was necessary. Judge Meekins evidently was not satisfied with the legal conclusions of Judge Connor and was unwilling to enter judgment in accordance therewith. Upon the motion of defendant for a new trial, and with the consent of all parties that the whole matter be heard by him, he proceeded to hear the case de novo, and thereupon defendant abandoned further procedure with respect to the exceptions which it had reserved. Without passing upon whether the order of Judge Connor was not merely an interlocutory one, which could be set aside at any time before final judgment (see 33 C. J. 1061 et seq.; Gas & Electric Securities Co. v. Manhatten & Queen’s Traction Corporation [C. C. A. 2d] 266 F. 625; Fourniquet v. Perkins, 16 How. [57 U. S.] 82, 85, 14 L. Ed. 854; Dangerfield v. Caldwell [C. C. A. 4th] 151 F. 554), or whether the granting of a new trial was not a matter within the discretion of Judge Meekins under the Act of June 5, 1900 (31 Stat. 270 [Comp. St. § 1590]), we do not think that plaintiffs are in a position to raise any questions with regard thereto, in view of their failure to except at the time and of their consent given to the procedure before Judge Meekins, resulting in defendant’s abandonment of its exceptions taken before Judge Connor. See 3 C. J. 952; Board of Com’rs of City & County of Denver v. Home Savings Bank (C. C. A. 8th) 200 F. 28.
There was no error, and the judgment of the District Court is affirmed.
Affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_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.
MARIO MERCADO E HIJOS, Petitioner, Appellant, v. Jose M. FELICIANO, Trustee, et al., Appellees. Matter of PUERTO RICO RAILROAD & TRANSPORT COMPANY, Bankrupt.
No. 5355.
United States Court of Appeals First Circuit.
Oct. 31, 1958.
Pedro M. Porrata and Charles R. Cuprill, Ponce, P. R., on brief for appellant.
Jose L. Novas, Hartzell, Fernandez & Novas and L. E. Dubon, San Juan, P. R., on brief for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.
On this appeal, we have to consider the correctness of an order of the United States District Court for the District of Puerto Rico dated February 13, 1958, denying a petition for review of an order of the referee in bankruptcy which, on motion, dismissed a petition for reversion of certain real estate that had previously been taken on eminent domain, and which, it was disclosed, had ceased to be used for the public purposes stated in the condemnation proceeding. The case was submitted to us by both parties on the record and briefs, without waiting for oral argument at our October session in Boston, to which session we had advanced the case, upon motion, pursuant to our Rule 3, 28 U.S.C.A.
The determination of the issues now before us takes us back to some pretty old historical events.
Some time between 1884 and 1898 a railroad company, La Compañía de los Ferrocarriles de Puerto Rico, acquired by eminent domain a strip of land ten meters wide approximately circumscribing the island of Puerto Rico. Certain parcels of this land, which are involved in this case, were carved out from holdings, the remainders of which constitute five farms now owned by the present appellant. The latter, however, does not rely upon any formal assignment to it of the right, if any, to reversion of the condemned strips.
The successor in title to the condemnor, Puerto Rico Railroad & Transport Company, filed in the court below a petition for reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Though this petition was approved by the district court on December 8, 1954, the latter Railroad was eventually adjudicated bankrupt by an order entered September 11, 1956, and the case was referred shortly thereafter to Mr. W. H. Beckerleg, the referee in bankruptcy for the District of Puerto Rico. Early in August, 1957, the referee gave notice of the public sale of the lands of the bankrupt.
Subsequently appellant, Mario Mercado e Hijos, filed on August 20, 1957, in the bankruptcy proceedings then pending before the referee, a “Petition for Reversion of Real Property”, in which it was alleged that petitioner was the successor in title to the owners of the holdings in question at the time of the condemnation, on the basis of which it therefore claimed that it held a “right of reversion” to the condemned property once it became evident that the property was no longer to be used for the public purposes described in the original condemnation proceeding. The petition prayed that an order be entered directing the bankrupt to advise appellant of the compensation paid for the parcels at the time of their condemnation, and to cede title to the parcels to appellant upon payment by it to the bankrupt estate of that sum. The petition was opposed by the trustee, by the bankrupt, and by a general creditor of the bankrupt, who now stand as the appellees in the present appeal. The referee entered an order dismissing the petition on December 2, 1957; and the district court, on February 13, 1958, entered its order denying a petition for review of the referee’s order.
Preliminarily, we think we ought to note a possible question as to our own appellate jurisdiction, even though no jurisdictional challenge has been made by the appellees.
The Bankruptcy Act, as amended, contains the following provision (52 Stat. 854 (1938), 11 U.S.C.A. § 47):
“(a) The United States courts of appeals, in vacation, in chambers, and during their respective terms, as now or as they may be hereafter held, are [hereby] invested with appellate jurisdiction from the several courts of bankruptcy in their respective jurisdictions in proceedings in bankruptcy, either interlocutory or final, and in controversies arising in proceedings in bankruptcy, to review, affirm, revise, or reverse, both in matters of law and in matters of fact: Provided, however, That the jurisdiction upon appeal from a judgment on a verdict rendered by a jury shall extend to matters of law only: And provided further, That when any order, decree, or judgment involves less than $500, an appeal therefrom may be taken only upon allowance of the appellate court.
“(b) Such appellate jurisdiction shall be exercised by appeal and in the form and manner of an appeal.”
It would seem that the amount now in controversy is susceptible of monetary determination, and would be the difference between the price realizable by public sale of the property in question (or perhaps the present value of the condemned land) and the amount appellant would have to pay to the bankrupt estate in order to exercise its alleged “right of reversion”. Neither the Brief nor the Record Appendix contains any indication of the present value of the-lands involved, or the amount received in compensation when the lands were-condemned. The notice of appeal is not printed in the Record Appendix; but reference to the original papers reveals-that a notice of appeal dated March 14, 1958, was filed in the district court. Annexed to this notice of appeal was an affidavit executed by one of the attorneys for the appellant “That the value of the-lands claimed in this case is in excess of five hundred ($500.00) dollars.” In view of what we have stated, this allegation in the affidavit is hardly equivalent to a claim that the order appealed from involves more than $500. Therefore, under the statutory provision, it would seem that an appeal could not be taken to this court as a matter of right, by the filing of a notice of appeal in the district court, but rather that, under out present Rule 12, a petition for the allowance of the appeal should have been filed with the clerk of the court of appeals.
However, as we pointed out in Benitez v. Ferran’s Estate, 1 Cir., 1944, 143 F.2d 435, 436, in view of the decision of the Supreme Court in R. F. C. v. Prudence Securities Advisory Group, 1941, 311 U.S. 579, 61 S.Ct. 331, 85 L.Ed. 364, we are bound to hold that this failure to file in the court of appeals a petition for allowance of an appeal is merely “a procedural irregularity rather than a jurisdictional defect, and we have power to allow the appeal, treating the notice of appeal filed in the court below as an informal substitute for the application to us.” In view of the fact that the bankruptcy proceedings now pending in the district court will probably be impeded by the presentation of the claims of others to a “right of reversion” similar to that asserted by the present appellant, it seems that a “special equity” exists which should move this court to exercise its discretion to treat the notice of appeal as an informal, irregular application for leave to appeal. Consequently we now grant leave to appeal; and without further reference to our appellate jurisdiction we proceed to a discussion of the merits of the case.
On January 10, 1879, the Kingdom of Spain established a law of eminent domain, which was extended to Puerto Rico by royal decree of June 13, 1884. Section 43 of this lav/ read as follows (see the translation prepared in March, 1901, by the Division of Insular Affairs of the War Department appearing in H. R. Doc. No. 1484, 60th Cong., 2d Sess., Laws, Ordinances, Decrees, and Military Orders Having the Force of Law, Effective in Porto Rico May 1, 1900, pt. 3, p. 2123):
“Art. 43. If the work requiring the expropriation is not executed, or if executed there should result some surplus piece of land, as also in case the estates should remain without application on account of the object of the forcible expropriation having terminated, the original owner may recover that which was expropriated, returning the sum which he may have received or the amount which proportionately corresponds to the part, unless the parcel referred to should be a part that, without being indispensable to the work, was ceded for the convenience of the property owner, according to the last provision of article 23. * * ”
Thus, undoubtedly, at the time the property now in question was condemned, there existed, under the law then applicable, an inchoate “right of reversion” in favor of the “original owner” under the conditions stated in § 43.
As later appears, the legislature of Puerto Rico has professed to repeal the whole of the old Spanish law of eminent domain. But it is claimed by appellant that this inchoate right of reversion was preserved inviolate by Art. VIII of the Treaty of Paris, which became a valid treaty between the Kingdom of Spain and the United States by the exchange of ratifications on April 11, 1899. Article VIII of the treaty read, in part, as follows (30 Stat. 1758):
“And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, cannot in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be.” (Italics added.)
We do not think that the claim based on this article of the treaty is correct. The reference in the treaty to “the peaceful possession of property” would seem to exclude the coverage of such a speculative, remote and inchoate right of reverter as was created over fifty years ago when the property was condemned for railroad uses. The foregoing section of the Treaty of Paris was construed by the Supreme Court in Alvarez y Sanchez v. United States, 1910, 216 U.S. 167, 175, 30 S.Ct. 361, 363, 54 L.Ed. 432, as evidently referring “to ordinary private property, of present, ascertainable value, and capable of being transferred between man and man.”
But assuming for the moment that this “right of reversion” was preserved by Art. VIII of the Treaty of Paris, it is clearly the domestic law of the United States that the provisions of a treaty may be supplanted by a subsequent act of Congress. As the Supreme Court commented in Alvarez y Sanchez v. United States, 1910, 216 U.S. 167, 175-176, 30 S.Ct. 361, 363, 54 L.Ed. 432: If any provision of the Foraker Act had to be deemed inconsistent with the Treaty of Paris, “the act would prevail; for, an Act of Congress, passed after a treaty takes effect, must be respected and enforced, despite any previous or existing treaty provision on the same subject. Ribas y Hijo v. United States, 194 U.S. 315, 324, 24 S.Ct. 727, 48 L.Ed. 994, and authorities cited.”
Section 8 of the Foraker Act, the first Organic Act for Puerto Rico, enacted on April 12, 1900, 31 Stat. 79, 48 U.S.C.A. §§ 735, 736, continued in effect the laws then in force in Puerto Rico, which no doubt included the above Spanish law of eminent domain. Then § 8 of the Foraker Act went on to provide that such laws would continue in effect until “altered, amended, or repealed” by the Puerto Rican legislature or by act of Congress. See also § 32 of the Foraker Act, 31 Stat. 83-84, 48 U.S.C.A. § 821.
All the parties apparently concede that the legislature of Puerto Rico proceeded to exercise this power of repeal in § 24 of the Act of March 12, 1903, which purported expressly to repeal the Spanish law of eminent domain of January 10, 1879. Section 23 of the same legislative enactment prescribed a somewhat similar right of reversion in condemnation cases in favor of “the party dispossessed” by the taking. But § 23 was subsequently repealed by the Act of March 12, 1908, and at the same time § 7 of the Act of March 12,1903, was amended to give a limited right of reversion to “the party dispossessed or who voluntarily sold, transferred or encumbered his right of ownership”. However, this modified § 7 of the Act of March 12, 1903, was itself repealed by the Puerto Rican legislature in its Act of May 7, 1948 (Laws P.R.1948, p. 246). The result is that neither at the time of the bankruptcy of the railroad corporation, nor at the present time, did or does there exist any statutory basis in Puerto Ri-can law for the assertion of a right of reversion as claimed by the present appellant.
It was not, and indeed could not have been, contended by appellant that the wholly speculative right of reversion which the party dispossessed originally acquired under the old Spanish law of eminent domain was such a property right as could not have been taken away without compensation by subsequent legislation passed prior to the happening of the event or condition upon which the right of reversion depended. See Ferry v. Spokane, Portland & Seattle Ry. Co., 1922, 258 U.S. 314, 320, 42 S.Ct. 358, 66 L.Ed. 635; Sagastivelza v. Puerto Rico Housing Authority, 1 Cir., 1952, 195 F.2d 289; Opinion of the Justices, Mass.1958, 151 N.E.2d 475; Trustees of Schools of Township No. 1 v. Batdorf, 1955, 6 Ill.2d 486, 130 N.E.2d 111. See also People of Puerto Rico v. United States, 1 Cir., 1942, 132 F.2d 220, certiorari denied, 1943, 319 U.S. 752, 63 S.Ct. 1165, 87 L.Ed. 1706; Restatement Property § 53, comment b (1936).
The view we have taken above renders it unnecessary for us to consider the correctness of other grounds which, to the referee or to the district court, seemed to point to the same legal conclusion.
A judgment will be entered affirming the order of the District Court.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_counsel2 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Vincenzo ANSELMO, Appellant, v. H. L. HARDIN, District Director of Immigration and Naturalization for the 21st Immigration District.
No. 12259.
United States Court of Appeals Third Circuit.
Argued Nov. 8, 1957.
Decided Feb. 25, 1958.
Filindo B. Masino, Philadelphia, Pa. (Frank M. Lario, Camden, N. J., on the brief), for appellant.
Charles H. Nugent, Asst. U. S. Atty., Newark, N. J. (Chester A. Weidenburner, U. S. Atty., Newark, N. J., on the brief), for appellee.
Before MARIS, KALODNER and STALEY, Circuit Judges.
KALODNER, Circuit Judge.
Does the doctrine of res judicata apply with respect to a judgment of a United States district court granting a writ of habeas corpus in a deportation proceeding which was premised on the judicial determination that the rights of the alien were governed by the Immigration Act of 1917 and that he was not de-portable under its provisions?
That issue is presented by this appeal by Vincenzo Anselmo from the judgment of the United States District Court for the District of New Jersey dismissing his action for a declaratory judgment under the Federal Declaratory Judgment Act and for review under the Administrative Procedure Act, with respect to a ruling of the Immigration and Naturalization Service that he is deportable and as such is to be deported to his native country, Italy.
Necessary to the consideration of this appeal are the following facts:
On November 15, 1938, the Secretary of Labor issued a Warrant for Anselmo’s deportation to Italy pursuant to his determination that Anselmo had entered the United States at New York “about 1930” and “that at the time of his entry he was not in possession of an unexpired immigration visa” and was accordingly deportable under the Immigration Act of 1924.
Anselmo, in his Declaration of Intention to be naturalized, filed on November 16, 1934, had stated that he had arrived at New York on June 28, 1924, and on examination by the Immigration Service on May 14, 1936 and at subsequent hearings, conducted by the Service, he made the same contention.
The time of Anselmo’s entry into the United States was the critical and dis-positive factor in the 1938 deportation proceedings inasmuch as July 1, 1924 was the effective date of the Immigration Act of 1924 and had Anselmo entered prior to that date he would have attained a non-deportable status under the provisions of Section 19 of the Immigration Act of 1917, which established a five-year statute of limitations (the deportation proceedings were not commenced until January 17, 1938, when the Warrant For Arrest of Alien was issued).
Subsequent to the issuance of the deportation warrant Anselmo, on March 2, 1939, filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The late Judge Avis of that Court, following hearing, in a Memorandum Opinion dated May 23, 1940, made these findings:
“ ‘There is no direct testimony which sustains the position of the respondent [Secretary of Labor]. The indirect evidence does not substantially support the finding. It follows that the order of deportation is arbitrary and capricious, and cannot be sustained under the evidence presently before the court. However, a reading of the record indicates that a proper investigation would develop facts upon which to base a determination one way or the other. The writ will be held for a reasonable time and the matter referred to the Department of Labor for further investigation and determination.’ ” [See 150 F.Supp. 294.]
Apparently no further investigation was made by the immigration authorities because, as Government counsel asserts in his brief here “Due to the conditions in Italy as a result of the war, further investigation at that time was impossible.”
On March 24, 1944, Chief Judge For-man of the District Court for the District of New Jersey (Judge Avis having died), upon application of Anselmo’s counsel, after hearing, entered an order granting the writ of habeas corpus, and directed that Anselmo be discharged from custody. The Government did not appear in opposition to the writ, and, it may be noted parenthetically that the record discloses that “There appears on this order a pencil notation that the Assistant United States Attorney, Rossbaeh, had no objection to the entry of the order.”
No appeal was taken by the Government from the order of March 24, 1944. In October, 1947, Chief Judge Forman denied the Government’s request to reopen the habeas corpus proceeding. Thereafter, on December 2, 1947, tl^e Acting Commissioner of Immigration filed a Motion with the Board of Immigration Appeals “* * * that the outstanding order of deportation be withdrawn and proceedings cancelled without prejudice.” On January 16, 1948 in a formal “Opinion of Immigration Board”, the Acting Commissioner’s Motion was denied. In doing so the Board, in its Opinion, stated:
“It is our opinion that the action of the District Court in granting the writ of habeas corpus and discharging respondent from custody effectively terminated the deportation proceeding. Hence, there is nothing before us to consider.”
A new deportation proceeding was begun on March 11, 1948 by issuance of a Warrant of Arrest based on the identical charge of lack of an unexpired visa set forth in the original Warrant of Arrest of January 17, 1938. Hearings were held in December, 1950, December, 1951, February and March, 1952, and in February, 1953. At the last mentioned hearing the Government added the additional charge that Anselmo had entered the United States without inspection.
On July, 6, 1953, the Special Inquiry Officer found Anselmo deportable on the charges contained in the Warrant of Arrest. On October 28, 1954, the Board of Immigration Appeals denied Anselmo’s appeal and thereafter on November 3, 1954, an order of deportation was entered. Anselmo then brought the action below for declaratory judgment and review.
In his petition for declaratory judgment and review Anselmo recited the prior action of the District Court in granting the writ of habeas corpus earlier here detailed and asserted (Par. 13) that accordingly he had “* * * acquired the status of immunity from de-portion * * * which status is preserved and protected under the provisions of the Savings Clause contained in Section 405(a) of the Immigration and Nationality Act of 1952 [8 U.S.C.A. § 1101 note].” He further asserted that the second deportion warrant of 1954 was “arbitrary and capricious” and not sustained by the evidence.
The District Court in granting the Government’s motion for summary judgment dismissing Anselmo’s petition held (1) “ * * * the principle of res judi-cata is not applicable in this particular case” and (2) “ * * * there is substantial evidence to warrant the findings of the administrative body * * *.”
It must immediately be noted that we are here focusing our attention on the res judicata phase of the District Court’s disposition. Upon review of the record we cannot say that the administrative action was. “unsupported by substantial evidence” and “unwarranted by the facts.”
Coming now to the issue as to whether the District Court erred in holding that “the principle of res judicata is not applicable in this particular case.”
As already noted, the first Warrant For Arrest of Alien, issued January 17, 1938, was premised on the charge that in violation of the Immigration Act of 1924, “ * * * at the time of his entry he [Anselmo] was not in possession of an unexpired immigration visa” and the first deportation warrant, issued November 15, 1938, made the same charge in identical terms.
Because of their pertinence to the issue of res judicata these additional facts must be stated:
The second Warrant For Arrest of Alien, issued March 11, 1948, was premised on the charge that in violation of the Act of 1924 “* * * at the time of entry, he [Anselmo] was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof * * and the second deportation warrant, issued November 3, 1954, made the same charge in identical terms and added to it that in violation of Sec. 241(a) (2) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a) (2) “* * * he entered the United States without inspection.”
With respect to the issue of res judi-cata these well-settled principles are applicable :
A final judgment by a court of competent jurisdiction is res judicata as to the parties not only as to all matters litigated and determined by such judgment but also as to all relevant issues which could have been presented, but were not.
Specifically, “a question of fact or of law distinctly put in issue and directly determined * * * cannot after-wards be disputed between the same parties”, Frank v. Mangum, 1915, 237 U.S. 309, 334, 35 S.Ct. 582, 590, 59 L.Ed. 969, and where “ * * * the question of priority in time and right * * * was directly presented by the pleadings and evidence and distinctly dealt with and resolved in the [prior] opinion” the decree entered pursuant to such opinion is res judicata as to the litigated issue. State of Wyoming v. State of Colorado, 1932, 286 U.S. 494, 507, 52 S.Ct. 621, 626, 76 L.Ed. 1245. (Emphasis supplied.)
The circumstance that the final judgment on the issue raised was premised on the failure of the losing party to support its position by sufficient evidence does not impair the binding effect of the judgment rendered. Heiser v. Woodruff, 1946, 327 U.S. 726, 735, 66 S.Ct. 853, 90 L.Ed. 970.
A judgment in habeas corpus proceedings discharging the petitioner for the writ is res judicata “ * * * of the issues of law and fact necessarily involved in that result.” Collins v. Loisel, 1923, 262 U.S. 426, 430, 43 S.Ct. 618, 619, 67 L.Ed. 1062.
Applying the principles stated we are of the opinion that Judge Madden erred in ruling in the instant case that the prior 1944 judgment granting Anselmo a writ of habeas corpus in the 1938 deportation proceeding did not operate as res judicata with respect to the 1954 deportation action.
The single issue in the habeas corpus proceeding was whether Anselmo’s status as to deportation was determinable under the Immigration Act of 1917 or the Immigration Act of 1924. Whether the 1917 Act or the 1924 Act was applicable hinged solely on the factual question as to the date of Anselmo’s entry into the United States. If he had entered prior to July 1, 1924, he was not deportable for having entered without an immigration visa because under Section 19 of the 1917 Act there was a five-year statute of limitations with respect to entry without a visa. If he had entered on July 1, 1924, or thereafter, he was deportable under Section 14 of the 1924 Act, which had repealed all of the limitation provisions of Section 19 of the 1917 Act.
The foregoing was placed in sharp focus by Judge Avis in his Memorandum in the habeas corpus proceeding and by Judge Madden in his opinion in the instant case.
Judge Avis, after stating “The determination of the issue [presented by the application for the writ of habeas corpus] depends entirely upon the date when the relator actually entered the United States” said:
“He claims that he arrived * * * on June 28, 1924. Respondent claims that relator did not enter the United States until some time in the year 1930. If he entered on June 28, 1924 he is not deportable because of the fact that he resided in the United States for a period of five years after his entry and his rights are governed by the Act of 1917. If he arrived in the United States after July 1,1924 his rights are controlled by the 1924 Act and he is liable to deportation at any time.” (Emphasis supplied.)
Judge Madden in his Opinion, D.C. D.N.J.1957, 150 F.Supp. 293, at page 294, stated:
“The prime question throughout is the date of the petitioner’s entry into this country. Both parties are in agreement that if he entered, even illegally, before July 1, 1924, he is not deportable, for then he would have acquired a non-deportable status under the Immigration Act of 1917; but if he entered after said date, he would be subject to the Immigration Act of 1924 and deporta-ble at any time.” (Emphasis supplied.)
It is clear that the judgment in the habeas corpus proceeding was a determination that Anselmo had entered the United State prior to July 1, 1924, and that accordingly his status was governed by the provisions of the Immigration Act of 1917 and that being so he could not be deported under the five-year limitation provision of Section 155 of the 1917 Act.
The 1954 deportation proceeding was premised on the Government’s determination that Anselmo had entered the United States after July 1, 1924 and tfiat accordingly his status was governed by the provisions of the Immigration and' Nationality Act of 1952, and that being so he was deportable under Section 241(a) (2) of that Act.
To avoid the impact of the res judicata doctrine, the Government urges here (1) the,habeas corpus judgment was “not a decision on the merits” as to Anselmo’s depprtability; (2) “even if [it] was a decision on the merits the doctrine of res. judicata or estoppel by judgment does not apply here so as to bar new administrative proceedings to determine petitioner’s [Anselmo’s] deportability, based on new process and new evidence”; (3) Anselmo “does not have any status of immunity from deportation” preserved to him under the 1952 Act, and (4) “even assuming, arguendo, that Judge Forman’s 1944 Order precluded re-lodging- the ‘entry without a visa’ charge * f * that Order has no effect on the charge * * * that at the time of his entry on a date subsequent to July 1, 1924, he entered without inspection, in violation of the Immigration Act of 1917” making him deportable under Section 241(a) (2) of the 1952 Act.
The contention that the habeas corpus judgment was “not a decision on the merits” does not require extended discussion. The “merits” involved in that judgment were inextricably intertwined —whether he had arrived prior to July 1, 1924 and was thus subject to the 1917 Act or had- arrived subsequent to that date and was thus subject to the 1924 Act. Judge Avis flatly ruled, as earlier quoted, “There is no direct testimony which sustains the position of the respondent [Government], The indirect evidence does not substantially- support the finding [that Anselmo had entered the United States subsequent to July 1, 1924].” Further, Judge Avis allowed the Government “a reasonable time” to produce evidence in support of its position and it was only after almost four years in which the Government failed to produce such evidence or to offer any evidence at all, that Judge Forman, following notice, entered judgment granting the habeas corpus writ. In this connection it will be recalled that, as earlier pointed out, the Government did not appear in opposition to the writ in 1944 and it was noted on the record “that the Assistant United States Attorney, Ross-bach,- had no objection -to the entry of the order.”
Implicit, of course, in the grant of the habeas corpus judgment was the judicial determination that Anselmo had entered the United States prior, to July 1, 1924, and that he was subject to the provisions of the 1917 Act and was not deportable under them;
The Government’s second contention that “even if [it] was a decision on the merits, the doctrine of res judicata or estoppel by judgment does not apply here to bar new administrative proceedings * * * based on new process and new evidence” falls of its own weight. Clearly dispositive are the well-settled principles, earlier cited, that “a question of fact or of law distinctly put in issue and directly determined * * * cannot afterwards be disputed between the same parties”, and where “the question of priority in time and right * * * was directly presented by the pleadings and evidence and distinctly dealt with and 'resolved in the [prior] opinion” that the decree entered pursuant to, such opinion is res judicata as to the litigated issues. The fact that “new administrative proceedings * * * based on new process and new evidence” were invoked in the 1954 deportation phase cannot avoid the res judicata impact of the habeas corpus judgment. As was pointed out in Heiser v. Woodruff, supra, 327 U.S. at page 735, 66 S.Ct. at page 857, the binding effect of the earlier judgment was “ * * * ' not any the less so * * * because the moving parties failed to support their allegations by evidence.”
It is unnecessary to here resolve Anselmo’s contention that he has an immunity from deportation preserved to him under the 1952 Act and the Government’s third point that he does not because of our view of the applicability of the doctrine of res judicata.
As to the Government’s remaining contention that “even assuming, argu-endo, that Judge Forman’s Order precluded re-lodging the ‘entry without a visa’ charge * * * that Order has no effect on the charge * * * that at the time of his entry on a date subsequent to July 1, 1924, he [Anselmo] entered without inspection in violation of the Immigration Act of 1917” so as to make him deportable under Section 241(a) (2) of the 1952 Act:
The stated premise of this contention is that “Prior to the enactment of the 1952 Act, the charge of entry without inspection was contained in Section 19 of the Act of February 5, 1917 * * * and had to be brought within three years after entry. But Section 241(a) (2) of the Immigration and Nationality Act of 1952 provides that the charge of entry without inspection may be brought without regard to time limitation. Whereas Anselmo was not amenable to an entry without inspection charge at the time of his first deportation hearing, he became subject to that charge under this provision in the 1952 Act during the second deportation proceeding.” (Emphasis supplied.)
The Government’s stated premise is, colloquially speaking, “shot through with holes”, as a matter of law and affords no foundation whatsoever for the contention which it is designed to support.
The Government has consistently maintained throughout the first and second deportation proceedings, and in the habeas corpus action, that Anselmo entered the United States after July 1, 1924. In the first deportation proceeding, both in the Warrant of Arrest and the Warrant of Deportation, it was charged that Anselmo entered “about 1930” and that he was subject to deportation under Section 19 of the 1917 Act because “at the time of his entry he was not in possession of an unexpired visa” as required by the 1924 Act.
At the time of the issuance of the Warrant of Arrest on January 17, 1938, which was the initial step in the first deportation proceeding, Anselmo, had he entered the United States after July 1, 1924, could have been deported for “entry without inspection” and the Government’s stated premise that “Anselmo was not amenable to an entry without inspection charge at the time of his first deportation hearing [in February 1938]” is a startling mis-statement of law. The Supreme Court of the United States had twice in 1931, some seven years prior to the institution of the first deportation proceeding, declared that with respect to all aliens entering the United States after July 1, 1924 (as charged here by the Government) Section 14 of the 1924 Act had repealed all limitations contained in Section 19 of the 1917 Act.
The Government’s injection of the “entry without inspection” charge into the second deportation proceeding in February, 1953 — almost five years after they were commenced on March 11, 1948 —constitutes an attempt at interposition of the 1952 Act to avoid the effect of the habeas corpus judgment. Its contention that Section 241(d) of the 1952 Act “expressly excepts the charge of deport-ability for entry without inspection from the application of the ‘savings clauses’ in Section 405(a)” is tantamount to an assertion in the instant case that the 1952 Act has made inapplicable to deportation proceedings the doctrine of res judicata. We cannot subscribe to such a contention. If we did we would be compelled to consider the constitutionality of the provisions of the 1952 Act relied on by the Government. The cases cited by the Government are inapposite. So are Lehmann v. United States ex rel. Carson, 1957, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122, and Mulcahey v. Cata-lanotte, 1957, 353 U.S. 692, 77 S.Ct. 1025, 1. L.Ed.2d 1127. In the latter two cases there had not been a judgment prior to the deportation proceedings determining the non-deportable status of the alien sought to be deported as there was in the instant case.
In plain terms the Government is seeking here to scrap the doctrine of res judicata as far as its applicability to habeas corpus is concerned. It is attempting to deprive Anselmo of the rule which we stated in United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, at page 468, namely, a “ ‘rule of evidence’ * * * ‘which accords to the accused the right to claim finalty with respect to a fact or group of facts previously determined in his favor upon a previous trial.’ ” (Emphasis supplied.) The “fact or group of facts” here determined by the habeas corpus judgment was Anselmo’s entry into the United States prior to July 1, 1924, and the applicability of the provisions of the 1917 Act under which he was not deportable. The cases are legion that, as earlier stated, a judgment in habeas corpus proceedings discharging the petitioner for the writ is res judicata. To Collins v. Loisel, supra, may be added the early case of United States v. Chung Shee, 9 Cir., 1896, 76 F. 951, 956, a deportation proceeding; Harris v. Biszkowicz, 8 Cir., 1939, 100 F.2d 854, also a deportation case; and the recent case of In re Bailleaux, 1956, 47 Cal.2d 258, 302 P.2d 801, 802, 803. See also Cruz-Sanchez v. Robinson, D.C. S.D.Cal.1955, 136 F.Supp. 52, affirmed 9 Cir., 1957, 249 F.2d 771.
Pertinent to the instant case is the observation made in Heikkila v. Barber, 1953, 345 U.S. 229, at page 237, 73 S.Ct. 603, at page 607, 97 L.Ed. 972:
“Congress may well have thought that habeas corpus, despite its apparent inconvenience to the alien, should be the exclusive remedy in these cases [deportation] in order to minimize opportunities for repetitious litigation and consequent delays * * (Emphasis supplied.)
The doctrine of res judicata comprehends the particular matter decided and here, the habeas corpus judgment having determined that Anselmo entered prior to July 1, 1924 and that his status was governed by the 1917 Act, the doctrine should have been applied by the District Court and its error in failing to do so requires reversal of its judgment of dismissal of Anselmo’s action for declaratory judgment.
For the reasons stated the judgment of the District Court will be reversed and the cause remanded with directions to proceed in accordance with this opinion.
. 28 U.S.C. § 2201 et seq.
. 5 U.S.C.A. § 1001 et seq.
. 8 U.S.C. § 201 et seq. (1940 ed.) ; Immigration Act of 1924, May 26, 1924, P.L., c. 190, 43 Stat. 153 et seq.
. 8 U.S.C. § 155 (1926 ed.); Sec. 19 of the Immigration Act of February 5, 1917, 39 Stat. 889.
. The District Court’s opinion is reported at D.C.D.N.J.1957, 150 F.Supp. 293.
. The Administrative Procedure Act of 1946, c. 324, Sec. 10, 60 Stat. 243, 5 U.S. C.A. § 1009(e).
. Mr. Justice Frankfurter, in Angel v. Bul-lington, 1947, 330 U.S. 183, 192-193, 67 S.Ct. 657, 662, 91 L.Ed. 832, stated the rule as follows:
“The doctrine of res judicata reflects the refusal of law to tolerate needless litigation. Litigation is needless if, by fair process, a controversy has once gone through the courts to conclusion. * * * And it has gone through, if issues that were or could have been dealt with in an earlier litigation are raised anew between the same parties.” (Emphasis supplied.)
To the same effect see Commissioner v. Sunnen, 1948, 333 U.S. 591, 597, 68 S. Ct. 715, 92 L.Ed. 898; Jackson v. Irving Trust Co., 1941, 311 U.S. 494, 503, 61 S.Ct. 326, 85 L.Ed. 297; United States v. Oppenheimer, 1916, 242 U.S. 85, 88, 37 S.Ct. 68, 61 L.Ed. 161; United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, 468.
. See Note 4, supra.
. 8 U.S.C. Sec. 214 (1940 od.)
. Philippides v. Day, 1931, 283 U.S. 48, 51 S.Ct. 358, 75 L.Ed. 833; United States v. Vanbiervliet, 1931, 284 U.S. 590, 52 S.Ct. 132, 76 L.Ed. 509; see also United States v. Prince Line, 2 Cir., 1951, 189 F.2d 386, 389; United States ex rel. Vounas v. Hughes, 3 Cir., 1940, 116 F.2d 171, 174; United States ex rel. Fink v. Reimer, 2 Cir., 1938, 96 F.2d 217.
. 8 U.S.C.A. § 1101 et se?,
. See Note 10, supra.
. Although extraneous to the issues presented in this appeal we cannot refrain from commenting that the Government might well have unsheathed the sword of its might in a worthier cause than that presented here. We are prompted to do so by the observation made by Judge Madden in his opinion at page 298 of 150 E.Supp.:
“Here is a man now approaching 50 years of age who has lived in this country for approximately 25 years without a criminal record, sustaining himself in an industrious way, and in most respects conducting himself in the law-abiding manner of a good resident if not a good citizen. The executive branch of the government desires to deport him while at the same time. the same branch of the government, and properly so, is bringing in the persecuted peoples of Europe by the thousands. It makes it difficult for some to understand.”
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_origin | C | 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.
In the Matter of Richard Francis SCHMIDT, Bankrupt. L. C. CHRISTENSEN, Appellant, v. Henry DORMAN, Trustee, et al., Appellees. In the Matter of Floyd Donald SCHMIDT, Bankrupt. L. C. CHRISTENSEN, Appellant, v. Henry DORMAN, Trustee, et al., Appellees. In the Matter of Floyd Donald SCHMIDT, et al., Bankrupts. L. C. CHRISTENSEN, Appellant, v. Henry DORMAN, Trustee, et al., Appellees.
Nos. 14062-14064.
United States Court of Appeals Seventh Circuit.
July 10, 1963.
Vaudreuil & Vaudreuil, Kenosha, Wis., for appellant.
Leo E. Vaudreuil, Kenosha, Wis., for appellant.
Richard G. Harvey, Jr., Harvey & Harvey, Racine, Wis., for Mike Zold.
Fred W. Wheeler, Racine, Wis., for Durand Lumber Co.
John V. Whaley, Whaley & Whaley, Racine, Wis., for Clarence Surendonk.
Earl L. Christ, Racine, Wis., James J. Fetek, Racine, Wis., of counsel, for David Lonergan.
Jay Schwartz, Schwartz & Schwartz, Racine, Wis., for Richard Tarwid.
Eefore KNOCH, KILEY and SWYGERT, Circuit Judges.
KNOCH, Circuit Judge.
These appeals were taken from the decision of the United States District-Court, on petitions for review of an order of the Referee in Bankruptcy determining the validity of certain liens claimed to-funds, in the hands of the Trustee in. Bankruptcy, for work performed or materials furnished in construction of a building.
Our study of the record shows the findings of the District Court to be substantially supported by the evidence.. They disclose the train of events set out. in the following brief summary.
The Schmidts (father and two sons)were partners doing business as“Smitty’s Restaurant.” L. C. Christensen was engaged in the real estate and: insurance business, and in financing purchases of real and personal property in Racine, Wisconsin.
In J une, 1954, the Schmidts, negotiated' with L. C. Christensen for purchasing the property at 1216 Douglas Avenue, Racine (across the street from the restaurant they were then operating), financing the building and equipping a restaurant on the new site. They paid’ Mr. Christensen $500 in August, 1954.
During the following month, L. C. Christensen bought the lot at 121S Douglas Avenue for $7,500 on September 7, 1954, and obtained title by duly recorded warranty deed, naming him as grantee.
The Schmidts began negotiating with contractors and suppliers. They acted principally through Robert T. Schmidt. Early in October, 1954, the building which was already located on the new site was moved to the rear of the lot and the foundation for the new building was constructed immediately in front of it. By February, 1955, the building was-nearly complete and the Schmidts began-operating the new restaurant there. This operation terminated in bankruptcy-proceedings early in December, 1955.
The 1216 Douglas Avenue property" was sold at public auction free and clear of the liens and encumbrances which were to attach instead to the proceeds of the sale, or, in the alternative, free of encumbrances but subject to Mr. Christensen’s contractual rights. The sale yielded $28,000 for the real estate and $18,000 for the personal property.
The sole issue tried by the Referee and presented to the District Court for review concerned the validity and priority of the various contractors’ liens as statutory liens pursuant to Wisconsin law.
The Wisconsin statute provides:
“289.01. Contractors’ liens.
“(1) Definition. In this chapter unless the context or subject matter otherwise requires:
“ (a) ‘Contractor’ means a person, other than a laborer, who enters into a contract with the owner of land to improve it * * *
„ # * * * #
... . „ ,, - “(c) “Owner means the owner of . , , . , . , , . , any interest m land who enters into , a contract for the improvement thereof ‘
s # x_
(4) Express ^ agreement of owner. This section does not give a lien upon the interest of any owner in land unless there is an express agreement between him and the contractor whereby such owner agrees to pay for or become responsible for the payment of the improvement.
There is no question of any procedural irregularity of the claims for liens, the respective amounts or the status of the , . . .. , , „ lien claimants as contractors.
It is clear from the statute (which was revised in 1935 to read as quoted above) that the interest of an owner cannot be charged with a contractor’s lien merely because of his knowledge and consent to performance of the work.
The Schmidts and L. C. Christensen initially operated under a verbal agreement. Mr. Christensen agreed to lend the Schmidts $42,000 out of which he would make payments on presentation of statements approved by the Schmidts for completion of various portions of the construction work. Mr. Christensen also inspected the premises prior to purchase, reviewed the plans and sketches prepared by the Schmidts; took record title to the realty (as indicated); contracted for moving^ the existing building and for excavating for the new building; paid certain insurance charges without apProval in advance by the Schmidts; and participated in price negotiation prior to commencement of work by at least one contractor.
On December 16, 1954, when the new building was already under roof, Mr. Christensen, the Schmidts and their wives, entered into a written Option and Agreement ^ whereby Mr. Christensen agreed to give the Schmidts an option to purchase the 1216 Douglas Avenue property, including all the equipment, which was to remain Mr. Christensen’s prop- , ... ,. . .. erty until the $42,000 was fully paid (m . ; , . , , , \ ... . . . stated instalments) or until reduced to a ... ., ' ... . , .,, SUm W^1C“ cou^ he obtained by either party by giving mortgages. The instrument states that it relates to a loan made Mr. Christensen and not to a sale of reaj estate. The Schmidts were to give as conateral a quit-claim deed to certain property on Green Bay Road, a chattel mortgage on restaurant equipment (whieh wag executed; dated December 16| 1954> and filed December 17, 1954) and on three automobiles which they owned, in addition to assignments of life insurance policies.
.<• - „ There is further provision for for- . .. - „ , ,, c ,__ feiture of sums paid by the Schmidts, avoidance of option on default, and payment of legal fees if Mr. Christensen found it necessary to employ counsel to repossess the premises. Mr. Christensen was n°t to be required to foreclose as under a land contract or mortgage.
Ployd Donald Schmidt and Richard P. Schmidt filed individual petitions in bankruptcy on or about October 31,1955. A voluntary partnership petition in bankruptcy was filed for “Smitty’s Restaurant” on December 7, 1955. Although the “Option and Agreement” was dated December 16, 1954, it was not recorded until after December 7, 1955.
By a bookkeeping entry dated December 16, 1954, Mr. Christensen credited $42,000 to the account of the Schmidts under the heading “new option.” The money was not placed in escrow or in any special account.
By December 7, 1955, the date of the partnership petition in bankruptcy, there was still a balance of about $5,600 unexpended and credited to the Schmidts. Payments by the Schmidts included the aforesaid $500 initial payment, $2,250 in weekly installments of $125, about $830 excess proceeds of a mortgage, and one rental payment of $375. The Schmidts had obtained an $11,000 loan from F. W. Boelter Company (whose interest is not involved in this appeal) which the Schmidts paid directly to contractors and materialmen.
We are in full agreement with the learned District Judge’s statement of the Law as follows:
“In accordance with the lien statute and the case law, the interest in realty of any owner,' including an owner by virtue of holding record title or as land contractor vendor, is subject to a lien where the owner expressly agreed with the contractor that he would pay for his services or that said owner would become responsible for the payment of the improvement. Delap v. Parcell, 230 Wis. 152 [283 N.W. 305] (1939); Fraser Lumber & Manufacturing Co. v. Laeyendecker, 243 Wis. 25 [9 N.W.2d 97] (1943).
“The statutory lien based on the express agreement of the owner extends only to payment for materials and labor furnished subsequent to the making of the agreement, although the benefit conferred by work performed prior thereto may serve as consideration to support an actionable promise to pay therefor. Fraser Lumber & Manufacturing Co. v. Laeyendecker, supra, [243 Wis.] at 28 and 29 [9 N.W.2d at 98 and 99].
-X- * * * -X- *-
“In the absence of an express, agreement by the owner of real estate, the interest of said owner may nevertheless be chargeable with a contractor’s lien under principles-of the law of agency in that the-promise of the agent to the contractor may be binding upon his-principal. [Citing Bourdo v. Preston, 259 Wis. 97 (1951), 47 N.W.2d 439]”
In the matters before us, as the District Court found:
“The Schmidts and Christensen acted in furtherance of a common objective — the acquisition and improvement of the premises at 1216-Douglas Avenue by the construction and equipment of a restaurant building thereon. Christensen’s purpose-was the improvement of the acquired premises — the creation of a valuable business property — which he had promised to sell to the Schmidts and which he would permit the Schmidts to use until sale on terms resembling a lease. The Schmidts acted to construct the improvement for the purpose of operating a restaurant on the premises.”
The record supports the District Judge’s findings that Mr. Christensen sometimes refused to make payments to’ contractors and other creditors even though the Schmidts had approved the work done and there was a credit balance in their favor. On the other hand, on December 28, 1954, he paid about $22,450 to F. W. Boelter Company for restaurant equipment without the consent of the Schmidts, when he must have known that such payment would entail the failure of the entire financing arrangement. The equipment was sold and assigned directly to Mr. Christensen by a duly filed bill of sale dated January 31, 1955. Mr. Christensen also charged the Schmidt account with insurance and interest payments on the full amount of $42,000 plus another $4,000 (a mortgage on the Green Bay Road property to which the Schmidts had given Mr. Christensen the quit-claim deed mentioned above) although the entire sum was never actually paid out for their account. Mr. Christensen also negotiated with some of the contractors for reduction of the payments due them.
Under all of the circumstances of this ■case, we are obliged to affirm the District Judge’s conclusion:
“The relationship between L. C. Christensen and the Schmidts in respect to the acquiring of the 1216 Douglas Avenue site and the construction and equipment of a restaurant at that site must be deemed to be that of joint venture or of principal and agent.”
The District Judge did not rely, as Mr. Christensen suggests, on the various statements made by the Schmidts to third parties, but on the clear showing of mutual consent of the parties that the ■Schmidts, as agents, might act on the principal’s (Mr. Christensen’s) account. As the District Judge states:
“Christensen knew that he was the legal owner of the premises and that he would retain legal title to the lot and improvements until full payment or arrangement for mort.gages was made. Christensen further knew that the Schmidts were .acting to make improvements on these premises; in fact, he took an ■active role in the acquisition of the site and construction of the improvement.
“The Schmidts knew, or should have known, that Christensen was the legal owner of the premises, and that Christensen would remain the owner of the improvements they were acting to have made on said premises until they had completed performance under the agreement of the parties.
“The Schmidts further knew that Christensen consented by direction and acquiescence to their acting in furtherance of the enterprise, that he exercised control over their activities by approval and direct participation, and that he controlled the financial aspects of their enterprise. With this knowledge, the Schmidts continued to act in furtherance of the project.”
He found a manifestation of consent from the conduct of the parties in the light of the circumstances which made it reasonable for another to infer consent. Thus Mr. Christensen as an undisclosed or only partially disclosed principal was bound by the express promises of his agents, the Schmidts, who agreed with the lien claiming contractors that they would pay for the improvements. Bourdo v Preston, 259 Wis. 97, 47 N.W.2d 439, 441 (1951); Union Trust Co. of Md. v. Rodeman, 220 Wis. 453, 472, 264 N.W. 508, 515 (1936); City Lumber & Supply Co. v. Fisher, 256 Wis. 402, 406, 41 N.W.2d 285, 287 (1950); Builders Lumber Co. v. Stuart, 6 Wis.2d 356, 361, 94 N.W.2d 630, 633 (1959).
The District Court’s decision that L. C. Christensen’s interest in the proceeds of the sale of the realty is subject to the contractors’ claims for liens is affirmed.
Affirmed.
. Mike Zold, Rickard Tarwid, David J. Lonergan, Durand Avenue Lumber Co., Clarence Surendonk.
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_genresp1 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEA-LAND SERVICE, INC., et al., Respondents.
No. 6442.
United States Court of Appeals First Circuit.
Heard Sept. 13, 1965.
Decided March 2, 1966.
Morton Namrow, Atty., Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., were on brief, for petitioner.
Herbert Burstein, New York City, with whom Zelby & Burstein,. New York City, was on brief, for respondents.
Before ALDRICH, Chief Judge, J. WARREN MADDEN, Senior Judge and JULIAN, District Judge.
Sitting by designation.
JULIAN, District Judge.
This case is before the Court on petition of the National Labor Relations Board for the enforcement of its order against Sea-Land Service, Inc., and Sea-Land of Puerto Rico, a division of Sea-Land Service, Inc., herein referred to collectively as respondent or as Sea-Land.
This Court has jurisdiction under Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. §§ 151 et seq.). The Board’s jurisdiction is not contested.
The Board found that the respondent violated Section 8(a) (1), (2), (3), and (5) of the Act and entered its order accordingly. The respondent attacks the validity of the order on the general ground that there is no probative evidence of record to support the Board’s findings, and on other specific grounds which will be dealt with later.
The following is a summary of the evidence upon which the Board’s findings are based:
In 1960, Sea-Land, a corporation controlled by McLean Industries, Inc., began operating a service to Puerto Rico with ships known as C-2’s which transport truck trailers containing cargo. Since the inception of this service Sea-Land has had collective bargaining relationships with the International Longshoremen’s Association (ILA), its District Council in Puerto Rico, and ILA Locals 1575 and 1855 at San Juan and Ponce, respectively, covering stevedoring and other employees working at its terminals in those ports. In addition to installations at Ponce and San Juan, Sea-Land maintains terminal facilities at various ports in continental United States where it has collective-bargaining relationships With the ILA and its various subdivisions.
Prior to the events herein, a Sea-Land C-2 carrying cargo from Newark, New Jersey, to Puerto Rico customarily stopped each week at San Juan to unload trailer vans for the San Juan area. It then proceeded to Sea-Land’s Ponce dock where the trailer vans of Ponce cargo were unloaded by Sea-Land’s Ponce employees who were members of ILA Local 1855. Occasionally, because of weather conditions or economic reasons, the Ponce stop was omitted, and the weekly C-2 returned directly to Newark after calling at San Juan. In September, 1960, Sea-Land established the practice of sending a 25-man gang of its Ponce stevedores to San Juan to unload the trailer vans destined for the Ponce area whenever a C-2 was rescheduled to return directly to Newark without making its usual stop at Ponce. On the following day, Sea-Land would employ another 25-man gang at its warehouse in Ponce to strip the trailer vans which had been hauled over the road from San Juan. In 1961, Ponce stevedore gangs were sent to San Juan on seven occasions.
On September 11, 1961, ILA leaders met in San Juan with officers of its newly acquired Union de Trabajadores de Juelles (UTM) locals and those ILA locals which had remained ILA affiliates during ILA’s tenure as an independent union and while it had been on probationary status before rejoining the AFL-CIO. Formerly, the UTM locals in Puerto Rico had been constituent locals of the International Brotherhood of Longshoremen (IBL), but they withdrew from the IBL and affiliated with the ILA when the latter regained its full status as an international union in September, 1961. The purpose of the meeting was to persuade the original ILA locals in all of the Puer-to Rico ports, except San Juan, to accept a plan whereby the ILA locals at each port would merge with their UTM counterparts into single ILA locals to be managed by the respective officials of the former UTM locals. In the port of San Juan, ILA Local 1575 and UTM-ILA Local 1740 were to continue to function separately until a secret ballot election could be held among the members of ILA Local 1575 to decide upon the merger. At Ponce, ILA Local 1855, with about 100 members, was to merge with UTM-ILA Local 1903, with a membership of 1,200, into a single local to be administered by Pedro Rosas, the UTM local’s president. At this meeting, Ramon Mejias, the president of ILA Local 1855, insisted that he could not sign the merger agreement without authorization from his local.
Subsequently, the members of Local 1855 met, rejected the merger, voted to disaffiliate from the ILA, and to form Insular Labor Organization (ILO), an independent labor organization. On September 14, 1961, ILO petitioned the Board for certification as the collective-bargaining representative of a unit of Sea-Land’s stevedores and related employees at Ponce, and ILA and its Puerto Rico district council were permitted to intervene in the proceeding. On June 8, 1962, the Board directed that an election be held among Sea-Land’s employees in the unit proposed by ILO. Thereafter, a Board election was set for July 2, 1962, with ILO and the ILA unions appearing on the ballot.
On June 22,1962, Sea-Land’s stevedore supervisor, Joe Braseau, told Ponce stevedore employees Virgilio Echevarra, Efrain Jiminez, and Celestino Perez that if ILO won the impending Board election, no Sea-Land ships would come to Ponce and Ponce stevedore gangs would no longer be sent to San Juan to handle Ponce cargo. ILO president Ramon Mejias immediately brought Braseau’s warning to the attention of Luis Mon-tero, Sea-Land’s terminal manager at Ponce, but no action was taken by Sea-Land to disclaim any influence ILA might exert upon Sea-Land’s operations if ILO won the Board election.
In a letter dated June 26, 1962, Ramon Mejias complained to Montero about reports that the next C-2, expected to arrive in Ponce on June 29, would not make its scheduled Ponce stop and that this circumstance would be detrimental to the ILO’s interests and serve to strengthen ILA’s cause in the forthcoming Board election. Montero replied on June 27 that Sea-Land, in fact, had rescheduled the next C-2 to by-pass Ponce.
On June 28, 1962, before the customary 25-man gang from Ponce had arrived in San Juan, Eusebio Moreno, ILA vice president for Puerto Rico, and Guillermo Ortiz, president of ILA Local 1575, told Frank Bailey, Sea-Land’s manager and chief executive official in Puerto Rico, that Sea-Land’s gang of Ponce employees would be thrown into the river if they appeared in San Juan to unload the rescheduled C-2. Captain Bradley, however, the then president of ILA, who was also present, promptly interceded to countermand Moreno’s and Ortiz’s statement, and the ILA officials advised Bailey that they would “allow [the Ponce gang] to come.”
On the same day, Captain Bradley approached Ramon Mejias, who had been sent to San Juan with Sea-Land’s customary Ponce gang, and demanded that ILO’s president withdraw ILO’s representation petition and reaffiliate with the ILA, but Mejias refused to do so.
Two days before the election, Captain Bradley appeared in Ponce and told the ILO membership that they would lose the stevedoring work at Ponce if they insisted upon maintaining their independent organization by voting for ILO in the Board election.
ILO won the Board election on July 2, 1962, receiving 77 votes to 3 votes for the ILA unions, and was certified by the Board as the collective-bargaining representative of Sea-Land’s employees at Ponce on July 11, 1962.
Since the Board election, no C-2 ships of Sea-Land have cálled at Ponce, although Sea-Land continued to advertise the stop on its schedule and in announcements to customers and the general public.
In addition, Sea-Land discontinued its established practice of sending Ponce stevedores to San Juan to unload the C-2 trailer vans destined for overland delivery to Ponce, and such cargo has been unloaded only by employees represented by ILA unions in San Juan. The officers of ILO repeatedly advised Sea-Land representatives that ILO members were willing to go to San Juan to do this work, but they were told by Sea-Land’s terminal manager at Ponce, Montero, that he had orders from Manager Bailey that no more ILO gangs were to be sent to San Juan.
After the Board election, Sea-Land also reduced the size of the warehouse gang, which strips the trailer vans that arrived from San Juan, to 8 to 10 employees, instead of using the customary gang of 25 employees.
In August or early September, 1962, another variety of trailership known as a C-4, which also has some space for conventional cargo, began to arrive weekly at Ponce carrying Sea-Land’s cargo formerly transported by Sea-Land’s C-2’s. Sea-Land leased the C-4’s from a sister corporation, Waterman Steamship Corporation and Waterman Steamship Corporation of Puerto Rico (Waterman), pursuant to “bare-boat” charters, whereby Sea-Land has exclusive control over their use, personnel and all other aspects of the C-4’s operations, including loading and unloading. However, these ships have arrived at Waterman’s facilities in Ponce where the unloading and loading work has been assigned to Waterman’s employees who are members of UTM-ILA Local 1903.
About the middle of July, 1962, shortly following its certification by the Board, ILO submitted a proposed stipulation to Sea-Land which provided, among other'things, for recognition of ILO, a union shop, and a dues checkoff. The stipulation was to remain in effect until a complete bargaining agreement could be signed.
Meanwhile, Montero, Sea-Land’s terminal manager at Ponce, had put off the ILO president’s requests for a meeting on July 10 with the statement that he would speak to his superiors in San Juan, but ILO heard nothing further. Subsequently, after additional demands for the meeting, Montero told Mejias that he had no instructions to meet with ILO.
On July 15, 1962, three days after Montero had received a copy of the Board’s certification of ILO, Montero told Mejias that Ponce gangs of stevedores would no longer be sent to San Juan. At the same time, Sea-Land removed the tractors which it used at its Ponce terminal to haul trailer vans and sent them to San Juan.
On the morning of July 19, 1962, Mejias complained to Montero, as he had done continually in the past, about the failure to send Sea-Land’s C-2 ships to Ponce, Sea-Land’s failure to send ILO gangs to Ponce, the reduction in the size of its warehouse gangs, and now the removal of Sea-Land’s tractors to San Juan. Montero replied again that he knew nothing about these matters since his instructions came from San Juan.
Later the same morning, upon receiving a letter from Sea-Land rejecting ILO’s proposed stipulation, the ILO president assembled ILO’s members. In the ensuing discussion, the membership declared their dissatisfaction with all of Sea-Land’s recent operational changes which had deprived them of work, and voiced their vexation at Sea-Land’s rejection of ILO’s proposed stipulation and its requests for negotiations. It was decided that ILO would demand that Sea-Land reestablish the normal state of affairs, and sit down to negotiate.
On the afternoon of July 19,1962, ILO began to picket Sea-Land’s facilities at Ponce. The pickets carried signs demanding, inter alia, that “ships come to Ponce,” that Ponce “gangs be sent to San Juan,” and that Sea-Land “sit down and negotiate.” On the following day ILO was persuaded to terminate the picketing by public officials at Ponce who informed ILO that Sea-Land, in a meeting with them that day, had promised to have Manager Bailey meet with the ILO president in San Juan on July 21 and had assured the public officials that any changes in Sea-Land’s Ponce operations were only of a temporary nature.
Although ILO’s president, Ramon Mejias, appeared in San Juan on July 21 for the anticipated meeting with Sea-Land, Manager Bailey refused to meet with him until ILO submitted a complete contract proposal. Accordingly, on July 24, 1962, ILO sent Sea-Land a complete contract.
Two days later, Montero advised the ILO president that, in accordance with Bailey’s instructions, he was discharged from his position of checking cargo vans hauled over the road from San Juan. On July 30, 1962, David Mejias, a son of ILO’s president and himself an ILO officer, was notified by letter that Sea-Land was relieving him from his “position of Chief Clerk.”
Whereupon, a special ILO meeting was convened, and the members were advised of Sea-Land’s latest actions. During the meeting, the ILO president reiterated ILO’s grievances concerning Sea-Land’s operational changes, reminding the membership that Sea-Land had made no effort to restore their work. He also pointed out that Sea-Land had reneged on its promise to meet with ILO on July 21 and had failed even to acknowledge ILO’s contract proposal submitted to Sea-Land on July 24. It was decided that Ramon and David Mejias would ask Sea-Land again to recognize ILO, to insist that Sea-Land acknowledge ILO’s contract proposal and to clarify the notice given David.
When the two ILO officers discovered that Montero was not available to negotiate and were told by the Sea-Land official next in charge at Ponce that he had no authority to hear ILO’s grievances, ILO began to picket Sea-Land once again. In addition to signs demanding the reinstatement of David Mejias, the ILO pickets carried signs bearing the same legends as those used during the two-day strike earlier in July.
After the picketing had begun on July-30, 1962, Sea-Land officials called the ILO president from San Juan and asked him what had provoked the strike. Mejias proceeded to enumerate ILO’s grievances to J. ft, Prado, Sea-Land’s second highest offical in Puerto Rico. He then asked Prado to withdraw the letter to his son, and Prado replied that the letter “was an internal affair of the company.” He also cautioned Mejias that ILO “was a small new union.”
On the following morning, David Mejias was given a second letter by Sea-Land, explaining that he had not been discharged, but merely demoted. Later that morning, ILO informed Sea-Land’s Ponce terminal manager that it would continue to picket until David was restored to his previous position and Sea-Land agreed to negotiate the other ILO grievances.
On the afternoon of July 31,1962, pursuant to instructions from Bailey, Mon-tero called on the UTM-ILA Local in Ponce to furnish men for Ponce warehouse jobs formerly performed by ILO members, and Sea-Land has continued to obtain its warehouse personnel from this source, with the exception of a few ILO members who applied for work in person to Montero. Also, on July 31, 1962, Sea-Land discharged its ILO gatemen and replaced them with an independent guard service.
On August 1, 1962, Ramon Mejias was given a letter from Manager Bailey stating, that ILO’s July 24 contract proposal was being translated into English as it had to be sent to “our Labor Relations officials in Newark.” Bailey went on to say that “[a]s soon as a study of this contract has been finished” ILO would be notified with regard to further negotiations.
On August 1 or 2, 1962, the ILO membership authorized its president to petition Local 901, International Brotherhood of Teamsters, Chauffeurs and Warehousemen, Independent (Teamsters) to accept members of ILO into that local and to bargain on its behalf so long as such action did not jeopardize the certification which the Board had issued to ILO. The Teamsters agreed to ILO’s request; and when it apprised Sea-Land of this development on August 2, 1962, Manager Bailey told the Teamsters that if ILO wished the Teamsters to bargain for it, there would have to be an amendment to the Board certification issued to ILO. On August 28, 1962, the Teamsters informed ILO and Sea-Land that it had abandoned its effort to bargain on behalf of ILO.
In the meantime, on August 24, 1962, Sea-Land refused a request of ILO for a bargaining meeting. However, after the Teamsters had withdrawn from the scene, ILO and Sea-Land representatives met on August 30, 1962. At this meeting, Sea-Land rejected ILO’s July 24 contract proposal, claiming that the working conditions described therein were in general terms and did not specifically relate to Sea-Land’s three types of work: warehouse, trailership, and conventional cargo. Sea-Land agreed to submit a contract proposal. During the meeting, the ILO president asked that the strikers be reinstated while negotiations proceeded.
On September 8, 1962, the ILO president wrote to Manager Bailey, reminding him of Sea-Land’s August 30 commitment to present a counterproposal. He also requested that Sea-Land’s representatives meet with him on September 10. On September 11, 1962, Mejias sent Sea-Land a telegram, insisting that Sea-Land resume negotiations.
On September 17, 1962, ILO forwarded to Sea-Land a revised contract in English, containing provisions applying to warehouse work, trailership, and conventional cargo operations. Two days later, Sea-Land informed ILO that it was studying the revised contract and would “notify [ILO] when this is completed.”
On September 21, 1962, Sea-Land representatives failed to appear for a bargaining meeting between the parties which had been arranged by the Puerto Rico Department of Labor at its offices in San Juan.
On October 4, 1962, ILO advised Sea-Land by letter that all of its members were “ready and willing to return to their former jobs without imposing any conditions of any kind.” Sea-Land replied on October 9, 1962, that the ILO strikers had been replaced by the “employment of other labor” and that it was “not in a position at the present time to remove these men.”
A day earlier, ILO’s attorney also informed Sea-Land by letter that ILO members were “ready, willing and able to come to San Juan or any other place designated by you to handle the loading and unloading of Ponce cargo in the same manner as was previously done.” On October 11, Sea-Land answered that its “[c]argo destined to Ponce has been turned over to Waterman of Puerto Rico and is moving to the port of Ponce on the C-4 vessels [which] eliminates * * * our responsibility for the handling of this Ponce cargo.”
The parties met on three subsequent occasions before the Board hearing, but no final agreement was reached.
The Board’s ultimate findings of fact were these:
The warning of a supervisor of respondent on June 22, 1962, that respondent’s Ponce employees would lose their jobs if they voted for ILO to be their collective-bargaining representative in the July 2 election, and respondent’s indifference and stalling with respect to requests of the ILO to meet to discuss grievances and bargain after the Ponce employees had selected ILO as collective-bargaining representative and the Board had so certified, has interfered with, coerced and.restrained the stevedores and related employees of the respondent at its Ponce terminal in the exercise of their right to join the ILO and to choose it as their collective-bargaining representative.
Before and after the election of July 2, 1962, the respondent knew of the competitive situation' existing between ILO and ILA. Respondent’s stevedores and related employees at its terminals in San Juan and at ports in continental United States, with the exception of the West Coast, are represented by ILA unions. The respondent by its conduct has contributed support to ILA unions in their efforts to bring about the absorption by UTM Local 1903 of the ILO members it employs at Ponce and to supplant ILO as the bargaining representative of these employees. An object of the respondent’s conduct has been and is to support ILA unions in their contest with ILO. There is no evidence that a compelling economic reason rather than a discriminatory one caused respondent to make the operational changes it made about June 29 and July 5, and to assign in August or early September, 1962, the handling of the trailer van cargo as well as the conventional cargo of the C-4’s at Ponce to Waterman with its UTM Local 1903 member employees rather than handle it directly with its employee members of ILO. Respondent’s contention that it could not handle directly, with its employee members of ILO, the lesser tonnage of conventional cargo carried by the C-4’s, an assignment basic to any cargo handling, and the type of work done by ILO members before they began handling the trailer vans in 1958, is a specious contention. In fact, respondent has asked ILO since the latter’s selection as bargaining representative to include in its contract proposals a provision covering the work of handling conventional cargo. ILO is certified to represent all of respondent’s employees loading and unloading its cargo at Ponce. Respondent’s employees who are members of ILO at Ponce have been diseriminatorily denied the work of handling the cargo of the C-4’s, the substituted service for the C-2’s, and the cargo of the C-2’s that respondent may bring to Ponce.
Before and after the election, respondent diseriminatorily denied employment to its approximately 100 stevedores and related employees at Ponce, who are listed in Appendix A to the Board’s order, to discourage membership in ILO and acceptance of it as collective-bargaining representative and to encourage membership in UTM Local 1903 and the selection of ILA, ILA District Council, and UTM Local 1903 as collective-bargaining representative. This conduct included the discontinuance from about July 5, 1962, of the practice of sending gangs of Ponce employees to San Juan to handle the cargo of its C-2’s scheduled to dock at Ponce but rescheduled to return to Newark directly from San Juan; the discontinuance of bringing its C-2 ships to Ponce from about June 29, 1962, until a date in August or early September, 1962, when it substituted its C-4 ship service to Ponce for the C-2 service; its failure from about July 5, 1962, to employ full gangs of employee members of ILO for warehouse work; and its failure to assign to its employees who are members of the ILO the work of handling the cargo of the C-4 ships at Ponce since the time these ships first docked at Ponce in August or early September, 1962, and the employment of members of UTM Local 1903 to do this work through the fiction of engaging Waterman, its sister subsidiary of McLean Industries, to handle it. Waterman’s stevedores are members of UTM Local 1903.
Montero, upon instructions from Bailey, discharged Mejias, president of ILO, from his job as hatch tender checking vans hauled overland by independent truckers. The discharge occurred five days following Bailey’s failure to meet and bargain with Mejias as he had promised to do the previous day. Respondent refused to reinstate the warehouse workers who engaged in the strike of July 30, 1962, after they made an unconditional offer to return to work on October 4, 1962. That strike was an unfair labor practice strike. ILO member employees of respondent did not strike against jobs of loading and unloading C-2 cargo at Ponce and San Juan or C-4 cargo at Ponce, and therefore have not been required to offer to return to these jobs. Respondent has discrimina-torily deprived them of this work since the beginning of July, 1962, a month before the strike. An object of the July 30 strike by the warehouse workers and the protest picketing by the remainder of the ILO member employees of respondent was to persuade respondent to return its ILO member employees to the loading and unloading work at San Juan and Ponce. The strike and protest of July 30 was directed against grievances including respondent’s failure to meet and negotiate with ILO.
Respondent failed to negotiate with ILO the discontinuance of sending gangs of its ILO employees to San Juan on and after July 5,1962, and the discontinuance of bringing its C-2 cargo ships to Ponce on and after June 29, 1962; the employing of less than full gangs in warehouse work at Ponce since about July 5, 1962; and the assignment of the work of handling the C-4 cargo at Ponce since August or early September, 1962. These changes in respondent’s operations affected employees’ wages, hours, and working conditions, and should have been discussed with ILO which was the certified collective-bargaining representative of all the respondent’s employees loading and unloading the cargo of its ships in the port of Ponce.
On the basis of the foregoing findings of fact and the entire record, the Board reached the following conclusions of law:
1) Respondent interfered with, and coerced and restrained employees in violation of Section 8(a) (1) of the Act.
2) Respondent contributed support to ILA, ILA District Council, and UTM Local 1903 in violation of Section 8(a) (2) and (1).
3) Respondent violated Section 8(a) (3) and (1) by discriminating against employees with respect to their hire and tenure of employment, and by refusing to reinstate unfair labor practice strikers after they made an unconditional offer to return to work, to discourage membership in and representation by ILO, and encourage membership in UTM Local 1903 and representation by ILA, ILA District Council, and UTM Local 1903.
4) Respondent in violation of Section 8(a) (5) and (1) refused to negotiate with ILO, the Board-certified collective-bargaining representative of its stevedore and related employees at Ponce, the discontinuance of certain operations on June 29, 1962, July 5, 1962, or thereabouts, and the placing in effect in August or early September, 1962, of a new cargo service to Ponce, all of which affected the wages, hours, working conditions, and other conditions of employment, of the employees represented by ILO.
The order issued by the Board in substance requires the respondent to cease and desist from a) interfering with the right of its employees to become members of the ILO and to select that union as their collective-bargaining representative; b) contributing support to ILA and ILA District Council, and to UTM Local 1903 which is affiliated with ILA; c) discouraging membership in ILO and encouraging membership in UTM Local 1903 by means of discriminatory employment practices against ILO members and in favor of members of UTM Local 1903; and d) refusing to bargain in good faith with ILO as the certified exclusive representative of its stevedore and related employees at Ponce in regard to changes in operations that affect wages, hours, and working conditions of these employees.
Affirmatively, the order in substance requires the respondent a) to offer to the employees listed in Appendix A of the order, immediate and full reinstatement to their former or substantially equivalent employment and to make each of them whole for any loss of earnings suffered by reason of the discrimination against them, and b) to bargain collectively in good faith with ILO as the certified exclusive representative of employees at Ponce in regard to wages, hours, working conditions, and other bargainable matters, including changes in operations or services at Ponce affecting wages, hours, working conditions, or other conditions of employment.
The standard for judicial review is set down in Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) which provides that the “findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” This was construed in Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, to require affirmance of the findings of the Board if, taking the record as a whole, they are supported by substantial evidence, that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The following statement of the Supreme Court is also pertinent:
“It has now long been settled that findings of the Board, as with those of administrative agencies, are conclusive upon reviewing courts when supported by evidence, that the weighing of conflicting evidence is for the Board and not for the courts, that the inferences from the evidence are to be drawn by.the Board and not by courts, save only as questions of law are raised and that upon such questions of law, the experienced judgment of the Board is entitled to great weight.” Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 681, fn. 1, 64 S.Ct. 830, 832, 88 L.Ed. 1007 (1943).
The Court has also stated that “the possibility of drawing either of two inconsistent inferences from the evidence did not prevent the Board from drawing one of them.” N. L. R. B. v. Nevada Consol. Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305 (1942).
The respondent’-s contention that the order is invalid on the general ground that there is no probative evidence of record that respondent violated Section 8(a) (1), (2), (3), and (5) of the Act is not well founded. Upon a careful reading and consideration of the entire record, and applying the required standard of review, the Court is satisfied that the findings and conclusions of the Board that respondent violated Section S(a) (1), (2), (3), and (5) of the Act are supported by substantial evidence on the record considered as a whole.
Respondent claims that pre-election interference and coercion cannot be attributed to the respondent.
On the evidence, the Board was justified in finding that Braseau was a supervisor within the meaning of the Act, and that the threat made by him was attributable to respondent. The record discloses:
1) That Joe Braseau was a “stevedore supervisor.” (Bailey, chief executive offical of the company in Puerto Rico, so testified.)
2) That he was the direct superior of Perez, who was foreman in charge of a gang of 21 employees working on the hatches.
3) That Joe Braseau made the threat that no more ships would come to Ponce if the men voted for the ILO. The threat was made to his subordinate, Perez, in the presence of other employees.
4) That the threat was reported by Ramon Mejias to Montero, and that no action was taken to clarify company policy or disavow the threat. This evidence, combined with the fact
that the threat was, in effect, carried out — after selection of the ILO no C-2’s were allowed to land at Ponce — is sufficient support for the Board finding of pre-election interference and coercion on the part of the company. In the case of N. L. R. B. v. Falls City Creamery Co., 1953, 8 Cir., 207 F.2d 820, the Board found coercive a statement by a foreman to an employee to the effect that if she were to tell anyone that she had joined the union she would probably be fired. The Court made it clear that
“It is essential to the spirit and intent of the [National Labor Relations] Act that management itself should not only refrain from any conduct which would be directly conducive to restraint of its employees in the free exercise of their rights under the Act, but also that no supervisory officers or employees of the management, whose duties, responsibility, and relationship to management are such that employees may reasonably assume their conduct and statements originate from and express the views of management, should bring about such coercion or restraint by their conduct.” Id., at 829.
In the case of N. L. R. B. v. Franks Bros., 1943, 1 Cir., 137 F.2d 989, an employer was held liable for statements of “supervisory personnel” in spite of express instructions by the employer that the supervisors refrain from interfering with the employees in their union activities. The basis of liability is that the employer may gain from the supervisor’s statements an “advantage in the bargaining process of a kind which the Act proscribes.” Id., at 992. The rule was specifically laid down by the Supreme Court in H. J. Heinz Co. v. N. L. R. B., 1941, 311 U.S. 514, 521, 61 S.Ct. 320, 323, 85 L.Ed. 309. The Court held that the Board could take action against the employer
“where petitioner [
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_weightev | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
John KOIN and Frances Koin, Plaintiffs-Appellants, v. Eugene C. COYLE, District Director of Internal Revenue for the Chicago District, his Servants, Agents, Employees and Attorneys, Defendants-Appellees.
No. 16630.
United States Court of Appeals Seventh Circuit.
Nov. 1, 1968.
Anna R. Lavin, Chicago, Ill., for plaintiffs-appellants.
Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Chief, Appellate Section, Joseph M. Howard, Atty., Tax Division, Dept. of Justice, Washington, D. C., Thomas A. Foran, U. S. Atty., Chicago, Ill., John P. Burke, Atty., Dept. of Justice, Washington, D. C., for defendants-appellees.
Before KNOCH, Senior Circuit Judge and KILEY and CUMMINGS, Circuit Judges.
KILEY, Circuit Judge.
The district court dismissed plaintiffs’ suit seeking to restrain defendant Director, et al., from using evidence, alleged to have been illegally seized, and to enforce a previous court order suppressing the challenged evidence. Plaintiffs appealed and we affirm.
The complaint shows that: In 1962 defendant agents, armed with warrants, searched the premises of Empire Press, Inc., in Chicago, and seized records, machinery and other personal property. In a subsequent libel proceeding brought by the United States against the material seized, Empire intervened and moved to suppress from evidence the seized material. The motion was granted, and that order, entered April 2, 1963, not appealed, is now final.
The defendants in 1966 told plaintiffs that wagering tax assessments were to be made against them on the basis of information obtained from the material seized at Empire. Plaintiffs were advised that the material would be used despite the order of suppression. Plaintiffs then brought this suit for a holding, and order, that defendants may not use the material as a basis for the intended assessment. Defendants moved to dismiss on the ground, inter alia, that the complaint sought declaratory judgment relief “with respect to Federal taxes” and is accordingly barred under 28 U.S.C. § 2201 (1964); and that the suit was to restrain the assessment of a tax and prohibited therefore under 26 U.S.C. § 7421(a).
An affidavit of a government attorney, in support of the defendants’ motion, discloses that in a November, 1963, criminal proceeding, United States v. Zimmerman (an unreported case), a motion to suppress as evidence the material seized at Empire was made by Zimmerman, an Empire employee, with reliance upon, inter alia, the order of suppression in the libel suit seven months earlier. A different judge from the one in the libel suit denied Zimmerman’s motion, even though he was aware of the prior suppression order in the libel suit. The affidavit also states that the “principal basis” for the proposed assessment against plaintiffs was the voluntary affidavits which plaintiff John Koin gave defendants in 1962. These were incorporated by reference in the government affidavit. Plaintiffs answered the motion to dismiss. The district court thereafter, without express reason, entered the dismissal order before us.
Plaintiffs state in this court that they do not seek a judicial declaration and that they do not seek to restrain the assessment of a tax. They contend that, this suit is to enforce the early order of suppression, and is therefore not a suit prohibited by 28 U.S.C. § 2201 or 26 U.S.C. § 7421(a). They argue that had the defendants returned the evidence as ordered in April, 1963, it would not be available for use now.
However, the complaint as presented in the Appendix does not allege that the order of suppression ordered the material returned to Empire. And we reject the argument that the Koin suit does not seek to restrain the assessment of the tax. True, the suit does not directly and expressly aim at the assessment. But it is directed expressly at the means to that end, and in our view is substantially aimed at restraining the assessment. It cannot be seriously contended that precluding the assessment is not the end sought.
We do not view this proceeding as a suit to force the district court to obey the order of suppression of April 2, 1963. But if we did, we cannot, in view of the subsequent order of denial of suppression in the Zimmerman case, find a clear basis needed for the extraordinary mandamus remedy sought. In Homan Mfg. Co. v. Russo, 233 F.2d 547 (7th Cir. 1956), this court held that a suppression order in a prior criminal case involving the same defendants was a procedural order in that case only, and “was not an order of permanent general outlawry against all use of the documents involved.” Since the suppression order pursuant to Empire’s motion in the libel suit was for that case only, it was not controlling in the Zimmerman case, and is not controlling here.
We think this court’s decision in Zamaroni v. Philpott, 346 F.2d 365 (7th Cir. 1965), disposes of the issue here on appeal. The rule announced is that “collateral determination of the admissibility of evidence in an administrative tax proceeding or investigation is not a proper sphere for injunctive intervention in the exercise of equitable jurisdiction.” The court there agreed with the “observation” in Campbell v. Guetersloh, 287 F.2d 878, 881 (5th Cir. 1961), that a court should not pass upon questions of weakness and proof in the “Director’s” case until his function is completed, and the entire case is presented for review. The congressional policy of limiting jurisdiction in the area of federal taxes is clearly shown in the express exception from federal court jurisdiction of injunction actions in 26 U.S.C. § 7421 (1964).
Implicit in the Zámaroni rule is the notion that the suitor has an adequate remedy at law. See Kennedy v. Coyle, 352 F.2d 867 (7th Cir. 1965). We have no way of knowing from the record the circumstances surrounding the 1962 searches and seizures in order to determine whether the order of suppression or the order denying suppression of the seized material is correct. The fact that two judges disagreed on the point precludes us from anticipating that in a suit for tax refund in the district court or in an appeal to the tax court the government would in no event prevail on the question of admissibility of the seized evidence. See Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962); Kennedy v. Coyle, 352 F.2d 867, 870 (7th Cir. 1965).
Since we hold that this suit is barred by 26 U.S.C. § 7421, we do not reach the question whether this suit is a declaratory judgment action, which would be barred by 28 U.S.C. § 2201. Furthermore, we do not reach, on this appeal, the question of the plaintiffs’ standing to complain of the search and seizure. But see United States v. Granello, 365 F.2d 990 at 995-996 (2d Cir. 1966).
The judgment is affirmed.
. § 2201.
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
. § 7421(a) * * * [N]o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_numappel | 99 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiff, Appellee, v. William A. PETZOLD et al., Defendants. Knight Broadcasting of New Hampshire, Inc., Defendant, Appellant.
No. 7363.
United States Court of Appeals First Circuit.
Nov. 25, 1969.
Robert A. Shaines, Portsmouth, N. H., with whom Shaines, Madrigan & Mc-Eachern, Portsmouth, N. H., was on brief, for appellant.
Shane Devine, Manchester, N. H., with whom Devine, Millimet, McDonough, Stahl & Branch, Manchester, N. H., was on brief, for St. Paul Fire and Marine Insurance Co., appellee.
Before ALDRICH, Chief Judge, McENTEE, Circuit Judge, MURRAY, District Judge.
Sitting by designation.
McENTEE, Circuit Judge.
This is an appeal from a declaratory judgment entered on behalf of the plaintiff-insurer, St. Paul Fire and Marine Insurance Company (St. Paul), against the defendant-insured, Knight Broadcasting of New Hampshire, Inc. (Knight); William A. Petzold et al., the owners of a shopping center; and Iafolla Construction Co., Inc. (Iafolla). Only Knight appealed. The sole question before this court is the correctness of the trial court’s holding that Knight failed to comply with notice provisions contained in two insurance policies issued by St. Paul and therefore that St. Paul is not responsible for any liability arising from the incident in question.
In May 1965, St. Paul issued the insurance policies in question, which included coverage for damages caused by blasting. Between July 27 and August 13, 1965, Iafolla did certain blasting on Knight’s property located adjacent to the Petzold shopping center, Lafayette Plaza.
On February 4, 1966, some six months after the blasting occurred, attorneys for Petzold wrote to the Knight-owned radio station located on the site where the blasting occurred, complaining of damages caused by the blasting. Two more letters followed, both advancing Petzold’s claims. Norman Knight, President of Knight Broadcasting, turned them over to his corporate ,counsel, Edward LaVine of Boston. LaVine advised that the letters be sent to Iafolla. He did not suggest that St. Paul be notified of the claim, despite his knowledge of the policies, because in his view Knight could not be held liable, and he assumed Iafolla would assume responsibility. In this connection the district court found that the president of Iafolla told Knight’s manager that Iafolla would handle the matter. A copy of a letter consistent with this was sent to attorney LaVine.
The letters were sent to Iafolla, which had received a similar claim, and Iafolla reported them to Employers Mutual of Wausau, its insurance carrier. Employers undertook an investigation of the claims.
In late September 1967, Petzold brought suit against Knight and Iafolla, alleging damages resulting from the 1965 blasting. On September 22, Knight notified St. Paul of the pending action by telephone and by letter on September 25.
St. Paul made virtually no attempt to investigate the claim and relies exclusively on its policy defense of untimely notice. Indeed, Employers Mutual agreed to make its investigative files available to St. Paul and a formal offer of the files was made by counsel for Knight. St. Paul, however, rejected this offer.
Notice “as soon as practicable” under New Hampshire law means notice within a reasonable time, given the facts and circumstances of the case. Sutton Mutual Insurance Co. v. Notre Dame Arena, Inc., 108 N.H. 437, 237 A.2d 676 (1968). There the Court said:
“In deciding whether notice of the accident was given within a reasonable time, the following circumstances, among others, are to be considered: the length of the delay in giving notice, the reasons for it, and the probable effect of the delay on the insurer. * * * Thus the absence, or extent, of prejudice to the insurer caused by the delay are factors to be considered in determining whether the insured has complied with the policy condition by giving notice within a reasonable time * * *.” 108 N.H. at 440, 237 A.2d at 678-679 (citations omitted).
In applying this test, the district court held that the insured had failed to give notice within a reasonable time. The decision rested on two grounds. First, the court found no valid reason for the failure to give notice between February 1966 and September 1967. Second, it held that St. Paul was under no obligation to accept the Employers Mutual file and consequently was prejudiced by the delay. We disagree.
The reason for Knight’s failure to notify St. Paul was counsel’s conclusion that Knight could not be held liable for any blasting damage. This view was based on the fact that all the blasting had been carried out by Iafolla. In essence, Knight’s position is that a reasonable good faith belief that the insured cannot, as a matter of law, be held liable excuses late notice, at least where the insurer is not prejudiced by the delay.
Support for this view is found in the decision of the New Hampshire Supreme Court holding that a farmer-insured’s reasonable belief that an accident in which he had been involved could not result in liability to his insurer justified a delay in notification. Farm Bureau Mutual Automobile Insurance Co. v. Manson, 94 N.H. 389, 54 A.2d 580 (1947). While that is not precisely the situation in this case, first, because the belief of non-liability was reached here not only by a layman-insured but by his attorney, and, second, because the law requires of attorneys a higher standard of care in marshalling the relevant factors of liability and evaluating them, the facts known to the insured’s counsel and those otherwise discoverable by him support a reasonable belief that St. Paul could not be liable.
This does not, however, dispose of the case. The existence of an excuse for the delay is but one of the factors to be considered in determining whether the insured notified the insurer in a reasonable time. Sutton Mutual Insurance Co. v. Notre Dame Arena, Inc., supra; see Abington Mutual Fire Insurance Co. v. Drew, 109 N.H. 464, 254 A.2d 829 (1969). We therefore pass to the question of prejudice.
The purpose of a notice provision in an insurance contract is to enable the insurer to make a prompt investigation of the incident and to prepare an adequate defense to a claim. Sutton Mutual Insurance Co. v. Notre Dame Arena, Inc., supra; Annot., 18 A.L.R.2d 443, 451 (1951). Hence, in determining whether the plaintiff was prejudiced by the delay, we must consider the extent to which that purpose is defeated.
We begin with the trial court’s holding that the insurer was not bound to accept the offer of Employers’ investigative file. The answer is not that simple. These are not parties dealing at arms’ length. Plaintiff, for a consideration, entered into a relationship. We think that it does not lie in the mouth of an insurer to claim it has been prejudiced when it has refused another investigator’s file without so much as inspecting it. The file may be fully as complete as one which the insurer, given the opportunity, could have compiled itself. Hence, the insurer cannot rely on its inability to investigate a claim as evidence of prejudice unless the proffered report is materially beneath the quality it could itself have developed had it been timely notified. See Consolidated Mutual Insurance Co. v. Radio Foods Corp., 108 N.H. 494, 501, 240 A.2d 47, 51 (1968).
Here the insured undertook to show that the file was comprehensive and that the insurer could not have added anything by its own investigation. St. Paul’s claims loss manager was called by Knight and testified that his only criticism of the file was that he “would have certainly gone further in obtaining information from witnesses.” When pursued, however, he admitted that once as much as six months had passed, witnesses’ memories dim and the information he had in mind could not have been obtained. Here six months had passed before there was any hint of damage or a claim and therefore even immediate notice upon receipt of the Petzold letter would probably not have enabled St. Paul to compile a better file than the one offered to it. Under these circumstances, the only conclusion open on the record, having in mind the duty imposed upon the insurer because of the parties’ relationship, is that the insurer was unreasonable as a matter of law, given the protection of a non-waiver stipulation, which, in fact, plaintiff did send to the defendant, in not accepting and examining the proffered file. There had been no default as a matter of law by the defendant.
When the insurer refused to pursue its obligations it committed a material breach of its own obligations. It is not the plaintiff, but the defendant that is entitled to judgment.
Reversed and remanded for the entry of judgment for the defendant.
. Jurisdiction is founded on diversity of citizenship and New Hampshire law controls. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
. The notice provision of the Multiple Coverage Policy provided in part: “Upon the occurrence of any casualty or event for which coverage is afforded by this Policy, written notice shall be given by or on behalf of the Insured to the Company * * * as soon as practicable.” The notice provision of the Umbrella Excess Liability Policy provided in part: “Whenever the insured has information from which the Insured may reasonably conclude that an occurrence covered hereunder involves injuries or damage which, in the event that the Insured should be held liable, is likely to involve this Policy, notice shall be given by or on behalf of the Insured to the Company * * * as soon as practicable. * ‘ * * ” The trial court ruled that the differences between the notice clauses are of no significance and, as neither party appeals from that ruling, we do not deal with that question.
. The district court’s opinion appears at 299 P.Supp. 50 (D.N.H.1969).
. We do not reach the question of where the burden of proof lies on the issue of prejudice. Despite its contention that it is on the insurer, Knight assumed the burden at trial and, as appears below, in our view established that St. Paul suffered no prejudice as a result of the delay.
Question: What is the total number of appellants in the 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
ATLANTIC COAST LINE RAILROAD, Appellant, v. Jane Carter GRAVES, Executrix, etc., Appellee.
No. 10466.
Circuit Court of Appeals, Sixth Circuit.
Oct. 16, 1947.
Miller, Martin, Hitching & Tipton, of Chattanooga, Tenn., for appellant.
Frazier & Roberts, of Chattanooga, Tenn., for appellee.
Before HICKS, SIMONS, and MARTIN, Circuit Judges.
PER CURIAM.
This cause was heard on the transcript of record, briefs and arguments of counsel, and the court being of opinion that there was substantial evidence to sustain the verdict of the jury, and that there is no reversible error upon the record, it is ordered and adjudged that the judgment appealed from be and the same is in all things 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_fedlaw | B | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
James R. KEPHART, Appellant, v. Elliot L. RICHARDSON, Secretary, Department of Health, Education and Welfare, Appellee.
No. 74-1156.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Sept. 18, 1974.
Decided Nov. 19, 1974.
Thomas A. Swope, Jr., Swope & Swope, Ebensburg, Pa., for appellant.
Richard L. Thornburgh, U. S. Atty., James A. Villanova, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
While silence may be golden in the adage, silence in the Social Security records of employment may have quite a contrary effect on a claimant for disability benefits who must establish a wage earning history. In this appeal from a denial of benefits, we conclude that, while the absence of earnings entries is statutorily denominated evidence of nonemployment, it may be outweighed by credible testimony of the claimant which fills the void. Because the administrative process failed to properly consider the positive evidence which might have eliminated the negative, we remand for further proceedings.
Claimant James R. Kephart began to work in the coal mines of Pennsylvania at the age of 14 and continued there for more than thirty years. After the mines near his home closed in 1959, he embarked upon a series of light laboring jobs with various concerns in the construction field and in agriculture. In 1969, he was unable to continue employment because his physical condition had deteriorated. He applied for disability benefits at that time pursuant to the provisions of the Social Security Act.
After a hearing before an administrative law judge, the Secretary denied benefits because he found that Kephart had not worked the requisite number of quarters to have been covered under the Act when he became disabled. This determination was made primarily because the Secretary’s records did not show any payments of wages during the years 1960, 1961, 1962, 1963 and 1965, although the claimant produced evidence that he had been employed during this period. On appeal, the district court granted summary judgment for the Secretary.
In 1964 and from 1966 to 1969, Kep-hart worked at various times for a number of construction companies which duly filed returns of his earnings. From 1960-1963 and in 1965, however, he worked on a piecework basis as a crop picker for a number of farmers near his home. He filed an affidavit, joined in by his wife and three other persons, in 1972 asserting that he worked for Hoover Brothers of New Paris, Pennsylvania in the months of July, August, September and November of 1960, 1961, 1962, 1963 and 1965, and for a Ray Glessner in October of each of those years. At the hearing, Kephart testified that he worked as a farmhand during the years 1961, 1962, 1963, and 1965, adding that on a “couple” of occasions his wife worked with him.
A response to a questionnaire from the Social Security Administration by Glessner Farms and a report of an interview with the employer were introduced into evidence at the hearing. These exhibits established that the claimant and his wife had indeed harvested potatoes but stated that only one check had been issued to the husband for the labors of both. The Hoover Brothers partnership had been dissolved before the questionnaire had been sent, and the response to it was not to the point.
On the basis of the testimony and affidavits, the hearing officer found that the government’s records, which showed no agricultural earnings in the years in question, demonstrated that the claimant had insufficient quarters of coverage. The hearing officer held that the Gles-sner evidence “. . . cannot be viewed as substantial evidence . sufficient to rebut the presumption of validity accorded by law to the Secretary’s wage records ... I view the mere naked assertion by the claimant in his affidavit and in his testimony at the hearing with respect to earnings from Hoover Bros, to be insufficient evidence to rebut the presumption of validity with which the Act cloaks the Secre-try's records.”
The issue in this case is a very narrow one and is focused on the determinations to be made when a claimant alleges that he did in fact work during a given period of time for which the government’s records are silent. We con-elude that a claimant is entitled to substantiate his position and that this evidence must be given consideration by the Social Security Administration.
42 U.S.C. § 405(c)(2) provides that on the basis of information submitted to the Secretary and after such verification as deemed necessary, he shall maintain records of wages paid to an individual. The next subsection, (3), provides that such records may be evidence in proceedings before the Secretary and that “[t]he absence of an entry in such records as to wages alleged to have been paid to ... an individual in any period shall be evidence that no such wages were paid . . . during such period.” Subsection (4) discusses the Secretary’s authorization to correct the records, providing in subpart (A) that the records as to wages paid “shall be conclusive.” Subpart (B) recites that “the absence of an entry . . . as to wages alleged to have been paid . . . during any period shall be presumptive evidence that no such alleged wages were paid tf
While there may be some question as to whether subsection (3) or (4) sets the evidentiary standard to be used for hearings before an administrative law judge, we do not find any material inconsistency. Read together, they clarify what Congress intended to be the scope of the presumption as to wage records.
Presumptions in the law serve a useful purpose and have caused more than their share of judicial and scholastic commentary. We need not go much further here than to refer briefly to Wig-more on Evidence §§ 2490 and 2491 and to the frequently quoted statement, “Presumptions . . . may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.”
Wigmore agrees with this view and states that it is erroneous to hold, as some courts do, that after positive evidence has been introduced in a case, the presumption does not vanish but may be submitted to the fact finder for consideration along with the positive evidence. He notes that a presumption should have no artificial probative force, once contrary evidence has been introduced.
Congress resolved that disagreement in the narrow area in which we find ourselves here. The fact of absence of an entry is “evidence” and must be considered along with any other evidence that may be introduced. At the same time, the “presumptive” effect is not conclusive since the statute makes a sharp distinction between a positive entry which is given such conclusive status and the absence of entries which is only “evidence.” The differing treatment has a rational basis. A claimant should not be deprived of the benefits to which the positive record entitles him, but he should not be precluded from entitlement where he can produce evidence to fill a void in a silent record.
As we read the statute, therefore, the fact that the records show no earnings is merely one evidentiary fact which must be weighed against other evidence produced by the claimant. In this situation, the usual burden of proof applies — that is, if the evidence supporting the claimant preponderates, he is entitled to prevail. We see nothing in the statute which requires the claimant to rebut the negative condition of the records by “substantial evidence.” Cf. Thacker v. Gardner, 268 F.Supp. 663 (W.D.Va.), aff’d 387 F.2d 387 (4th Cir. 1967). In most claims this subtle difference will have little practical effect, but in close cases it may be important. Since the hearing officer applied an incorrect standard in appraising the evidence here, it must be reassessed.
It follows that the usual tests of credibility must be applied to the claimant’s testimony. If it is credible, it must be given the same weight in refuting a silent record that it would be entitled to in any other phase of the case. In making such judgments, of course, the hearing officer is concerned with more than simply whether the claimant is being truthful to the best of his ability. Thé fact finder must consider factors such as accuracy of memory, opportunity to know the pertinent facts, and ability or inability to present them because of educational or intellectual deficiencies. He must also weigh the possible effects of bias, conscious or otherwise. If, after applying the usual tests, the hearing officer is convinced that a claimant has presented objectively accurate facts, then his testimony is evidence which cannot be disregarded, whether corroborated or not. Corroboration is not essential to reach a determination; it is only an aid to minimize doubts which the fact finder might otherwise harbor.
These decisions on credibility are not always easy, but they must be made by the administrative hearing officer if the courts are to fulfill their function. As we said in Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974):
“In our view an examiner’s findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision. This is necessary so that the court may properly exercise its responsibility under 42 U.S.C. § 405(g) to determine if the Secretary’s decision is supported by substantial evidence. It is incumbent upon the examiner to make specific findings — the court may not speculate as to his findings.”
The decision of the hearing officer also speaks of the “presumption of validity with which the Act cloaks the Secretary’s records.” If, by that phraseology, the officer meant that these records are entitled to the deference usually extended to matters covered by the presumption of administrative regularity, then the statement was not correct. A presumption of regularity surrounds public officers to the extent that, in the absence of contrary evidence, a reviewing court assumes that they have properly discharged their official duties. See 2 Davis, Administrative Law Treatise § 11.06. Although we can assume that the Secretary properly compiled the wage data received from employers, it does not follow that the submitted information was accurate in the first instance.
Our review of the evidence in the case sub judice does not lead us to a conclusion that the farmers and fruit growers who may have hired the claimant on a piecework basis were excessively concerned with maintaining records in exhaustive detail. Since none of them testified or submitted detailed statements, we make this reference only as an indication of one of the factors which should be developed before determining the weight to be given to the absence of wage entries for the plaintiff here.
After Kephart initiated his claim, he advised the Social Security regional office of the names of his alleged agricultural employers. The Administration then sent a questionnaire to those persons but in most cases received equivocal responses focused mainly on the lack of records. The issue here is not whether the employer’s records were complete but whether Kephart in fact worked for these individuals and, if he did, for what period of time. The government, however, did not follow up by even so much as a telephone call or letter requesting clarification of the incomplete data received from the alleged employers. Having undertaken to make an investigation of this portion of the claim, in fairness the government should have undertaken to secure further explanations. We think it pertinent, once more, to repeat what we said'in Hess v. Secretary of Health, Education, and Welfare, 497 F.2d 837, 840 (3d Cir. 1974):
“Although the burden is upon the claimant to prove his disability, due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails . . . We do not say that an administrative law judge must search out all the relevant evidence which might be available, since that would in effect shift the burden of proof to the government. But, these proceedings are extremely important to the claimants, who are in real need in most instances and who claim not charity but that which is rightfully due as provided for in Chapter 7, Sub-chapter II, of the Social Security Act.”
Since we find that the hearing examiner applied an improper standard in weighing the evidence dealing with Kep-hart’s employment and that there was not a full development of other evidence on this point, the judgment of the district court will be vacated and the matter remanded to the district court with directions for remand to the Social Security Administration for further proceedings consistent with this opinion.
. 42 U.S.C. § 401 et seq.
Kephart was found to be eligible for “black lung” benefits, but the criteria for that program are different from those for social security disability.
. A “quarter” is a three calendar month period in which an individual receives a specified amount of wages. 42 U.S.C. § 413(a) (2).
. The small sum of $2.67, shown as earnings in 1961, has not been explained, but it is minimal, has no effect on this case in any event, and will be disregarded.
. During the hearing, claimant’s counsel suggested to him that he returned to work in 1961 and apparently misled Kephart into also stating 1961. The Glessner exhibits showed that the claimant had been employed in 1960.
. One of the former partners recited that if any social security payments had been due for Kephart, deductions would have been made by the partnership. This partner also indicated that the amounts paid by the Hoover Brothers to Kephart were “unknown” for the years 1960-1963. The form in which this statement was made instructs the employer as follows: “If no wages were paid in the periods checked below, write ‘None.’ If the amounts are unknown, write ‘Unknown.’ ” Notably, the questionnaire did not deny that Kephart had worked for the partnership.
Another questionnaire was completed by a Wilmer Taylor, indicating that no wages were paid to Kephart but that he had been “paid on a per bushel basis.” Taylor’s connection with the case was not developed further in the record.
. Had the Secretary adopted Kephart’s proof of agricultural employment, the earnings requirement of the Act would have been met. The Secretary concedes that the official employment records establish 15 quarters during the 40 quarters prior to the disability. The remaining coverage needed to attain the 20 quarter minimum would have been credited as a result of Kephart’s work for Glesner and Hoover Brothers or for Hoover Brothers alone. See 42 U.S.O. § 413(a) (2) (iv).
Whether Kephart qualifies under the Act’s definition of disability is not presented by this appeal since a determination that he was ineligible for the benefits because of insufficient coverage precluded a decision on the merits of the claim.
. Stumpf v. Montgomery, 101 Okl. 257, 226 P. 65 (1924). See IX Wigmore on Evidence, § 2491, at 290 n. 6.
. The only exception was the Glessner memo which was introduced at the hearing.
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_appel1_1_4 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
Louis CROCI and H. Phillip Nesbitt t/a Uniceiver, a Joint Venture, Appellee, v. The CITY BANK AND TRUST COMPANY, Appellant.
No. 14422.
United States Court of Appeals, Fourth Circuit.
Oct. 1, 1970.
James C. Cacheris and James M. Thomson, Alexandria, Va., on brief for appellant.
Lois H. Miller, Vienna, Va., and Harvey Rosenberg, Silver Spring, Md., on brief for appellee.
Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
PER CURIAM:
Upon careful consideration of the record, briefs and appendix filed in this case, it appears to the court that the appellant is in breach of an oral contract to extend a line of credit to the appellee. After jury trial in the United States District Court for the Eastern District of Virginia, appellee was awarded damages of $46,917.
There is no basis in law for appellant’s assignment of errors. Substantial performance of the terms of the agreement by the parties, and appellee’s reliance thereon, preclude the defense based on the Statute of Frauds. Damages were properly calculated to recompense appellee for reasonable foreseeable losses. Finally, the issue of representation of authority to extend the line of credit by the bank president was properly left to the jury. The jury verdict in favor of the appellee is amply supported by the evidence.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer: |
songer_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.
A. B. WILLIAMS, Appellant, v. CITY OF WICHITA, KANSAS, a municipal corporation; and Robert V. Smrha, as Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture, Appellees.
No. 6258.
United States Court of Appeals Tenth Circuit.
May 23, 1960.
Kenneth G. Speir, Newton, Kan. (Vernon A. Stroberg, Herbert H. Size-more and Richard F. Hrdlicka, Newton, Kan., on the brief), for appellant.
Richard E. Pringle, Asst. Atty. Gen., State of Kansas, and Warden L. Noe, Sp. Asst. Atty. Gen., State of Kansas (John Anderson, Jr., Atty. Gen., State of Kansas, on the brief), for appellee R.
V. Smrha, Chief Engineer of Division of Water Resources, Kansas State Board of Agriculture.
Robert B. Morton, Wichita, Kan. (Fred W. Aley, Wichita, Kan., on the brief), for appellee City of Wichita, Kan.
Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge.
BREITENSTEIN, Circuit Judge.
This case is here for the second time. The first appeal involved action by the trial court in sustaining motions to dismiss the complaint. This court, on January 26, 1956, remanded the case with directions that “action upon such motions be held in suspense for a reasonable time to await determination in the state courts of important questions of state law involved herein.”
On October 1, 1959, the trial court again examined the matter and held that: (1) more than a reasonable time had elapsed since the filing of the mandate; (2) the issues involved an interpretation of Kansas law which should be made by Kansas courts; and, (3) the plaintiff [appellant] had instituted suit in a Kansas court of appropriate jurisdiction to establish his water use rights which are the principal issue in this controversy. The court then dismissed the action without prejudice.
Appellant-plaintiff Williams seeks a declaratory judgment that two water use permits issued by the Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture to the City of Wichita are void and for an injunction restraining action under such permits. The gravamen of the complaint is that Williams owns land overlying certain water beds from which Wichita, under the permits in question, withdraws and will continue to withdraw water to an extent that the value of his land will be diminished. The basic issue is whether Williams has a property right in such water of which he has been deprived by the withdrawals under the permits.
There is no diversity of citizenship. Jurisdiction depends on 28 U.S.C. § 1331, which requires a substantial federal question.
The complaint does not attack the constitutionality of the Kansas statute under which the permits were issued and does not allege that the issuance of the permits was in violation of that statute. The claim is that Williams has been unconstitutionally deprived of a property right. The determination of such claim involves the question as to whether, under Kansas law, a landowner has a property right in water which underlies the surface of his land.
Prior to the enactment of the Kansas Water Appropriation Act of 1945, Kansas recognized the doctrine of riparian rights. This was changed by the 1945 law. A state may modify or reject the riparian doctrine and adopt the appropriation system but in so doing it must recognize valid and existing vested rights. The Kansas statute, as amended, provides that permits are subject to valid existing vested rights which are protected either by actions for damages or for injunction.
We do not know, and are not advised, if in Kansas rights to underground waters are absolute on the theory that the owner of the land owns that below and above the surface, if they are correlative and subject to the rule of reasonable use, or if they are dependent upon appropriation and application to beneficial use. Such rights may or may not differ if they involve the waters of definite underground streams, percolating waters, or artesian waters. Rights to the use of underground waters depend upon state law and vary greatly. They should be determined by local law.
For the federal courts to step in and determine these important questions in advance of authoritative action by Kansas would be unwise because of the possibility of provoking unseemly conflict between the two sovereignties. The determination of the constitutional questions asserted here is not necessary unless Williams has a property right in the underground water. This should be determined by the state processes without any impairment by federal action. These reasons are sufficient under Martin, Successor to Lawler, etc. v. Creasy, 360 U.S. 219, 224, 79 S.Ct. 1034, 3 L.Ed.2d 1186, and cases there cited, to support the lower court in abstaining from exercising jurisdiction in this declaratory judgment suit between citizens of the same state.
The trial court followed the mandate of this court and waited for over three and one-half years for the parties to have a determination of the basic issues in the state courts which were and still are open to them. Further patience is not required. The judgment of dismissal without prejudice is affirmed.
. Porter v. Bennison, 10 Cir., 180 F.2d 523, 525. See also Gully, State Tax Collector, etc., v. First National Bank in Meridian, 299 U.S. 109, 117, 57 S.Ct. 96, 81 L.Ed. 70, and Smith v. Kansas City Title & Trust Company, et al., 255 U.S. 180, 199, 41 S.Ct. 243, 65 L.Ed. 577. The reliance on the Declaratory Judgments Act, 28 U.S.C. § 2201, does not change this situation as that act applies only to cases within the jurisdiction of a federal court.
. The constitutionality of the statute was upheld by a federal three-judge district court in Baumann v. Smrha, D.C., 145 F.Supp. 617, affirmed 352 U.S. 803, 77 S.Ct. 96, 1 L.Ed.2d 73.
. Kan.G.S.1949, Ch. 82a, Art. 7.
. E.g. State ex rel. Peterson v. Kansas State Board of Agriculture, 158 Kan. 603, 149 P.2d 604, 608.
. See State ex rel. Emery v. Knapp, 167 Kan. 546, 207 P.2d 440.
. United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 690, 702-704, 19 S.Ct. 770, 43 L.Ed. 1136; Baumann v. Smrha, supra, 145 F.Supp. at pages 624-625, and cases cited in footnotes 2 and 3.
. See Kan.G.S.1957 Supp., Ch. 82a, Art. 7. Pertinent provisions are §§ 82a-712 to 82a-716, as amended.
. Section 82a-716, as amended, reads in part: “If any appropriation, or the construction and operation of authorized diversion works results in an injury to any common-law claimant, such person shall be entitled to due compensation in a suitable action at law against the appropriator for damages proved for any property taken.”
. See Hutchins, Selected Problems in the Law of Water Rights in the West, Misc. Pub. No. 418, United States Dept, of Agriculture, Chap. 4. A summary of state law governing ownership and use of underground waters appears at pp. 147-151. At p. 155, the statement is made that: “The principles governing ownership and use of percolating ground [underground] waters have been developed mainly by the courts.”
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_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.
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: 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_treat | E | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Appellee, v. Eugene YOUNG, Defendant-Appellant.
No. 960, Docket 90-1570.
United States Court of Appeals, Second Circuit.
Argued March 15, 1991.
Decided May 3, 1991.
Michael F. Bachner, New York City, for defendant-appellant.
Alan Brudner, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., David E. Brodsky, Asst. U.S. Atty., on the brief), for appellee.
Before NEWMAN, PIERCE and WALKER, Circuit Judges.
JON 0. NEWMAN, Circuit Judge:
This sentencing appeal concerns the sentencing guideline for abuse of a trusted position and the extent of a sentencing judge’s discretion in revising a sentence that includes what the Government concedes is an excessive amount of restitution. Eugene Young appeals from the September 20, 1990, judgment of the District Court for the Southern District of New York (Kenneth Conboy, Judge) convicting him, on his guilty plea, of impersonating a federal officer, in violation of 18 U.S.C. § 912 (1988). We vacate the restitution portion of the sentence and remand.
Facts
Young was an informant for the Drug Enforcement Administration and the Customs Service. While working undercover as an informant, he met a Customs Service employee, who offered to sell him Customs Service identification cards. Working in cooperation with the Customs Service, Young purchased various stolen items from the employee, including blank Customs Service identification cards. He turned over most of these cards to the Government in connection with the prosecution of the employee, but retained some of the cards to facilitate his own criminal activity. Young then approached Luvena John, used the stolen Customs identification card to identify himself as a federal agent, and offered to sell John a car allegedly confiscated by the Government. Ultimately, Young obtained $5,500 from John and her employer (to whom he also displayed his false i.d.) but produced no car. Young used a similar scheme with three other victims and obtained $14,900 from them.
Young pled guilty to one count of impersonating a federal officer, in violation of 18 U.S.C. § 912, in connection with obtaining $5,500 from John and her employer. The Government acknowledges that at his plea allocution Young was not advised that his sentence might include an order of restitution. Young was sentenced to 18 months’ imprisonment and ordered to pay restitution in the amount of $20,400, the total obtained from all of his victims.
Discussion
I. Abuse of Trust
In calculating Young’s applicable guideline range, Judge Conboy added two levels pursuant to U.S.S.G. § 3B1.3, which applies to a defendant who “abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.” The enhancement was entirely proper, and certainly an application of the guideline warranting “due deference.” See 18 U.S.C. § 3742(e) (1988); United States v. Shoulberg, 895 F.2d 882, 884 (2d Cir.1990). Young obtained the Customs i.d. because the Customs Service reposed sufficient trust in him to work as an informant, and his display of the i.d., in connection with his claim to be selling confiscated Government property, significantly facilitated the offense. See United States v. Drabeck, 905 F.2d 1304, 1305-06 (9th Cir.), reh’g granted and mandate recalled, 915 F.2d 1404 (9th Cir.1990).
II. Restitution
The restitution order, as the Government concedes, is invalid in two respects. First, the plea allocution did not inform Young that restitution could be ordered, as required by Fed.R.Crim.P. 11(c)(1). See United States v. Khan, 857 F.2d 85 (2d Cir.1988), modified on reh’g, 869 F.2d 661 (2d Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 682, 112 L.Ed.2d 674 (1991). Second, the amount of restitution exceeded the $5,500 obtained in the offense of conviction, a result that is impermissible under Hughey v. United States, — U.S. -, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990).
What remains for determination is the appropriate remedy for the infirmities in the restitution order. Apparently recognizing that the lack of advice concerning the prospect of restitution could be readily cured on remand and not wishing to withdraw his plea, Young informed us at oral argument that the sole remedy he seeks is to have the amount of restitution reduced from $20,400 to $5,500, thereby, in effect, waiving the Rule 11 defect and remedying the Hughey defect. The Government concedes that the restitution amount should be reduced to $5,500, but contends that on remand the District Judge should be given discretion to impose a fine, in lieu of the amount of restitution precluded by Hughey. As the Government points out, Judge Conboy felt that Young’s financial condition was insufficient to warrant both a fine and restitution to all the victims, and he expressly declined to impose a fine in order to “give priority to” the victims. In the Government’s view, the District Judge should be able to repackage his sentence to include both restitution of $5,500 and a fine, up to an aggregate monetary sanction of $20,400, the amount of the original restitution. It will be convenient to consider the Government’s contention that a fine is permissible on remand before considering whether the Rule 11 violation may be waived.
Citing our decisions in United States v. Diaz, 834 F.2d 287, 290 (2d Cir.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988), and McClain v. United States, 676 F.2d 915, 916-18 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982), the Government broadly asserts, “It is settled law that when one component of a sentencing package is set aside on appeal, the District Court may adjust the other components in order to restore the sentencing package’s original size and shape.” Brief for Appellee at 9. That is not the law in this Circuit, as the Government found out when we rejected this same contention in United States v. Pisani, 787 F.2d 71 (2d Cir.1986). As we there explained, an upward revision of a previously imposed sentence was permitted in Diaz and McClain because of the invalidation of a mandatory consecutive sentence. In that situation, it was reasonable to assume that the aggregate sentence reflected the fact that the sentencing judge had diminished the length of the sentence underneath the consecutive sentence that he incorrectly had thought he was obliged to impose. But in Pisani, which did not involve a mandatory consecutive sentence, we refused to permit an increase in a mail fraud sentence after vacating sentences for other offenses. Recently, we permitted upward revision of a sentence on one count after invalidation of sentences on other counts where the counts, which charged tax evasions in consecutive years, could be regarded, for sentencing purposes, as “fungible,” United States v. Gelb, No. 90-1396, slip op. 2381, 2398 (2d Cir. Mar. 5, 1991). We noted, however, that “[w]e would face a different and closer question if a judge who had determined that a particular offense merited slight punishment revised that punishment to compensate for the dis-allowance of a penalty imposed for wrongdoing of a different sort.” Id. We have also permitted an upward revision to conform to the terms of an explicit sentence bargain. See United States v. Rico, 902 F.2d 1065 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990).
This case is unlike either Diaz, McClain, or Pisani in that the Government seeks an upward revision of only one component of a sentence on a single count in light of the invalidation of another component, rather than, as in those cases, an upward revision of a sentence on one count in light of the invalidation of sentences on other counts. Though the restitution component of Young’s sentence was not mandatory, Judge Conboy explicitly stated that he was withholding a fine in order to give priority to restitution; he was not making an assessment that the conduct in question did not merit financial sanctions. Under these circumstances, he should have an opportunity to determine whether to impose a fine, now that the restitution component has been invalidated.
The next issue is whether the restitution order should be eliminated or whether only a reduction of the amount to $5,500 is required. In Khan, 869 F.2d at 662, at the Government’s request we permitted the District Court to eliminate a restitution order because of a Rule 11 violation. Here, appellant has indicated willingness to waive the Rule 11 violation and accept a reduction of the restitution amount to $5,500. However, that willingness was expressed before we had ruled that the sentence may be revised to include a fine. We cannot enforce that waiver under this changed circumstance. On remand, if the Government wishes to forgo restitution, it may so indicate, and the guilty plea will stand, as in Khan. If it wishes to obtain restitution (limited, under Hughey, to $5,500), then Young must be afforded an opportunity to withdraw his plea. If restitution is not sought, or if Young does not withdraw his plea and accepts a reduction of the restitution amount to $5,500, Judge Conboy may then impose a fine up to an amount that, when added to the amount of restitution, does not exceed the original monetary sanction of $20,400.
Sentence vacated in part, and case remanded for further proceedings consistent with this opinion.
. Though we appreciate the Government’s candor in acknowledging on appeal the two deficiencies in the restitution order, the Government would have been more helpful if it had alerted the District Court to both matters.
. Had there been no Rule 11 violation, the logic of Khan would permit the Government to acknowledge the Hughey violation and insist on the $5,500 of restitution, without affording Young an opportunity to withdraw his plea. However, the existence of the Rule 11 violation requires either an abandonment of restitution, as in Khan, or a waiver of the Rule 11 violation by a defendant fully informed of the range of sentencing options.
. It appears that the District Judge applied the version of section 2J1.4 that was in effect at the time of Young’s offense, whereas the appropriate guideline was the version in effect at the time of the sentence. See 18 U.S.C. § 3553(a)(4) (1988); United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir.1990). Under the new guideline, if impersonation was done to facilitate another offense, the sentencing judge is to use the guideline for an attempt to commit that offense. U.S.S.G. § 2J1.4(c)(l) (Nov. 1, 1989); see id. App. C (amendment 176). The attempt guideline, § 2X1.1, in conjunction with the fraud offense guideline, § 2F1.1, will not necessarily alter Young’s offense level, though it might. Although any increased sentence would be barred by the Ex Post Facto Clause, Young is entitled to any decrease that might result under the revised guideline. On remand, we authorize the District Judge to accord Young the benefit of a reduction in sentence, if any, that results from application of the revised guideline.
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_usc1 | 42 | 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.
Claude E. LONG, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
No. 73-1993.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 7, 1974.
Decided April 30, 1974.
Louis F. Oberdorfer, Washington, D. C., for defendant-appellant; James Robertson, Peter A. Bell, Cary Lerman, Washington, D. C., Joseph A. O’Reilly, James R. Jackson, Ford Motor Co., Dearborn, Mich., on brief; Wilmer, Cutler & Pickering, Washington, D. C., of counsel.
William D. Haynes, Detroit, Mich., for plaintiff-appellee; Y. Paul' Donnelly, Detroit, Mich., on brief.
Before CELEBREZZE and ENGEL, Circuit Judges, and ROSENSTEIN, Senior Customs Judge.
The Honorable Samuel M. Rosenstein, Senior Judge, United States Customs Court, sitting by designation.
CELEBREZZE, Circuit Judge.
Ford Motor Company appeals from a judgment awarding Claude E. Long $10,949 on his claim that his discharge from Ford was racially discriminatory in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981. We reverse and remand for further consideration.
Claude Long, a black college graduate and former Department of Labor compliance officer, sought employment with Ford Motor Company, hoping to get into industrial management in the field of labor relations. On July 19, 1967, Long was hired as a production line foreman. After nearly two years on this job, during which time he received three satisfactory and one unsatisfactory performance evaluations, Long filed a complaint with the Michigan Civil Rights Commission, alleging that his race was the cause of harassment, an unfair performance review, and the denial of a promotion. In May 1969, Long was transferred to the Industrial Relations Department of Ford’s Frame Plant, and he withdrew his charge prior to investigation.
At the Frame Plant, Long was rotated among several positions. He began as a “wage analyst” on June 1, 1969. In January 1970 he was assigned to head the Suggestions Program, in which capacity he received an award. In April he was shifted to a position where he developed the Frame Plant’s medical leave procedures. He was returned to the wage analyst position in June 1970. On these jobs, Long received a “satisfactory plus” performance evaluation on December 1, 1969, a letter of repimand on July 24, 1970 (prompted primarily by work left on his desk when he left for vacation on June 28), and an “unsatisfactory” rating on October 26, 1970. After this final evaluation, Long submitted a letter of rebuttal to the poor rating. Following a meeting with his immediate and plant supervisors, Long resigned on November 30, 1970, after being offered the choice of discharge or resignation. On November 17, 1971, Long filed a complaint in Federal District Court, alleging violations of Title VII of the 1964 Civil Rights Act, 42 U. S.C. § 2000e et seq., and of the Civil Rights Act of 1866, 42 U.S.C. § 1981. On May 1, 1972, the District Court dismissed his claim under Title VII for failure to comply with th'e requirement of a timely filing with the Federal Equal Employment Opportunity Commission. The District Court proceeded to a hearing on the merits of the § 1981 claim.
Testimony was taken from Long, his supervisors, and his fellow workers. Long’s primary argument was that he had been treated in a dissimilar manner from other persons, that he had received outright antagonism from his plant supervisor, and that the actions which prevented him from rising to a position in labor relations were prompted by racial prejudice.
The District Court found for Long. While it made various findings and observations, the District Court’s central holding was that Ford violated Section 1981 by failing to train Long adequately for his tasks. The District Court characterized Long as a “capable man,” who because he “was not adequately trained . . . could not perform adequately.” The Court concluded:
“If [black] people are not given adequate job training and are, as a result, terminated, then unequal employment opportunity still results. This imbalance is a real factor in racial discrimination. Racial discrimination in employment will not end until such people are given thorough job training so that they can perform adequately. Inadequate job training in a situation such as this fosters racial discrimination. Thus, this court is convinced that race was a factor (possibly not the only factor) in the termination of Claude Long.”
Ford makes two basic arguments on appeal. First, it contends that Appellee’s complaint should have been dismissed because he failed to pursue his remedies under Title VII of the 1964 Civil Rights Act. Second, Ford contends that reversal on the merits is necessary because the record and findings of the District Court do not sustain a judgment for Long under the principles of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Ford does not contend that Section 1981 does not apply to private employment contracts. It is settled that Section 1981 prohibits racial discrimination in private employment.
Ford argues, however, that Long’s complaint should have been dismissed because he failed to file a charge with the Equal Employment Opportunity Commission within 210 days of his discharge. This was a jurisdictional prerequisite for bringing a Title VII suit under 42 U.S.C. § 2000e-5(d) (1970), and, so it is argued, impliedly a jurisdictional prerequisite to a § 1981 action.
Ford’s procedural objection is not without support in the case law. In Waters v. Wisconsin Steel Works of Int’l Harvesters Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970), the Seventh Circuit held that a plaintiff in a § 1981 action must show a reasonable excuse for having bypassed his Title VII remedies. See also Kinsey v. Legg, Mason & Co., Inc., 60 F.R.D. 91 (D.D.C.1973).
This viewpoint is a minority position. The Third, Fifth, Eighth, and District of Columbia Circuits have concluded that Section 1981’s availability is not limited to those plaintiffs who have pursued their Title VII remedies or have shown a reasonable excuse for not doing so. Young v. Int’l Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971); Caldwell v. National Brewing Co., 5 Cir., 443 F.2d 1044 (1971); Brady v. Bristol-Meyers Co., 459 F.2d 621 (8th Cir. 1972); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973). Furthermore, this Court has held in another context that “ § 1981 [is] a separate and concurrent cause of action with Title VII.” Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973). We adopt the prevailing view that a plaintiff need not pursue his Title VII remedies before instituting a cause of action under Section 1981.
We are impelled to this conclusion by rules of statutory construction. If Congress had expressly limited Section 1981’s availability in the manner Ford urges upon us, we would, be bound by the partial repeal of the earlier statute. Here, however, the question is whether we may imply á change in Section 1981 from the silent face of Title VII of the 1964 Civil Rights Act. This task is complicated by the fact that in 1964 Congress may not have recognized that Section 1981 was available to litigants against racial discrimination in private employment.
In Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936), the Supreme Court stated that a repeal of a statute by implication is not favored. There are two categories where repeal by implication is possible.
(1) [W]here provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. 296 U.S. at 503.
Title VII is not “in irreconcilable conflict” with Section 1981, and it does not cover the field in which Section 1981 was sown. See Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) (regarding the compatibility of § 1982 and the provisions of the Fair Housing Act of 1968). Thus, the availability of Section 1981 is not limited by the existence of remedies under Title VII. “ [Legislative enactments in [the area of racial discrimination in employment] have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (citingto § 1981). Thus the District Court correctly proceeded to the merits of Appellee’s claim.
We cannot affirm the District Court’s decision on the merits, however, because it rests upon an erroneous view of Section 1981. That provision, first enacted as part of the Civil Rights Act of 1966,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.
When a person sues under this statute to enforce his right not to be discriminated against in private employment, he must show that he was unable to make or enforce a contract that white citizens were able to make or enforce. Applied to the facts of this case, Appellee Long must show that he was forced to resign because of dissimilar treatment caused in part by his race.
As originally designed in 1866, Section 1981 was intended to uproot the institution of slavery and to eradicate its badges and incidents. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-437, 88 S.Ct. 2186, 20 L.Ed.2d 1189, (1968) (analysis applied to § 1981 in Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, 439, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973).) When an employer, public or private, places more stringent requirements on employees because of their race, Section 1981 is violated. The purpose for which the Section was enacted — to afford equal opportunities to secure the benefits of American life regardless of race — requires1 that a court adopt a broad outlook in enforcing Section 1981. Schemes of discrimination, whether blatant or subtle, are forbidden. Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407, 416 (S.D.Ohio 1968). Cf. Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 83 L.Ed. 1281 (1939).
Section 1981 is by its very terms, however, not an affirmative action program. It is an equalizing provision, seeking to ensure that rights do not vary according to race. It does not require that persons be accorded preferential treatment because of their race. On this point we view the Supreme Court’s discussion of Title VII as applicable to Section 1981:
“Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U.S. 424, 430-431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
Thus, it was error for the District Court to hold Appellant liable for a failure to train Appellee adequately, absent a showing that this failure constituted either dissimilar treatment from the training whites receive or treatment similar on its face but dissimilar in its effects upon racial minorities and unfounded on business necessity. See Griggs v. Duke Power Co., supra; McDonnell Douglas Corp. v. Green, 411 U. S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Robinson v. Lorillard, 444 F.2d 791 (4th Cir. 1971).
Although the District Court made various observations and findings of fact, we cannot perceive an alternative holding sufficient in detail under Rule 52(a), Fed.Rules Civ.Proc., to permit review. Rather than specify that Appellee had received dissimilar treatment, the District Court relied on a rationale of inadequate training per se. Thus, we must remand for further proceedings to determine whether Appellee should recover on a proper ground.
The parties and the District Court did not have the benefit of McDonnell Douglas’ reasoning in the proceedings below. On remand, the District Court should apply McDonnell Douglas’ principles on the order and allocation of proof. A person alleging a § 1981 violation must first establish that his employment terms vary from those which his employer accords to similarly situated white workers. This can be shown by proof either that intentional racial prejudice entered into his treatment or that a facially neutral practice (here Appellant’s performance evaluation system) operates diseriminatorily against minority employees. In this case, Appellee may be able to establish that he was trained inadequately whereas white co-employees were trained adequately. He may be able to establish that Ford’s promotion system, which relies heavily upon the subjective evaluation of supervisors, has a discriminatory impact on minority employees, so that its use in discharging him was improper. Appellee may be able to establish that similarly situated white employees with comparable records would have been offered different positions within Ford rather than discharged, whereas he was forced to leave Ford altogether. We express no opinion as to whether the record below would support any of these possible holdings.
If Appellee establishes a prima facie case of dissimilar treatment due in part to racial discrimination, Appellant must then establish “some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green, 411 U.S. at 802. In this case Appellant would argue that Appellee’s unsatisfactory performance review justified his termination and that its system of evaluation is grounded on business necessity.
If Appellee has established a prima facie case but Appellant’s rebuttal is sufficient to overcome Appellee’s initial showing, Appellee must then prove that his discharge was nonetheless a violation of Section 1981 because Appellant’s stated reason for the discharge was merely a pretext for a termination actually based on racial prejudice. 411 U.S. at 804. If the proofs reach this point, the District Court will have the task of evaluating the objectivity, sincerity, and honesty of the witnesses to arrive at a necessarily subjective conclusion.
Because of the new light shed on employment discrimination cases by McDonnell Douglas, we remand this case for such further proceedings as the District Court deems necessary to arrive at a just and proper conclusion. Affirmed in part and reversed in part for further proceedings in conformance with the principles enunciated herein.
. The District Court’s opinion is reported at 352 F.Supp. 135 (E.D.Mich.1972). Long’s lack of training was cited as the “fact that is controlling in this situation.” 352 F.Supp. at 139.
. Id.
. Id. at 140.
. Although the Supreme Court has not yet squarely held that this is the case, in Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 439-440, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973), the Supreme Court held that § 1981 is applicable to private discriminatory acts. An employment contract is covered by § 1981, and Title YII of the 1964 Civil Rights Act has not preempted the field of employment discrimination. Johnson v. City of Cincinnati, 450 F.2d 796 (6th Cir. 1971).
Furthermore, although this Circuit has not explicitly held that § 1981 prohibits racial discrimination in private employment, this conclusion is implicit in at least two holdings. Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973). This conclusion is unanimous among the circuits that have decided the question. Young v. Int’l Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 F.2d 948, 91 S.Ct. 935, 28 L.Ed. 2d 231 (1971); Waters v. Wisconsin Steel Works of Int’l Harvesters Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911, 91 S. Ct. 137, 27 L.Ed.2d 151 (1970); Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (8th Cir. 1972); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973) .
. This requirement has been changed by recent amendments to Title VII. Pub.L. 92-261, § 4(a). See 42 U.S.C.A. § 2000e-5 (1974) .
. The 1968 decision of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), is credited with having resuscitated the Civil Rights Act of 1866, of which § 1981 was a part, as to private defendants.
. Amendments to make Title VII the exclusive remedy for employment discrimination have been defeated. 110 Cong. Record 13650-52 (1964); 118 Cong. Record, 1524-26 (daily ed. Feb. 9, 1972); 1791-97 (daily ed., Feb. 15, 1972).
Title VII and 1981 afford different tactical advantages and handicaps to aggrieved parties. The existence of § 1981 as a procedurally separate source of relief will not likely deter the use of Title VII’s conciliation procedures. See Note, “Racial Discrim¡nation in Employment under the Civil Rights Act of 1866,” 36 U.Chi.L.Rev. 615, 639-41 (1969); Comment, “Is Section 1981 Modified by Title VII of the Civil Rights Act of 1964?,” 1970 Duke L.J. 1223, 1235 (1970) ; Peck, “Remedies for Racial Discrimination in Employment: A Comparative Evaluation of Forums,” 46 Wash.L.Rev. 455, 476-79 (1971) ; Larson, “The Development of Section 1981 as a Remedy for Racial Discrimination in Private Employment,” 7 Harv.Civ.Rights — Civ.Lib.L.Rev. 56, 69-84 (1972).
. The provision was re-enacted with some changes in 1870 and codified in 1874. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422, n. 28, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).
. There are obligations to take affirmative action in hiring and training minority citizens as a precondition to being awarded government contracts. See Exec.Order No. 11,246, 3 C.F.R. 418 (1972). Section 1981 does not impose such an obligation on employers. Castro v. Beecher, 334 F.Supp. 930, 938 (D.Mass.1971), aff’d in part and rev’d in part, 459 F.2d 725 (1st Cir. 1972).
. Title VII of the 1964 Civil Rights Act, as amended 42 U.S.C.A. § 2000e et seq. (1972), is not before us. Except for the language quoted, we express no opinion as to the similarities between § 1981 and Title VII.
. Although McDonnell Douglas was a Title VII case, the principles governing these procedural matters apply with equal force to a § 1981 action. Cf. United States v. Chesterfield County School District, 484 F.2d 70 (4th Cir. 1973).
. Cf. E.E.O.C. No. 72-0777 (1971).
. See Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972); United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972); Young v. Edgcomb Steel Co., 363 F.Supp. 961 (M.D.N.C.1973); United States v. Local 189, 301 F.Supp. 906 (E.D.La.1969), aff’d, 416 F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); Baxter v. Savannah Sugar Refining Corp., 350 F.Supp. 139 (S.D.Ga.1972).
. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803, 93 S.Ct. 1817, 36 L. Ed .2d 668 (1973); Robinson v. Lorillard, 444 F.2d 791, 798 (4th Cir. 1971); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971); United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971); United States v. St. Louis-San Francisco Ry., 464 F.2d 301 (8th Cir. 1972); Brito v. Zia Co., 478 F.2d 1200 (10th Cir. 1973); Moody v. Albermarle Paper Co., 474 F.2d 134 (4th Cir. 1973); McAdory v. Scientific Research Instruments, Inc., 355 F.Supp. 468 (D.Md.1973); Note, “Fair Employment Practices: The Concept of Business Necessity,” 3 Memph.St.U.L.Rev. 76 (1972).
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 | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Appellee, v. Said AREFI, Michael Geyer, Anthony Montalvo, Joseph Allo and Erasmo Oddo, Defendants, Erasmo Oddo, Defendant-Appellant.
No. 659, Docket 87-1408.
United States Court of Appeals, Second Circuit.
Argued Jan. 19, 1988.
Decided May 2, 1988.
Edward S. Panzer, New York City, for defendant-appellant.
Thomas P. Milton, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for the E.D.N.Y., David C. James, Asst. U.S. Atty., Brooklyn, of counsel), for appellee.
Before LUMBARD, KEARSE and PIERCE, Circuit Judges.
PIERCE, Circuit Judge:
Erasmo Oddo appeals from the sentence imposed upon him by the United States District Court for the Eastern District of New York, George C. Pratt, Circuit Judge, sitting by designation, following his conviction upon a plea of guilty to one count of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Judge Pratt sentenced Oddo to a five-year term of imprisonment followed by three years of special parole, plus a mandatory special assessment of $50. On appeal, Oddo seeks to have this sentence vacated on the grounds that (1) the court failed to comply with Fed.R. Crim.P. 32 with respect to appellant’s challenges to the presentence report; (2) the court improperly refused to exclude a witness from the courtroom as required by Fed.R.Evid. 615; and (3) the government failed to prove the allegation in the presen-tence report that Oddo was the source of the cocaine that was sold to an undercover agent. Although we reject most of Oddo’s contentions, we find that the presentence report was tainted by one material misstatement. We therefore vacate the sentence and remand the case to the district court with instructions to comply with the requirements of Fed.R.Crim.P. 32 and to resentence the defendant.
BACKGROUND
Appellant Oddo was arrested on November 4, 1986, together with codefendants Joseph Alio and Anthony Montalvo, following the sale of two kilograms of 96% pure cocaine to an undercover agent in the parking lot of the shopping center at Roosevelt Field on Long Island, New York. All three defendants’ cases were originally assigned to Judge Mishler of the Eastern District of New York. Montalvo cooperated with the government and on January 27, 1987, he pleaded guilty before Judge Mishler to a single-count superseding information that charged him with distributing cocaine in violation of 21 U.S.C. § 841(a)(1).
Alio and Oddo were charged in a two-count superseding indictment with conspiracy to possess and distribute cocaine and with distributing in excess of 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. For scheduling reasons, their cases were transferred to Judge Pratt for trial. However, on March 25, 1987, the date scheduled for their trials, Alio and Oddo pleaded guilty to the lesser included crime of distributing an unspecified quantity of cocaine.
Presentence reports were prepared with respect to all three defendants. The reports related that Alio and Oddo were more culpable than Montalvo and that Oddo was the primary source of the drugs. Oddo challenged various statements in his report, asserting in particular that he played only a minor role in the drug transaction. In order to determine the relative culpability of the three defendants, as well as to resolve challenges to the contents of the reports, Judges Pratt and Mishler held a joint sentencing hearing beginning on August 12, 1987, with respect to all three defendants. After three days of hearings, at which Alio, Montalvo and the undercover agent testified, the two judges independently concluded that, as between the three defendants, Oddo was the source of the cocaine that was sold to the agent.
DISCUSSION
A. Compliance With Fed.R.Crim.P. 32
Oddo challenged various statements contained in his presentence report. He now asserts that his sentence should be vacated because Judge Pratt failed to make specific findings of fact with respect to those challenges and to append such findings to the report, as required by Fed.R.Crim.P. 32(c)(3)(D). We discuss the controverted statements seriatim.
1. Lack of Cooperation
The report contained the statement that “defendant has provided no cooperation with respect to this investigation.” Oddo objected to this statement on the ground that the district court may not enhance a sentence because of a defendant’s failure to cooperate with the government, even though it may consider cooperation as a mitigating factor. United States v. Stratton, 820 F.2d 562 (2d Cir.1987). Judge Pratt specifically responded to this objection, stating on the record that he would not consider Oddo’s lack of cooperation in determining sentence. Since the sentencing judge is not required to make any findings when he explicitly disavows any reliance on a controverted statement such as this one, see Fed.R.Crim.P. 32(c)(3)(D)(ii), this omission was not a violation of Rule 32. United States v. Navaro, 774 F.2d 565 (2d Cir.1985) (per curiam).
We agree with Oddo that Rule 32 mandates that the district court append its determination regarding the challenged statement. Nonetheless, this technical violation does not require us to vacate the sentence. United States v. Santamaria, 788 F.2d 824, 829 (1st Cir.1986); see United States v. Ursillo, 786 F.2d 66, 71 (2d Cir.1986). Since this omission can easily be cured, we remand to the district court with instructions to append its determination to the presentence report.
2. Oddo’s Role in the Transaction
Oddo contested the accuracy of various statements in the presentence report that identified him as the source of the cocaine sold to the undercover agent. In particular, the report contained the following assertions regarding his role:
Alio and Oddo are equally the most culpable defendants and the source of the cocaine. The case agent says that Alio received the cocaine from Oddo and then gave it to Montalvo for sale.
Agents characterized the defendant [Oddo] as a primary figure who served as the source for the two kilos [of cocaine].... [H]is role [would] seem to indicate a proprietary interest in the overall transaction....
Oddo claimed that these statements were inaccurate because he played only a minor role in the deal, acting only as “lookout” for Alio.
On appeal, Oddo asserts that the court failed to make specific findings as to each of these controverted statements. This contention is without merit. Judge Pratt announced in open court at the conclusion of three days of hearings that he and Judge Mishler had reached a finding as to the roles played by the different defendants: “We find that the cocaine was originally supplied here by Mr. Oddo, and his responsibility here was essentially to see that when it was sold it got paid for and the money would come back to him. We have no information as to where Mr. Oddo may have acquired it.” We consider this statement to be sufficiently precise to comply with the requirement of Rule 32, since it directly addressed Oddo’s challenge that “these statements of his level of culpability are pure conjecture” and that Oddo “had a minor role and is the least culpable in what transpired with respect to the cocaine on November 4, 1986.” Although the court again failed to order that its findings be appended to the report, this omission also can readily be cured on remand without requiring us to vacate the sentence. Santamaria, 788 F.2d at 829.
Prior to sentencing, Oddo also challenged the statement in the presentence report that “Montalvo has previously mentioned [sic] received the cocaine from Oddo [sic].” The government now concedes that this statement is inaccurate because Montalvo did not assert that Oddo provided him with the cocaine; rather, he testified that Alio was his supplier and that he had not met Oddo prior to participating in this drug transaction. The government contends that the statement merely contained typographical errors. Under Rule 32, however, the district court was required to make findings as to the accuracy of the statement or to disclaim reliance upon it, but did not do either. Ordinarily, in such a situation, “[u]nless the government can demonstrate that the disputed facts were not relied upon, the defendant must be resen-tenced.” United States v. Eschweiler, 782 F.2d 1385, 1389 (7th Cir.1986); see United States v. Lawal, 810 F.2d 491, 492-93 (5th Cir.1987).
Although the statement in question misrepresents Montalvo’s identification of his supplier, this inaccuracy was not prejudicial to Oddo. The court found that “the cocaine was originally supplied here by Mr. Oddo....” As discussed infra at point C, we find that the testimony provided at the hearing was more than sufficient to sustain this finding; therefore, we do not believe that the failure to correct or to disclaim reliance upon the misstatement requires us to vacate the sentence.
Although the rule “is designed to insure maximum clarity, on the record, of the sentencing judge’s treatment of disputed matters,” Ursillo, 786 F.2d at 71, this court does not apply the rule mechanically. Rather, where the inaccuracy is de minim-is in the context of the case as a whole, or where the violation of the rule is technical or ministerial, resentencing is not required. United States v. Bradley, 812 F.2d 774, 782 (2d Cir.1987); see United States v. Castillo-Roman, 774 F.2d 1280, 1285 (5th Cir.1985); see also Ursillo, 786 F.2d at 71.
We likewise see no reason to vacate a sentence where, as here, the error could not have been relied upon to the defendant’s detriment. See United States v. Ryan, 810 F.2d 650, 657 (7th Cir.1987); Eschweiler, 782 F.2d at 1390. After considering Oddo’s arguments, we are satisfied that, in view of all of the other evidence presented regarding Oddo’s involvement in the transaction, this particular statement was inconsequential. Indeed, Judge Pratt’s explicit finding that “Mr. Montalvo was acting as a go between, between ... the under cover [sic] officer and Mr. Alio from whom Mr. Montalvo believed he would be able to obtain the cocaine,” clearly indicates that he was not misled as to the chain of supply. Under these circumstances, it would be inappropriate to upset the sentence imposed based on these omissions alone. However, even if a misstatement is “harmless” and does not require resentencing, it must still be corrected or clarified, see Eschweiler, 782 F.2d at 1390; see also Bradley, 812 F.2d at 782, and we therefore remand to the district court for compliance with Rule 32.
We also note and draw the attention of the district court to the fact that the pre-sentence report submitted to this Court under seal as part of the record on appeal has been modified and varies from the one that Oddo challenged. In the version that we have examined, some of the statements that Oddo contested have been corrected, although in other instances, only grammatical changes have been made. One of the significant modifications that we have discovered involves the alteration of the sentence that, according to the government, had contained typographical errors. It now reads: “Montalvo, as previously men-tionedj received the cocaine from Alio” (changes underlined).
While it appears that the government may have made a good faith effort to correct prior errors, we disapprove of the alteration of documents in this manner. Though it may have been appropriate for the government to request permission to submit two versions of the report — the original plus a corrected report marked to show changes — it is improper to submit on appeal a record that differs from that which was actually before the district court. Upon remand, in order to fulfill the purposes of Rule 32, the district court should compare the two versions of the presentence report and ensure that the version considered by the district court to be correct is made available to appropriate prison and parole authorities.
3. Oddo’s Conduct at the Time of Arrest
Both the original report and the modified one contain the disputed statement “Oddo was arrested as he started to run towards the [Roosevelt Field] Mall.” Oddo insists that he was walking, not running. Even though the district court failed to make the required finding with respect to this statement, the accuracy of this representation is immaterial to the propriety of the sentence. Consequently, this alleged misstatement provides no basis to upset the sentence imposed; but since any errors in the report should be corrected, we instruct the district court to comply with Rule 32 on remand with respect to this dispute.
4. The Scope of Oddo’s Criminal Activity
The original report contained the controverted statement that “defendant played what authorities described as a primary role in multiple cocaine transactions.” Oddo asserted in the district court that this statement contained the unwarranted implication that he was a persistent drug dealer who participated in many different drug transactions. He contended that the evidence only demonstrated his involvement in the one transaction to which he had pleaded guilty. The government responded that the report merely alluded to the fact that the transaction was supposed to involve five kilograms of cocaine, to be sold in two exchanges, and that the two-kilogram sale for which Oddo was arrested was only the first installment. Judge Pratt neither addressed this challenge nor disclaimed reliance upon it before imposing sentence. The subject statement is ambiguous and misleading, and we note that this wording has also been changed in the modified version of the report that is now before us. The modified report says “the defendant played what authorities describe as a primary role in a multi-kilo cocaine transaction....”
? review of the transcript of the sentencing hearing suggests that Judge Pratt based Oddo’s sentence primarily on his finding that Oddo was the source of the cocaine. There is no indication that the court understood that Oddo was involved in any other drug transaction or that the sentence imposed was in any way affected by the ambiguous statement in the report. However, we cannot rely upon conjecture as to what statements the district court may have considered or ignored; pursuant to Rule 32, resentencing is warranted whenever the court may have considered a material controverted statement and did not first make a finding as to its accuracy. See Eschweiler, 782 F.2d at 1389, 1390 n. 11 (“[Wjhere it is unclear whether the sentencing judge relied on the contested information, resentencing would resolve the matter.”); United States v. Velasquez, 748 F.2d 972 (5th Cir.1984) (defendant convicted on one count of aiding and abetting transportation of illegal aliens entitled to be resentenced because court may have considered statement that he was a “notorious alien smuggler”); cf. Bradley, 812 F.2d at 782, 783 n. 10 (resentencing not required if, on remand, judge can disclaim reliance on controverted statement containing only de minimis inaccuracy). Since the statement in Oddo’s report about “multiple cocaine transactions,” if considered by the court, may have affected the sentence imposed, we are constrained to vacate the sentence and to remand for resentencing.
B. Failure to Exclude Witnesses
Oddo further argues on appeal that the court violated Fed.R.Evid. 615 by failing to exclude Montalvo from the courtroom during the sentencing hearing while the other witnesses were testifying. This argument is without merit. The rules of evidence, by their own terms, do not apply to sentencing hearings. Fed.R.Evid. 1101(d)(3). Moreover, even if Rule 615 were applicable, this rule explicitly provides that it does not authorize the exclusion of “a party who is a natural person.” Since Montalvo was a party defendant to the joint proceedings being conducted, there was no error in permitting him to remain present while other witnesses were testifying.
C. Sufficiency of the Evidence
Oddo’s final challenge to his sentence is that the government did not present sufficient evidence to substantiate its claim that Oddo provided the drugs that Alio gave to Montalvo for sale to the undercover agent. Judges Pratt and Mishler heard testimony for three days, with evidence presented both by the government and by the defendants. Allo’s testimony was consistent with the version of the facts urged on the court by Oddo; neither Alio nor Montalvo testified that Oddo was the supplier. The undercover agent testified, though, both as to his observation of the drug transaction and, from his expert knowledge and experience, about the roles played by the respective participants. The agent’s testimony established that (1) the supplier of the drugs is often present when his drugs are being sold via a third party to a new buyer, such as the agent was in this transaction; (2) the high quality of the cocaine (96% pure) indicated that the transaction was close to its prime source; and (3) Alio performed the “lookout” role, since he carried a gun and was close to the exchange, while Oddo was unarmed and observed the exchange from a safe distance. This latter conduct was described as typical behavior for a supplier and was inconsistent with Oddo’s professed role of “lookout”.
Judges Pratt and Mishler independently reached the conclusion that the government agent’s testimony was credible, and that Allo’s was not. Since Oddo had argued that the transaction occurred in the manner that Alio had claimed, the court therefore rejected Oddo’s version of the incident. Having reviewed the transcript of the hearing, we find that there was sufficient evidence to support the conclusion of the district court.
CONCLUSION
The district court’s failure to append its findings to the presentence report is a ministerial omission that can readily be cured; the misstatement concerning the identity of Montalvo’s supplier did not prejudice Oddo since the court reached an independent finding that Oddo supplied the cocaine that was sold; and it is immaterial whether Oddo was walking or running at the time of his arrest. None of these errors is significant enough to warrant resentenc-ing. Nevertheless, we remand the case and direct the district court to examine the two versions of the presentence report and to comply with Rule 32 with respect to these matters.
The misstatement in the report which implied that Oddo was involved in drug transactions other than the one for which he was being sentenced was prejudicial and may have influenced the sentence imposed. Since we cannot tell whether the district court considered this statement, we must vacate the sentence. After complying with the obligations of Rule 32, the court shall resentence the defendant. Having considered all of Oddo’s arguments, we reject his other challenges to the sentence imposed.
The sentence is vacated, and the case is remanded for further proceedings consistent with this opinion. The mandate shall issue forthwith.
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_genresp2 | 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.
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.
PEPPER et al. v. TRUITT et al.
No. 3338.
Circuit Court of Appeals, Tenth Circuit.
Nov. 13, 1946.
Riley Strickland, of Amarillo, Tex. (Grester H. LaMar, of Guymon, Okl., on the brief), for appellants.
James S. Twyford, of Oklahoma City, Okl. (L. E. Tryon, of Guymon, Okl., and Solon W. Smith, of Oklahoma City, Okl., on the brief), for appellees.
Before PHILLIPS and MURRAH, Circuit Judges, and CHANDLER, District Judge.
MURRAH, Circuit Judge.
This suit was commenced on June 14, 1945, in the Western District of Oklahoma, by appellants, Dewey B. Pepper, Essie Ree Saxon and J. L. Saxon, as heirs and devi-sees of William D. Henderson, deceased, against W. J. Truitt and Lela Truitt, to set aside a conveyance of real estate executed by Henderson to appellees during his lifetime. The trial court sustained a motion of appellees to dismiss the complaint, and entered judgment for the defendants, on the grounds, first, that the cause of action, if any, was personal in Henderson and did not therefore survive his death; and second, the action is barred by the two or three year statute of limitation. Jurisdiction is based upon diversity of citizenship and requisite amount in controversy, both of which are admitted. The sole question is whether the pleadings, when construed most favorably to the pleader, state a cause of action upon which relief can be granted.
It was alleged in substance that Henderson had the utmost confidence in appellee, Lela Truitt, the former widow of his deceased brother, and on January 28, 1937, took up his abode with the Truitts at their home in Guymon, Oklahoma. That appel-lees orally agreed to “take care” of Henderson during his natural life, in consideration of which on February 2, 1937, Henderson executed his last will and testament in which the Truitts were designated his sole beneficiaries. That thereafter and on June 30, 1938, to better serve their purposes and intentions, Henderson, being weak in body and mind and "under their influence, appel-lees, by .reiterating their promise to take care of Henderson during his lifetime, persuaded and induced him to execute a warranty deed conveying certain described lands in Texas County, Oklahoma, to Lela Truitt. That the deceased did not intend to part with the title to said land unless the promises made by appellees to care for him during the balance of his life were kept. The complaint further alleged that after procuring possession of the land, the Tru-itts requested appellants to come to Guy-mon and take Henderson to Alabama, since they wére unable to care for him any longer; that pursuant to appellees’ request, appellants did come to Guymon in June 1940 and take Henderson to Alabama, and did thereafter have the sole responsibility for his care until his death on January 19, 1941. That after his removal to Alabama, and on October 25, 1940, Henderson executed a codicil to his will, specifically revoking his bequests to appellees, and in lieu thereof designated appellants his sole beneficiaries. It was alleged that by exacting the deed from Henderson, and by breaching their agreement to care for him, the Truitts obtained an “unconscionable advantage” of Henderson, and since they did not care for him hs agreed, the consideration for the deed wholly failed. The prayer was for cancellation of the deed, possession of the land, and an accounting of all rents and bonuses since June 1938.
In their answer, appellees alleged that the deceased intended to and did convey the land to Lela Truitt as a gift in 1938, and since that time they have been in open, notorious and undisturbed possession of same. They denied that they entered into any agreement, verbal or otherwise, to care for Henderson during his lifetime, or that they had exercised any undue influence over the deceased in any manner; and that the deed: was executed of his own free will and accord. As a special defense, they plead the-three and five year statutes of limitation of' Oklahoma as a bar to the prosecution of the suit.
Appellants then filed a supplemental complaint, alleging that the statute of limitations did not begin to run prior to the death of Henderson, because when appellants came to Guymon in June 1940 to take-Henderson back to Alabama, the appellees, promised them that if they would take care of Henderson until his death, they would, have a settlement of his affairs with the-heirs at that time. That in any event, the.obligation to take care of Henderson during his lifetime was the actual consideration of the deed, and could have been fully.met and performed by appellees any time-prior to his death by tendering or 'offering-, to take care of him, and thereby preventing any rescission of the contract during, Henderson’s lifetime. It furthen recited that appellees and Henderson returned to-Guymon on or about July 4, 1940, to see if a definite agreement could, be reached, concerning his property, and for all of these reasons, the statute of limitations would not begin to run until Henderson’s death on January 19, 1941, and in any event not until July 1940.
In support of its decision that the cause of action here asserted did not survive the death of Henderson, the trial court relied upon Berry v. Heiser, 271 Ill. 264, 111 N.E. 99, 101. In that case, a deed was given by parents to a child in consideration of future support. There was a breach of the condition of the deed, but the grantors took no steps during their lifetime to enforce the contract or cancel the deed. After their death, however, the devisees under the will of the husband, as last survivor, sued to set aside the deed and recover the land. The court recognized the right of the grantors to avoid the deed and reclaim the property, but held that such right “Was a mere personal right or privilege, and the bare right to file a bill in equity growing out of the perpetration of a fraud on a party is not assignable.”
The facts in our case and the Berry case are indistinguishably similar. But in the light of subsequent decisions, we doubt if that case is presently the law in Illinois or Oklahoma on the point of survivability. In the subsequent case of Warner v. Flack, 278 Ill. 303, 116 N.E. 197, 198, 2 A.L.R. 423, the court, speaking of the common law rule against the survivability of personal actions, stated, “the rule has no application to cases of equitable cognizance, for remedies administered in equity do not die with the person.” And quoting from another Illinois case (Rickman v. Meier, 213 Ill. 507, 72 N.E. 1121, 1124), the court said, “the law is that where a deed or other conveyance has been procured by undue influence, if it be not ratified by the party making it after the undue influence has ceased to operate, it may be set aside after his death at the suit of those who succeed to his rights.” The court drew a distinction between the assignment of a mere right of action for a tort, condemned by Justice Story in his Commentaries on Equity Jurisprudence, Section 1040g, and the assignment or inheritance of the whole estate to which the cause of action belongs.
It seems now to be the modern and more generally accepted rule that the equitable right of a grantor to seek the cancellation of a deed or other instrument obtained under fraud, undue influence, or failure of consideration, survives to his heirs, devisees or legal representatives. Moran v. Beson, 225 Mich. 144, 195 N.W. 688; Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A.1916B, 862; Fluharty v. Fluharty, 54 W.Va. 407, 46 S.E. 199; White v. Bailey, 65 W.Va. 573, 64 S.E. 1019, 23 L.R.A.,N.S. 232; Annot. 2 A.L.R. 431; 110 A.L.R. 849, 856; 112 A.L.R. 670, 720.
Oklahoma, where we must look for our law, embraces' the general rule of survivability. Under similar facts, the Oklahoma court has recently held that where one conveys laud to another in consideration of the latter’s promise to support the former for his life, his heirs may enforce the remedy of re-entry for breach of the promise, provided it is shown that the breach existed at the time of the grantor’s death. Buckles v. Smith, 195 Okl. 272, 156 P.2d 1019. See also Sims v. Russworm, 192 Okl. 330, 136 P.2d 942; Drake v. High, 69 Okl. 288, 172 P. 53. We conclude that the cause of action herein asserted did survive Henderson’s death, and that the appellants, as heirs and devisees, had standing to maintain this action.
In holding that the asserted cause of action was barred by cither the two or three year statute of limitation, Title 12 O.S.A. § 95(2) (3), the trial court proceeded upon the theory that the action was upon an oral contract founded in fraud; that if based upon fraud, the two year statute applied, and the cause is barred because commenced more than two years after the discovery of the fraud on October 25, 1940, when Henderson executed the codicil to his will. If the three year statute of limitation applies as an action upon an oral contract for failure of consideration, the court was of the opinion that the breach occurred some time after Henderson left the Truitt home in June, and prior to the execution of the codicil on October 25, 1940; that the statute began to run from the time Henderson could have rightfully maintained an action for its breach, which was more than three years before the commencement of this action.
The appellants would have us treat the' cause as one for the recovery of real property and apply the fifteen year statute of limitations under Section 93(4), Title 12 O. S.A., but argue that in any event, the contract sued upon is a continuing agreement to the death of the grantor, and the statute would not therefore begin to run until Henderson’s death on January 19, 1941. It is said that this action is patterned upon the Oklahoma case of Campbell v. Dick, 71 Okl. 186, 176 P. 520. That case does hold that where the primary purpose of an action is the recovery of possession of land, the fifteen year statute of limitations applies, although the incidental grounds of recovery may be fraud in the conveyance. But, subsequent Oklahoma decisions have expressly repudiated Campbell v. Dick, supra, and have unequivocally established the rule that an equitable action for the re-investment of the legal title to real property is not governed by the fifteen year statute of limitations. Dillon v. Helm, 196 Okl. 140, 163 P.2d 539; Mansfield, Brunson, Kemp, & Ahrens v. King, 160 Okl. 243, 16 P.2d 87; Tomlin v. Roberts, 126 Okl. 165, 258 P. 1041; Warner v. Coleman, 107 Okl. 292, 231 P. 1053.
Since this is an equitable action, the defense of laches necessarily applies, and the statute of limitations has relevancy by analogy only. A court of equity is not bound by the statute of limitations. It may grant relief, although an action at law would be barred by the statute, or it may withhold relief though the statute of limitations would not bar the action. But, in the absence of extraordinary circumstances, equity will usually grant or withhold relief in analogy to the statute of limitations relating to actions at law of like character. Wilhelm v. Pfinning, Okl.Sup., 129 P.2d 580; Dunavant v. Evans, Okl.Sup., 127 P.2d 190; Thompson v. Rosehill Burial Park, 177 Okl. 422, 60 P.2d 756; Shell v. Strong, 10 Cir., 151 F.2d 909.
Whether the two, three or five year statute of limitations applies by analogy depends of course upon the nature of the action. Although appellants plead facts, which if true, amount to undue influence or “unconscionable advantage”, they assiduously avoid any mention of the word fraud, and in their briefs deny any intention to rely upon it. This is not an action upon an oral contract under Section 95(2), Title 12 O.S.A., or for damages for its breach. It is an equitable action for cancellation of the deed and, possession of the property, based upon failure of consideration. The oral contract is merely evidence of the consideration, and its alleged breach is proof of its failure. Th.e deed is unconditional upon its face, and apparently conveys an indefeasible title. If, however, the consideration wholly failed by a breach of the oral promise, for which the deed was given, equity treats the action for cancellation as one upon a condition subsequent. Moffatt v. Moffatt, 195 Okl. 498, 159 P.2d 531; Annot. 76 A.L.R. 742. It is thus clear that since neither the two, three nor fifteen year statute of limitations applies, the action is one for relief “not hereinbefore provided for” and the five year statute is analogous. Section 95(6), O.S.A., Title 12.
Appellants attempt to toll the statute by arguing that they were lulled by appellees’ alleged promise to have a settlement of Henderson’s affairs upon his death, and that therefore the statute did not start to run in any event until Henderson’s death, January 19, 1941. But at the time of the alleged promise, any existing cause of action was in Henderson, and appellants did not succeed thereto until his death. Meanwhile, the statute began to run against Henderson when he could have first maintained the action, and it continued to run against him throughout his lifetime, and thereafter against his heirs until the action was barred by laches. Griffin v. Hannon, 185 Okl. 433, 93 P.2d 1078.
Appellants attempt also to show that no breach existed until the death of Henderson, because appellees always had the privilege of performing the contract and thus avoiding a breach at any time before Henderson’s death. If this be true, the cause of action did not survive for, as we have seen, its survivability depends upon whether it existed at the time of the grantor’s death. See Buckles v. Smith, supra. We think, however, that Henderson’s involuntary departure from the Tru-itt home clearly constituted a breach of the agreement, and that Henderson’s execution of a codicil to his will was an election to rescind. Cf. Buckles v. Smith, supra. We hold that the alleged oral agreement was breached, and the asserted cause of action accrued in June 1940, when Henderson was taken from the Truitt home in Guymon. This suit was brought on June 14, 1945, and the pleadings do not show upon their face the exact date of Henderson’s departure in June 1940. If the breach occurred before the 14th of June, more than five years had elapsed when this suit was commenced. We have recently said that “Under ordinary circumstances, a suit in equity will not be stayed for laches before, and will be stayed after, the time fixed by the analogous statute, but if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the analogous statute, a court of equity will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. When a suit is brought within the time fixed by the analogous statute, the burden is on the defendant to show, either from the face of the complaint or by his answer, that extraordinary circumstances exist which require the application of the doctrine of laches. On the other hand, when the suit is brought after the statutory time has elapsed, the burden is on the complainant to aver and prove circumstances making it inequitable to apply lach-es to his case.” Shell v. Strong, supra [151 F.2d 911]. What we said there is singularly apposite here.
A pre-trial order, certified to us after argument, shows that Henderson left the Truitt home on June 12, 1940. The appellants now, however, deny the correctness of this date, and seek to be relieved of its effect. When the pre-trial order was entered, the date of Henderson’s departure did not appear to be a crucial fact in the lawsuit, and we are not disposed to hold the appellants to this date in the circumstances. Pre-trial agreements are the product of professional cooperation. They are generally arrived at voluntarily in the interest of time and economy, and in order to dispense with the necessity of formal proof of matters about which there is no substantial dispute. Their utility as an implement in the administration of justice necessarily depends upon their flexibility. If they are to serve their useful purpose, they must not be used to work a hardship or an injustice on those who have freely co-operated in furtherance of juridical efficiency. A lawyer should not be bound by an admission of a fact in a pre-trial agreement which, at that time, appeared to be inconsequential, but which later became crucial and doubtful.
The case is reversed and remanded in order that the trial court may ascertain the correct date of Henderson’s departure from the Truitt home, and proceed according to the views herein expressed.
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_fed | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. William ALOISIO et al., Defendants-Appellants.
Nos. 17799-17802.
United States Court of Appeals, Seventh Circuit.
March 10, 1971.
Rehearing Denied in No. 17802, April 9, 1971.
Frederick F. Cohn, Martin S. Gerber, Ronald P. Alwin, George F. Callaghan, Julius L. Echeles, Jo-Anne F. Wolfson, Chicago, Ill., for appellants.
William J. Bauer, U. S. Atty., Joseph K. Luby, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
CUMMINGS, Circuit Judge.
In July 1968 the four appellants and four others were indicted for conspiring to counterfeit United States Treasury Notes in the northern district of Illinois, commencing in September 1967, in violation of the general conspiracy provision found in 18 U.S.C. § 371. Bartoli was also charged in Count Two with forging 99 counterfeit United States Treasury Notes in Rockford, Illinois, in January 1968, in violation of 18 U.S.C. § 471. In Count Seven, he was charged with having a counterfeit $10,000 Treasury Note in his possession on January 20, 1968, in Chicago, intending to sell it, in violation of 18 U.S.C. § 474. Jasinski was also charged with having the same Treasury Note in his possession in Chicago on January 16, intending to sell it, in violation of the same provision. Aloisio, Jasinski, and Solomon were named in three other counts concerning actions with respect to the 99 counterfeit $10,000 Treasury Notes, allegedly violating 18 U.S.C. §§ 472, 473, and 474. After a jury trial, the four appellants were found guilty as charged. Solomon and Bartoli received 10-year concurrent sentences on the substantive counts and five-year concurrent sentences on the conspiracy count; Aloisio and Jasinski received 5-year concurrent sentences. Having considered the various grounds urged for reversal, we affirm.
I. The Validity of the Indictment.
A. Use of Hearsay Evidence.
Defendants first challenge the validity of the indictment against them on the ground that it was based “largely if not wholly” upon hearsay testimony.
In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, the Supreme Court categorically refused to invalidate an indictment based upon hearsay evidence under either the Fifth Amendment or its supervisory powers over federal courts. This Court has repeatedly rejected similar attacks upon the quality of evidence relied upon by grand juries. See, e. g., United States v. Daddano, 432 F.2d 1119, 1125 (7th Cir. 1970), certiorari denied, 39 U.S.L.W. 3450; United States v. Braico, 422 F.2d 543, 545 (7th Cir. 1970). Nor is there any suggestion in this case that the “integrity of the judicial process” is jeopardized by the manner in which the Grand Jury reached its determination. See United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969).
B. Failure to Preserve Testimony.
Defendants next ask that the indictment be dismissed because the Government failed to record and preserve the testimony of witnesses before the Grand Jury. They argue that such a requirement is necessary in order to implement the right of a defendant to access to a witness’ grand jury testimony on subjects about which he subsequently testifies at trial. See United States v. Amabile, 395 F.2d 47, 53 (7th Cir. 1968), certiorari denied, 39 U.S.L.W. 3361.
The basic rules relating to federal grand juries are set forth in Rule 6 of the Federal Rules of Criminal Procedure. Rule 6(d) presently permits, but does not demand, the presence of a stenographer for the purpose of recording evidence. This approach, though justifiably criticized on several grounds, has nevertheless been uniformly observed by other Circuits. See Schlinsky v. United States, 379 F.2d 735, 740 (1st Cir. 1967); United States v. Cianchetti, 315 F.2d 584, 591 (2d Cir. 1963); United States v. Kind, 433 F.2d 339, 340 (4th Cir. 1970); Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969), certiorari denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509; United States v. Hensley, 374 F.2d 341, 352 (6th Cir. 1967); United States v. Franklin, 429 F.2d 274, 276 (8th Cir. 1970); United States v. Ybarra, 430 F.2d 1230, 1233 (9th Cir. 1970); McCaffrey v. United States, 372 F.2d 482, 484 (10th Cir. 1967), certiorari denied, 387 U.S. 945, 87 S.Ct. 2078, 18 L.Ed.2d 1332. While we agree that the preservation of grand jury testimony is the wise practice, we are presently unwilling to bind the various district courts of this Circuit to such a practice. Rather, we will rely upon the individual district courts to exercise their local rule-making powers in this area pending any amendment to Rule 6(e) of the Federal Rules of Criminal Procedure.
II. Sufficiency of the Evidence as to Aloisio and Jasinski.
A. Aloisio
At the inception of the conspiracy in August 1967, defendant Grace Cosentino, whose trial was severed, told informer Ted Kay that she and her partners were planning to counterfeit United States government securities, and that she and her boy-friend “Smokes,” later identified as Aloisio, were going to supply an unidentified banker friend with $1,500,000 worth of such securities. On January 11, 1968, she told Kay that she and “Smokes” were all set with such securities for their banker friend. Kay agreed to supply her with a purchaser for some of the counterfeit Treasury Notes. Mrs. Cosentino agreed to have “Smokes” or Solomon present at the time of delivery to protect the proposed deal. Five days later, she reiterated to Kay and Agent Gibbs that Solomon or “Smokes” would be present at the closing to protect all parties. Gibbs expressed some suspicion of “Smokes,” but Mrs. Cosentino assured him that “Smokes” knew of the counterfeiting venture and could be trusted.
On the evening of January 17, Aloisio phoned Mrs. Cosentino’s home from a restaurant and lounge at 1202 West Grand Avenue, Chicago. He told Mrs. Cosentino’s daughter, Antonia, to call her mother and have her call him at HA 1-8760. Antonia relayed this message to'her mother who was then in Agent Gibbs’ room in the Chicago Airways Motel. Mrs. Cosentino told Gibbs that her close friend “Smokes” was concerned about her and had just asked her, through Antonia, to call him at HA 1-8760. Mrs. Cosentino tried that number and received a busy signal. Thereafter, Aloisio again telephoned Antonia and told her that he had not yet heard from Mrs. Cosentino. Antonia then called her mother again, and Mrs. Cosentino told Gibbs that “Smokes” had called again and was concerned about her.
Thereafter, Mrs. Cosentino called HA 1-8760 from Gibbs’ room. He overheard her say that “she was with the man [Gibbs] at the motel room at that time, and was talking to him about the deal, and told this individual [Aloisio] that he had nothing to worry about; that I [Gibbs] was a gentleman, and she didn’t see where anything could go wrong and told him not to worry.” She also asked him where he was going to be later and told him that she would see him later that day. After she hung up, she told Gibbs “that was her friend Smokes who was very concerned about her.” She stated that “he felt that the deal she was entering into with me [Gibbs] might be a setup, and that because he was such a close friend he was concerned about her welfare and didn’t want her to get into any trouble.” Over objection the foregoing testimony was admitted into evidence. It indicates that Aloisio was involved in the conspiracy as early as August 1967. Moreover, his telephone conversation with Mrs. Cosentino revealed his knowledge of the conspiracy and his concern for its success.
Through Antonia Cosentino and the telephone number testimony, the Government showed that Aloisio was the person to whom Mrs. Cosentino was talking from Gibbs’ motel room. Accordingly, the testimony of Mrs. Cosentino’s conversation with Aloisio was competent (United States v. Bucur, 194 F.2d 297, 304 (7th Cir. 1952) ) and evidenced a conspiracy in which Aloisio was involved. The remainder of Mrs. Cosentino’s statement to Gibbs was also admissible against Aloisio as a statement of a co-conspirator in furtherance of the conspiracy. Aloisio’s January 22 appearance with Jasinski outside the motel, surveying the motel for about 30 minutes with the car motor on, corroborated Mrs. Cosentino’s and Solomon’s statements to Gibbs that morning that they had partners across the street covering the deal. We conclude that there was ample evidence to link Aloisio with this conspiracy and to make him an aider and abettor as to the three substantive counts in which he was named.
B. Jasinski
On January 22, 1968, when Solomon and Mrs. Cosentino were delivering $1,-000,000 in counterfeit Treasury Notes to Agent Gibbs in his motel room, they told Gibbs that two of their partners were across the street from the motel in an automobile for the protection of all concerned. At the same time, Agent Tucker had observed Jasinski and Aloisio watching the motel for about 30 minutes from their parked car with the motor on. Mrs. Cosentino’s and Solomon’s remarks to Gibbs clearly linked Jasinski and Aloisio to the scheme. Jasinski was also linked by his right thumbprint found on a “Saturday Evening Post” covering a sample of the counterfeit Treasury Notes that Mrs. Cosentino delivered to Gibbs on January 16. Since the conspiracy had already been established, this evidence, viewed in the light most favorable to the Government, sufficed to connect Jasinski with the conspiracy. The evidence also established his culpability as an aider and abettor of the commission of the substantive offenses with which he was charged.
III. The Constitutionality of the Identification of Aloisio.
Ted Kay, an unindicted coconspirator, began to cooperate with the Government in this investigation in September 1967. He, Solomon, and Mrs. Cosentino were arrested in Agent Gibbs’ room at the Chicago Airways Motel on the morning of January 22, 1968. The Government has advised us that informer Kay was taken to the United States Marshal’s lockup along with the other defendants for his own protection. At 11:00 a. m. in the lockup, before being placed in a cell, Kay was with “some of the defendants” and John Varelli. In response to a question as to what Varelli said to Aloisio, Kay replied:
“Well, the best as I can recall, I remember him [Varelli] saying, ‘Hi, Smokes.’ And Smokes spoke back to him in Italian. I could understand a couple of the words, but I didn’t recall the whole conversation. In Italian, he [Aloisio] said not to say anything.”
Relying upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, defendant Aloisio now asserts that Kay’s identification of him as “Smokes” should not have been admitted because the conversation occurred in the federal lockup after his arrest without benefit of counsel. We disagree.
The defendants did not show that the purpose of placing Kay in the cell in the Marshal’s lockup was to obtain information for this case. Kay himself testified that the Secret Service did not tell him to overhear what might be said in the Marshal’s office or in the lockup cells. He was placed in a cell by himself and had no idea how many people were in the adjoining cell except that Varelli was in it during part of the hour that Kay remained in his cell. The transcript does not reveal that Kay heard any conversations from other cells. Kay’s subterfuge of being a codefendant had already been pierced, for, while standing in the lockup hallway with other apprehended persons, Aloisio saw Solomon kick Kay in the groin and later admonished Varelli in Italian “not to say anything.” Kay was not placed in the lockup to elicit admissions, nor was Varelli’s knowledge of Aloisio as “Smokes” deliberately elicited. In these circumstances, the admission into evidence of the volunteered statement of a non-defendant clearly did not vitiate Aloisio’s conviction. United States ex rel. Milani v. Pate, 425 F.2d 6 (7th Cir. 1970); United States ex rel. Baldwin v. Yeager, 428 F.2d 182, 184 (3d Cir. 1970); United States v. De Leo, 422 F.2d 487, 496 (1st Cir. 1970), certiorari denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648; United States v. Mitchell, 417 F.2d 1246, 1249 (7th Cir. 1969); United States v. Fioravanti, 412 F.2d 407, 413 (3d Cir. 1969), certiorari denied; Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88; cf. Miller v. Carter, 434 F.2d 824, 825 (9th Cir. 1970).
IV. The Suppression of Fingerprints.
Defendant Jasinski urges that the fingerprints obtained from him after his January 22, 1968, arrest were subject to Fourth Amendment protection because his arrest was without probable cause. This objection was not made at the trial but may be considered here under Rule 52(b) of the Federal Rules of Criminal Procedure.
Even though the complaint against Jasinski was dismissed before his indictment, this record shows that there was probable cause for his January 22nd arrest. On the morning of January 22, in Agent Gibbs’ room at the Chicago Airway Motel, Solomon and Mrs. Cosentino told Gibbs that they had two “partners” across the street covering the action, and Gibbs shortly thereafter so advised Agent Cozza. In turn, he communicated by radio to Agent Tucker on the street. Tucker told Cozza that Jasinski and Aloisio had been in the parking lot for half an hour seated in a car with the motor running and observing the motel. Theirs was the only car in the parking lot with anyone inside. Because of the information communicated to Gibbs by Mrs. Cosentino and Solomon, and because of Aloisio’s and Jasinski’s suspicious behavior on the motel parking lot, Tucker had probable cause to arrest them that morning. Therefore Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 and Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958), do not require the suppression of the fingerprints.
V. Improper Reference to Photographs.
Defendants Aloisio and Bartoli contend that they were denied a fair trial because references to their so-called “mug shots” informed the jury of their prior criminal records. We have carefully studied the three brief passages in the transcript concerning these photographs and note that the references were not elicited by the Government but occurred in cross-examination by defense counsel. Although the testimony revealed that the photographs were seen by Agents Sheriff and Tucker in the Chicago office of the Secret Service, they were merely described as bust photos with their names written on the reverse sides. The evidence did not disclose that these were “mug shots” or contained police numbers thereon, nor was there any mention of prior criminal activities of these two defendants. No reversible error resulted from the innocuous comments concerning the two photographs. United States v. Robinson, 406 F.2d 64, 66 (7th Cir. 1969); United States v. Schwartz, 398 F.2d 464, 470 (7th Cir. 1969).
VI. Examination of Agent Tucker.
Aloisio urges that reversal is required because of the following question asked by an Assistant United States Attorney:
“By Mr. Weber:
Q. Agent Tucker, going back to January 17th at 9:00 p. m., in the vicinity of Grace Cosentino’s house, what if any information did you have as to whether Mr. Aloisio was there on business or on pleasure ?
Mr. Callaghan: Oh, objection.
*****«•
The Court: The objection is sustained.
Mr. Weber: I have no further questions.”
Aloisio’s defense was that he was merely a social friend of Mrs. Cosentino. However, the Government was entitled to question that defense by asking Agent Tucker whether he had information that Aloisio’s visit was indeed for business purposes, and government counsel was careful to phrase his question in the alternative. In any event, Aloisio’s argument must fail, since the objection was sustained and the jury was instructed that it was to consider only properly admitted evidence.
VII. Entrapment Instructions.
Solomon contends that the trial judge should have given three proffered entrapment instructions. However, the evidence does not reveal that any government agent induced Solomon to commit this offense. In fact, on January 18, 1968, informer Kay offered Solomon an opportunity to avoid participation. The trial court was correct in ruling that there was no evidence of entrapment, so that entrapment instructions were inapposite.
VIII. Comment on Defendants’ Failure to Testify.
Solomon and Aloisio assert that Agent Gibbs commented on their failure to testify. During his cross-examination by defendant Solomon, Gibbs was asked whether he was wearing his “mickey mouse” watch when he met Solomon on January 18, and Gibbs replied, “You will have to put on one of your clients to determine that conclusion.” No objection was made to this answer. The exchange occurred during the Government’s case, when it was not known whether or no Solomon would take the stand. We do not view the remark as a comment on Solomon’s failure to testify. Moreover, the jury was properly instructed that a defendant has the right not to testify and not to draw any inference against him because of a failure to do so.
IX. Cross-Examination of Informer Kay.
Aloisio asserts that the defendants’ rights were denied by the limitation of the cross-examination of informer Kay in three particular instances.
First, the district judge sustained the Government’s objection as to whether Kay was guilty of filing false income tax returns. The defense was permitted to show that there was a pending indictment against Kay with respect to filing a false income tax return, thus permitting defendant to attack his credibility. As we noted in United States v. Varelli, 407 F.2d 735, 751 (7th Cir. 1969), cross-examination on such matters is subject to a self-incrimination exception, so that the court’s ruling was correct.
Because of Kay’s Fifth Amendment rights, the district judge also properly sustained an objection as to whether Kay had transported a $100,000 bond in interstate commerce. Again counsel was permitted to demonstrate Kay’s indictment for that offense as affecting his credibility.
In a belated attempt to show that the Government posted the informer’s bond, Aloisio urges that Kay should have been permitted to say who put up his $50,000 bond. In light of the extensive examination of the witness on all other possible links with the prosecution, if still questioned, the district court’s ruling that the question of the source of bond money was irrelevant was not an abuse of discretion. Moreover, Aloisio’s own counsel’s closing argument indicated that Kay’s mother raised the money.
Our examination of the voluminous cross-examination of witness Kay convinces us that extremely broad latitude was allowed defense counsel. They were given great freedom in their efforts to show that Kay was a biased perjuror with obligations to the Government, and that his testimony had been “bought” by the Secret Service. His unsavory background was thoroughly explored by defense counsel. Kay denied that he was testifying in the present lawsuit in order to be freed of the income tax and stolen bond charges, and the jury was entitled to credit his denial. The strictures of Varelli and similar eases dealing with the scope of cross-examination were abundantly satisfied.
X. The Prosecutor’s Closing Argument.
Aloisio and Bartoli assail the prosecutor’s closing argument to the effect that (1) Kay’s testimony was so well corroborated by Secret Service agents that the jury would have to disbelieve the prosecutor and agents if it disbelieved Kay, (2) it was not the Government’s intention to send innocent men to the penitentiary, and (3) the Government was standing by its agents. These remarks are rather typical of the highflown rhetoric used in closing arguments by both sides. The prosecutor was not impermissibly speaking of facts outside the record or within his own personal knowledge. In the context of his closing, he was referring to what was in the record and rebutting the attack of the defense on the integrity of the prosecution, including “the manufacturing of crime.” The comments of government counsel were quite clearly provoked by the vigorous defense and do not merit reversal. Lawn v. United States, 355 U.S. 339, 359-360, 78 S.Ct. 311, 2 L.Ed.2d 321 note 15; United States v. Battiato, 204 F.2d 717, 719 (7th Cir. 1953).
The judgments are affirmed.
. The American Bar Association’s Special Committee on Federal Rules of Procedure has, for the second time, recommended to the Supreme Court’s Advisory Committee an amendment to Rule 6(e) of the Federal Rules of Criminal Procedure which would mandate recording of all testimony before an accusatorial grand jury. 52 F.R.D. -, -; see also 38 F.R.D. 95, 106.
. Commendably, the United States District Court for the Northern District of Illinois has already adopted an appropriate rule tp that effect:
Local Rule 1.04(c). Official Reporter to Attend Sessions of the Grand Jury. An Official Reporter of this Court shall attend and record all testimony of witnesses appearing before every Grand Jury. Such record shall be filed with the Clerk of the Court and transcribed and released to the Court upon order or to the United States Attorney upon request and payment of the appropriate fees to the Official Reporter.
See United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969), for a perceptive study of this problem.
. This objection was not made at the trial but will be considered in view of its constitutional nature. Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (per curiam).
. United States v. Blassick, 422 F.2d 652, 654 (7th Cir. 1970).
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_appel1_7_5 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Appellee, v. Raymond Earl HUDSON, Appellant.
No. 77-1045.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 11, 1977.
Decided Dec. 1, 1977.
Will T. Dunn, Jr., Greenville, S. C., for appellant.
William A. Coates, Asst. U. S. Atty., Greenville, S. C. (Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.
Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.
PER CURIAM:
Raymond E. Hudson appeals from a judgment convicting him of multiple counts involving stolen motor vehicles in violation of 18 U.S.C. §§ 2313 and 2. He alleges that the government failed, as a matter of law, to carry its burden of proving sanity beyond a reasonable doubt once he had placed his sanity in issue. The government produced no expert testimony to rebut Hudson’s expert testimony tending to show insanity. Instead, it relied on cross-examination of Hudson’s experts, on the testimony of a lay witness who was acquainted with Hudson at the time he committed the offense, and on Hudson’s demeanor on the witness stand when he testified in his own behalf.
Although the use of expert witnesses by the government in this type of situation is usually desirable, it is not always a prerequisite for withstanding a motion for a judgment of acquittal. Mims v. United States, 375 F.2d 135, 140-44 (5th Cir. 1967); cf. United States v. Wilson, 399 F.2d 459, 462-63 (4th Cir. 1968). Federal Rule of Criminal Procedure 12.2, which pertains to giving notice of a defense based on mental condition, does not alter this substantive law. While Rule 12.2 is designed to give the government an opportunity to obtain the expert witnesses they ordinarily will need, it does not require such testimony.
Hudson presented enough evidence to place on the government the burden of proving his sanity. Upon a review of the whole record, however, we conclude that the government’s rebuttal evidence was sufficient to allow a jury to find that, beyond a reasonable doubt, Hudson was legally sane at the time of the offenses.
We find no error in the court’s instructions on the issue of insanity when they are read, as they must be, in the context of all the instructions given. Nor did the court’s own examination of Hudson’s experts inject error into the proceeding.
The judgment is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_appbus | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES FIDELITY & GUARANTY CO., Appellant, v. UNITED STATES, Appellee.
No. 4610.
Circuit Court of Appeals, Third Circuit.
Nov. 16, 1931.
Frederick H. Spotts and Layton M. Schoch, both of Philadelphia, Pa. (Pepper, Bodine, Stokes & Schoch, of Philadelphia, Pa., of counsel), for appellant.
E. W. Rhodes, Asst. U. S. Atty., of Philadelphia, Pa.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
PER CURIAM.
The above case having been called for argument, and the court being informed by counsel for the government that the appellee consented to a reversal of the judgment, it is now here ordered and adjudged by this court that the judgment of the said District • Court in this cause be, and the same is hereby, reversed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_appfiduc | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Abraham MANDEL, Executor of the Will of Max Mandel, Deceased, Plaintiff-Appellant, v. Walter R. STURR, Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees. Pauline HOFFMAN, Lillian Starr, Joseph J. Mandel and Abraham Mandel, Plaintiffs-Appellants, v. David COPANS, Executor of Harry M. Hickey, deceased, former Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees.
Nos. 59 & 60, Dockets 24993, 24994.
United States Court of Appeals Second Circuit.
Argued Jan. 7, 1959.
Decided April 29, 1959.
James R. Rowen, New York City (Abraham Mandel, New York City, on the brief), for plaintiffs-appellants.
Arthur V. Savage, Asst. U. S. Atty., Southern District of New York, New York City (Arthur H. Christy, U. S. Atty., Southern District of New York, New York City, on the brief), for defendants-appellees.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge.
GIBSON, District Judge.
Abraham Mandel, executor under the will of Max Mandel, and the beneficiaries, Pauline Hoffman, Lillian Starr, Joseph J. Mandel, Abraham Mandel, hereinafter referred to as the beneficiaries, brought their actions to recover amounts paid by them under protest as a result of additionally assessed estate and income taxes. The executor and the beneficiaries, respectively appeal from the determinations of the Trial Court sustaining in part the deficiency assessed by the Commissioner of Internal Revenue in the estate tax reported by the executor and the income taxes of the recipient-beneficiaries. The appeals in the two cases have been consolidated.
The essential facts of this case are fairly clear. At the date of Max Mandel’s death on June 9, 1945, he and David Wolf son were sole partners in a military uniform business. It is apparent from the facts that the partnership owned and required substantial capital to function. Under the terms of an agreement entered into between the surviving partner and the executor, on December 31, 1945, the book value of Max Mandel’s share in the tangible assets of the partnership was fixed at $153,162.56. There is no reason to doubt that this was a fair valuation. In fact, that figure is not questioned either in the court below or before this court. That amount was included in the decedent’s gross estate and the estate tax properly paid. The sole issues here are (1) whether the gross estate of the decedent includes an amount ($12,595.57) received pursuant to a partnership agreement representing interest on the capital account (valued at $153,162.56), and (2) whether it includes an amount ($10,-000) received by the estate in settlement of a claim to participate in the profits of the business as carried on by the surviving partner (Wolfson) subsequent to the death of Max Mandel. Are these amounts “income in respect of a decedent” to the beneficiaries within the meaning of Section 126, Internal Revenue Code of 1939, 26 U.S.C.A. § 126?
The partnership agreement in effect at Max Mandel’s death provided in part as follows:
“13. That at the expiration of this partnership by the expiration of its term or by reason of any other cause, a full and accurate inventory shall be prepared, and the assets, liabilities and income, both gross and net, shall be ascertained; the debts of the partnership shall be discharged; and all monies and other assets of the partnership then remaining shall be divided in specie between the parties share and share alike, provided, however, that the capital accounts are equal, and if not equal, in that event in such proportion as the capital accounts bear to each other.”
“18. That in the event of the death of either party hereto, this partnership shall terminate and the surviving partner shall become trustee of all of the assets and business of the partnership for the purpose of liquidating the same, discharging its debts and paying to the representatives of the deceased party the respective share as hereinabove provided of said deceased party. The said surviving party shall pay to the representatives of the deceased party the sum of $5,-000. in cash immediately upon receipt from the insurance company of the proceeds of the policy referred to hereinabove in Paragraph 16 and the balance of the deceased party’s share in the partnership in 40 equal monthly installments with interest at the rate of 6% per annum to be computed from the date of demise * * *”
There are other provisions in the agreement whereby a retiring partner could similarly receive installment payments of his partnership share upon retirement. There is little or no doubt that the value of an estate’s right to receive income earned by a partnership subsequent to the death of a deceased partner is includible in the gross estate. As this court stated in Riegelman’s Estate v. Commissioner, 2 Cir., 1958, 253 F.2d 315, 316, an extended discussion is not required as to that particular point, it having been adequately reviewed and analyzed elsewhere. However, this case is distinguishable from Riegelman on the facts.
The amount of $22,595.57, the subject of this appeal, derives from two sources. Firstly, under the quoted portions of the partnership agreement, the deceased partner’s share in the partnership assets was payable to the estate in 40 equal monthly payments with interest at 6% per annum. There was, however, a lapse of some six months from the date of Max Mandel’s death without any such payments being made. It is apparent that after negotiation between the executor and the surviving partner, David Wolfson, a Memorandum Agreement was entered into which provided that the deceased partner’s share of the partnership assets, valued at $153,162.56, would be paid to the estate in full. Wolfson then paid that amount as agreed. They further agreed that the amount of $12,-595.57 was to be paid to the estate in full settlement of all interest due or to become due on the capital account under the Mandel-Wolfson partnership agreement and that an additional $10,000 would be paid by Wolfson in settlement of any claim the estate and beneficiaries might have to post-mortem profits in the partnership. There is no evidence that these were other than arm’s-length negotiations, or that the interest provisions of the partnership agreement were calculated as a method of substituting interest payments for capital to escape possible estate taxation.
The sum of $22,595.57, representing the total of $12,595.57 in interest and $10,000 in settlement of the claim to future profits was paid by Wolf son and distributed to the beneficiaries. The executor and recipient-beneficiaries brought their actions to recover taxes paid on these amounts under protest.
Although Section 126 of the Internal Revenue Code of 1939 is high on the list of vaguely drafted legislation in a field notoriously complex, we see no reason to extend its broad language so far as the Government urges in this case. The $12,595.57 was paid by Wolf-son in settlement of. interest due on an asset of the estate. It was a fair amount to pay for the full usage had by Wolf-son of the capital of the estate invested in his business over the period of time until the full share of the decedent’s interest in the partnership assets was paid in full to the estate. As such, the $12,-595.57 is in the nature of a legal rate of interest or return on a capital investment significantly represented by the principal amount of $153,162.57, already included in the gross estate and the estate tax once paid. To perpetually tax the right to interest or earning capacity of the capital already included in the gross estate, as the appellee suggests, extends the meaning of the Code beyond reason. The Government places much reliance on the Riegelman case, supra, wherein this court reviewed much of the legislative and case history of Section 126, Internal Revenue Code of 1939. That case has, however, no factual similarity to the ease before us. In the case before us, capital is a substantial income producing factor, whereas in Riegelman, it is not. The interest payment can hardly be said to be “the fruits of the (deceased’s) professional activity during his lifetime.” The $12,595.57 has once been accounted for, in effect, by the inclusion of the $153,162.56 in the decedent’s gross estate and is an inherent part of that amount. Such a conclusion is in accord with the court’s reasoning in McClennen v. Commissioner of Internal Revenue, 1 Cir., 131 F.2d 165, 169, 144 A.L.R. 1127. There Judge Magruder aptly analogizes to the case of one who dies possessed of a $1,000 bond payable in ten years bearing interest at 6%. Judge Magruder points out that the bond in its entirety, valued at par at the date of death, will be included in the gross estate, and upon the decedent’s death the right to future income payments have been in effect included in that amount in his gross estate. In short, the interest payment in the case before us is not separately attributable “to the activities of the decedent during his lifetime,” but is attributable to the earning capacity of the capital of the estate allowed to remain in Wolfson’s business. It has been in effect accounted for by the inclusion of $153,162.56, the deceased’s share in the partnership, in the gross estate. In the absence of any evidence of subterfuge on the part of the partners, Mandel and Wolf son, whereby the value of their respective partnership share was understated and subsequently paid out to the estate in the guise of interest payments, we hold that the interest payment of $12,595.57 is not a proper item for inclusion in the decedent’s gross estate, nor is it to the recipient-beneficiaries “income in respect of a decedent.” It is, however, as the appellants admit, ordinary income accruing to the estate and beneficiaries.
The $10,000 item which the Government contends is squarely within the rationale of the Riegelman and McClennen cases poses another question. If this payment represents a settlement of the estate’s established right to postmortem partnership earnings, and such right was created prior to the decedent’s death as a substitute for the estate’s common law liquidation share, then it is a sum includible in the gross estate. However, to characterize the $10,000 payment as a settlement of an existing right of the estate at the date of the decedent’s death is inaccurate. The situation as to the $10,000 Wolfson paid the executor and beneficiaries to settle their claim for post-mortem profits is quite different. Had Wolfson promptly carried out the terms of the partnership agreement, the executor and beneficiaries would have had no right to claim any share in post-mortem profits. Neither the decedent nor his executor or beneficiaries could anticipate that Wolfson would not promptly proceed to carry out the applicable provisions of the partnership agreement.
When the executor concluded that Wolfson had unduly delayed carrying out the terms of the partnership agreement he entered a claim for post-mortem profits accruing during this claimed undue delay.
In McClennen and in Riegelman the courts had before them partnership agreements obviously providing for a right of the estate to share in postmortem profits in lieu of common law liquidation rights to which the estate would have succeeded in the absence of those agreements. There is no such provision in the Wolfson-Mandel partnership agreement. As stated in Riegelman [253 F.2d 319]: “the payments were not gifts, nor were they attributable to anything done by Riegelman’s estate.” On the other hand, in the case before us, the $10,000 was a purchase of peace by Wolfson, in effect attributable to the activity of the executor and beneficiaries.
When Max Mandel died on June 9, 1945, the estate was properly entitled to a settlement of its share in the Mandel-Wolfson partnership interest pursuant to the partnership agreement. While the decedent’s estate was entitled to monthly payments with interest in the manner provided in sections 13 and 18 of that agreement, there is no provision for post-mortem partnership profit payments such as we find in Riegelman. It was only after a lapse of six months or so, during which time no monthly payments were forthcoming that the executor felt entitled to a certain percentage of partnership profits to compensate them for Wolfson’s undue delay in paying over its share in the partnership assets. The estate’s share in the partnership’s tangible assets was a benefit to Wolfson’s business so long as it was retained by him after the death of the decedent, Max Mandel. From these facts the estate’s claim to partnership profits arises. In settlement of this claim, the executor, Wolfson, and the beneficiaries entered into a Memorandum Agreement whereby it was agreed that Wolfson would pay $10,000 in full settlement of any claim the executor and the beneficiaries might have to post-mortem profits; in Wolfson’s business. This payment is referred to in the Memorandum Agreement as being “in full settlement of the claim of (the executor and the beneficiaries) to participate in the profits of (the business) * * * ”, This Memorandum Agreement established a new right that did not exist at the time of the decedent’s death — a sum paid in satisfaction of the contentions of all parties thereto. $10,000 paid under these circumstances does not conclusively establish an existent right of the estate to participate in post-mortem profits when we come to the issue of estate and income taxes. There may well have been no validity to the estate’s contentions as to profits prior to the Memorandum Agreement. However, an agreement to pay and accept $10,000 in settlement of the dispute is entirely reasonable and beneficial to Wolfson’s business and to the estate, both desiring to clear up the affairs expeditiously with a minimum of litigation and expense. On the facts of this case, the payment by way of settlement (attributable to the activity of the estate) is not includible in the estate of the decedent under Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, nor is it “income in respect of a decedent” under Section 126 any more than it would be if it were a gift from Wolfson to the estate and beneficiaries. See Bausch’s Estate v. Commissioner, 2 Cir., 186 F.2d 313. The $10,000 is ordinary-income accruing to the estate and beneficiaries.
Lastly, the question of attorney’s fees is raised by appellants. The Trial Court found the sum of $2,500 to be a reasonable amount for prosecuting the refund claim, and disallowed the $5,000 figure claimed. In computing the estate tax, the estate was allowed a $2,500 deduction. We are unwilling to reverse without concluding that the Trial Court’s findings were clearly erroneous. International Bureau v. Bethlehem Steel Company, 2 Cir., 192 F.2d 304. There is no basis for the appellant’s contention that the Trial Court abused its discretion.
It is apparent, however, that the $2,500 allowed did not include this appeal. The Trial Court is in a far better position than is this court to determine whatever should be allowed for these services.
Accordingly, we remand to the Trial Court, as we have done in the past, for a determination of the amount that should be allowed for this appeal. Bassett’s Estate v. Commissioner of Internal Revenue, 2 Cir., 170 F.2d 916.
Reversed in part; remanded for further proceedings consistent with the views expressed herein.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer: |
songer_genresp2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
The PEOPLE OF SAIPAN, By and Through Herman Q. GUERRERO, et al., Plaintiffs and Appellants, v. UNITED STATES DEPARTMENT OF INTERIOR et al., Governmental Defendants and Appellees, and Continental Airlines, Inc., a Nevada corporation, Corporate Defendant and Appellee.
No. 73-1769.
United States Court of Appeals, Ninth Circuit.
July 16, 1974.
Trask, Circuit Judge, filed a concurring opinion.
Samuel Withers, III, Edward C. King (argued), Daniel H. MacMeekin, Micronesian Legal Services Corp., Saipan, Mariana Islands, for plaintiffs and appellants ; Richard A. Falk, Princeton University, Princeton, N. J., of counsel on the brief.
Charles W. Kenady (argued) of Cooper, White & Cooper, San Francisco, Cal., for defendant and appellee Continental Air Lines.
Carlos Salii, Asst. Atty. Gen. (argued), Saipan, Mariana Islands,
Jacques B. Gelin, Atty., Dept, of Justice, Washington D. C., for defendants and appellees.
Before TRASK and GOODWIN, Circuit Judges, and EAST, District Judge.
The Honorable William G. East, Senior United gon, sitting by designation.
ALFRED T. GOODWIN, Circuit Judge:
Plaintiffs, citizens of the Trust Territory of the Pacific Islands (known also as Micronesia), sued in the district court to challenge the execution by the High Commissioner of the Trust Territory of a lease permitting Continental Airlines to construct and operate a hotel on public land adjacent to Micro Beach, Saipan. Plaintiffs appeal a judgment of dismissal.
The district court held that the Trust Territory government is not a federal agency subject to judicial review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, or the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and that the Ti usteeship Agreement does not vest plaintiffs with individual legal rights which they can assert in a federal court. The court’s opinion is published at 356 F.Supp. 645 (D.Haw.1973). We affirm the judgment, but, for the reasons set out below, we do so without prejudice to the right of the plaintiffs to refile in the district court should the High Court of the Trust Territory deny that it has jurisdiction to review the legality of the actions of the High Commissioner.
The facts' are set out in detail in the district court opinion. In brief,’ Continental applied in 1970 to the Trust Territory government for permission to build a hotel on public land adjacent to Micro Beach, Saipan, an important historical, cultural, and recreational site for the people of the islands. Pursuant to States District Judge for the District of Ore-the requirements of the Trust Territory-Code, 67 T.T.C. § 53, Continental’s application was submitted to the Mariana Islands District Land Advisory Board for its consideration. In spite of the Board’s unanimous recommendation that the area be reserved for public park purposes, the District Administrator of the Marianas District recommended approval of a lease. The High Commissioner himself executed the lease on behalf of the Trust Territory government. An officer appointed by the President of the United States with the advice and consent of the Senate (48 U.S.C. § 1681a), the High Commissioner is the highest official in the executive branch of the Trust Territory government.
Following its execution in 1972, the lease was opposed by virtually every official body elected by the people of Sai-pan. Indeed, the record in this case shows that the High Commissioner’s decision was officially supported only by the United States Department of the Interior, the Trust Territory Attorney General (a United States citizen), and the District Administrator of the Marianas District (appointed by the High Commissioner, serving directly under him, and subject to removal by him).
Later in 1972, an action against some of the parties here was commenced before the High Court of the Trust Territory to enjoin construction of the hotel. The High Court, while denying defend, ants’ motions to dismiss on certain non-federal causes of action, held that NEPA did not apply to actions of the Trust Territory government, as plaintiffs had contended. Soon afterward, the plaintiffs filed this action in the United States District Court for the District of Hawaii, and the High Court thereupon stayed proceedings before it pending the outcome of this action.
I. JUDICIAL REVIEW UNDER THE APA OR NEPA
The district court, relying upon its earlier decision in People of Enewetak v. Laird, 353 F.Supp. 811 (D.Haw.1973), again held that NEPA applies to federal agencies operating in the Trust Territory. It also held that approval of the lease agreement was “major” action, within the meaning of NEPA. However, although the district court rejected the defendants’ contention that the Trust Territory government is a foreign government immune to suits in United States courts, it accepted the defendants’ alternate contention that the local government is a government of a United States territory or possession, within the meaning of the exclusionary clause in the Administrative Procedure Act, 5 U.S.C. § 701(b)(1)(C) Having concluded that the Trust Territory government was exempt from review under the APA, the district court reasoned that the same standards on the scope of review should be applied to NEPA, and concluded that the action of the High Commissioner in approving and executing the lease agreement was not “federal” action covered by the National Environmental Policy Act, 42 U.S.C. § 4332
We affirm these conclusions of the district court. See 356 F.Supp. at 649-661.(i) **
We recognize, as did the district court, that several decisions have held governments of United States territories to be agencies of the federal government. However, these cases all involved a determination of agency for such purposes as income taxation, Bell v. Commissioner, 278 F.2d 100 (4th Cir. 1960), or the applicability of the Portal-to-Portal Act of 1947, Kam Koon Wan v. E. E. Black, Ltd., 188 F.2d 558 (9th Cir.), cert. denied, 342 U.S. 826, 72 S.Ct. 49, 96 L.Ed. 625 (1951). Plaintiffs have not cited and we have not found a case applying APA judicial review provisions to the Trust Territory or applying even similar review standards to the civil government of any territory or possession.
We also recognize, again as did the district court, that the APA exclusionary clause excludes only “the governments of the territories or possessions of the United States,” 5 U.S.C. § 701(b)(1)(C), and that the Trust Territory is not a territory or possession, because technically the United States is a trustee rather than a sovereign. We agree with the district court that this distinction is immaterial, however, because the intent of Congress was to exclude from APA review all governments of this general type created pursuant to the authority of Congress.
Plaintiffs have cited several judicial decisions, a regulation, and one Tax Court decision stating that the Trust Territory is not a territory or possession of the United States. However, the holding of the judicial decisions is limited to the applicability of the Federal Tort Claims Act (see, e. g., Callas v. United States, 253 F.2d 838 (2d Cir.), cert. denied, 357 U.S. 936, 78 S.Ct. 1384, 2 L.Ed.2d 1550 (1958); Brunell v. United States, 77 F.Supp. 68 (S.D.N.Y. 1948)), and the regulation and the Tax Court decision both involve federal income taxation. See Treas.Reg. § 1.-931-l(a) (1); Richard W. Benfer, 45 T.C. 277 (1965). We do not read these decisions and the regulation to be inconsistent with our conclusion that Congress intended the government of the Trust Territory, like that of territories and possessions, to be immune from judicial review under the APA.
Finally, we note that the Trusteeship Agreement, in which the United Nations designated the United States to be the administering authority of the Trust Territory, states that the United States shall “promote the development of the inhabitants of the trust territory toward self-government * * Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, art. 6(1), 61 Stat. 3301, 3302, T.I.A.S. No. 1665. This clear statement of intent on the part of the United Nations to foster self-government in the Trust Territory constrains us not to hold that the actions of the local government are reviewable in the same manner as the actions of domestic federal administrative agencies, in a federal district court several thousand miles from the islands.
For these reasons and for those expressed in the opinion of the district court, we affirm the conclusion of that court that neither the Trust Territory government nor the High Commissioner alone is a “federal agency” as that term is used in making actions reviewable under'the APA or NEPA.
II. TRUSTEESHIP AGREEMENT
Plaintiffs also asserted below and assert here that the action of the governmental defendants in leasing public land to an American corporation against the expressed opposition of the elected representatives of the people of Saipan and without compliance with NEPA is a violation of their duties under the Trusteeship Agreement. The district court rejected this argument, holding that' the Trusteeship Agreement did not vest the citizens of the Trust Territory with rights which they can assert in a district court.
We cannot accept the full implications of this holding. We do not dispute the district court’s conclusion that compliance with NEPA was not required by the Trusteeship Agreement. We do, however, disagree with the holding insofar as it .can be read to say that the Trusteeship Agreement does not create for the islanders sübstantive rights that are judicially enforceable.
The district court relied for its conclusion on language in Pauling v. McElroy, 164 F.Supp. 390, 393 (D.D.C. 1958), aff’d on other grounds, 107 U.S.App.D.C. 372, 278 F.2d 252, cert denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960). Pauling concerned an attempt to enjoin United States officials from proceeding with nuclear tests in the Marshall Islands, an area within the trusteeship. The controversy there, unlike the one here, involved the Trusteeship Agreement’s grant of broad discretion to use the area for military purposes. See Trusteeship Agreement arts. 1, 5, 13, 61 Stat. 3301, 3302, 3304. We do not find Pauling to support the defendants’ contention here that the plaintiffs cannot invoke the provisions of the Trusteeship Agreement to challenge the High Commissioner’s power to lease local public land for commercial exploitation by private developers.
The right of Rhodesian and American citizens to maintain an action in the courts of the United States seeking enforcement of the United Nations embargo against Rhodesia was recently recognized in Diggs v. Shultz, 152 U.S.App.D.C. 313, 470 F.2d 461 (1972), cert denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973). On the merits, the court, denied specific relief because of Congressional action which was held to have abrogated the United Nations Security Council Resolution, but the right to seek enforcement in federal court was firmly established. That decision, if correct, suggests that the islanders here can enforce their treaty rights, if need be in federal court.
Article 73 of the United Nations Charter, 59 Stat. 1031, 1048, T.S. No. 993 (1945), which discusses non-self-governing territories generally, provides :
“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:
“a. To ensure, with due respect for the culture of the peoples concerned, their political, economic, social, - and educational advancement, their just treatment, and their protections against abuses * * * .”
See also United Nations Charter art. 76, describing the basic objectives of the trusteeship system. Although the plaintiffs have argued that these articles of the United Nations Charter, standing alone, create affirmative and judicially enforceable obligations, we assume without deciding that they do not.
However, pursuant to Article 79 of the Charter, the general principles governing the administration of trust territories were covered in more detail in a specific trusteeship agreement for the Trust Territory of the Pacific Islands. See generally L. Goodrich, E. Hambro & A. Simons, Charter of the United Nations : Commentary & Documents 502 (3rd ed. 1969). Specifically, Article 6 of the Trusteeship Agreement requires the United States to “promote the economic advancement and self-sufficiency of the inhabitants, and to this end * * * regulate the use of natural resources” and to “protect the inhabitants against the loss of their lands and resources * * *.”
Defendants contend, though, that provisions of the Trusteeship Agreement, including Article 6, can be enforced only before the Security Council of the United Nations. We disagree, concluding that the Trusteeship Agreement can be a source of rights enforceable by an individual litigant in a domestic court of law.
The extent to which an international agreement establishes affirmative and judicially enforceable obligations without implementing legislation must be determined in each case by reference to many contextual factors: the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-execution. See generally M. McDougal, H. Lasswell, & J. Miller, The Interpretation of Agreements and World Public Order; Principles of Content and Procedure passim (1967).
The preponderance of features in this Trusteeship Agreement suggests the intention to establish direct, affirmative, and judicially enforceable rights. The issue involves the local economy and environment, not security; the concern with natural resources and the concern with political development are explicit in the agreement and are general international concerns as well; the enforcement of these rights requires little legal or administrative innovation in the domestic fora; and the alternative forum, the Security Council, would present to the plaintiffs obstacles so great as to make their rights virtually unenforceable.
Moreover, the Trusteeship Agreement constitutes the plaintiffs’ basic constitutional document (see Parry, The Legal Nature of Trusteeship Agreements, 27 Brit. Year Book Int’l L. 164, 182-84 (1950), excerpted in 1 M. White-man, Digest of International Law 893 (1963), and is codified into the law of the Trust Territory, 1 T.T.C. § 101(1). For all these reasons, we believe that the rights asserted by the plaintiffs are judicially enforceable. However, we see no reason why they could not and should not have been enforced in the High Court of the Trust Territory. The district court found that:
“ * * * The lease approval was a ‘local’ decision of the High Commissioner acting within the scope of his duties as chief executive of the Trust Territory Government. The officials of the Interior Department did not negotiate, counsel, advise or participate in the decision. Nor was the lease ever sent to the Department for approval or concurrence in any form * *» 356 F.Supp. at 657 n.28.
Surely, the judicial branch of the Trust Territory government has the authority to determine whether or not the action of its chief executive complies with a provision in its own constitutional document.
We recognize that the Trusteeship Agreement purports to obligate the United States, not the individual who happens to be High Commissioner. Nonetheless, because of the process of his appointment, the High Commissioner has the responsibility to act in a manner consistent with the duties assumed by the United States itself in the Trusteeship Agreement.
Thus, although we hold that the Trusteeship Agreement is a source of individual legal rights, we also hold that, in a case involving actions by the High Commissioner within the scope of his duties as chief executive, these rights are not initially enforceable in United States courts. Rather, upon principles of comity, they should be asserted before the High Court of the Trust Territory.
Admittedly, the substantive rights guaranteed through the Trusteeship Agreement are not precisely defined. However, we do not believe that the agreement is too vague for judicial enforcement. Its language is no more general than such terms as “due process of law,” “seaworthiness,” “equal protection of the law,” “good faith,” or “restraint of trade,” which courts interpret every day. Moreover, the High Court can look for guidance to its own recently enacted environmental quality and protection act, T.T.Pub.L. No. 4C-78 of Apr. 14, 1972, codified at 68 T.T.C. §§ 501-509, to the relevant principles of international law and resource use which have achieved a substantial degree of codification and consensus (see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)), and to the general direction, although not necessarily the specific provisions, of NEPA.
Cf. Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1972). These sources should provide a sufficiently definite standard against which to test the High Commissioner’s approval of a 50-year lease of unique public lands to an American corporation, allegedly in disregard of the protests of the islands’ elected officials and without a showing of consideration of cultural and environmental factors.
Since the High Commissioner claims to have been acting pursuant to local statutes when he approved the lease to Continental, if the High Court finds that his action violated provisions of the Trusteeship Agreement, that court may have to declare these statutes void either on their face or void as applied by the High Commissioner. The order of the United States Department of the Interi- or which established the structure of the Trust Territory government forbids the legislative branch of the Trust Territory government from enacting any legislation inconsistent with “treaties or international agreements of the United States * * Dept. of Interior Order No. 2918, pt. III, § 2(a) (1968). Because the Trusteeship Agreement is an international agreement of the United States, local legislation inconsistent with it must fall.
• Although the High Court has held that it lacks jurisdiction over an agency of the United States or its officers in the Trust Territory (see Schulz v. Peace Corps, 4 T.T.R. 428 (1969)), the Secretary of the Interior assures us that his department did not participate in any way in the decision to grant a lease to Continental, and, hence, that Schulz will not bar the High Court from hearing and deciding this case. If, in the proceedings before the High Court, it should appear that the actions of the High Commissioner cannot be effectively reviewed and tested against the duties assumed by the United States in the Trusteeship Agreement, either because his actions were controlled by a directive or regulation of the Secretary of the Interior which the High Court considers nonreviewable or because the High Court does not agree that it has the power to review the High Commissioner’s actions against the standards established in the Trusteeship Agreement, then the plaintiffs may refile this action in the United States District Court for the District of Hawaii.
We recognize that the High Court has said earlier that the Trusteeship Agreement does not create a trust capable of enforcement through the courts. See Alig v. Trust Territory of the Pacific Islands, 3 T.T.R. 603, 615-16 (1967). We also recognize that, unless the High Commissioner acted unconstitutionally or in violation of the law, the suit against him might not be cognizable in the Trial Division of the High Court because of the doctrine of soverign immunity. See also 6 T.T.C. § 252(2). Nonetheless, the High Court is free to re-evaluate its position with regard to the enforceability of the provisions of the Trusteeship Agreement under Diggs v. Shultz, supra. It may conclude, as we did, that as the judicial branch of a political entity possessing many of the attributes of an independent nation, that court has the power to hear a claim that the islands’ chief executive officer has violated terms of the Trusteeship Agreement. If the High Court reaches this conclusion, the doctrine of sovereign immunity would provide no basis for refusing to hear the action. See Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-690, 701-702, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).
We hold, then, that the plaintiffs must initially pursue their remedies in the local court. If our assumption that the High Court has the power to review the decision of the High Commissioner proves to be invalid, then the federal district court must assume jurisdiction of this case. We refuse to leave the plaintiffs without a forum which can hear their claim that the High Commissioner has violated the duties assumed by the United States in the Trusteeship Agreement.
Because it is possible that we may see this case again, we comment briefly on one issue raised by the defendants. Continental contends that it has acquired some equities by proceeding with the construction of its hotel while its right to do so is being litigated. Unless we misread the argument, Continental seems to be asserting that the damage has been done, and that it is too late for courts to remedy it. We note that Continental initiated bulldozing activities at the Micro Beach without notice and while the High Commissioner supposedly was giving further consideration to the project. The plaintiffs’ action was commenced in the High Court almost immediately afterward, and in federal court within one and one-half months. We caution Continental that:
“ * * * [A] fter a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided * * Jones v. S. E. C., 298 U.S. 1, 17, 56 S.Ct. 654, 658, 80 L.Ed. 1015 (1936), quoted in Nat’l Forest Preservation Group v. Butz, 485 F.2d 408, 411 (9th Cir. 1973).
The judgment of dismissal is affirmed as modified.
. The High Court concluded that the Trust Territory government was not a “federal agency” and that the nigh Commissioner, acting as its chief executive officer, was not subject to NEPA. The court relied primarily upon the prior determination of the Secretary of the Interior that “territorial governments, under the jurisdiction of the Secretary _ of the Interior, are not agencies or instrumentalities of the executive branch of the Federal Government * * * [and] that the territorial governments are not organized entities of the Department of the Interior.” Dept. Manual of Dept, of Interi- or 150.1.4.
. “For the purpose of this chapter—
“(1) ‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— “ s}: * *
“(C) the governments of the territories or possessions of the United States * * *.” 5 U.S.C. § 701(b).
. “The Congress authorizes and directs that, to the fullest extent possible: * * * all agencies of the Federal Government shall
!}S V “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented * * 42 U.S.C. § 4332.
. See also Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76 (1948), in support of the conclusion that NEPA applies to federal agencies operating in the Trust Territory.
. But see Porter v. United States, 496 F.2d 583 (Ct.Cl.1974), holding that the Trust Territory government was not an agency of the United States for the purpose of asserting jurisdiction against the United States for an alleged breach of a contract negotiated by ' officials of the Trust Territory government.
. Article 12 of the Trusteeship Agreement empowers the United States to '“enact such legislation as may be necessary to place the provisions of this agreement in effect in the trust' territory.” Our conclusion that the actions of the Trust Territory government are not subject to NEPA is an equivalent way of saying that Congress has not, pursuant to Article 12, legislated to make NEPA applicable to the Trust Territory government. Hence, in approving the lease agreement, the High Commissioner was under no obligation to comply with NEPA. This is the same conclusion as that readied by the High Court. See note 1, supra.
. See Note, 14 Va.J.Int’l L. 185 (1973), which comments upon Diggs v. Shultz.
. “The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85.” United Nations Charter art. 79, 59 Stat. 1031, 1049.
. Unlike the other ten trusteeships set up after World War II, pursuant to agreements between the United Nations and various nations, the Trust Territory was designated as a “strategic” trust. Trusteeship Agreement art. 1, 61 Stat. 3301. See 1 M. Whiteman, Digest of International Law 766. This designation results in the United States being responsible to the Security Council for the administration of the Trust Territory— where the United States possesses veto power (United Nations Charter art. 27, 59 Stat. 1041) — rather than to the General Assembly. United Nations Charter art. 83(1), 59 Stat. 1050.
. Article 12 of the Trusteeship Agreement of 1947 authorized the United States to enact such legislation as may be necessary to implement the agreement. 61 Stat. 3304. At first, President Truman gave the Navy administrative responsibility for the islands. Exec. Order No. 9875, 12 Fed.Reg. 4837 (1947), 3 C.F.R. 658 (1943-48 Comp.). In 1951 administration of the islands was transferred to the Department of the Interior. Exec. Order No. 10265, 16 Fed.Reg. 6419 (1951), 3 C.F.R. 766 (1949-53 Comp.). During the next two years, responsibility for administration of parts of the Trust Territory was redelegated back to the Secretary of the Navy. Exec. Order No. 10408, 17 Fed. Reg. 10277 (1952), 3 C.F.R. 906 (1949-53 Comp.); Exec. Order No. 10470, 18 Fed. Reg. 4231 (1953), 3 C.F.R. 951 (1949-53 Comp.). Not until 1954 did Congress begin to legislate to implement the Trusteeship Agreement, and then it merely stated that, until it. provided further for its government, all governmental authority in the Trust Territory rested with the President. Act of June 30, 1954, ch. 423, § 1, 68 Stat. 330, as amended, 48 U.S.C. § 1681(a). Finally, in 1962 President Kennedy redelegated his authority for civil administration of the entire Trust Territory to the Secretary of the Interior. Exec. Order No. 11021, 27 Fed.Reg. 4409 (1962), 3 C.F.R. 600 (1959-63 Comp.). The Secretary of the Interior, in turn, delegated executive authority for the Trust Territory to the High Commissioner:
“The executive authority of the Government of the Trust Territory, and the responsibility for carrying out the international obligations undertaken by the United Nations with respect to the Trust Territory, shall be vested in a High Commissioner of the Trust Territory and shall be exercised and discharged under the supervision and direction of the Secretary.” Dept, of Interior Order No. 2918, pt. II, § 1, 34 Fed.Reg. 157 (1969).
Meanwhile, in 1967 Congress provided that this High Commissioner shall be appointed by the President and confirmed by the Senate. Act of May 10, 1967, Pub.L.No.90-16 § 2, 81 Stat. 15, codified, 48 U.S.C. § 1681a. See generally Note, A Macrostudy of Micronesia : The Ending of a Trusteeship, 18 N. Y.L.F. 139 (1972).
Thus, as the district court here observed, the High Commissioner’s authority “does not come from the people of the Trust Territory, nor do they have any method of removing him when dissatisfied with his actions or policies.” 356 F.Supp. at 655. See also So-cieta A.B.C. v. Fontana & Della Rocca, [1955] I.L.R. 76 (Court of Cassation, United Chambers, Italy 1954), quoted at 1 M. Whiteman, Digest of International Law 870-71, which held that the Italian Trusteeship Administrator for Somaliland derived his authority from the Italian state and, hence, was an organ of that state.
. “Appellees suggest that the prospects of significant relief by means of the embargo are so slight that this relationship of intended benefit is too tenuous to support standing. But this strikes us as tantamount to saying that because the performance of the United Nations is not always equal to its promise, the commitments of a member may be disregarded without having to respond in court to a charge of treaty violation. It may be that the particular economic sanctions invoked against Southern Rhodesia in this instance will fall short of their goal, and that appellants will ultimately reap no benefit from them. But, to persons situated as are api>ellants, the United Nations action constitutes the only hope; and they are personally aggrieved and injured by the dereliction of any member state which weakens the capacity of the world organization to make its policies meaningful.” Diggs v. Shultz, 470 F.2d at 465.
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_numresp | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Sally M. BLAINE; Alice Faye Ricks, Appellants, v. WHIRLPOOL CORPORATION; International Union Allied Industrial Workers, Local 370, Appellees.
No. 88-2621.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 12, 1989.
Decided Dec. 11, 1989.
Lisa A. Kelly, Pine Bluff, Ark., for appellants.
Keith C. Hult, Chicago, Ill., for appellees.
Before LAY, Chief Judge, BOWMAN, and MAGILL, Circuit Judges.
BOWMAN, Circuit Judge.
Appellants Sally M. Blaine and Alice Faye Ricks brought an action against Whirlpool Corporation and their union, International Union Allied Industrial Workers and its Local 370 (“the Union”), alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1982 & Supp. V 1987) and the Civil Rights Acts of 1866, 42 U.S.C. § 1981 (1982). Following a two-day bench trial, the District Court rendered an oral opinion in favor of Whirlpool and the Union, and subsequently filed written findings of fact and conclusions of law which supported the oral opinion. Appellants maintain that the District Court had no jurisdiction to make written findings after appellants had filed a proper notice of appeal and that this Court may not consider these written findings in the determination of this appeal. Appellants further argue that the judgment of the District Court should be reversed because the court did not apply the proper standards and burdens of proof in determining that appellants were not discriminated against because of their race by Whirlpool and the Union. We affirm.
Appellants’ claims in this matter, which are unrelated, arose out of events that occurred during the course of their employment at Whirlpool. Both Blaine and Ricks, who are black, claimed at trial that they were victims of adverse employment decisions because of their race.
Blame’s claim arose out of a job reassignment that occurred in January 1986. In October 1985, Blaine and Ruby Muse, a less senior employee, applied for a transfer from the second shift to the first. According to the collective bargaining agreement between Whirlpool and the Union (“the Agreement”), employees’ shift change requests are granted on the basis of seniority, with the most senior employee requesting the change replacing the most junior employee on the desired shift. Pursuant to this procedure, both Blaine’s and Muse’s transfers were approved; Blaine (the most senior) would replace Reid (the least senior) and Muse (the second most senior) would bump Wise (the second least senior). When Blaine and Muse reported to their first shift positions on Monday, however, the first shift supervisor refused to implement Muse’s shift change. The supervisor mistakenly believed that Reid was on medical leave (she had actually been cleared from medical leave the previous Friday) and therefore was not eligible to be bumped from her position. Accordingly, the supervisor allowed Blaine to replace Wise and sent Muse back to the second shift.
The next week, Muse filed a grievance regarding the denial of her shift change. A meeting was convened between Whirlpool and Union representatives from both shifts and it was decided that Muse’s grievance was meritorious and that she should be transferred to the first shift. Because of a medical restriction, the only job which Muse could perform was the labeling position which Blaine held and Muse therefore replaced Blaine at her position. Blaine was assigned to an off-line job on the same shift and at the same rate of pay. Blaine claimed that she was reassigned and denied assistance by the Union because of her race.
Ricks’s claim arose from a five-week layoff that began in September 1985. Ricks had a medical restriction and could only perform jobs that did not require the use of her injured right arm. Union and Whirlpool officials determined that the only position that Ricks could fill was the “fluxing” position and she was assigned to that job on the second shift. In September 1985, Whirlpool implemented a reduction in force and shut down the entire second shift. Ricks was laid off after Whirlpool’s supervisor of benefits and health services determined that there was no fluxing position on the first shift for which Ricks was eligible. Following the five-week layoff, Ricks returned to the fluxing position on the second shift. Ricks claimed that she was discriminated against by Whirlpool and the Union because of her race.
Appellants’ first argument, that this Court may not consider the District Court’s written findings of fact and conclusions of law in ruling on this appeal because the District Court filed its written opinion one week after appellants filed their notice of appeal, is misconceived. At the close of trial, the district judge explicitly informed the parties that his oral opinion would be supplemented by a written opinion supported by legal authority. The written opinion is consistent with the court’s oral opinion in all material respects and the written findings assist this Court in determining the appeal. The District Court had jurisdiction to make written findings of fact and law and this Court may consider these findings on appeal. See Silverthorne v. Laird, 460 F.2d 1175, 1178 (5th Cir.1972) (district court retains “full authority to take any steps during the pend-ency of the appeal that will assist the court of appeals in the determination of the appeal” (quoting 9 Moore’s Federal Practice H203.il n. 2)).
Appellants next argue that the District Court did not apply the proper standards and burdens of proof in determining that appellants were not discriminated against on account of their race. After a careful review of the findings of fact and conclusions of law by the District Court, we conclude that the court correctly applied the analysis required by Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). The District Court initially ruled that appellants had established a prima facie case of discrimination. The court then found that Whirlpool and the Union had shown that their actions were taken for legitimate, nondiscriminatory reasons and that appellants had not succeeded in rebutting this showing. The court properly recognized that appellants had the burden of proof on the issue of discrimination. The court’s analysis was appropriate and its findings of fact are not clearly erroneous. We therefore affirm the judgment of the District Court on the basis of that court’s oral opinion and supplementary written opinion. See 8th Cir.R. 14.
Although the issues appellants have raised lack merit, the appeal, taken as a whole, is not a frivolous one. We therefore deny appellees’ requests under Federal Rule of Appellate Procedure 38 for an award of attorney fees or an assessment of double costs against appellants.
. The Honorable Morris S. Arnold, United States District Judge for the Western District of Arkansas.
. Though Blaine was senior to Muse, Article VII of the Agreement provided for an exception to the seniority rule if a grievance procedure was involved.
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_origin | F | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Homai BEHZADPOUR, Petitioner, v. UNITED STATES of America, Respondent.
No. 90-2886.
United States Court of Appeals, Eighth Circuit.
Submitted May 17, 1991.
Decided Oct. 10, 1991.
Robert Frager, Kansas City, Mo., argued, for petitioner.
Alison R. Drucker, Dept, of Justice, Washington, D.C., argued (Stuart M. Ger-son and Mark C. Walters, on brief), for respondent.
Before FAGG, WOLLMAN, and MAGILL, Circuit Judges.
FAGG, Circuit Judge.
Hornai Behzadpour, an alien from Iran, entered the United States on a nonimmi-grant visitor’s visa and did not leave when it expired. After Behzadpour failed to depart voluntarily, the Immigration and Naturalization Service began deportation proceedings against her. At Behzadpour’s deportation hearing, she conceded deportability but applied for political asylum and withholding of deportation based on her political opinion. See 8 U.S.C. §§ 1158, 1253(h) (1988). The immigration judge (IJ) denied Behzadpour’s application, and the Board of Immigration Appeals (the Board) dismissed her appeal. Behzadpour now appeals to this court, and we affirm.
Before the Khomeini Revolution, Behzadpour worked for the Iranian army as a civilian electronics engineer. In this capacity, Behzadpour interacted with American military officers and two high-ranking, pro-Shah Iranian military generals. The Iranian generals were also “close friends” of Behzadpour and her husband. After Khomeini took power, one of the generals committed suicide and the other served two years in prison before leaving the country. The revolutionary court suspended Behzadpour from her job. Five months later, however, a military court reviewed her association with the Iranian generals and American officers, and reinstated her at a lower grade level. Later, the Iranian government granted Behzadp-our an exit visa allowing her to travel in Europe for one month. Behzadpour went to West Germany and obtained a visa to enter the United States for the purpose of visiting relatives. Behzadpour then came to the United States with her son and daughter without the knowledge of Iranian authorities. Behzadpour concedes she has never belonged to any political organizations in Iran or the United States, and told only her family and friends of her “pro-United States” attitude. Behzadour’s husband still lives and works in Iran.
Noting that Behzadpour had made a successful transition from one Iranian regime to another and that considerable time had lapsed between the revolution and Behzadpour’s departure from Iran, the IJ found Behzadpour’s main reason for seeking asylum was to prevent her teenage son from being drafted into the Iranian armed forces. The IJ concluded Behzadpour failed to show a clear probability she would be persecuted because of her political opinion, and thus denied her request for asylum and withholding of deportation. Recognizing the IJ had applied an incorrect standard of proof to Behzadpour’s asylum application, the Board reviewed Behzadpour’s case de novo, applied the proper standards of proof, and concluded she had failed to demonstrate a well-founded fear of persecution making her eligible for asylum or a clear probability of persecution entitling her to withholding of deportation. The Board dismissed Behzadour’s appeal.
The Attorney General has discretion to grant asylum to “refugees.” 8 U.S.C. § 1158(a) (1988). A “refugee” is a person who is unable or unwilling to return home “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). To prove the existence of a well-founded fear of persecution, an asylum applicant must show a reasonable person in the applicant’s circumstances would fear persecution if returned to the applicant’s native country. Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991); Castillo-Rodríguez v. INS, 929 F.2d 181, 184 (5th Cir.1991); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 1212-13, 94 L.Ed.2d 434 (1987). An asylum applicant must also show the feared persecution is based on one of the five grounds listed in section 1101(a)(42)(A). Castillo-Rodriguez, 929 F.2d at 184.
Behzadpour contends she proved a well-founded fear of persecution based on her political opinion, and thus, the Board committed error in concluding she is ineligible for asylum. We must uphold the Board’s finding that Behzadpour has no well-founded fear of political persecution if it is supported by substantial evidence. Id. Having reviewed the record, we conclude substantial evidence supports the Board’s finding.
Behzapour testified she fears she will be imprisoned if returned to Iran because an Iranian court has sentenced her to imprisonment. To prove her fear is reasonable, Behzadpour presented a document notifying her an Iranian court convicted her of “escape from service” in violation of Islamic and army penal law, sentenced her to imprisonment for two years, and discharged her from employment. To prove her criminal prosecution is political persecution, Behzadpour must show the crime is political, she did not receive a fair trial, see id. at 185, or the Iranian government had an improper motive for pursuing her conviction, Mabugat v. INS, 937 F.2d 426, 429 (9th Cir.1991). Behzadpour failed to make these showings. Although Behzadpour was not present during the proceedings resulting in her conviction, Behzadpour concedes that Iranian process permits the prosecution of absentees. Thus, Behzadp-our’s conviction does not constitute political persecution.
Behzadpour also presented the testimony of a United States Army officer. The officer testified Behzadpour may be imprisoned if she returns to Iran because of her travel to the United States in violation of her Iranian exit visa and because of her association with the generals. Punishment for violation of a fairly administered passport law is not political persecution. Coriolan v. INS, 559 F.2d 993, 1000 (5th Cir.1977). In addition, given Behzadpour’s successful transition from one Iranian regime to another, we cannot - impute the generals’ political opinions and persecution to Behzadpour. See Aguilera-Cota v. INS, 914 F.2d 1375, 1379-80 (9th Cir.1990). The officer’s testimony that the Iranian government might suspect Behzadour of being a spy is merely speculative and thus the Board was entitled to reject it. See Haftlang v. INS, 790 F.2d 140, 144 (D.C.Cir.1986).
Finally, Behzapour submitted several articles about the political situation in Iran, the torture of prisoners there, and the status of women and children in the culture. Because these articles do not suggest Iran singles out persons like Behzadpour for political persecution, the articles do not show Behzadpour’s fear of political persecution is reasonable. See M.A. v. INS, 899 F.2d 304, 312-13 & n. 6 (4th Cir.1990) (en banc) (pronouncements of private organizations are a problematic basis for determining asylum eligibility); Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir.1987).
In sum, the persecution Behzadpour fears she will suffer if returned to Iran is not based on her political opinion. Instead, Behzadpour fears she will be held accountable for her violation of nonpolitical Iranian law. Behzadpour presented no evidence suggesting she has been singled out because of her political views. Moreover, Behzadpour’s husband is suffering no punitive sanctions for his friendship with the generals or for his wife’s absence from Iran. Accordingly, we conclude substantial evidence supports the Board’s finding that Behzadpour does not have a well-founded fear of persecution based on political opinion. See Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir.1983) (holding substantial evidence supported Board’s rejection of Iranian’s application for political asylum in case involving similar facts and record); see also Haftlang, 790 F.2d at 144.
Behzadpour also sought to have her deportation withheld. The Attorney General must withhold deportation of an alien to a country if the “alien’s life or freedom would be threatened in [that] country on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1253(h)(1) (1988). Applicants for withholding of deportation must show a “clear probability” they will face persecution in the country to which they will be deported. Balazoski, 932 F.2d at 640; Castillo-Rodriguez, 929 F.2d at 185. The persecution must be based on one of the grounds listed in section 1253(h)(1). Castillo-Rodriguez, 929 F.2d at 185.
It is easier to prove a well-founded fear of persecution than a clear probability of persecution. See Cardoza-Fonseca, 480 U.S. at 423, 430-31, 107 S.Ct. at 1209, 1212-13. Thus, in affirming the Board’s conclusion that Behzadpour is not eligible for asylum, we necessarily conclude she is not entitled to have deportation withheld. Balazoski, 932 F.2d at 640; Castillo-Rodriguez, 929 F.2d at 185.
Behzadpour also contends the Board should have remanded her case to the IJ for rehearing under the proper standard of proof. We disagree. The Board has the power to review the record de novo, to make its own findings, and to determine independently the legal sufficiency of the evidence. Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991). Here, the record contained enough evidence from which the Board could determine whether Behzadp-our had a well-founded fear of persecution based on political opinion. See id. at 787-88. Thus, the Board did not abuse its discretion in reviewing Behzadpour’s case de novo rather than remanding it.
We thus affirm the Board’s decision.
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_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".
UNITED STATES of America v. Calvin CLARK, Appellant.
No. 17841.
United States Court of Appeals, Third Circuit.
Argued Nov. 20, 1969.
Decided April 30, 1970.
James P. McKenna, Jr., Dickie, Mc-Camey & Chilcote, Pittsburgh, Pa. (Herbert Bennett Conner, Pittsburgh, Pa., on the brief), for appellant.
John H. Bingler, Jr., Asst. U. S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.
Before HASTIE, Chief Judge, and VAN DUSEN and ADAMS, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
Defendant was indicted, tried, and convicted by a jury on both counts of a two-count indictment which charged that he (1) unlawfully, wilfully, and knowingly did receive, conceal, and facilitate the transportation and concealment of narcotic drugs after those drugs had been illegally imported into the United States, knowing that the drugs had been illegally imported, in violation of 21 U.S.C. § 174; and (2) unlawfully, wilfully, and knowingly did purchase narcotic drugs other than in or from the original stamped package containing those drugs in violation of 26 U.S.C. § 4704(a). At trial, the Government introduced evidence to show that the narcotic drug involved was heroin and the jury returned a verdict of guilty on both counts. This appeal, from an order of judgment and commitment entered on January 16, 1969, which assessed separate fines totaling $5,000. and concurrent prison sentences of ten years, asserts constitutional infirmities in both of the statutes involved, as well as certain procedural errors at the trial.
First Count (21 U.S.C. § 174 .)
The defendant first contends that he was denied due process of law by the application to him of the presumption contained in the second paragraph of this statute, providing that inferences of both illegal importation and the possessor’s knowledge of same could be drawn from mere possession. He relies on that portion of the Supreme Court’s opinion in Leary v. United States, 395 U.S. 6, 29, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), which invalidated a companion provision (21 U.S.C. § 176a) allowing a similar inference as to marijuana. The answer to this claim is that the Supreme Court has recently considered and rejected it in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). There the Court ruled that, with respect to heroin, the presumption of illegal importation, “[wjhether judged by the more likely than not standard applied in Leary v. United States, supra, or by the more exacting reasonable-doubt standard normally applicable in criminal eases,” Id. at 416, 90 S.Ct. at 652, was valid since the facts available indicated that all heroin in this country has been illegally imported. With regard to the presumption of knowledge, the Court stated that “ ‘Common sense,’ Leary v. United States, supra, at 46 [89 S.Ct. at 1553], tells us that those who traffic in heroin will inevitably become aware that the produce they deal in is smuggled” (396 U.S. at 417, 90 S.Ct. at 653) and ruled that this aspect of the statute was also not proscribed by due process requirements. Defendant’s contention must, therefore, be rejected.
Second Count (26 U.S.C. § h704.(a) )
Clark argues that, having asserted his Fifth Amendment privilege against self-incrimination, he could not be punished for acquiring narcotic drugs without having paid the 1% per ounce regulatory excise tax under the rulings of the Supreme Court in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); and Leary, supra. This follows, he claims, since payment of the tax pursuant to the Harrison Narcotics Act would have posed a threat of prosecution under various Federal and State laws. He therefore contends that his prosecution for purchasing unstamped narcotics cannot stand.
In evaluating this assertion, it is noted that, while the Court in the above-mentioned Turner ease also considered and affirmed the constitutionality of this section, it did so with regard to that provision of § 4704(a) which provides that proof of possession shall be prima facie evidence of a violation, and it did not discuss any self-incrimination problem the section might pose. The scheme of the Harrison Narcotics Act was succinctly described in another recent Supreme Court narcotics decision, Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969). There the Court said:
“The Harrison Narcotics Act, 26 U.S.C. § 4701 et seq., applies to various drugs, including heroin. Dealers must register and pay an occupational tax, 26 U.S.C. §§ 4721-4722; producers or importers who sell must purchase stamps and affix them to the package, 26 U.S.C. §§ 4701, 4703, 4771(a) (1); and it is illegal to purchase or sell except from the original stamped package, 26 U.S.C. § 4704(a). As in the case of the Marihuana Tax Act, all transfers, with exceptions not relevant here, must be made pursuant to a written order form issued by the Government. 26 U.S.C. § 4705(a). Only dealers who are in compliance with state law may register, and only registered dealers may secure order forms. 26 U.S.C. §§ 4705(f), (g); see 26 U.S.C. § 4721; 26 CFR § 151.-24. Order forms are issued in triplicate to proper applicants and are stamped only with the name of the prospective purchaser. 26 U.S.C. § 4705(f); 26 CFR § 151.161. When a purchaser decides to execute a form, he fills in the exact date of the order and the number and type of drugs requested and signs his name to the form. 26 CFR §§ 151.163-151.165; 151.67. The purchaser retains the duplicate and delivers the original and the triplicate thus executed to the seller, who enters the number and size of the stamped packages furnished and the date when each item is filled. 26 CFR §§ 151.161(a); 151.185. A regulation, 26 CFR § 151.201, requires the seller to forward the triplicate to the Internal Revenue Service at the end of the month. Section 4705(d) of the Act requires both seller and buyer to keep their respective copies for a period of two years and to make them accessible to inspection by law enforcement officers.” Id. at 94-95, 90 S.Ct. at 287-288.
Minor’s indictment and conviction for selling narcotic drugs to persons who failed to present a properly executed order form in violation of § 4705(a) was affirmed by the Court. Reading the section to proscribe sale to those who have either failed to register or who could not register because their dealings were illicit, the Court concluded:
“Confronted with would-be buyers in this class, ‘full and literal compliance’ with § 4705(a) leaves the seller only one alternative: not to sell. Since from this record it is clear that Minor’s customer was not a registered buyer, the alleged possibility of incrimination is purely hypothetical.” Id. at 97, 90 S.Ct. at 289.
In the instant case, Clark was charged with having purchased heroin other than in or from the original stamped package in violation of § 4704(a). As the quoted excerpt describing the scheme of the Act indicates, these stamps are to be affixed by either the producer or the importer after he has paid the tax. None of these tasks is the responsibility of the purchaser, who has only one duty under this section — to avoid purchase of unstamped narcotics. Viewed in this light, it is clear that for Clark, “full and literal compliance” left him with the same alternative which the Court found unobjectionable in Minor — not to participate in the transaction.
Our view that the stamp provisions of the Act are constitutional as applied to the purchaser of heroin is strengthened by the realization that a prospective purchaser who has fully complied with the order form provisions (26 U.S.C. § 4705(a)) of the Act and thus is legally entitled to buy narcotics, is still under a duty not to purchase unstamped narcotics and may, under a literal reading of the section involved here, be convicted for violating § 4704(a). Thus Clark’s contention that the conviction under Count 2 is a violation of the privilege against self-incrimination is rejected.
Alleged Violation of Miranda v. Arizona
The defendant’s next argument centers on the admission into evidence of remarks he made when stopped by the police on a public street in Pittsburgh. He also objects to the admission into evidence of the narcotics described in the indictment.
The evidence at trial establishes that two Pittsburgh police officers, cruising in a patrol car, first observed a man they identified as the defendant at approximately 9 P.M. on March 15, 1967, walking in a deserted area of the city frequented by litterers. When first observed, the defendant was carrying a brown paper bag. Deciding to “check him out,” the officers turned their ear and arrived back at the spot from which the first observation had been made in about 35 seconds. They then saw the defendant running toward them without the bag and as the car approached he gestured for the officers to stop. Officer Williams’ testimony described the ensuing questioning:
“Q. Continue, Officer. After the car stopped and you got out, what happened ?
“A. Well, upon questioning him as to what he did with the bag he was carrying, he had first stated that he had thrown it in this section here. There was an old sofa there covered with snow and stuff, and I immediately told him, I said, ‘You wasn’t over in this section because your footprints are not in the snow here/ So, he says, ‘Well, maybe I threw it over here.’ So, he walks over here, indicating that he threw it over in this section here. Again I told him, ‘Well, how could you have thrown it over here? This is the first track that you are making here in the snow.’ So, I asked him if he had any identification on him. He said he didn’t have any identification, that he had been up there at the Eat and Park to get some sandwiches for his wife, but he had changed his mind. So, I asked him to take the stuff out of his pockets and lay it on the radio car, and he took out of his rear pocket a set of keys. I then patted him and I found nothing else on him. At that time, believing that he was probably trying to evade the littering law, I felt that it was all right since there was nothing but a paper bag anyway, so I told him, ‘Okay, beat it out of here.’ I then got back in the radio car and he came back up to the radio car and was asking me, ‘Well, why did you stop me in the first place?’ I said, ‘Well, you’re lucky to be getting away with questioning. Look at this whole area here. It has been littered with litter and stuff.’ I said, ‘That is why we are checking this area, to try to stop some of this.’ Then he left the radio car and proceeded in this direction.”
The narrative is continued by the other policeman, Seifer:
“Q. After Mr. Clark left the cruiser, what did you and your partner do, if anything?
“A. When he left the cruiser, I turned around, went up Dahlem Street, cheeked the illegally parked car which was not there at that particular address. I said to my partner, ‘John, I think we should go back. There is a half inch of snow on the ground and it is unreasonable that we can not find a brown paper bag on a completely white surface.’ At which time I made a right, came in Penn Avenue and made another right, and came back.
“Q. Now, from the time Mr. Clark left the police cruiser until the time you returned to the area where you had questioned him, how much time elapsed ?
“A. Oh, I would say approximately ten minutes.
“Q. When you got back to the area where you had first stopped and questioned Mr. Clark, was he there ?
“A. On my return?
“Q. Yes, sir, on your return to Railroad Street.
“A. No, he was not.
“Q. Was any one there?
“A. No.”
Officer Seifer followed a set of footprints leading up a path and about five feet from the path he found a brown paper bag lying inside a rubber tire. The bag contained two plastic juice cartons and inside each carton were numerous small glassine bags, which subsequent analysis revealed to bear defendant’s fingerprints and to contain heroin.
Clark maintains that having confessed to a littering offense, he was entitled to be given the requisite warnings, required under Miranda v. Arizona, 384 U.S. 436, 438, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), where “custodial interrogation” is present, so that all he said after admitting having thrown away the bag should have been excluded, as should the bag itself as a “fruit” of an unlawful interrogation. We need not pass on this contention, since the alleged statements of the defendant were not important evidence needed for the proof of any of the elements of the crimes for which he was charged since the police officers testified that they observed him first with, and then without, the bag. These alleged statements were pertinent in evaluating the credibility of the police officers’ testimony by explaining that the officers had returned to the scene 10 minutes later to investigate further because of the evasive and improbable statements concerning disposal of the bag.
Furthermore, defendant’s conversation with the officers and the bag of narcotics which they subsequently found were not the products of a custodial interrogation. In seeking to safeguard Fifth and Sixth Amendment rights, the Supreme Court in Miranda, was nevertheless careful to preserve to the police their role in traditional “on-the-street” inquiries:
“Our decision is not intended to hamper the traditional function of police officers in investigating crime. * * * General on-the-scene questioning as to facts surrounding a crime in the fact-finding process is not affected by our holding.” 384 U.S. at 477, 86 S.Ct. at 1629.
An exact definition for “custodial interrogation” is, by its nature, an impossibility. The problem must, of necessity, be approached on a case-by-case basis. See United States v. Gibson, 392 F.2d 373 (4th Cir. 1968). There was in the instant case, “no evidence of the application of force or intimidation, physical or psychological, actual or implied,” Government of Virgin Islands v. Berne, 412 F.2d 1055 (3rd Cir.), cert. den. 396 U.S. 837, 90 S.Ct. 96, 24 L.Ed.2d 87 (1969), and the inquiry was essentially a routine one, Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476, modification refused, 404 F.2d 1335 (D.C.Cir. 1968), with the questioning being conducted during “an inquiry concerning a minor violation” which was “the product of curiosity or even suspicion, but [was] neither addressed to a person in custody or under restraint.” James v. United States, 418 F.2d 1150 (D.C.Cir.1969). Clark was never placed under arrest, even though he may have been “detained”. In light of all these factors, we hold that the testimony of Clark’s statements was admissible.
Clark’s constitutional objection to the admission into evidence of the narcotics found by Officer Seifer is equally without merit for it is clear that it was seeing a man with a bag in a particular area of the city and then, thirty or forty seconds later, seeing the same individual without a bag which led to the search of the vacant property and not the questioning of Clark.
“Chain of Custody” of Incriminating Evidence
Clark argues that the Government failed to present evidence sufficiently connecting the testimony of the analysis of heroin in, and the identification of his fingerprints on, the packages delivered to the chemist with the contents of the paper bag recovered by the officers from the vacant lot to permit the introduction of this testimony into evidence.
The testimony at the trial reveals that the officers, upon finding the discarded bag, immediately took the two juice cartons they found in the bag to their precinct house where they turned them over to a Sergeant Persetic. They counted the contents and found that one carton contained 171 glassine envelopes while the other contained 176. Both sets were placed in the drawer of the desk at the precinct house. The following morning an Officer Diggs picked up a package at the precinct from an unidentified officer and delivered it to a Mr. Jerpe at the city Crime Lab. Jerpe examined the contents of the bag and tagged it. The next day he turned it over to a chemist who verified that one carton contained 171, and the other 176, glassine envelopes. He emptied 14 of these envelopes selected at random and found that they contained heroin. Several days later over 300 envelopes from the tagged bag were emptied, sent to, and received by the Federal Bureau of Investigation, where eleven latent fingerprints were discovered on the envelopes. Four of these prints belonged to the defendant.
Clark argues that since the Crime Lab received the bag from an unknown person at the precinct on the morning following its discovery, there is a “break” in the chain of custody necessary to permit introduction of the analysis. Furthermore, he asserts that since there is testimony that 340 empty envelopes were sent by the Crime Lab to the F.B.I., while the F.B.I. testified to receiving only 308 such envelopes from the Pittsburgh facility, there is an inconsistency in the testimony necessitating the exclusion of the fingerprint identification.
Initially, it is noted that the trial judge in the instant case gave a charge on the subject of “chain of custody” after being requested to do so by defense counsel. He concluded by instructing that:
“ * * * if you are not convinced beyond a reasonable doubt that those bags on which the defendant’s fingerprints were found are the bags that were found by those policemen, Seifer and Williams, out there on Railroad Street or near Railroad Street on the night of March 15, 1967, then this defendant should be acquitted.”
A trial judge’s determination that the showing as to identification and nature of contents is sufficient to warrant reception in evidence of the results of a test on the article may not be overturned except for a clear abuse of discretion. We find no such abuse of discretion here. See Gallego v. United States, 276 F.2d 914 (9th Cir. 1960). While it is true that an object connected with a crime must be shown to be in substantially the same condition as when the crime was committed before it can be admitted, United States v. S. B. Penick & Co., 136 F.2d 413 (2nd Cir. 1943), the objections which the defendant here makes go to the weight of the evidence rather than to its admissibility and, hence, the question was properly left to the jury. Williams v. United States, 381 F.2d 20, 21 (9th Cir. 1967); United States v. S. B. Penick & Co., supra, 136 F.2d at 415.
For the reasons stated above, the judgment will be affirmed.
. 21 U.S.C. § 174 provides : '
“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
“Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury. H* ♦ ♦
. 26 U.S.C. § 4704(a) provides:
“(a) General requirement. — It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and 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.”
. 26 U.S.C. § 4701 et seq.
. This claim was raised in an amicus brief but not passed on by the Court. See brief for amicus curiae Cleveland Burgess at 17-20.
. As a practical matter, there are policy advantages in finding 26 U.S.C. § 4704(a) constitutional now that 26 U.S.C. § 4705 (a) has been upheld in Minor v. United States. The penalty for violation of the former section gives the trial judge discretion to place a first offender-defendant on probation (26 U.S.C. § 7237(a) and (d) (2)), whereas the penalty for violation of § 4705(a) carries a mandatory minimum sentence of five years and a prohibition on inclusion in the sentence of any provision for probation even for first offenders. See 26 U.S.O. § 7237(b) and (d) (1).
. Clark claimed at trial that the officer’s identification was actually an identification of his twin brother.
. Clark’s objection to the admission of the analysis of the contents of these bags is discussed below.
. “I suppose I should have charged you, if I did not, that if the glassine hags in Exhibit 14r — that brown bag there that got down to Washington; I think it was sent by Inspector McDaniel to Washington with 308 glassine bags in it — if those glassine bags were not the bags found by Officers Seifer and Williams in the tire on March 15, 1967, then you should disregard the fact that the defendant’s fingerprints are on them. Those bags in that box must be bags which those officers found that night and not bags that were found some other time or some other place, and the Government has the burden of proving to you beyond a reasonable doubt that those bags in that box were the bags found by Officers Seifer and Williams that night.
“Now, they have tried to retrace their history in to the Number 5 Police Station and from the police station by Officer Diggs to the crime laboratory and from Mr. Jerpe’s hand in the crime lab — if I pronounce his name right — in to the chemist’s hands the next day when he analyzed the white substance, and by taking 7 packets from one bag and 7 packets from another bag at random, they tried to convince you that the remaining bags— absent 12 and five sent to some other place — were put by Inspector McDaniel into that box and were sent to the Federal Bureau of Investigation in Washington, and it was on those bags that Mr. Jones found the defendant’s fingerprints on three of them. On three of those bags, he found four of the defendant’s fingerprints, as I recall the testimony.
“Now, if you are not convinced beyond a reasonable doubt that those bags on which the defendant’s fingerprints were found are the bags that were found by those policemen, Seifer and Williams, out there on Railroad Street or near Railroad Street on the night of March 15, 1967, then this defendant should be acquitted.
“Are there any other exceptions?
“Mr. Brown: No, your Honor.
“Mr. Zurawsky: No, your Honor.”
. Whether 340 or 308 envelopes were sent to and received by the F.B.I. is immaterial, since all the testimony is that the envelopes sent to the F.B.I. came from the tagged bag, so that the eleven fingerprints were on envelopes taken from such bag. The charge made clear that the jury had the function of determining the facts.
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_civproc1 | 4 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
Pablo VINA, Plaintiff-Appellant, v. HUB ELECTRIC COMPANY, Defendant-Appellee.
No. 72-1599.
United States Court of Appeals, Seventh Circuit.
Argued April 18, 1973.
Decided June 29, 1973.
Allen R. Kamp, Chicago, Ill., for plaintiff-appellant.
Rody P. Biggert, Chicago, Ill., for defendant-appellee.
Before SWYGERT, Chief Judge, and MURRAH and BARNES, Senior Circuit Judges.
Senior Circuit Judge Alfred P. Murrah of the Tenth Circuit is sitting by designation.
Senior Circuit Judge Stanley N. Barnes of the Ninth Circuit is sitting by designation.
SWYGERT, Chief Judge.
Pablo Vina appeals from the decision of the district court dismissing his complaint for want of prosecution.
Vina filed a pro se complaint on November 26, 1971, against Hub Electric Company alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The form complaint was apparently provided him by the district court clerk along with a form affidavit of indigency. In the form complaint, Vina asked that fees for bringing the suit be waived and that the district court appoint counsel to represent him. The district judge, on November 20, 1971, denied the requests for appointment of counsel and leave to proceed in forma pauperis. The following day, the clerk of the district court billed Vina for the cost of filing the complaint, and Vina paid the $15 filing fee. Although the complaint was filed and the filing fee paid, the clerk never issued summons. Rule 4(a) of the Federal Rules of Civil Procedure provides a clear mandate to the clerk to immediately issue a summons and deliver it to the marshal for service: “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it.” (emphasis added). There is no explanation in the record as to why the clerk did not follow the rule.
Vina thereafter obtained counsel through the Legal Aid Bureau who filed an amended complaint on March 27, 1972. Rule 15(a) of the Federal Rules of Civil Procedure allows for such an amended complaint to be filed without leave of court since no responsive pleading had yet been filed by Hub Electric, the defendant. Summons then issued and the amended complaint was served on April 28, 1972. Hub Electric did not file an answer, but on May 18, 1972, the last day for filing the answer, it filed a motion to dismiss for failure to obtain leave of court prior to filing the amended complaint and a motion for extension of time to answer or otherwise plead. At a hearing on May 18 on defendant’s motion, Vina’s counsel argued that he was an attorney employed by Legal Aid and that due to the number of poor persons seeing attorneys, there was a two to three month wait before a client could be interviewed by an attorney. The district judge, sua sponte, dismissed the cause for want of prosecution and treated Hub Electric’s motions as moot. It is obvious from the judge’s remarks that he considered the “case closed” as of November 30, 1971, when he denied leave to proceed on appeal in forma pauperis even though Vina later paid the filing fee. The judge also informed Vina’s counsel that he should have specifically advised the court of the filing of his appearance and requested leave to file the amended complaint (although such leave was not required by Rule 15(a)).
The question on appeal is whether the district judge abused his discretion in dismissing Vina’s case for want of prosecution. We hold that he did and accordingly reverse.
The district judge and Hub Electric both rely on Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed. 2d 734 (1962), to support the proposition that a district court may dismiss a case for want of prosecution on its own motion. That case involved the dismissal of a six year old case which had previously been assigned two fixed trial dates which had been postponed. Plaintiff’s counsel failed to attend a pretrial conference and later gave a lame excuse for his absence. The case before us is not of the same genre. The other cases cited by Hub Electric are similarly inapropos.
Hub Electric argues that Vina should have investigated and made sure that service of the summons had been obtained and that he had “familiarize [d] himself with court procedures before proceeding pro se.” Hub Electric further argues that the same standards must be applied to pro se plaintiffs as are applied to plaintiffs represented by counsel. Such a statement is highly questionable. Cf. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In its argument for requiring pro se complainants to be skilled in the law, Hub Electric ignores the thirty day time limit which Vina had to file his complaint. 42 U.S.C. § 2000e-5(e). He also ignores the fact that Vina diligently sought counsel by court appointment and later by Legal Aid. Even if the same standards were to be applied to pro se litigants as to litigants represented by counsel (which we do not hold), it would not affect this case since Vina, whether pro se or represented, cannot be held responsible for the clerk’s failure to perform his duties of issuing the summons and delivering it to the marshal.
Vina had the right to file an amended complaint without leave of court pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. There was no basis in the record to support a finding that Vina had not been diligent in prosecuting his case. Nor has there been any showing of prejudice to defendant in the delay.
The dismissal is reversed and the ease is remanded under Circuit Rule 23 to be assigned to another district judge.
. Vina received a “right to sue” letter from the Equal Employment Opportunity Commission on November 11, 1971, notifying him that lie may institute a civil action under Title VII of the Civil Rights Act of 1964 in the district court within thirty days of receipt of the letter.
. This was the first notice Hub Electric received of the suit.
. Rule 21(a) of the local rules of the United States District Court for the Northern District of Illinois provides that “[c]ases which have been inactive for more than six months may be dismissed for want of prosecution.” This case does not fall under that rule since the inactivity was not six months in duration.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer: |
songer_genresp2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
Homer R. SYKES, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Itmann Coal Company, a corporation, Respondents.
No. 85-1441.
United States Court of Appeals, Fourth Circuit.
Argued November 11, 1986.
Decided March 3, 1987.
W. Richard Staton, D. Grove Moler, Moler & Staton, Mullens, W. Va., on brief, for petitioner.
Douglas A. Smoot (Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for respondents.
Before WIDENER, PHILLIPS and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
I.
Petitioner Homer Sykes worked in coal mines for over forty years. Prior to 1950, he was a motorman inside the mines. Nearly all of his more recent work occurred above ground as a heavy-equipment operator and mechanic. He retired from his last coal mining job in 1976 because of shortness of breath. Sykes had never lost time working in the mines from respiratory problems or any of his other injuries; he was a dedicated worker who was asked to remain in his position even after retirement age. He testified that his breathing difficulty kept him from staying on the job.
In 1972, Sykes was examined and tested for state occupational pneumoconiosis benefits. Three doctors interpreted his x-ray as showing some degree of pneumoconiosis. Pulmonary function studies from that date were just outside the range required for invocation of the federal interim presumption of disability. Sykes received a state award based on a 25% loss of pulmonary capacity.
Sykes filed a petition for federal black lung benefits in 1974. He was examined that year by Dr. A.R. Piracha, who found chronic obstructive pulmonary disease with a minimal to moderate level of impairment. An x-ray taken in 1974 was read by a field reader as showing simple pneumoconiosis, q-type, of a 3/3 profusion. The Department of Labor requested another interpretation. A B-reader, Dr. William S. Cole, read simple pneumoconiosis, r-type, of 2/2 profusion. Dr. Cole also found the film to indicate complicated pneumoconiosis, category A. Three years later, the company obtained another reading of the same x-ray from Dr. Paul C. Francke, also a B-reader. Dr. Francke interpreted the film as simple pneumoconiosis, q-type, of a 2/1 profusion. He made no finding of complicated pneumoconiosis.
After Dr. Cole’s reading of complicated pneumoconiosis, the Department of Labor determined that Sykes was entitled to benefits under the irrebuttable presumption of § 411(c)(3), 30 U.S.C. § 921(c)(3) (1982). The company controverted the claim, and a hearing was set before an administrative law judge (AU). The company arranged for Sykes to be examined by a physician of its choosing, as provided at 20 C.F.R. § 725.414(a) (1986). Sykes made two trips to this physician, Dr. Willard Pushkin, yielding the ventilatory test results noted supra note 1. But Sykes refused to submit to another x-ray, on the basis of a note from his treating physician, which said that further x-rays could endanger Sykes’ health. Dr. Pushkin noted in his report that Sykes “has shortness of breath with minimal effort,” “has difficulty negotiating a flight of stairs,” has “chronic cough and expectorates mucoid sputum,” and “wheezes and vomits a good deal.” Dr. Pushkin opined that:
1. There is sufficient objective evidence to justify a diagnosis of coal workers’ pneumoconiosis with respect to Mr. Sykes____
3. Mr. Sykes does not suffer from pulmonary or respiratory impairment, based on blood gas studies, as well as spirometry.
II.
The AU awarded benefits based on the § 727.203 presumption at the one and only hearing that was ever held. The AU had the x-ray evidence of complicated pneumoconiosis before him, and the central issue in the hearing was whether or not Sykes would get benefits based on the irrebuttable presumption of 30 U.S.C. § 921(c)(3) (1982). The AU decided at the hearing not to consider the evidence of complicated pneumoconiosis because of possible prejudice to the employer in examining Sykes without the benefit of an additional x-ray. But in his written opinion, the AU reversed this decision sua sponte and claimed to have considered and rejected evidence of complicated pneumoconiosis.
The change of position between the hearing and the time of the written opinion, and the hearing transcript itself, indicate that the AU felt that Sykes definitely should receive benefits. The AU pegged his holding on the interim presumption rather than the irrebuttable presumption so as to avoid any appearance of prejudice to the employer from its inability to get a new x-ray film. At the hearing, there was little discussion of the other evidence in the case, including the Pushkin report. The AU concluded that the interim presumption was invoked by the x-ray evidence and was not rebutted under 20 C.F.R. § 727.203(b)(2) (miner able to do his usual coal mine work) or § 727.-203(b)(3) (total disability not caused by coal mine employment).
The AU considered the Pushkin report in his written opinion, but gave it less than compelling weight. The AU held that the Pushkin opinion “does not tend to affirmatively ‘establish’ the ability or lack of causation required by 727.203(b)” based on the actual wording of the opinion and the fact that its primary conclusion was premised solely on nonqualifying ventilatory and blood gas studies.
The Benefits Review Board (BRB or the Board) affirmed the AU’s written treatment of the irrebuttable presumption evidence, but reversed the AU’s finding of entitlement to benefits. The BRB first asserted that the AU completely ignored Dr. Pushkin’s report; the Board then explained that a medical opinion on the severity of pulmonary impairment based on nonqualifying ventilatory or blood gas studies was competent rebuttal evidence. See Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980). The BRB remanded for renewed consideration of the medical evidence in the case on the question of a § 727.203(b)(2) rebuttal. One Board member dissented, urging that the AU’s initial decision did consider the Pushkin report in a way that accorded precisely with this court’s approach to rebuttal of the interim presumption.
On remand, the ALT reversed and denied benefits due to Dr. Pushkin’s finding of no pulmonary impairment, while noting that three other doctors came to a different conclusion. None of those other doctors found that Sykes was totally disabled; however, the overall summary of the medical evidence was accurately given by the dissenting BRB member:
All nine physicians expressing an opinion on the existence of pneumoconiosis agreed that claimant suffered from pneumoconiosis; ... of six physicians expressing an opinion on the existence of respiratory impairment, five physicians found that claimant suffers from a respiratory impairment; all five physicians expressing an opinion on claimant’s work ability found that claimant had suffered a decrease in capacity to work; and only one physician was selected by the claimant, with all others being referrals by the Department of Labor, West Virginia Occupational Pneumoconiosis Board, or the employer.
Id. (dissenting opinion). Nevertheless, the BRB affirmed the denial of benefits in the second instance.
III.
We agree with the dissenting BRB member: the initial AU decision, awarding benefits, was based on substantial evidence and should not have been vacated. The denial of benefits in this case would work a glaring injustice. The Board chided the AU for ignoring Dr. Pushkin’s report, when in fact the AU considered that report, but properly chose not to give it controlling weight. The AU’s choice of words in describing the Pushkin report was not ideal, but the context of his decision makes clear that he merely refused to credit it above the other reports that indicated the existence of some disability. Dr. Pushkin found that “Mr. Sykes does not suffer from pulmonary or respiratory impair-merit, based on blood gas studies, as well as spirometry” (emphasis added). Considered alongside the other evidence in this case, including the opinion of a B-reader that Mr. Sykes had complicated pneumoconiosis, this statement alone does not compel the conclusion that “the individual is able to do his usual coal mine work or comparable and gainful work.” 20 C.F.R. § 727.-203(b)(2) (1986). While Dr. Pushkin’s statement is probative evidence for a rebuttal under § 727.203(b), it was a mistake for the Board to vacate the AU’s decision and implicitly suggest that, on the basis of Dr. Pushkin’s opinion alone, the interim presumption should be rebutted.
Dr. Pushkin’s report fails to mention the exertive requirements of Sykes’ job or the extent to which Sykes’ symptoms would hinder his performing comparable work. A mere finding of “no impairment” under the American Medical Association standards cannot be equated with a finding that a claimant can continue to perform coal mining work. See Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980) (dissenting opinion). At the .least, for an employer to rebut the interim presumption under § 727.203(b)(2), consideration should be given to the health requirements for work comparable to that performed by the claimant. The plain words of the regulation mandate such consideration. By remanding to the AU in this case and suggesting that Dr. Pushkin’s opinion deserved more weight than it was initially given, the Board effectively dictated a result contrary to the one that the AU clearly believed was just.
The BRB has taken another position in this case which is contrary to the plain language of the statute. It held that an employer may rebut the interim presumption under § 727.203(b)(2) by showing that a miner, while concededly totally disabled, is not disabled for pulmonary or respiratory reasons. That is, the BRB asserted that a causation requirement may be imported into § 727.203(b)(2). This is belied by the words of the regulation. Section 727.-203(b)(2) is concerned with the question of whether miners are totally disabled for whatever reason. There is no inquiry into causation in a proper § 727.203(b)(2) rebuttal. The reference in that subsection to § 410 merely clarifies the nature of “usual and comparable work”; it does not bring causation into question. Causation is addressed in § 727.203(b)(3). Once the miner’s disability is conceded, then the question arises whether that disability is unrelated to mine work.
In the case of Mr. Sykes, a fair reading of the record shows that the ALJ and all who considered his affliction prior to the BRB reversal believed that this miner should receive benefits. The AU struggled with the proper way to award benefits; he might well have proceeded under the irrebuttable presumption initially relied on by the Department of Labor, had not Sykes’ inability to produce another x-ray appeared to block his path. He instead wrote an opinion that relied on the rebut-table presumption and that dealt rather cursorily with all the medical evidence, including that of Dr. Pushkin. There was substantial evidence for his awarding of benefits, and the BRB should not have disturbed this initial decision. Since the Board did vacate the initial decision, with directions that more weight be placed on Dr. Pushkin’s report, the ALJ was left with little choice on remand other than to switch positions and deny benefits.
The dissent was correct and the Board in error in Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980). Accordingly, we reverse and remand to the Board with instructions that the ALJ’s initial decision be reinstated.
REVERSED.
. See 20 C.F.R. § 727.203(a)(2) (1986). Sykes’ 1972 ventilatory study produced an FEV-1 of 2.6 and an MW of 89. According to his medical report, he was 69 inches tall in 1972. The § 727.203(a)(2) qualifying figures for a miner 69 inches tall are an FEV-1 of 2.4 and an MW of 96. By the time of his last available test, by Dr. Pushkin in 1979, Sykes scored an FEV-1 of 2.538 and an MW of 62. His height was then listed as 67 inches. Dr. Pushkin attributed the very low MW score to submaximal effort on the part of Sykes.
Counsel for Sykes indicated at oral argument that Sykes had consistently produced qualifying ventilatory test results prior to Dr. Pushkin’s evaluation. However, in the record before us, none of the values are qualifying. All are just above the § 727.203(a)(2) levels. The existence of values that do not qualify to invoke the interim presumption, of course, is not determinative of the question whether a claimant is entitled to benefits. The presumption can be invoked in any of four ways, see 20 C.F.R. § 727.203(a)(1)-(4) (1986), and once invoked, rebuttal must be accomplished under one of the methods at § 727.203(b).
. The two subsections read as follows:
(b) Rebuttal of interim presumption ... The presumption in paragraph (a) of this section shall be rebutted if:
(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title); or
(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment.
20 C.F.R. § 727.203(b) (1986).
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_appel2_1_4 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "mining". Your task is to determine what subcategory of business best describes this litigant.
MOULTON MINING CO. et al. v. ANACONDA COPPER MINING CO.
Circuit Court of Appeals, Ninth Circuit.
January 9, 1928.
Rehearing Denied with Modification March 19, 1928.
No. 5143.
1. Mines and minerals <©=30 — To constitute “¡ode,” ore bodies must come from same source, Impressed with same form, and must appear to have been created by same processes.
While structural boundaries are not always necessary to constitute vein or “lode,” (here must be ore bodies coming from the same som-cp, impressed with the same form, and appearing to have been created by the same processes.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lode.]
2. Mines and minerals <©=>38(18) — Evidence held to sustain finding that ore within defendant’s vortical boundaries was not part of vein apexing within claims of plaintiff (Rev. Codes Mont. 1921, § 9479).
Finding in suit to quiet title to mining claim, under Rev. Codes Mont. 1921, § 9179, that plaintiffs failed to established that ore within vertical boundaries of defendant's claim was part of veins which had their apex within claims of plaintiff, held proper under evidence.
3. Mines and minerals <§=38(14) — Plaintiffs had burden to prove their extralaterai rights extended to defendant’s mining claims.
Plaintiffs, claiming mineral rights in ore as against defendant, had burden to'prove extra-lateral rights on ground that defendant s claim apexed within plaintiffs’ vein.
4. Mines and minerals <§=38(!4) — Defendant, denying plaintiffs’ extralaterai rights, was required to overcome plaintiffs’ showing that defendant’s claim apexed within plaintiffs’ vein.
Where plaintiffs showed defendant’s mining claiifi apexed within limits of plaintiffs’ vein, it’ devolved on defendant, endeavoring to deny plaintiffs’ extralateral rights, to overcome the showing made.
5. Mines and minerals <©=38(!8)- — Evidence held to require finding that plaintiffs’ extra-lateral rights extended to segment of defendant’s claim having its apex within boundaries of plaintiffs’ claim (Rev. Codes Mont. 1921, § 9479; 30 USCA § 41).
In suit to quiet title to mining claim under Rev. Codes Mont. 1921, § 94791, evidence held to require finding that plaintiffs’ extralateral rights- extended to defendant’s claim as to segment of claim found to have its apex within boundaries of plaintiffs’ claim; there being no intersection and crossing, within meaning of Rev. St. § 2336 (30 USCA § 41).
Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.
Suit in equity by the Moulton Mining Company and others against the Anaconda Copper Mining Company. Decree dismissing plaintiffs’ complaint (20 F.[2d] 1008), and plaintiffs appeal.
Modified and affirmed.
Wm. E. Colby, of San Francisco, Cal., W. A. Clark, Jr., and J. L. Templeman, both of Bntte, Mont., and John C. Higgins, of New York City, for appellants.
L. O. Evans and D. M. Kelly, both of Butte, Mont., and Henry McAllister, of Denver, Colo., for appellee.
Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.
HUNT, Circuit Judge.
Plaintiffs appellants brought suit against defendant appellee to quiet title to the Poser mining claim at Butte, Mont. The suit was brought under section 9479, Montana Revised Code, which authorizes an action against any person who may*elaim any right, title, estate, or interest in real estate adverse to plaintiffs’ ownership, whether such claim or possible claim be present or contingent, for the purpose of determining such claim, or possible claim, and quieting title to said real estate.
Plaintiffs alleged that they owned and possessed the Poser claim, and all veins, lodes, and ledges having their tops and apexes therein through their entire depth or downward course, measured between vertical planes passed through end lines; that dofendant owns a group of mining claims adjoining the Poser claim on the south, all being subsequent in time of initiation and location of rights to the rights of the Poser; that within the Poser claim is the Rainbow lode, discovery vein of" the Poser, the entire width of the apex of the Rainbow being included within the surface boundaries of the Poser claim for its entire length, and crossing both’ end lines of the Poser; that there is, also within the surface boundaries of the Poser claim, the Poser vein, which extends longitudinally throughout the claim from end line to end line, and also a vein or lode, for convenience designated the Intermediate vein, the entire apex of which extends longitudinally throughout the Poser from end line to end line; that the Poser and the Intermediate dip southerly and penetrate underneath the surface of the adjoining group of claims of defendant; that in the Poser claim, between the 1,000 and 1,300 levels of the workings, the Poser vein crosses and extends beyond the vertical plane, passing through the southerly side boundary of the Poser claim, and is found running down beneath the surface of the adjoining claims of defendant; that defendant claims an interest adverse to plaintiffs in and to the Poser and Intermediate veins, and particularly those parts of the Poser and Intermediate which lie vertically beneath the surface.of the defendant’s group of claims, and between the Poser end line planes produced southerly as described, and has at various places penetrated each vein with its mine workings; that the claims of defendant, as to its ownership of the said claims of the Poser and Intermediate existing vertically beneath the surface of defendant’s group, and between the Poser claim end line planes produced as aforesaid, are groundless, and a cloud upon the title of the plaintiffs to the Poser and Intermediate veins as described, which are a part of the Poser claim, and that defendant has no right in or to said extralateral claims of either the Poser or the Intermediate vein, as described in the complaint, or to any portion thereof; that defendant penetrated into ex-tralateral parts of the Poser and intermediate veins as described, and extracted valuable ore, and threaten to continue workings upon said extralateral portions of the Poser and Intermediate veins.
The prayer is that defendant be required to set forth the nature of its claim to said ex-tralateral portions of the Poser and Intermediate veins or lodes described, and that all adverse claims to the same or any portion.thereof be determined by a decree of the court; that it be adjudged that defendant has no estate or interest whatever to any portion of the Poser or Intermediate veins as described in the complaint; that plaintiffs’ title be decreed to be good, that injunction issue, and that accounting be had.
By answer defendant admitted its ownership of a group of mining claims adjoining the Poser claim on the south; alleged ownership of all veins and ore bodies within the surface boundaries extended downward vertically of such claims south of the Poser; alleged that the Rainbow lode has its apex within the surface boundaries of the Poser claim for its entire length; denied the existence of the “alleged and pretended” Poser and Intermediate veins or lodes, or of any segment, spur, or branch thereof, or that defendant claims any ownership of any segment ór segments of said veins; denied that it mined any ore which belonged to plaintiffs, and prayed for a decree dismissing the complaint..
Upon the trial it was stipulated that the Poser claim was prior in time in discovery and location to the claims of defendant to the south, and that discovery, on the Poser was made on the Rainbow lode at the west end line of the claim as described in the patent.
Certain admissions of the respective parties as to ownership and possession of their respective mining claims narrowed the main issue to the question whether the Poser and Intermediate veins existed as alleged. Some advance was made in solving that issue as to the Intermediate vein by the admission of defendant that there was a vein called the Intermediate, branching from the Rainbow in the Poser subsurface. At the close of the trial the defendant admitted that part of a vein, called by plaintiffs their Intermediate vein, but which defendant called the Yiew vein, was the property of plaintiffs to an extent as follows:
“In so far as the plaintiff has the apex of the View vein at any place westerly from the point where the Emily crosses the south side line of the Poser claim, they are entitled to all ore and minerals in the Yiew vein between the plane of their west end line and a parallel plane drawn down through the point where the Emily crosses the south side line of the Poser.”
.Much testimony was heard, and the court, in a carefully considered opinion, held, substantially, that the Poser claim is located on and lengthwise of the Rainbow, of northerly dip and east-west age; that both are intersected by the Emily vein of northeasterly dip and northwest age; that the Emily vein at the surface enters the Poser claim 370 feet west of the southeast corner, and departs 50 feet east of the northwest corner; that at the surface a vein, called Poser by plaintiffs and Pilot by defendant, enters the claim at the southeast comer, dips northerly, running northwesterly to the east side of the Emily; that at some depth the ^Intermediate vein branches from the south side of the Rainbow west of the Emily, dips southerly, and runs easterly; that there are other veins in the Poser; that the Black Rock fault of southerly dip courses through the Poser claim from end line to end line; that within defendant’s claims arc veins which apex in defendant’s ground; that of these veins some (which are named) are of east-west age, with southerly dip and easterly and westerly strike; that there are also the Emily and one other vein of northwest age, having northeasterly dip and northwesterly strike; that the Black Rock fault is also within these claims; that from 100 to 800 feet south of the Poser claim, and from 1,300 to 3,000 feet in depth, thei-e are extensive bodies of ore within defendant’s vertical boundaries, with apexes in defendant’s ground; that, inasmuch as none of the ore bodies are in the Poser or Pilot vein east of the Emily vein, the questions for decision were (1) the existence of the Poser vein west of the Emily vein, and (2) the relation of the Intermediate vein to the small ore body on the 2,800-foot level. It was found that what is called the Poser vein was not a vein of the true fissure type characteristic of the Butte district, but merely a conjugated fracture and stock work and of vein segments, and on the east end was made up from the Pilot vein, belonging to plaintiffs.
With respect to the second main question, it was found that the ore body, found on the 2,800-£oot level and the Intermediate vein, was between two parallel veins of northwest age, 100 to 200 feet distant; that plaintiffs’ raise from the ore body was not in a single plane, hut in offset raises; that it could not be presumed that the vein could be projected through; that in the raise from the ore body to the 2,600-foot level the plaintiffs reach close association between the vein of southerly dip which they were following and the defendant’s Mill vein of northerly dip, hut that it was doubtful whether they united or intersected; that on the 2,600 level plaintiffs drifted 350 feet northwesterly, raised to the 1,700-foot level, drifted southeasterly and through the 1,736 raise to the 1,500-foot level; that in the raise there is a vein which continues to and includes the ore body on the 2,800-foot level; that the Intermediate vein, being of east-west age, and the Emily, of northwest age, would not unite, but that, if the vein in the 1,736 raise and the Emily did unite, the vein in the raise is a branch of the Emily, and is not the Intermediate vein; furthermore, that if the vein in the 1,736 raise was not proven not to unite with the Emily, where it was in such close relation as to suggest union, then under the evidence it could not be regarded as the Intermediate vein.
It was also held that plaintiffs failed to prove that the vein in the 1,736 raise is not a branch of the Emily, and does not unite with the Emily, or that it is the Intermediate vein; that in the 1,550 drift the Intermediate vein is strong, and at 1,583 cross-cut, reduced in size, it departs northeasterly from the 1,550 drift from which point to 1,736 raise is a region of small seams, faults, veins, and branches; that from or near the 1,583 cross-cut is a small vein, 6 to 12 inches wide, coursing southeasterly in 1,550 drift, dividing into two branches, which unite and redivide, the southern branch entering the 1,736 raise and' being a vein in which is the ore body found on the 2,800 level; the northern branch continuing into 1,550 drift as it curved from north, to southeast around the 1,736 raise; that there it converges to the Emily vein, the two forming an acute angle; that the northern branch referred to and the Emily united (the northern branch being a branch of the Emily) is of northwest age, as is the southern branch, which united with the northern branch;. that the southern branch in the 1,736 raise is not the Intermediate vein of east-west age, and that the ore body in the 2,800 level is not in the Intermediate vein, but is in a branch of the Emily vein.
Decree was entered, dismissing the complaint, and plaintiffs appealed.
Assignments of error question the decision awarding to appellee that segment of the Emily apex 370 feet west of the Poser’s southeast corner, covering the ore body in dispute and in appellee’s ground, and not awarding to appellants the ownership of the extralateral segment of the View vein and the ore and minerals found in it to the west of the 370-foot point where the Emily apex crosses the south Poser side line, measured between the conceded limiting extralateral planes.
Assignments also predicate error upon the failure of the court to find that the Emily vein was joined by the View vein beneath the surface, was cut off and thrown by the Black Rock fault, and thus that there was created a subfault apex, or a vein segment, and that such subfault apex extended longitudinally within the vertical boundaries of the Poser claim from the east end line of the Poser westward for several hundred feet; also, upon the findings that appellants were asserting a right to follow the ore body in question on strike, rather than on dip, and that the View- and the Intermediate were separate veins.
The substance of the assignments with relation to the Poser vein is that the court erred in holding that the Poser vein was not in legal contemplation a vein, and in not quieting appellants’ title in and to the Poser vein, as described in the complaint, to the full extent thereof as it extends on its downward course beneath the surface of the adjoining mining claims of appellee.
Understanding of the whole ease is simplified by reference to the generally recognized geological characteristics of the Butte district. Put in the briefest way, it is generally agreed by learned scientists that in that district there are several ages of veins, the oldest of which is known as the east-west, or Anaconda, system. That is described as consisting of a large number of strong east-west mineralized fissures; the larger veins therein generally having a dip to the south in the south and southeasterly part of the district, while in the north and northeasterly parts the veins generally have a northerly dip. Explanation of this changing dip of the veins is that the dip corresponds to the change in strikes. The east-west veins are characterized as large and complex, and composed of a number of closely spaced parallel veins, with many cross connecting stringers or fissures, which are sometimes large enough to constitute separate veins as mines. The next oldest system is spoken of as the Blue vein system, in which the veins are generally of northwesterly-southeasterly direction, and generally cut through and fault the earlier veins. The Blue System is regarded as large, with veins that are-persistent on strike, and, like the veins of the east-west system, have’ many branches, with like parallel veins, and show much alteration or fracture along -the sides of parallel veins. The next, and still younger, veins are referred to as Steward veins, or those striking northeast, having less mineralization and fewer ore bodies than have the Blue and the east-west veins. They are fault veins, rarely encountered in the Butte district.. With all-of the above vein systems, alteration of the granite is found more extensively in the east-west system than. in the Blue vein system, and still less in the Steward veins. Of importance, too, in the district, are certain post-mineral faults, faulting the ore bodies in segments or fragments. Among these is the strong Black Rock fault, which cuts through the Rainbow and Blue veins, and extends through the Poser claim into the Elm Orlu on the east.
The question of the existence of the alleged Poser vein presents difficulty, in solving which we have kept in mind the argument of the appellants that, while the existence or rionexistenee of a vein is often dependent up-'on mixed questions of law and fact, in this instance the evidence of mineral showing and of the physical characteristics of a vein are so strong that as a matter of law the only conclusion that could properly be reached was that it was a vein. Fundamen, tally, of course, we are glided by the well-recognized knowledge that in the complexities of lodes, with indefinite and irregular walls, while the mineral association of rock in place is an essential element in the definition, the nature of the material, the form of the deposit, and the character of the boundaries are often variant (Lindley on Mines, § 294, p. 265; Iron Silver Co. v. Cheesman, 116 U. S. 529, 6 S. Ct. 481, 29 L. Ed. 712; Star Mining Co. v. Federal Mining Co. [C. C. A.] 265 F. 881), and that it is not necessary for the formation of a disseminated lode that there should be any- walls or any sheering. “It simply requires a more or less porous rock through which the solutions may pass. * * * They may have indefinite boundaries.” Thus, while what are spoken of as structural boundaries are not always necessary to constitute a vein or lode, there must be ore bodies coming from the same source, impressed with the same form, and appearing to have been created by the same processes.
Plaintiffs introduced much testimony in support of their contention, but beyond mentioning a few points it is unnecessary to set it out at length. Much of it tended to show that on the 1,000-foot level the proportionate amount of mineralization, as disclosed by assays of the Poser vein at the west end of the claim, has less copper and zinc, but more silver and lead, than the appellee’s Pilot vein at the east end, and that the Poser at the west end, though showing less copper and lead, had considerably more silver and zinc. Some of^the witnesses made comparison between the vein portion which the appellants claim to be the Poser west of the Emily with the Pilot, admittedly a vein east of the Emily above the 1,000-foot level, and said that in. some places the raises of the disputed Poser vein in that part which appellee says is only the Black Bock fault, higher assay values were obtained from samples than are shown in the vein admittedly found in the east end raises down to the 1,000-foot level.
Witnesses described the results of tests of material taken at the west end of the Poser under a designated raise (A-1034) as disclosing double the quantity of copper, more silver, more zinc, and decidedly larger proportion of lead than there is in the Pilot vein at the east end of the claim in the A-1034 raise. They also said that on the west end of 747-A raise in the Poser vein, while there is less copper and less zinc, there is more lead and silver than in the Pilot in the east end at the 726-A raise, and that in the 351-A raise in the Poser there was less copper, zinc, and silver, but more lead, than the Pilot showed at the 310-A raise; also that in the 1561-B winze, where there is a vein, said to he the North Badger, and in the 1561-A winze, the Black Bock fault appears, but that assays from material taken from each of these workings disclose that, in the so-called North Badger vein in the winze, the average mineralization is no better than that found in other workings in that vicinity, and that the averages of assays taken in those sections, said by appellee to cajiy the Black Rock fault, show a higher degree of mineralization than is shown on the North Badger.
On the other hand* there is no doubt of the fact — we do not understand that the contrary is advanced — that the average of the assays of the Poser above the 1,300-foot level for the full length of the claim does not approximate commercially valuable ore. But experts, some of whom have had long experience in the study of geological and mineral conditions in the Butte district, testified in behalf of appellee that many of the assays made by plaintiffs were from material taken from a selected poorly mineralized slice of a vein other than the Poser, and therefore, when compared with assays taken from the Poser, demonstrate practically nothing in determining the vein character of either structure. They referred to the accepted fact that the great Rainbow lode, between the lines of the Poser claim and above the 500-foot level, has furnished little or nothing in the way of commercial ore, that assays from it would show nothing, and yet that the Rainbow structure has an average width of 70 feet, with mineralization in a strong typical vein, easily recognized and followed.
Assay exhibits used for making comparisons between the averages of mineralization in different parts of the Poser above the 700-foot level and the mineralization of the Pilot vein east of the Emily, with the mineralization of the entire Poser west of the Emily and with the mineralization of segments of the Poser, were introduced with computed results which showed weaker mineralization of the Pilot than of the Poser west of the Emily. As an illustration of their contentions, appellants divided the Poser west of the Emily into thrge segments, including (1) the first 230 feet west of the Emily; (2) the adjacent 100 feet westerly; and (3) 70 feet still further westerly. Their tabulations disclose that in the first 230 feet there is less copper, silver, and zinc than there is in the section adjacent and one loot to the west, and that in the first section, when compared with the Pilot vein east of the Emily, there is disclosed more copper and silver than is to be found in a section of the Pilot, and that each segment of the Poser west of the Emily was somewhat better mineralized than the Pilot vein.
Then, too, there is appellee’s evidence that the reliable method of sampling in the Butte district is to take separately ore streaks, mineralized ground, gouge, or waste, or other material in the working samples, and to show the assay result of each character of material separately — a method which seems to have been at variance with that pursued by appellants, who took samples across the workings at regular intervals. After sampling the Poser down to the 2,000-foot level, plaintiffs stopped, because of the f aet that the workings themselves showed ore and veins. One of the defendant’s mining engineers and geologists, in explaining a map of the outline of the workings of the 1,300-foot level of the Elm Orlu mine, testified that he sampled practically all of the crosscuts in making a determination of the granite alongside of the Black Rock fault; that in sampling crosscuts or drifts a convenient sampling interval was decided upon as 5,10, or 20 feet, and the points were marked; that at each of the points to he sampled an examination was made from side to side at the back of the drift; that, when those points were marked, samples were taken with the right^amount of material from every section of the cut, and that such method continued at each particular sampling point throughout the investigation; that in examining the 1,300-foot level he ‘Went into several of the crosscuts and attempted to compare the mineralization with the alleged walls of the Poser vein as depicted upon certain of the exhibits of the plaintiffs; that he found the average metal content of a given specified portion of a crosscut included in the Poser as described by plaintiffs was a lower degree than the average metal content of the rest of the crosscut; and that like instances were presented on the same level at other crosscuts.
In an effort to arrive at convincing results from the divergent methods testified to, and to deduce entirely satisfactory conclusions therefrom, the District Judge referred in detail to the assays as not impressive, and as of little weight in determining whether the Poser is a vein for the 400 to 600 feet west of the network structure described by geologists as largely Black. Rock fault, with a few segments of veins 'cut by the fault. With the weakening of the force of assay testi-’ mony, the evidence of the geology became the potent influence toward a definite conclusion. As to that there were the opinions of learned specialists, saying in part that they found no fissure without the fault, and no throw of the Poser vein, where cut by the Black Rock fault, with a normal throw of 160 feet; that the Poser was not of the Steward age, and that it showed marked differences west of the Emily from what was shown east of the Emily.
The difficulty of arriving at a well-sustained result is exemplified by mentioning.the fact that the principal witness for the defendant, a geologist, who testified that what was called the Poser lacked the characteristics of a fissure vein, had, in a technical article written some years before, described the Poser vein as of the Steward age. It is to be presumed, of course, that more recently acquired knowledge has brought about a modification of his first opinion; but the very circumstance illustrates the closeness of the crucial question. We leave it, satisfied that the conclusions of fact as found have substantial support in the evidence, and that upon the facts fpund it was not error to hold that there was no Poser vein at the places indicated. i
In adjudging that appellees had the right to the ore within the plane measured 370 feet westerly from the Poser claim east end line, the court found thgt the Emily apex was outside and south of the Poser claim. The predicate for that opinion was that in that section the vein called the Poser was the Pilot in appellee’s claim, a vein of northwest age, with westerly trend through it, and not extending at all west of it. The conflicts in the testimony upon the question whether at the points east of the Emily the veins were of the Pilot, of northwest age, were many and hard to reconcile; but the major conclusion that the Pilot was not found west of the Emily rests upon substantial evidence and must stand.
We next turn to appellants’ contention that the court should, at least, have awarded plaintiffs extralateral rights on the View vein west of the 370-foot point, where the apex of the Emily crosses the south side line of the Poser claim. At the outset appellee says that appellants advanced no such contention in the District Court, and that therd is no assignment of error based upon the omission of the trial court to award to appellants the vein segment referred to. But, as hereinbefore set forth, the complaint alleged that there is a vein, conveniently referred to as the Intermediate, which has its apex for its full length in the Poser claim, and dips southerly underneath the adjoining claims of the defendant and that the defendant was engaged in mining such Intermediate vein on the 2,600 and 2,800 levels, and the prayer is that plaintiffs’ title to the Intermediate vein, as described in the complaint, be adjudged good and valid, and that the defendant be enjoined from asserting any adverse claim thereto between the Poser extralateral planes passed through its end lines. The vein thus described necessarily included the vein segment in controversy. The answer met these allegations, and the assignments of error are sufficient to call for examination of the question presented.
The finding that the.Intermediate vein did not extend outside of the vertical bounds ries of the Poser claim and that the Intermediate, as a branch of the Rainbow, did not extend extralaterally down to and include the ore bodies in controversy, involved only one of the vein segments which the plaintiffs had described as the Intermediate vein, and but partially responded to issues and to the prayer for a decree quieting title to the vein which extended extralaterally beneath defendant’s surface. If the identity of the vein was established as the subject of the controversy, the fact that it was called by appellee the View vein is not of vital importance. To go at length into the evidence seems unnecessary; hence we shall mention but a few of the more prominent points.
Are the View and the Intermediate separate veins? The View vein is disclosed in the workings beneath the surface of the Poser, where the Intermediate is admitted to exist. The View vein appears to be coincident with the Intermediate; it also conforms to the description of the vein in the complaint, to whieh plaintiffs claim title, and which they assert extends extra!aterally. It was after evidence tending to show these facts appeared, and plaintiffs urged that they were entitled to the entiro vein extealaterally from one end line plane to the other end line plane of the Poser claim, including the segment west of the Emily apex crossing, that defendant made the admission that, in so far as plaintiffs had the apex of the View in places westerly from the point where the Emily crosses the south side line of the Poser, plaintiffs were entitled to all ore in the vein between the plane of the west end line and a parallel plane drawn down through the point where the Emily crosses the south side line of the Poser.
That admission is to be construed with the decision of the trial court that the View vein is a branch of the Emily, and that the Emily had its apex in the defendant’s ground for tho easterly 370 feet of the length of the Poser claim. That fact, so found and accepted, was, as we understand the reasoning of the District Court, the foundation for tho judgment that the defendant was entitled to the ore bodies in dispute and embraced within the 370-foot extralateral easterly sweep. It was supported by exhibits and oral evidence that the View and the Emily join at a point, not west, but east, of the Poser claim in the end of tho 1,550-foot drift; nor does the evidence show other joinder west of the Poser east end line, But there was evidence that, in the cross-sections through the Poser claim, beginning at the Poser east end line and running west as far as the middle of tho Poser claim, the View vein courses up iuto tile subsurface of the Poser, across the- Poser south side line plane; that it is seen coming up with apparent regularity, which impels the opinion that on its north of west strike it will meet the Emily under the Poser surface, farther under as the course proceeds westerly.
We find the View or Intermediate vein on the 1,000 level. About 600 feet west of the east end line of the Poser, and north of the south side line, a joining or union is found; the Emily dipping in a direction opposite to the View and overhanging at points. It is not seen, however, in the 500 or 700 levels. It extends down to the 3,000-foot level east of the segment being inquired about; is also found extending for 300 feet west of tbe 370-foot plane on the Poser 2,200 level, in the westerly end of one of tbe drifts; it extends west beyond the 370-foot plane lying vertically beneath appellee's surface. Appellee’s suggestion, that at the 2,800 level the slopes of the View vein strike northwesterly at an acute angle from the east end line plane of the Poser, does not appeal persuasively, especially in view of the evidence that the angle which the average strike tho View vein makes with tho Poser east end line plane is greater than 45 degrees. Last Chance Mining Co. v. Bunker Hill Mining Co. (C. C. A.) 131 F. 579.
Appellants urge with telling force that the court, having held the View to be a branch of the Emily, and having taken the View on a reverse dip to an apex outside and south of the Poser ground, necessarily adopted the presumption that it extended westward to the Poser claim; hence that, by parity of reasoning, it is to be presumed tho vein exists in the extra lateral area to the west of tbe 370 foot plane.
The junction as found was upon an exposure east of the Poser line. In our opinion, plaintiffs’ position is tenable. There is also the evidence showing the View on one of its branches running west of the 370-foot plane and lying vertically beneath tho surface of one of appellee’s claims; that the View dip is southerly within tbe subsurface. A quirk in what appellee terms a branch of the View vein is found in a stub raise, an extension of tho 1736--A raise, some few feet east of the Poser east end lino plane, far east of the 370-foot plane. The exposure referred to appears as one of two branches, where the District Court said identity and correlation were difficult. We do not think the quirk justifies the opinion that there was a reversal of the dip, for cross-sections expose the View vein crossing the Poser south side line plane and extending up into the Poser claim on uniform dip for nearly 1,000 feet, and to a distance not far from the Emily, with which the court found it would unite. The weight of evidence is against the reversal of the dip.
Additional citations from the evidence tending to show that the apex of the View is within the Poser limits could be made. Considered together, they are enough to support the proposition that the apex of the View, found by tbe court to bo for a distance of 370 feet outside of tbe Poser surface claim limits, is presumed to continue to tbe west of the* point where it crossed into the Poser claim.
Plaintiffs always had the burden of pyoof as to the extralateral rights; yet when it was shown that tbe vein involved in tbe litigation extended up from the disputed ore body, and passes beneath the surface of the Poser claim in such a position toward the boundaries of the plaintiffs’ claim that the apex of the extralateral claimants’ mining claim would apex within its ground, it devolved upon defendant, endeavoring to deny the extralateral rights, to overcome the showing made. Throughout our examination of the ease we have kept in mind the relationship of the Black Rock fault, which would cut off the Emily continuéd upward. It may be that, where the merged vein is against the Black Rock fault on the foot wall side, that it ends there, and that an extension upward above the fault capnot be found. If this be so, the theory of a subsurface fault is not to be lightly put aside. The admitted displacement of the Black Rock fault, even as much as 200 feet, gives countenance to that theory. State v. District Court, 30 Mont. 96, 75 P. 956.
It is certain that for distances of hundreds of feet there is contact and merger on dip and strike 'underneath the surface of the Poser claim and within the boundaries of that claim. There is coincidence but neither intersection nor crossing, within the meaning of those terms in section 2336, Revised Statutes of the United States (30 USCA § 41). Reading the evidence convinces us that the most reasonable deduction is that the View has not been distinguished from the Intermediate branch of the Rainbow, and that they must be regarded as one for the determination.of extralateral rights within the western segment, and
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "mining". What subcategory of business best describes this litigant?
A. oil and gas
B. coal
C. metals
D. other
E. unclear
Answer: |
songer_const1 | 101 | 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.
ST. ANTHONY HOSPITAL SYSTEMS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and St. Anthony’s Federation of Nurses and Health Professionals, Intervenor.
No. 80-1968.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 14, 1981.
Decided Aug. 4, 1981.
Rehearing En Banc Granted Jan. 4,1982.
Earl K. Madsen, Golden, Colo. (Lawrence W. Marquess, Golden, Colo., with him on the brief), of Bradley, Campbell & Carney, Golden, Colo., for petitioner.
Charles P. Donnelly, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John G. Elligers, Atty., N. L. R. B., Washington, D. C., with him in the brief), for respondent.
Michael Radzilowsky, Chicago, 111. (Lawrence A. Poltrock and Stephen G. Daday, Chicago, 111., with him on the brief), of Dejong, Poltrock & Giampietro, Chicago, 111., for intervenor.
Before BARRETT and LOGAN, Circuit Judges, and O’CONNOR, District Judge .
Honorable Earl E. O’Connor of the United States District Court for the District of Kansas, sitting by designation.
LOGAN, Circuit Judge.
St. Anthony Hospital Systems petitions for review of a decision and order of the National Labor Relations Board (NLRB or Board) finding the hospital engaged in unfair labor practices by refusing to bargain with St. Anthony’s Federation, of Nurses and Health Professionals/AFT/FNHP, CFT, AFL-CIO (the union). The only issues raised on appeal are whether the Board (1) unconstitutionally asserted jurisdiction over the hospital, which is argued to be exempt under the First Amendment from governmental regulation because it is owned and operated by the Roman Catholic Church, (2) erred in ruling that a unit composed only of registered nurses is an appropriate bargaining unit under section 9(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 159(b), and (3) erred in holding that individuals classified as Staff Nurse I were not supervisors within the meaning of section 2(11) of the NLRA, 29 U.S.C. § 152(11).
St. Anthony Hospital Systems (St. Anthony), consisting of a main or central building and a satellite facility, is a non-profit medical institution owned and operated by the Sisters of the Order of St. Francis, a Roman Catholic Order. In 1979 the union filed a representation petition with the NLRB, seeking certification as the exclusive bargaining representative of all nonsupervisory registered nurses employed by the hospital. Following a hearing at which St. Anthony unsuccessfully challenged the appropriateness of the requested bargaining unit, the Board’s regional director issued a direction of election in the registered nurse unit. The Board denied St. Anthony’s request for review. A majority of the eligible employees voted in favor of representation by the union, following which the director certified the union as the exclusive collective bargaining representative for the hospital’s professional registered nurse employees. St. Anthony has obtained judicial review of the unit determination by refusing to bargain with the union. See Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139, 91 S.Ct. 599, 600, 27 L.Ed.2d 735 (1971); Osteopathic Hosp. Founders Ass’n v. NLRB, 618 F.2d 633, 640 (10th Cir. 1980). In its answer to the complaint issued by the General Counsel of the NLRB, St. Anthony claimed the Board’s assertion of jurisdiction was unconstitutional on the ground that the hospital is a religious organization exempt from intrusive governmental regulation under the First Amendment. It also denied that the union was a proper labor organization under the NLRA, challenged the appropriateness of the unit determination, and objected to the inclusion of Staff Nurse I employees in the bargaining unit, claiming they were supervisors within the meaning of 29 U.S.C. § 152(11). The Board granted the General Counsel’s motion for summary judgment, ordering St. Anthony to cease and desist from its unfair labor practices and directing it to bargain collectively with the union. The case is before this Court on St. Anthony’s petition for review of the Board’s order and the Board’s application for enforcement. The union is present as intervenor.
The record indicates that St. Anthony failed to object to jurisdiction during the representation proceeding and first asserted its First Amendment challenge to jurisdiction in the unfair labor practice proceedings before the Board. Apparently relying on section 102.67(f) of its Rules and Regulations, 29 C.F.R. § 102.67(f) (1980), the Board determined St. Anthony was not entitled to litigate the constitutional issue which could have been, but was not, raised in the prior representation proceeding. In NLRB v. Peyton Fritton Stores, Inc., 336 F.2d 769, 770 (10th Cir. 1964), we held that while the statutory jurisdiction of the Board may be challenged at any time, “the facts upon which the Board determines it has jurisdiction may be challenged only upon timely exception, in the absence of which the Board’s findings are not open to attack in the proceeding for enforcement.” (Emphasis added.) The Board’s non-reliti-gation rule protects the integrity of the administrative process by requiring a party to develop all arguments and present all available, relevant evidence at the representation proceeding, the first instance in which the Board exercises jurisdiction. It would indeed be a waste of time, money, and effort if an employer could remain silent on this issue throughout the representation proceeding, refuse to bargain after certification, then ultimately defeat unionization on constitutional grounds asserted for the first time in the ensuing unfair labor practice proceeding. We affirm the Board’s determination that the First Amendment issue, having been untimely raised, was not cognizable by the Board in the underlying unfair labor practice hearing. The issue is therefore not properly before this Court on St. Anthony’s petition for review. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162, 61 S.Ct. 908, 917, 85 L.Ed. 1251 (1941). Cf. St. Elizabeth Community Hosp. v. NLRB, 626 F.2d 123 (9th Cir. 1980) (First Amendment challenge to jurisdiction was timely only because raised in representation proceeding and not deferred until the enforcement proceedings).
The issues concerning whether the nurses should be a separate bargaining unit and whether those classified as Nurse I were supervisors were raised before the Regional Director and the Board in the representation proceedings and may be reviewed here. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 154, 61 S.Ct. 908, 913, 85 L.Ed. 1251 (1941); NLRB v. Jackson Farmers, Inc., 432 F.2d 1042 (10th. Cir. 1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971). The Board has been granted broad discretion in determining appropriate bargaining units, and its decisions will be set aside only if shown to be arbitrary or capricious. NLRB v. Dewey Portland Cement Co., 336 F.2d 117, 119 (10th Cir. 1964). Hence, it is our function on review to determine whether the Board, when exercising the wide discretion committed to it, has stayed within the purview of the authorizing statutes. NLRB v. Groendyke, 372 F.2d 137, 140 (10th Cir. 1967), cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970). In granting the General Counsel’s motion for summary judgment and affirming the Regional Director’s decision, the Board clearly seems to have accepted the director’s reasoning, based on Mercy Hospitals of Sacramento, Inc., 217 N.L.R.B. 765 (1975), and Allegheny General Hospital, 239 N.L.R.B. 872 (1978), “that a unit restricted to registered nurses is a presumptively appropriate one,” and that in this case “the presumption . . . has not been overcome by the Employer’s evidence.” R.Vol. V at 3244. See id. at 3311. Acknowledging NLRB v. St. Francis Hospital of Lynwood, 601 F.2d 404 (9th Cir. 1979), the Regional Director and the Board applied a rebuttable presumption that the nurse unit was appropriate. Nevertheless, we believe the opinions clearly do not go far enough in following the congressional directive. See R.Vol. V at 3244-45, 3311-12.
On the appropriate unit issue, the case at bar is identical in all significant respects to Presbyterian/St. Luke’s Medical Center v. NLRB, 653 F.2d 450 (10th Cir. 1981), in which we held the Board’s application of the rebuttable presumption both impermissibly shifts the burden of persuasion and violates Congress’ directive to avoid proliferation of bargaining units in the health care industry. Our holding in Presbyterian/St. Luke’s Medical Center is fully applicable to this case. We hold the Board’s unit determination, based on the presumption of appropriateness and a duty the employer to overcome it, improperly relieved the General Counsel of the burden to establish that an unfair labor practice occurred. Because our holding on this issue renders the Board’s order unenforceable, we find it unnecessary to address St. Anthony’s remaining contention that the Board improperly included Staff Nurse I employees in the bargaining unit. in
The petition for review is granted. The cross-application for enforcement is denied. The cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
. 29 C.F.R. § 102.67(f) provides in pertinent part:
“(f) ... Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding."
(Emphasis added.)
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_respond1_8_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 "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
Helen C. BOYD; Roger E. Boyd; Veronica Lynn Boyd, by her parents and next friends, Helen Boyd & Roger E. Boyd, Plaintiffs-Appellees, v. R.A. BULALA, M.D., Defendant-Appellant, Association of Trial Lawyers of America; Virginia Trial Lawyers Association; Distressed Parents Together; Consumer Federation of America; Medical Society of Virginia, Amici Curiae.
Helen C. BOYD; Roger E. Boyd; Veronica Lynn Boyd, by her parents and next friends, Helen Boyd & Roger E. Boyd, Plaintiffs-Appellees, v. COMMONWEALTH OF VIRGINIA; R.A. Búlala, M.D., Defendants-Appellants.
Nos. 88-2055, 88-2056.
United States Court of Appeals, Fourth Circuit.
Submitted March 27, 1990.
Decided June 12, 1990.
Phillip C. Stone, Ronald D. Hodges, Wharton, Aldhizer & Weaver, Harrison-burg, Va., A.E. Dick Howard, Charlottes-ville, Va., Mary Sue Terry, Atty. Gen., Gregory E. Lucyk, Asst. Atty. Gen., Richmond, Va., for defendants-appellants.
William O.P. Snead, III, Fairfax, Va., J. Randolph Parker, Tucker, Parker & Bes-kin, Charlottesville, Va., Rosemarie Annun-ziata, Dickstein, Shapiro & Morin, Vienna, Va., for plaintiffs-appellees.
Bill Wagner, Tampa, Fla., Jeffrey R. White, Washington, D.C., Fred D. Smith, Jr., Minor & Smith, Richmond, Va., for amici curiae The Ass’n of Trial Lawyers of America, Virginia Trial Lawyers Ass’n, Consumer Federation of America, and Distressed Parents Together.
Allen C. Goolsby, III, Patricia M. Schwarzschild, Robert Aeosta-Lewis, Timothy A. Hartin, Hunton & Williams, Richmond, Va., for amicus curiae The Medical Soc. of Virginia.
J. Joseph Curran, Jr., Atty. Gen., Judson P. Garrett, Jr., Deputy Atty. Gen., Robert A. Zarnoch, Kathryn M. Rowe, Asst. Attys. Gen., Annapolis, Md., for amicus curiae State of Md.
John R. Bolton, Asst. Atty. Gen., Robert S. Greenspan, Scott R. McIntosh, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for amicus curiae U.S.
Before HALL and PHILLIPS, Circuit Judges, and WINTER, Senior Circuit Judge.
Judge Winter participated in oral argument and submission of this case back to the panel after certification to the Supreme Court of Virginia, but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d).
PER CURIAM:
This medical malpractice action returns to us after certification of several questions to the Supreme Court of Virginia. See Boyd v. Búlala, 877 F.2d 1191 (4th Cir.1989). That court recently issued an opinion answering those questions, and we are now able to decide the remaining issues in the appeal.
I
The facts of the case and the course of proceedings leading to this appeal are fully set out in our earlier opinion and in the opinion of the Supreme Court of Virginia, see Búlala v. Boyd, 389 S.E.2d 670 (Va. 1990), and need not be repeated here. A brief summary will suffice for present purposes.
This medical malpractice action was based on allegations of negligence by Dr. Búlala which resulted in the birth of Veronica Boyd with serious birth defects and injury to her mother, Helen Boyd, during the process of Veronica’s birth. The action included claims by Veronica Boyd for her personal injuries; by Helen Boyd, for her personal injury and emotional distress; by the father, Roger Boyd, for emotional distress; and by the parents jointly for Veronica’s anticipated medical expenses. Veronica and Helen Boyd’s claims were for both compensatory and punitive damages.
A jury found Dr. Búlala liable on all the claims and, in separate verdicts, made the following damage awards:
(1) For Veronica Boyd
compensatory damages $1,850,000
punitive damages $1,000,000
(2) For Helen Boyd
compensatory damages $1,575,000
punitive damages $1,000,000
(3) For Roger Boyd
(emotional distress) $1,175,000
(4)For Helen and Roger Boyd jointly
(medical expenses) $1,700,000
Total Awards $8,300,000
The district court first entered judgment on the verdicts as returned, but then reduced the judgment of each plaintiff proportionately to reflect an aggregate settlement of $650,000, which they had received in a state court action against the hospital involved. See Boyd v. Búlala, 877 F.2d 1191, 1193 n. 1 (4th Cir.1989). This appeal by Dr. Búlala followed.
Dr. Bulala’s principal contention on appeal was that the district court erred in holding that Virginia’s then statutory “cap” of $750,000 on medical malpractice awards, Va.Code Ann. § 8.01-581.15 (1984), violated both state and federal constitutional provisions and so could not be applied to limit in any way the overall recovery against him. He also challenged the district court’s rulings and instructions to the jury that under Virginia law he could be found liable to the plaintiffs for the negligence of hospital nurses on a respondeat superior basis; that the father, Roger Boyd, might recover for his emotional distress in the absence of any physical injury to himself; that Veronica might recover compensatory damages for her loss of the enjoyment of life and, on the evidence adduced, for lost earning capacity; and that the evidence warranted awards of punitive damages against him. Finally, he challenged two critical procedural rulings: that Veronica’s death after verdict but before judgment did not require converting her claim into one for wrongful death, and that her death in that interval did not require relief from the judgment which reflected awards on the basis of a much more extended life expectancy.
In our first opinion we decided several of these issues. Specifically, we held that Virginia’s $750,000 statutory cap on medical malpractice recoveries violated neither the state nor federal constitutional provisions relied on by Búlala. And we further held that under settled Virginia law and on the evidence adduced, Búlala properly could be found liable to the plaintiffs on a respondeat superior basis; that punitive damages on both Veronica’s and Helen Boyd’s claims properly could be awarded; and that Roger Boyd properly could recover for his emotional distress despite the lack of any personal injury to himself. But we thought that several further questions of Virginia law whose resolution was potentially required to decide the appeal were sufficiently unsettled to warrant their certification to the Supreme Court of Virginia to provide answers for our guidance. Accordingly, we requested that court to answer the following questions:
1. Where there are two or more plaintiffs entitled to recover damages arising from the same act or acts of medical malpractice, does § 8.01-581.15 apply individually to each plaintiff or overall to two or more such plaintiffs? If the statute does apply to all or any combination of plaintiffs’ claims, how is it to be apportioned among them?
2. Does § 8.01-581.15 apply to damages for the infliction of emotional distress arising from some act or acts of medical malpractice?
3. Does § 8.01-581.15 apply to an award of punitive damages for an act or acts of medical malpractice?
4. Does Virginia law allow recovery for the loss of enjoyment of life when death results from an act or acts of medical malpractice?
5. Does Virginia law allow Veronica Boyd to recover damages for her lost earning capacity based upon the evidence presented in this case?
6. What is the effect, under Va.Code Ann. §§ 8.01-21, 8.01-25, and 8.01-56, of Veronica Boyd’s death after verdict but before judgment in this case?
See Boyd v. Bulala, 877 F.2d 1191, 1200 (4th Cir.1989).
Accepting the certification, the Supreme Court of Virginia, in a comprehensive opinion, Búlala v. Boyd, 389 S.E.2d 670 (Va.1990), answered the questions as follows (in our paraphrase):
(1), (2), and (3). The statutory cap sets a separate limit on the total damages recoverable for “any injury” to a single “patient,” regardless of the number of claims and claimants and theories of recovery related to that injury. Accordingly, the cap applicable to any single patient’s injury covers both compensatory and punitive damage claims of the patient and any claims by others that, by substantive law, are “derivative” of the patient’s claims.
As applied to the facts found in this case, Veronica Boyd and her mother, Helen Boyd, were each “patients” of Dr. Búlala who suffered separate injuries from his negligence. On this basis, the cap applies separately as a limit upon all the damages, both compensatory and punitive, recoverable by anyone for the respective injuries of these two patients, i.e., as a $750,000 limit upon the total damages properly recoverable for Veronica Boyd’s injuries, and as a $750,000 limit upon the total damages properly recoverable for Helen Boyd’s injuries. Because both the claim of Roger Boyd for his emotional distress arising from Veronica’s injuries and the joint claim of Roger and Helen Boyd for medical expenses attributable to those injuries are “derivative” of Veronica’s claim, they are therefore subject to the cap applicable to that claim.
Where, as here, the aggregate of the damage awards subject to a separate cap exceeds the cap, reduction of the awards, in whole or part, to reach the cap level (with any consequent apportionment between claimants) should occur in the following order of reduction: first, awards based on derivative claims of others than the patient; next, punitive damage awards to the patient; last, compensatory damage awards to the patient. On this basis, because the compensatory damage awards to each of the patients, Veronica Boyd and Helen Boyd, each exceeded $750,000, all of the further awards based upon the derivative claims of Roger Boyd and of Roger and Helen Boyd jointly, and the punitive damage awards to Veronica and Helen Boyd, respectively, must be annulled in toto. The remaining compensatory awards to Veronica and Helen Boyd, respectively, must then be reduced to the $750,000 cap, less a further reduction of each by $325,-000, representing one-half of the total $650,000 realized in the earlier settlement.
(4). Virginia does not recognize as a separately compensable item of damages for personal injury the “loss of enjoyment of life.”
(5). On the evidence adduced in this case, Virginia law would not permit recovery by Veronica Boyd of damages for “lost earning capacity.”
Consequently, the district court’s submission of these to the jury as compensable items of damage in respect of Veronica Boyd’s claim was erroneous.
(6). Under Virginia law, Veronica Boyd’s death after verdict did not require converting her claim into one for wrongful death. Va.Code Ann. § 8.01-21 directly so provides, by directing that in such cases, “judgment may be entered as if [death] had not occurred.” Sections 8.01-25 and 8.01-56 are not in conflict. They deal with the situation where death occurs before verdict.
II
The Virginia court’s careful answers, which we of course fully accept, allow us now to resolve the issues reserved in our earlier opinion and fully to decide the appeal.
Resolution of the reserved issues would be flatly dictated by those answers save for one difficulty. It is that posed by the Virginia court’s advice that under Virginia law, the district court erred in allowing the jury to take into account loss of enjoyment of life and lost earning capacity in assessing Veronica Boyd’s compensatory damages. The problem is that we cannot know for sure whether the jury’s consideration of either or both of these items could have run their compensatory award above the $750,000 cap level. At $1,850,000, that award was of course over a million dollars in excess of the cap. We would therefore have to assume that more than a million dollars, an amount more than one-half of the award, was probably attributable to these two items in order to find a new trial on damages compelled. While the importance of these items, hence the weight probably attached to them by the jury, is obvious, we are yet doubtful that they could have had such a dominant impact on the total award. Whatever uneasiness we might feel on the point, however, is dispelled by the fact that over and above the compensatory award was an untainted punitive damage award of an additional $1,000,000 which could be applied to the recovery allowable under the cap. And even if we were to speculate that a new trial which yielded a reduced compensatory award would probably yield a commensurately reduced punitive award, we think the possibility that the two in combination could fail to reach the available cap level is too remote to warrant the expense and delay of a new trial on the damages issue.
Under 28 U.S.C. § 2106, we have the power and obligation, sitting in appellate review, to take whatever action is “just under the circumstances.” Here, despite the existence of legal error in the jury instructions on compensatory damages as to Veronica Boyd’s claim, we think the circumstances do not warrant requiring a new trial on that issue. Given the substantial margin — in the range of two million dollars — by which the combined compensatory and punitive damage awards exceed the statutory cap, we think it would not be just to withhold judgment limited to the much lower cap figure.
One further issue which we reserved pending the Virginia court’s response concerned the district court’s denial of Dr. Bulala’s motion under Fed.R.Civ.P. 60(b)(6) to be relieved of the judgment in favor of Veronica Boyd because of her intervening death. Dr. Bulala’s contention is that, if her claim was not required to be converted to one for wrongful death, her early death made it manifest that the jury award for her personal injuries, based as it necessarily was on the assumption of a much more extended life expectancy, was so substantially over-inflated as to provide the necessary “reason” under Rule 60(b)(6) for being relieved of the judgment. The district court denied that motion in an exercise of the broad discretion conferred by this residual relief provision of Rule 60(b). As we have recognized, "[t]he remedy provided by [this] Rule ... is extraordinary and is only to be invoked upon a showing of exceptional circumstances." Compton v. Alton Steamship Co., 608 F.2d 96, 102 (4th Cir.1979). Under all the provisions of Rule 60(b), a threshold condition for granting the relief is that the movant demonstrate that granting that relief will not in the end have been a futile gesture, by showing that she has a meritorious defense or claim. See generally 11 Wright & Miller, Federal Practice and Procedure: Civil § 2857, p. 161 (1973).
Here, essentially for the same reasons that we found the granting of a new trial because of erroneous jury instructions not warranted, i.e., that a new trial on damages would not yield damages totalling less than the cap, we think the circumstance of this claimant's early death not an exceptional one warranting relief from that judgment. We therefore conclude that the district court did not abuse its discretion in denying the motion.
III
For the foregoing reasons, we remand the action to the district court with directions to vacate its present judgment and to enter judgment in favor of Veronica Boyd in the sum of $425,000, with interest and costs, and in favor of Helen Boyd in the sum of $425,000, with interest and costs.
SO ORDERED.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer: |
songer_casetyp1_7-2 | 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.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
AMERICAN CYANAMID COMPANY, a Corporation of the State of Maine, v. HAMMOND LEAD PRODUCTS, INC. a corporation of the State of Indiana, and Gary R. Mitchener, Appellants.
No. 73-1506.
United States Court of Appeals, Third Circuit.
Argued Nov. 26, 1973.
Decided April 15, 1974.
Donald Horowitz, Cummins, Cummins, Dunn, Horowitz & Pashman, Hacken-sack, N. J., for appellant Hammond Lead Products, Inc.
David R. Simon, Simon & Allen, Newark, N. J., for appellant Gary R. Mitche-ner.
Stephen M. Greenberg, Robinson, Wayne & Greenberg, Newark, N. J., for appellee.
Before KALODNER, ADAMS and ROSENN, Circuit Judges.
OPINION OF THE COURT
KALODNER, Circuit Judge.
Can a Maine corporation, with principal headquarters in New Jersey, bring a diversity action in New Jersey against an Indiana corporation and an Indiana resident ?
The district court answered the question in the affirmative in its Order denying the defendants’ motions to dismiss for lack of venue under 28 U.S.C.A. § 1391(a) and certifying the issue to this Court pursuant to 28 U.S.C.A. § 1292(b).
American Cyanamid Company (Cy-anamid), a Maine corporation whose principal headquarters are located in New Jersey, a state in which it does business, brought this diversity action in the District of New Jersey against Hammond Lead Products, Inc. (Hammond), an Indiana corporation, and Gary Mitchener, an Indiana resident, charging unfair competition and seeking injunctive and compensatory relief.
Cyanamid’s complaint alleged, in relevant part, that Mitchener, a former employee of Cyanamid and the MacGregor Lead Company of Chicago, Illinois, a company acquired by Cyanamid, violated his “contractual and fiduciary duty” to Cyanamid when he left Cyanamid’s employ in July of 1971 and became employed with defendant Hammond’s Hal-stab Division in Indiana, and that Mitchener and Hammond engaged in acts of unfair competition, in that the defendants “lured away” certain of Cy-anamid’s employees and “conspired to unlawfully compete with plaintiff and to unlawfully use plaintiff’s secret, unique, confidential and valuable methods, techniques, products, customer specifications, data, processes and systems.”
The defendants moved to dismiss Cy-anamid’s complaint, inter alia, for lack of proper venue under 28 U.S.C.A. § 1391(a). The district court denied the motions upon oral argument, and entered an Order on May 14, 1973, denying the “Defendants' motion to dismiss the within action for lack of venue under Section 1391(a) of Title 28 U.S.C.” and certifying “pursuant to section 1292(b) . . . that this matter involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Accordingly, the defendants filed a petition for leave to appeal, which petition was granted by this Court on June 5,1973.
Concisely stated, the issue here is whether the plaintiff corporation Cy-anamid is entitled to the privilege of laying venue in the District of New Jersey solely because it does business in that state. The relevant venue statutes in this diversity suit are 28 U.S.C.A. § 1391(a) and § 1391(c). Section 1391(a) provides:
“A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.”
Section 1391(c) provides:
“A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.”
It is readily apparent, and not disputed, that two of the three venue options available to a plaintiff under § 1391(a) are clearly inapposite under the facts as stated, for New Jersey is neither the judicial district in which “all defendants reside” nor is it the judicial district “in which the claim arose.” And, but for the presence of § 1391(c), it could likewise not be argued that the third venue option of § 1391(a), plaintiff’s residence, applies here, since Cyanamid is a Maine corporation and, it has long been settled that “the ‘residence’ of a corporation, within the meaning of the venue statutes, is only in the ‘State and district in which it has been incorporated.’ ” Suttle v. Reich Bros. Construction Co., 333 U.S. 163, 166, 68 S.Ct. 587, 589, 92 L.Ed. 614 (1948), quoting from Shaw v. Quincy Mining Co., 145 U.S. 444, 449, 12 S.Ct. 935, 36 L.Ed. 768 (1892). Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167 (1939), represented the only judicial exception to this proposition, in that Neirbo held that a corporation had “waived” its right to be sued only in its state of incorporation when the corporation obtained a license to do business and appointed an agent for the service of process in another state. This exception, however, as the Supreme Court was careful to point out in the Suttle case, supra, 333 U.S. at pages 167-168, 68 S.Ct. 587, did not imply that the “residence” of a corporation for venue purposes had been redefined.
With the passage of § 1391(c), as part of the general revision of the Judicial Code in 1948, Congress expanded the venue options available to a plaintiff in suits against a defendant corporation, clearly going beyond the Neirbo exception, by providing that “[a] corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business.” It is Cyanamid’s contention that the second clause of § 1391(c), “and such judicial district shall be regarded as the residence of such corporation for venue purposes,” evidences an intention on Congress’ part to completely overrule the long-standing rule of the Suttle case and its predecessors, thereby extending the expanded venue options of the first clause of § 1391(e) to plaintiff corporations. We disagree, and cast our vote with the other circuit courts which have rejected the same contention. See Manchester Modes, Inc. v. Schuman, 426 F.2d 629 (2d Cir. 1970); Carter-Beveridge Drilling Co. v. Hughes, 323 F.2d 417 (5th Cir. 1962) (per curiam); Robert E. Lee Co. v. Veatch, 301 F.2d 434 (4th Cir. 1961), cert. denied, 371 U.S. 813, 83 S.Ct. 23, 9 L.Ed.2d 55 (1962).
Although we recognize that there is a division of opinion among the district courts and the text writers as to the proper interpretation of § 1391 (c)’s somewhat nebulous language, in particular its latter clause, we remain unpersuaded that Congress, and the eminent and thorough staff of lawyers assembled to aid in the Judicial Code revision, would have made the change in the Sut-tle rule urged by Cyanamid via such imprecise language and without a clear indication to that effect in the legislative history.
We fail to see how the language “such corporation” as used in the second clause of § 1391(c) can refer to anything other than the antecedent phrase “[a] corporation may be sued," when this language is regarded in its normal syntactical usage.
The late Chief Judge Sobeloff in his analysis in Robert E. Lee & Co. v. Veatch, swpra, effectively disposed of Cyanamid’s syntactical contention as follows:
“It seems to us more probable that the term ‘such corporation’ was meant to limit the applicability of the subsection to defendant corporations, for the corporations referred to in the opening words of the section are those that are sued, not those that sue. This would certainly be the more natural usage of the ‘such.’ If the purpose of the subsection was to define the residence of all corporations, plaintiffs as well as defendants, the expected mode of expression would be ‘a corporation may sue or be sued.’ Moreover, had Congress designed to give the subsection the sweeping effect urged by the plaintiffs, a term like ‘all corporations’ would have been used in the second clause, instead of the restrictive term ‘such corporation.’ In summary, we think it would be inappropriate to read something into the statute which could have been so easily expressed, had this been within the congressional aim.” 301 F.2d at 438.
There is absolutely no support in the legislative history for Cyanamid’s interpretation of § 1391(c). Furthermore, the writings of several of the principal figures involved in the revision of the Judicial Code, some of which purport to identify the important changes adopted, fail to reveal any intent to change the Suttle rule. Finally, since the legislators and drafters of the Judicial Code emphasized that the Reviser’s Notes explained all changes in the law, it is of some import that only one obscure comment, affording no sustenance to Cyanamid’s contentions, relates to § 1391(c). Under these circumstances, we must be guided by the rule of statutory construction as stated by the Supreme Court in Anderson v. Pacific Coast Steamship Co., 225 U.S. 187, 199, 32 S.Ct. 626, 630, 56 L.Ed. 1047 (1912), and later reaffirmed in Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 227, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), in a discussion of another venue provision involved in the 1948 Judicial Code revision: “[I]t will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect, unless such intention is clearly expressed.” (emphasis supplied) (citations omitted).
Cyanamid nonetheless argues that despite the awkward language and the legislative silence, its interpretation of § 1391(c) should still prevail, for otherwise the section’s second clause would be redundant. This is not necessarily true, as was noted by Judges Sobeloff and Friendly, respectively, in the Robert E. Lee & Go., supra, and Manchester Modes, supra, cases.
The latter clause of § 1391(e) can readily he regarded as a provision intended to be used in connection with other “special” venue statutes, for purposes of defining the “residence” of a defendant corporation. Such was the application of the clause in Pure Oil Co. v. Suarez, 384 U.S. 202, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966).
Alternatively, although with perhaps less facility, the second clause could have been aimed at the problem posed by the facts of the Suttle case. There, a Mississippi resident brought suit in the Eastern District of Louisiana against a partnership whose members resided in the Western District, and a Texas corporation which had qualified to do business in Louisiana. Then, as now under 28 U.S.C.A. § 1392(a), the applicable venue rule was that in a suit against two or more “defendants residing in different districts in the same State,” venue was proper in either district. Although the Eastern District would have been a proper venue district under the Neirbo rule in a suit against the Texas Corporation alone, the Supreme Court nevertheless held that venue was improperly laid under these facts. The Court emphasized, as noted earlier, that Neirbo had not changed the Suttle definition of corporate residence. Therefore, since the Texas corporation technically “resided” only in Texas, the predecessor to § 1392(a) could not be employed to make the Western District partnership suable in the Eastern District of Louisiana.
Accordingly, we hold that § 1391(c) applies only to defendant corporations.
The Order of the district court will be reversed, and the case remanded with directions to dismiss the complaint.
. Appellants do not contest this point. Appellant’s Brief at 3.
. For a brief discussion of the pre-1948 history of corporate venue, see 1 Moore, Federal Practice, j[ 0.142 [5.-3], at 1489-92 (2d rev. ed. 1974).
. The Supreme Court has not ruled on this question. See Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 156-157 n.20, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
. It is noteworthy that a substantial number of the district court opinions holding that § 1391(c) encompasses both plaintiff and defendant corporations have since been undermined precedentially by the subsequent decisions in the Second, Fourth and Fifth Circuit Courts of Appeals just cited in the text. E. g., Toilet Goods Association, Inc. v. Celebrezze, 235 F.Supp. 648 (S.D.N.Y.1964); Wear-Ever Aluminum, Inc. v. Sipos, 184 F.Supp. 364 (S.D.N.Y.1960); Travelers Ins. Co. v. Williams, 164 F.Supp. 566 (W.D.N.C. 1958); Standard Ins. Co. v. Isbell, 143 F.Supp. 910 (E.D.Tex.1956); Southern Paperboard Corp. v. United States, 127 F.Supp. 649 (S.D.N.Y.1955); Freiday v. Cowdin, 83 F.Supp. 516 (S.D.N.Y.1949).
. Those taking the position that § 1391(c) covers both plaintiff and defendant corporations include: 1 Barron & Holtzoff, Federal Practice and Procedure, § 80, at 388 (Rev. 1960) ; Wright, Federal Courts, § 42, at 155-56 (2d ed. 1970); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 L. & Contemp.Prob. 216 (1948); Note, the Proposed Revision of the Federal Judicial Code, 60 Harv.L.Rev. 424 (1947) ; Note, Federal Venue and the Corporate Plaintiff, 37 Ind.L.J. 363 (1962); Note, Federal Venue and the Corporate Plaintiff: Judicial Code Section 1391(c), 28 Ind.L.J. 256 (1953); Comment, 76 Harv.L.Rev. 641 (1963).
Those adhering to the view that § 1391(c) is limited to defendant corporations include: 1 Moore, Federal Practice, If 0.142 [5.-3], at 1503 (2d rev. ed. 1974) ; Comment, The Corporate Plaintiff and Venue Under Section 1391(c) of the Judicial Code, 28 U.Chi.L.Rev. 112 (1960); Comment, 48 Va.L.Rev. 968 (1962).
. See Hearings on H.R.1600 & 2055 Before Subcomm. No. 1 of the House Comm, on the Judiciary, 80th Cong., 1st Sess. (1947); H. R. Rep.No.308, 80th Cong., 1st Sess. (1947); S.Rep.No.1559, 80th Cong., 2d Sess. (1948).
. Barron, The Judicial Code: 1948 Revision, 8 F.R.D. 439 (1948) ; Galston, An Introduction to the New Federal Judicial Code, id. at 201; Holtzoff, The New Federal Judicial Code, id. at 343; Maris, New Federal Judicial Code: Enactment by 80th Congress a Notable Gain, 34 A.B.A.J. 863 (1948). Although all but Galston’s article refer to changes in the venue laws, no comment is made about the Suttle rule.
. See H.Rep.No.380, supra note 6, at 7; S. Rep.No.1559, supra note 6, at 2; Hearings on H.R.1600 & 2055, supra note 6/ at 40; Barron, supra note 7, at 441. Mr. Barron was the Chief Reviser.
. The note reads :
“In subsection (c), references to defendants ‘found’ within a district or voluntarily appearing were omitted. The use of the word ‘found’ made said section 111 ambiguous. The argument that an action could be brought in the district where one defendant resided and a nonresident defendant was ‘found,’ was rejected in Camp v. Gress, 1919, 39 S.Ct. 478, 250 U.S. 308, 63 L.Ed. 997. However, this ambiguity will be obviated in the future by the omission of such reference.”
. In light of our view of the language of § 1391(c), we find no merit in Cyanamid’s remaining policy arguments.
Additionally, we reject Cyanamid’s argu-' ment that either Pure Oil Co. v. Suarez, supra, or Denver R.R. Co. v. Railroad Trainmen, 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954 (1967), indicate an interpretation of § 1391(c) contrary to ours. Both of these cases dealt only with defendants, and indeed the very language Cyanamid quotes from Justice Harlan’s opinion in the Pure Oil case tends to support the theory that § 1391(c) was directed at the problem of corporations as defendants, with no thought given to corporations as plaintiffs:
“The effect of § 1391(c) was to broaden the general venue requirements in actions against corporations by providing a forum in any judicial district in which the corporate defendant ‘is doing business.’ See Moore, Commentary on the Judicial Code 193-194 (1949) ; 1 Barron & Holtzoff, Federal Practice and Procedure § 80, at 386 (Wright rev. 1960). It seems manifest that this change was made in order to bring venue law in tune with modern concepts of corporate operations.” 3 (emphasis supplied).
“3 As the Court of Appeals stated in Transmirra Prods. Corp. v. Fourco Glass Co., 2 Cir., 233 F.2d 885, 887, ‘The rationale of this sharp break with ancient formulae is quite obviously a response to a general conviction that it was “intolerable if the traditional concepts of ‘residence’ and ‘presence’ kept a corporation from "being sued wherever it was creating liabilities.” ’ Although this Court reversed in Fourco, supra, for reasons discussed later (infra, pp. 206-207, 86 S.Ct. pp. 1396-1397), the validity of this general observation was in no way questioned.” (emphasis supplied). 384 U.S. at 20.4 & n. 3, 86 S.Ct. at 1395.
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_dissent | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America, Appellee, v. UNDETERMINED QUANTITIES OF VARIOUS ARTICLES OF DRUG ... EQUIDANTIN NITROFURANTOIN SUSPENSION .... Appeal of PERFORMANCE PRODUCTS, INC.
No. 81-1793.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 9, 1982.
Decided April 15, 1982.
John F. Lemker, Jr., Burditt & Calkins, Chicago, 111., Joseph F. Devereux, Jr., Gunn, Lane & Devereux, P.C., St. Louis, Mo., for Performance Products, Inc., claimant-appellant.
William F. Baxter, Asst. Atty. Gen., John J. Powers, III, Frederic Freilicher, Attys., Dept, of Justice, Washington, D.C., for appellee.
Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and OVERTON, District Judge.
The Honorable William R. Overton, United States District Judge for the Eastern District of Arkansas, sitting by designation.
McMILLIAN, Circuit Judge.
Performance Products, Inc. (Performance) appeals from a final judgment entered in the District Court for the Eastern District of Missouri condemning as adulterated and seizing certain quantities of an animal drug called Equidantin and other materials used in its manufacture. For reversal Performance argues that Equidantin is not a “new animal drug” within the meaning of 21 U.S.C.’ § 321(w), and thus not subject to premarketing clearance by the Food and Drug Administration (FDA) under 21 U.S.C. § 360b(b), because (1) Equidantin is generally recognized as safe and effective and (2) Equidantin is a generic drug or copy of Dantafur, a drug that has been approved by the FDA. For the reasons discussed below, we affirm the judgment of the district court.
Performance is the manufacturer of Equidantin. Equidantin has been on the market since 1970 and is intended for use in the treatment of equine tracheopharyngitis (“race track cough”) and equine urinary tract bacterial infections. The active ingredient in Equidantin is nitrofurantoin, which is also the active ingredient in Dantafur, an FDA-approved drug manufactured and marketed by Norwich-Eaton Pharmaceuticals. Equidantin and Dantafur contain the same amount of nitrofurantoin per dosage unit. However, the inactive ingredients in the two drugs are different. Dantafur contains alcohol among other inactive ingredients. According to the government’s evidence, Equidantin contains the following inactive ingredients: xantham gum (a suspending agent), magnesium aluminum silicate (a suspending agent), potassium sórbate (a preservative), propylene glycol, citric acid (a buffer), anethole (a flavoring agent), sodium saccharin (a flavoring agent), vanillin, and deionized water.
Equidantin is a generic drug or copy (a “me-too” version) of Dantafur, the FDA-approved “brand name” or pioneer drug. A generic drug contains the same active ingredient or “incipient” as an FDA-approved pioneer drug but may contain different inactive ingredients or “excipients.” The manufacturing techniques used by each manufacturer may also differ. It is not disputed that differences in the manufacturing process and variations in the inactive ingredients may affect a drug’s “bioavailability.” Bioavailability is “the rate and extent to which the active drug ingredient or therapeutic moiety is absorbed from a drug product and becomes available at the site of drug action.” 21 C.F.R. § 320.1(a) (1981).
If there is no significant difference between the rate and extent of absorption of two drugs administered at the same molar dose of therapeutic moiety under similar experimental conditions, the drugs are said to be bioequivalent. See 21 C.F.R. § 320.1(e) (1980). When two different drug products are to be used interchangeably in the treatment of illness, it can be critical that the drug products are bioequivalent — that is, that there be no significant difference in the products’ bioavailability. A drug that is less bioavailable than that for which it is substituted will deliver less of its active ingredient than expected; a drug that is more bioavailable than that which it replaces presents the danger of overdosage.
United States v. Premo Pharmaceutical Laboratories, Inc., 511 F.Supp. 958, 962-63 (D.N.J.1981) (Premo II) (footnote omitted) (excellent discussion of factors which may affect bioavailability); see United States v. Generix Drug Corp., 654 F.2d 1114 (5th Cir. 1981) (Generix), cert. granted, - U.S. -, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982); Premo Pharmaceutical Laboratories, Inc. v. United States, 629 F.2d 795 (2d Cir. 1980) (Premo I); United States v. Articles of Drug (Lannett Co.), 585 F.2d 575 (3d Cir. 1978) (Lannett); see also Pharmadyne Laboratories, Inc. v. Kennedy, 466 F.Supp. 100, 103 (D.N.J.) (Pharmadyne), aff’d on other grounds, 596 F.2d 568 (3d Cir. 1979).
The government’s basic position in the present case, and in the above cited cases, all of which involve generic drugs, is that because many factors, particularly the manufacturing process and choice of inactive ingredients, may affect a generic drug’s bioavailability and thus its bioequivalence to its pioneer drug, the generic drug is a “new drug” (or “new animal drug”) and thus subject to premarketing clearance by the FDA, even though the pioneer drug has already been approved by the FDA. Not surprisingly, the manufacturers of generic drugs oppose the FDA’s position. Basically the position of the manufacturers is that because the generic drug contains the same active ingredient as the FDA-approved pioneer drug, the generic drug is not a “new drug” (or “new animal drug”) and thus not subject to' FDA premarketing clearance. The manufacturers argue that bioavailability and bioequivalence are not relevant to the question of “new drug” (or “new animal drug”) status. Two circuit courts have addressed this issue; the Second Circuit has essentially agreed with the government’s position, see Premo I, 629 F.2d 795; the Fifth Circuit has essentially agreed with the manufacturers’ position, see Generix, 654 F.2d 1114.
The present action began in July 1979 when the government filed a complaint in district court seeking condemnation and seizure of undetermined quantities of Equidantin and materials used in its manufacture. The government argued that Equidantin was an adulterated drug within the meaning of 21 U.S.C. § 351(a)(5) and as such subject to seizure under 21 U.S.C. § 334(a)(1). The government’s characterization of Equidantin as an adulterated drug depended upon Equidantin’s status as a “new animal drug” within the meaning of 21 U.S.C. § 321(w). Because a new animal drug cannot be marketed without an FDA-approved “new animal drug application” or an abbreviated new animal drug application, 21 U.S.C. § 360b(b), and it was not disputed that there was no FDA-approved new animal drug application on file for Equidantin, the government argued that Equidantin was “unsafe” under 21 U.S.C. § 360b(a)(A) and therefore “adulterated” under 21 U.S.C. § 351(a)(5). The district court issued the warrant and the United States Marshal seized approximately 86 quarts of Equidantin, approximately 410 gallons of in-process drug product, 3.4 kilograms of bulk nitrofurantoin powder, and labels and accompanying materials.
Performance intervened in the condemnation action and filed a claim to the seized items. Performance did not dispute that FDA approval is the prerequisite to marketing a new animal drug, but argued that Equidantin is not a new animal drug within the meaning of 21 U.S.C. § 321(w) because it is generally recognized as safe and effective and because it is a generic or copy of Dantafur, the FDA-approved pioneer drug.
Following a bench trial in which both sides presented expert testimony, the district court found that Equidantin was a new animal drug within the meaning of 21 U.S.C. § 321(w) because it was not generally recognized among qualified experts as safe and effective. United States v. Undetermmed Quantities of Various Articles of Drug (Equidantin Nitrofurantoin Suspension), No. 79-0913-C(C) (E.D.Mo. May 29, 1981) (slip op. at 5-6). The district court also found that FDA approval of Dantafur did not constitute general recognition among qualified experts that either Dantafur or Equidantin was safe and effective within the meaning of 21 U.S.C. § 321(w) and, further, that even if Dantafur was generally recognized among qualified experts as safe and effective, Equidantin would not be exempt from FDA premarketing clearance as a new animal drug because the two drugs’ inactive ingredients and manufacturing processes differed. Id. at 5. The district court then ordered the seized items destroyed, but later stayed that order pending appeal.
The issue in this case is thus whether Equidantin is a “new animal drug” within the meaning of 21 U.S.C. § 321(w). The scope of FDA regulation depends upon the statutory definitions. A brief outline of the history of FDA regulation will provide a background and perspective to our discussion. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973); see generally Note, Drug Efficacy and the 1962 Drug Amendments, 60 Geo.L.J. 185 (1971). It should also be noted that the analysis followed in the cases is the same for human and animal drugs. United States v. Naremco, Inc., 553 F.2d 1138, 1142 n.5 (8th Cir. 1977), citing United States v. Articles of Food and Drug (Coli-Trol 80 Medicated), 372 F.Supp. 915, 921 (N.D.Ga.1974), aff’d, 518 F.2d 743 (5th Cir. 1975).
The Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, was the first legislation of national scope directed at the regulation of drug products. The Act set standards of purity for drugs sold in the United States and required accurate labeling of the drugs’ contents. Id. §§ 1, 2, 7. The Act also made unlawful the marketing of adulterated or misbranded drugs and provided for removal of such drugs from the market through libel actions. Id. § 2. There were, however, no provisions regulating false claims of efficacy until the Food and Drug Act of 1906 was amended in 1912 to declare misbranded drugs that were not effective for use under the conditions for which they were recommended.
The greatest defect in the Act, however, was its failure to provide any mechanism for premarketing agency clearance. It was impossible to prevent an unsafe or ineffective drug from reaching the market. In 1938 the “wonder drug” “Elixir of Sulfanilamide,” a solution based on diethylene gylcol and ... a presumed harmless, inert solvent ingredient, went on the market. Apparently, no tests for toxicity were performed prior to marketing; and almost one hundred people died before the drug could be withdrawn.
This Sulfanilamide tragedy led to the Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. §§ 301-392 (1976 & Supp. I 1977) (amended 1962), with provisions for premarketing review of new drugs. This review, however, was directed solely to assuring drug-product safety. It was not until the Act was amended in 1962 that the definition of “new drug” was enlarged to include drugs not generally recognized as safe and effective.
The 1962 amendments changed the data-reporting requirements of the “new drug” procedure to require submission of data showing efficacy and, in place of automatic approval of [new drug applications] not disapproved, the procedure under the 1938 Act, the 1962 amendments required positive agency approval to make [a new drug application] effective.
Premo II, 511 F.Supp. at 962 (footnote omitted).
The new effectiveness requirement of the 1962 legislation was made retroactive to all drugs which had been the subject of new drug applications under the 1938 statute. Thus, it applied to all drugs which previously had secured FDA premarketing approvals . . .
The FDA, recognizing that a transitional period would be necessary to review all drug products affected by the 1962 amendments, granted a two-year grace period before revoking any [new drug applications] given under the 1938 Act. This period of time was to be used to assess the evidence of “effectiveness” of approved drug products. Two years proved to be insufficient time to permit the FDA to evaluate the status of all drugs potentially made “new drugs” by the 1962 amendments. Therefore, in order to expedite the task of evaluation, the FDA arranged with the National Academy of Sciences — National Research Council (“NAS-NRC”) to have them review all qualities of the potential “new drugs.”
NAS-NRC undertook a study of some 4,000 drug formulations for the express purpose of assessing the efficiency of the product. This study, known as the Drug Efficacy Study, was submitted to the FDA for evaluation; the FDA retained authority to accept or reject the findings of NAS-NRC. As a result of the NAS-NRC findings, the FDA set forth in the Federal Register its conclusions and assessment (“Drug Efficacy Study Implementation” or “DESI” Notices) of whether a drug could be considered “effective” for use as required by the 1962 amendments to the [1938] Drug Act.
Lannett, 585 F.2d at 577-78; see also Note, 60 Geo.L.J. at 207-14.
As noted earlier, the regulatory scheme for human and animal drugs is basically the same. In 1968 the animal drug provisions were placed in a separate section of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360b. Animal Drug Amendments of 1968, Pub.L. No. 90-399, 82 Stat. 343 (1968). The definition of “new animal drug” in 21 U.S.C. § 321(w) and the requirement of premarketing clearance by the FDA of new animal drugs under 21 U.S.C. § 360b(b) are essentially the same as the “new drug” definition in 21 U.S.C. § 321(p) and the premarketing clearance provision in 21 U.S.C. § 355(b), (d).
Under § 505 of the Act, 21 U.S.C. § 355, no person may market a new drug unless he files with the FDA a new drug application (NDA) demonstrating that the drug is both safe and effective for which it is intended and obtains FDA approval. Normally the applicant furnishes controlled chemical tests and investigations showing that the product is safe and effective, 21 U.S.C. § 355(d). But where the drug product is claimed to be a copy [or generic version] of one already approved by the FDA on the basis of such submissions — sometimes called a “me-too” drug — the applicant may file with the FDA an “abbreviated new drug application” (ANDA), which relies upon the safety and effectiveness tests conducted with respect to the FDA-approved drug (sometimes called the “pioneer drug”). The FDA will only approve an ANDA, however, where the “me-too” drug product is shown to be the therapeutic equivalent of the pioneer and safe and effective in accordance with 21 U.S.C. § 355(d).
Premo I, 629 F.2d at 798-99; see also Hoffmann-LaRoche, Inc. v. Weinberger, 425 F.Supp. 890 (D.D.C.1975). But cf. Generis, 654 F.2d at 1117 n.4 (criticizing Hoffmann-LaRoche). As with human drugs, manufacturers of generic animal drugs may rely upon the safety and effectiveness data developed for the pioneer drug and file abbreviated new animal drug applications supported by bioavailability studies.
For reversal Performance argues that the government failed to establish that Equidantin is a new animal drug within the meaning of 21 U.S.C. § 321(w). Performance attacks the credibility of the government expert witnesses on the grounds that they lacked qualifications, had no personal clinical experience with nitrofurantoin suspensions, and did not know that Dantafur had been found “effective” by the NAS-NRC in the Drug Efficacy Study. Dantafur was reviewed by NAS-NRC in the Drug Efficacy Study and was found “probably effective” for the treatment of race track cough and equine urinary infections. 35 Fed.Reg. 12792 (1970). In 1977 a supplemental new animal drug application was approved by the FDA finding Dantafur “effective” for the treatment of race track cough and equine urinary infections. See 42 Fed.Reg. 19143 (1977), codified in 21 C.F.R. § 520.1560a (1981). There is no approved new animal drug application, abbreviated new animal drug application or exemption for investigational use on file for Equidantin.
Title 21 U.S.C. § 321(w) defines “new animal drug” as any drug intended for use for animals other than man .. .—
(1) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; ... or
(2) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions. . . .
Unless an animal drug is generally recognized among qualified experts as safe and effective for its intended uses and has been used to a material extent or for a material time, the drug is a new animal drug and subject to FDA premarketing clearance. See Premo I, 629 F.2d at 801-02.
Congress’ exclusion of “generally recognized” drug products from the definition of a “new drug” is a very narrow one, which is not intended to permit a pharmaceutical manufacturer to substitute its opinion regarding the safety or effectiveness of a drug for that of the FDA, the publicly recognized repository of expertise in such matters, or to require the court to develop its own body of scientific knowledge in substitution for that of the FDA.
Id. at 802.
Thus, while a district court certainly is empowered to adjudicate the “new drug” status of a given drug product, inquiry is limited to the question of “general recognition.” A district court is not empowered to evaluate the actual safety and effectiveness of a drug product. That determination is committed to the FDA due to its superior access to technical expertise.
United States v. Articles of Drug (Hormonin), 498 F.Supp. 424, 431 (D.N.J.1980) (citations omitted); see also Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653-54, 93 S.Ct. 2488, 2494, 37 L.Ed.2d 235 (1973); AMP, Inc. v. Gardner, 389 F.2d 825, 831 (2d Cir.), cert. denied, 393 U.S. 825, 89 S.Ct. 86, 21 L.Ed.2d 95 (1968). Cf. United States v. Alcon Laboratories, 636 F.2d 876, 888 (1st Cir. 1980) (“Jurisdiction over the new drug issue is shared by the FDA . . . and the federal district courts. ... [Deference to an agency’s primary jurisdiction makes little sense in the context of an enforcement proceeding initiated by the agency.”), cert. denied, 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed.2d 388 (1981); accord, Premo I, 629 F.2d at 801.
. Thus, “the purpose of the normal inquiry [into whether a drug is generally recognized among qualified experts as safe and effective for its intended uses] is not to determine safety and effectiveness at all, but to ascertain the drug’s general reputation in the scientific community for such characteristics.” United States v. Articles of Food and Drug (Coli-Trol 80 Medicated), 372 F.Supp. at 920; see Premo I, 629 F.2d at 803-04 (cases cited therein).
Either, a genuine dispute concerning the safety and effectiveness of a drug product or unawareness of the drug product among qualified experts precludes a finding of “general recognition” for purposes of 21 U.S.C. § 321(p) [for human drugs or § 321(w) for animal drugs]. Such an expert consensus as to “general recognition” must be founded upon “substantial evidence” as that term is defined in 21 U.S.C. § 355(d) [for human drugs and § 360b(d)(3) for animal drugs]. Thus, “general recognition” among experts must be based u]>on “ ‘adequate and well-controlled investigations,’ ” as well as publication in scientific literature. “Anecdotal evidence,” i.e., testimony of physicians unsupported by controlled investigation or scientific publication, does not constitute “substantial evidence.” The mere fact that a drug product has been marketed for an extended period does not preclude a finding of “new drug” status.
United States v. Articles of Drug (Hormonin), 498 F.Supp. at 431-32 (footnote and citations omitted); see Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. at 629, 630, 632, 93 S.Ct. at 2483, 2484; Premo I, 629 F.2d at 803-04; United States v. Article of Drug (Furestrol), 294 F.Supp. 1307, 1311 (N.D.Ga.1968), aff’d, 415 F.2d 390 (5th Cir. 1969).
The government’s expert witnesses, Dr. Gary Koritz and Dr. Nicholas Booth, were extremely well qualified; both are veterinarians and university professors, specialists in veterinary pharmacology, experienced in research and widely published. Both testified that nitrofurantoin in general and Equidantin in particular are not generally recognized among qualified experts as safe and effective to treat race track cough or equine urinary tract infections. Both were aware of the publication of the DESI Notice for Dantafur, but expressed reservations about the validity of the supporting scientific data, and disagreed with the evaluation of effectiveness in the DESI Notice on the merits. Both further testified that, as was admitted by Performance, no completed clinical studies on the safety- or efficacy of Equidantin have been published (apparently a bioavailability study is now in progress); that the limited published data available on the use of nitrofurantoin in horses did not involve Equidantin (the experts also questioned the scientific design of these studies); and that neither had any knowledge of Equidantin before preparing for the present case.
Another government expert witness, Dr. Marvin Meyer, a professor of pharmacy and specialist in biopharmaceutics (the study of factors that affect the absorption, metabolism, distribution, and excretion of drugs), testified at some length about bioavailability. Dr. Meyers testified that bioavailability was important in evaluating the efficacy of nearly all drug products, including suspensions; that differences or changes in bioavailability may affect a drug’s therapeutic value; and that many factors can affect bioavailability, including variations in product formulation, particularly the suspension medium and the crystal size of the active ingredient. See Premo II, 511 F.Supp. at 962-65.
Performance presented the testimony of two professors of pharmacy who testified that the inactive ingredients used in the manufacture of Equidantin are generally recognized as safe for use in pharmaceutical preparations. Another witness, a practicing veterinarian, testified that he prescribed Equidantin and had found it safe and effective. None of Performance’s witnesses, however, testified that either nitrofurantoin or Equidantin was generally recognized among qualified experts as safe and effective for its intended uses. The practicing veterinarian’s testimony was not supported by clinical studies or published data and was clearly anecdotal in character.
After reviewing the testimony under the standards set forth above, we can find no error in the district court’s finding that Equidantin is not generally recognized among qualified experts as safe and effective for its intended uses and therefore, in the absence of general recognition, a new animal drug within the meaning of 21 U.S.C. § 321(w). Not only were the government expert witnesses unaware of Equidantin before preparing to testify in the present case, there was at best a sharp difference of opinion among the experts; there was certainly no general consensus of expert opinion in favor of Equidantin. Nor was there any published scientific literature or well-controlled clinical investigations of Equidantin. See United States v. Articles of Drug (Hormonin), 498 F.Supp. at 431-32.
Performance next argues that Equidantin is not a new animal drug within the meaning of 21 U.S.C. § 321(w) because Equidantin is a generic version or copy of an FDA approved drug. Performance argues that because Dantafur has been approved by the FDA (in the DESI Notice) and because Dantafur and Equidantin contain the same active ingredient (nitrofurantoin) in the same concentration per dosage unit, Equidantin is not a new animal drug within the meaning of the statute. This argument is incorrect; FDA approval, that is, agency recognition of actual safety and effectiveness, must not be confused with general recognition in the scientific community of safety and effectiveness. As discussed earlier, only general recognition plus material use can exempt a drug from new drug status and FDA premarketing clearance. As noted by the Supreme Court in Weinberger v. Hynson, Westcott & Dunning, Inc., “the Act is designed so that drugs on the market ... will have mustered the requisite scientifically reliable evidence of effectiveness long before they are in a position to drop out of active regulation by ceasing to be a ‘new drug.’ ” 412 U.S. at 631, 93 S.Ct. at 2484; see also Premo I, 629 F.2d at 803-04. FDA approval is the threshold determination required before the manufacturer can market the drug; it does not exempt the drug from new drug status. Prior FDA approval of Dantafur means only that, if Performance should apply for FDA approval of Equidantin, Performance can rely on the safety and effectiveness data submitted for Dantafur because Dantafur and Equidantin contain the same active ingredient and need only add bioavailability studies to complete its application.
Moreover, the government in the present case showed that nitrofurantoin was not generally recognized among qualified experts as safe and effective. Therefore, even assuming for purposes of argument that the statutory definition of new drug refers only to the active ingredient, Equidantin would not be exempt from new drug status because its active ingredient, nitrofurantoin, is not generally recognized among qualified experts as safe and effective and is therefore a “new drug.” Compare Generix, 654 F.2d at 1115-20 (the term “new drug” as used in 21 U.S.C. § 321(p) applies only to the active ingredients of a drug product), with Premo I, 629 F.2d at 801 (a drug product is a “new drug” unless generally recognized among qualified experts as safe and effective); Premo II, 511 F.Supp. at 968-73; and Pharmadyne, 466 F.Supp. at 103-04. Because the government in the present case showed that neither the pioneer drug (Dantafur) nor the active ingredient (nitrofurantoin) was generally recognized among qualified experts as safe and effective, we need not address whether the term “drug” as used in 21 U.S.C. § 321(p), (w) refers only to the active ingredient in a drug product; if it does, whether general recognition of the pioneer drug will remove any generic copy from new drug status; or if it does not, whether general recognition of the pioneer drug will remove an exact generic copy (identical active and inactive ingredients and manufacturing processes) from new drug status.
Accordingly, the judgment of the district •éóurt is affirmed.
. The Honorable James H. Meredith, United States Senior District Judge for the Eastern District of Missouri.
. 21 U.S.C. § 351(a)(5) provides: “A drug . . . shall be deemed to be adulterated — . . . (5) if it is a new animal drug which is unsafe within the meaning of section 360b of this title .. . . ”
. 21 U.S.C. § 334(a)(1) provides in part:
Any article of ... drug ... that is adulterated ... when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce ... shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States . .. within the jurisdiction of which the article is found....
. 21 U.S.C. § 321(w) provides in part:
The term “new animal drug” means any drug intended for use for animals other than man,
(1) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; ... or
(2) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions....
. 21 U.S.C. § 360b(b) provides in part: “Any person may file with the Secretary an applies-. tion with respect to any intended use or uses of a new animal drug.” The section further describes the contents of a new animal drug application (reports of investigations, listing of components, statement of composition, description of methods and facilities and controls used in manufacture, processing and packing, samples of the new animal drug, samples of labeling, etc.).
. 21 U.S.C. § 360b(a)(l)(A) provides: “A new animal drug shall, with respect to any particular use or intended use of such drug, be deemed unsafe for the purposes of section 351(a)(5) ... of this title unless — (A) there is in effect an approval of an application filed pursuant to subsection (b) of this section with respect to such use or intended use of such drug. ... ”
Question: What is the number of judges who dissented from the majority?
Answer: |
songer_respond1_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 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 citizenship of this litigant as indicated in the opinion.
W. Taylor JOHNSON and Foye K. Johnson, Appellees, v. UNITED STATES of America, Appellant.
No. 14351.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 9, 1970.
Decided Jan. 6, 1971.
Stephen H. Hutzelman, Atty., Dept, of Justice (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson and Thomas L. Stapleton, Attys., Dept, of Justice, and Brian P. Gettings, U. S. Atty., on brief) for appellant.
Francis N. Crenshaw and Robert C. Nusbaum, Norfolk, Va. (Crenshaw, Ware & Johnson, and Hofheimer, Nusbaum & McPhaul, Norfolk, Va., on brief) for appellees.
Before BRYAN and WINTER, Circuit Judges, and MARTIN, Chief District Judge.
ALBERT V. BRYAN, Circuit Judge:
Income taxes paid by W. Taylor Johnson and his wife, Foye K. Johnson — taxpayer — were recouped by a September 1969 judgment of the Federal Court for the Eastern District of Virginia. Decision hinged on the appropriate tax treatment of a corporate distribution of moneys held in a depreciation account. The United States appeals, and successfully, we hold.
The facts, bared of simultaneous tax incidents, are these as taken from the Court’s unquestioned findings:
“The Mayflower Corporation owned a high-rise apartment building at Virginia Beach, Virginia, * * *. The taxpayers acquired fifty-two percent of the corporation’s stock in 1949 at a cost of $1,040.. The remaining forty-eight percent of the stock was purchased in 1954 * * * by the taxpayers at a cost of $144,500.
“From 1949 until 1963 no distributions were made to stockholders. There was, however, a substantial accumulation which counsel stated at the time of trial was a ‘depreciation reserve’ for equipment in the corporate account entitled ‘Appreciation of Land and Building.’ On June 19, 1963, the taxpayers’ attorney wrote Johnson recommending a distribution which, in his opinion, could be affected as a tax-free return of capital under section 301 of the Internal Revenue Code. Subsequently, on June 21, 1963, a Board of Directors meeting was held and a resolution was adopted calling for the distribution of $169,000 to be paid June 26,1963.
“In preparing the minutes of the stockholders’ meeting, taxpayers’ attorney did not specify whether the distribution was to be made on a ‘pro rata’ or ‘non-pro rata’ basis. It is contended by plaintiff, however, that since the clear and admitted intention of the taxpayers was to avail themselves of the benefits of section 301, and since this could not be done if the distribution was pro rata, the distribution must be deemed to have been a non-pro rata basis.” 303 F.Supp. at 2.
The parties agree that $13,564.70 of the $169,000 distributed was a dividend of current corporate income. It was paid on a pro rata basis, and is taxable to the Johnsons as ordinary income. The issue is how the receipt of the remainder — $155,435.30—should be assessed.
The position of the taxpayer is that this was a distribution of capital to them and that there was no gain because the sum so disbursed did not exceed the total amount paid by them for the stock. For this computation they combine the costs of their two acquisitions. They show, too, that the Government stipulates that the taxpayer intended a non-pro rata distribution.
The Government, on the other hand, insists that the acquisitions cannot be combined. Skinner v. Eaton, 45 F.2d 568, 570 (2 Cir.1930) cert. denied 283 U.S. 837, 51 S.Ct. 486, 75 L.Ed. 1449 (1931). It asserts that each acquisition must be apportioned its part of the distribution, individually. In this process, there is allotted to each the proportion of the distribution that the number of shares in that block bears to the number of shares outstanding. Thus the distribution for tax purposes would not be allocated on a non-pro rata reckoning in accordance with the stipulated intent of the taxpayer, but rather on a pro rata division. The Government illustrates its contention and the application of it specifically as follows:
a/c 52 shares Acquired in 1949 a/c 48 shares Acquired in 1954
Amount Received $80,826 $ 74,609
Basis 1,040 144,500
Gain $79,786 -0-
The language of the pertinent code sections persuades us to the Government’s view. Internal Revenue Code of 1954, § 301, 26 U.S.C. § 301, fixes the tax consequences of corporate distributions when, as here, admittedly they are not dividends, in these words:
“(a) In general. — Except as otherwise provided in this chapter, a distribution of property (as defined in section 317(a) ) made by a corporation to a shareholder with respect to its stock shall be treated in the manner provided in subsection (c).”
* * * * * *
“(c) Amount taxable. — In the case of a distribution to which subsection (a) applies—
* * * * * *
“(2) Amount applied against basis. —That portion of the distribution which is not a dividend shall be applied against and reduce the adjusted basis of the stock.
“(3) Amount in excess of basis.— (A) * * * that portion of the distribution which is not a dividend, to the extent that it exceeds the adjusted basis of the stock, shall be treated as gain from the sale or exchange of property.”
IRC § 1012 determines “the adjusted basis” of the stock, stating that “the basis of property shall be the cost' of such property * * *”26 U.S.C. § 1012.
These provisions, in our judgment, preclude the aggregation of the cost of the two lots of stock here to reach an adjusted basis for tax purposes. The tax laws are peremptory and inexorably command assessment on the transaction as a pro rata distribution. See, too, United States v. Davis, 397 U.S. 301, 90 S.Ct. 1041, 25 L.Ed.2d 323 (1970). They must prevail, to repeat, notwithstanding the intent of the distributor and distributees. On the gain of $79,-786 as illustrated by the Government, the tax amounts to $17,472.76, totaling with interest $20,791.58. The District Court’s refund of these taxes must be disapproved.
Reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the citizenship of this litigant as indicated in the opinion?
A. not ascertained
B. US citizen
C. alien
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.
BLOOMINGTON NATIONAL BANK, Hoosier Bancshares, Incorporated, Frank A. Rogers, Joseph R. Hartley, Robert W. Linnemeier, Robert D. Mann and Richard M. Leagre, Plaintiffs-Appellants, v. James S. TELFER, Rudolph T. Kuehn, as Executor of the Estate of Sophie T. Kuehn, Robert S. Telfer, Jr. and John T. Barrett, Defendants/Counterclaimants and Third-Party Plaintiffs-Appellees, v. Robert L. CLARKE, Comptroller of the Currency, Third-Party Defendant-Appellee.
No. 89-3707.
United States Court of Appeals, Seventh Circuit.
Argued May 16, 1990.
Decided Oct. 31, 1990.
Theodore J. Nowacki, Ronald E. Elber-ger, Bose, McKinney & Evans, Indianapolis, Ind., for plaintiffs-appellants.
Robert L. McLaughlin, Wooden, McLaughlin & Sterner, Indianapolis, Ind., for defendants/counterclaimants and third-party plaintiffs-appellees.
Yvonne D. Mclntire, Comptroller of the Currency Enforcement & Compliance Div., Washington, D.C., for third-party defendant-appellee.
Before BAUER, Chief Judge, COFFEY, Circuit Judge, and SNEED, Senior Circuit Judge.
Hon. Joseph T. Sneed, of the Ninth Circuit, sitting by designation.
SNEED, Senior Circuit Judge.
Bloomington National Bank (Blooming-ton) appeals in its suit against James S. Telfer, Rudolph L. Kuehn, Robert S. Telfer, Jr., and John T. Barrett (the Telfer group) for a declaration that its reorganization plan was authorized by federal law. In rendering summary judgment for the Tel-fer group, the district court ruled that Bloomington violated the National Banking Act, 12 U.S.C. § 21 et seq., by repurchasing its own stock and failing to provide Telfer with appraisal rights. We affirm.
I.
FACTS AND PROCEEDINGS BELOW
The facts in this case are not in dispute. In November 1985, Bloomington, a national banking association chartered by the Comptroller of the Currency (Comptroller) under the National Banking Act (Act), initiated a plan to become a wholly owned subsidiary of Hoosier Bancshares, Inc. (Hoosier), an Indiana holding company. At that time Hoosier owned 90.85 percent of Blooming-ton’s stock. Appellees and thirty-two other minority shareholders owned the remaining 9.15 percent of the outstanding shares.
In a letter to the Comptroller dated November 27, 1985, Bloomington outlined a five-step plan to effect the reorganization and to cash out the minority shareholders. Bloomington patterned this plan after similar bank reorganizations that had been approved by the Comptroller.
First, Hoosier would pay Bloomington $225,000 as a subscription for fifteen thousand shares of common stock that would be sold after a reverse stock split. Second, the bank would amend its articles of association to reduce the par value of its outstanding stock from ten dollars to one cent per share, thereby reducing the aggregate par value of the outstanding shares from $870,000 to $870. The difference between the two amounts would be retained in a capital-over-par account.
The third step required the bank’s authorization of a reverse stock split under which Bloomington would issue one new share of common stock for every fifteen hundred shares of old outstanding common stock. After the split, Hoosier would own 52.81 shares and the thirty-six minority shareholders would hold 5.19 shares with each minority shareholder possessing a fractional share. Bloomington would then eliminate the fractional share interests by purchasing them for twenty-five dollars per old share. Bloomington’s board of directors had adopted this price after reviewing a study conducted by an investment banking firm retained by the bank.
Finally, with all the old shares in its possession, Bloomington would then issue fifteen thousand new shares of stock to Hoosier pursuant to the subscription price agreement. Hoosier would then become a 100 percent owner of Bloomington.
Federal banking statutes and regulations required the bank to obtain the Comptroller’s approval for this transaction. Bloom-ington received preliminary approval on February 12, 1986. Bloomington then certified to the Comptroller, by letter of April 4, 1986, that two-thirds of the shareholders had approved the amendments to the articles of association necessary to carry out the transaction. The Comptroller authorized the deal on April 17, 1986 and the restructuring plan went into effect.
On June 16, 1987, Bloomington and its directors filed suit seeking a declaratory judgment that the bank restructuring plan and related transactions did not violate federal banking laws, federal and Indiana securities laws, or common law fiduciary duties. This was apparently in response to a letter from the appellees claiming such violations. The Telfer group filed a counterclaim arguing that Bloomington had breached its fiduciary duty and violated federal and state securities laws as well as the National Banking Act. The Telfer group added the Comptroller as a third-party defendant and claimed that he had exceeded his statutory authority in approving a reorganization plan that violated the Act.
The district court rendered summary judgment for Telfer on November 18, 1988 on the cross-claim against the Comptroller. The court ruled that Bloomington’s plan violated 12 U.S.C. §§ 83 & 214a-215a (1988), and that the Comptroller exceeded his authority by approving the plan. Bloomington Nat’l Bank v. Telfer, 699 F.Supp. 190, 194 (S.D.Ind.1988). Although Telfer’s first motion against the Comptroller also sought judgment against Bloom-ington, the bank did not respond to the motion. The Comptroller did not appeal the district court’s decision.
On June 30, 1989, Bloomington filed a motion for partial summary judgment on the issue of whether the restructuring plan violated section 83. The district court denied this motion. Instead, the court granted Telfer’s motion for summary judgment, finding that “the Bank has merely restated the arguments previously advanced by the Comptroller in support of the restructuring plan which were rejected by the Court.” Appellant’s Brief at A15. On November 27, 1989, Bloomington and Telfer filed a joint stipulation with the district court which, among other things, dismissed with prejudice the securities fraud and breach of fiduciary duty claims. The parties also agreed on the judgment to be entered. Accordingly, on November 29, 1989, the district court entered final judgment in favor of Telfer in the amount of $246,632. This appeal followed. This court has jurisdiction under 28 U.S.C. § 1291 (1988).
II.
STANDARD OF REVIEW
Review of a district court’s grant of a summary judgment motion is de novo. See Wolfv. Larson, 897 F.2d 1409, 1411 (7th Cir.1990). Therefore, this court sits in the same position as the district court and applies the same summary judgment test that governs the district court’s decision. See Commercial Union Ins. Co. v. Ramada Hotel Operating Co., 852 F.2d 298, 300 (7th Cir.1988). There is no dispute as to the material facts in this case. Our inquiry focuses only on whether the district court erred in finding that Telfer was entitled to summary judgment as a matter of law.
III.
DISCUSSION
Bloomington’s appeal from the district court’s summary judgment order raises two questions: (1) Does the reorganization plan violate the National Banking Act? (2) Was the Comptroller’s approval of the plan in accordance with the Act or did he exceed his statutory authority? For the reasons set forth below, we find that the plan did violate the National Banking Act and that the Comptroller exceeded his statutory authority in approving the plan.
At the outset we must make one overriding observation about this case. Bloom-ington’s plan, if carried out, would only provide twenty-five dollars per share to each minority shareholder. That price is in significant contrast to the fifty-six dollar per share price stipulated by the parties at this time. Accepting the new figure as valid, it becomes readily apparent that Bloomington seriously misjudged the value of its stock. It is also apparent that Bloomington and Hoosier would reap profits exceeding $130,000 if their plan were upheld. The gross disparity in the share values strongly suggests that this reorganization plan be examined very carefully.
A. Bloomington’s Plan and the National Banking Act
The district court concluded that Bloomington’s plan violated sections 83 and 214a-215a of the National Banking Act. Bloomington, 699 F.Supp. at 194; see also Judgment of Nov. 8, 1989, Appellant’s Brief at A17. Section 83 of the National Banking Act provides:
No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith....
12 U.S.C. § 83 (1988); see also Deitrick v. Greaney, 309 U.S. 190, 194, 60 S.Ct. 480, 482, 84 L.Ed. 694 (1940) (noting, in dicta, that section 83 “prohibits the purchase by a bank of its own shares of stock and their retention when purchased”).
Sections 214a thru 215a all provide protection to minority shareholders when their bank is merged or consolidated with another association. See 12 U.S.C. §§ 214a-215a (1988). The courts have previously recognized Congress’s interest in protecting the rights of a bank’s minority shareholders. Congress has provided appraisal rights to those stockholders when attempts are made to eliminate them. See Beerly v. Department of the Treasury, 768 F.2d 942, 944-45 (7th Cir.1985), cert. denied, 475 U.S. 1010, 106 S.Ct. 1184, 89 L.Ed.2d 301 (1986); Nehring v. First DeKalb Bancshares, Inc., 692 F.2d 1138, 1141-42 (7th Cir.1982).
Bloomington’s reorganization plan clearly violates the National Banking Act. The bank’s reacquisition of capital stock, at a price significantly lower than the current stipulated value, combined with an avoidance of appraisal rights for the minority shareholders, is not in accordance with sections 83 and 214a-215a of the National Banking Act. Bloomington has attempted to do nothing more than squeeze-out the minority shareholders by repurchasing its stock and reducing it to fractional shares through a reverse stock split, thereby necessitating the bank’s purchase of the fractional shares. The district court correctly concluded that the bank’s plan “was, at best, a clever little scheme having only the color of legality and cannot be upheld.” Bloomington, 699 F.Supp. at 194.
Bloomington attempts to defend its plan by invoking section 59 of the Act. Section 59 states:
Any association formed under [this chapter] may, by the vote of shareholders owning two-thirds of its capital stock, reduce its capital to any sum not below the amount required by [this chapter] to authorize the formation of associations; but no such reduction shall be allowable which will reduce the capital of the association below the amount required for its outstanding circulation, nor shall any reduction be made until the amount of the proposed reduction has been reported to the Comptroller of the Currency and such reduction has been approved by said Comptroller of the Currency and no shareholder shall be entitled to any distribution of cash or other assets by reason of any reduction of the common capital of any association unless such distribution shall have been approved by the Comptroller of the Currency and by the affirmative vote of at least two-thirds of the shares of each class of stock outstanding, voting as classes.
12 U.S.C. § 59 (1988). Bloomington’s reliance on this section is misplaced. Section 59’s allowance for a reduction in capital cannot be utilized as a means to legitimate a plan that otherwise violates the Act. This is especially true where the reduction in capital that occurred in the second step of the reorganization had little or nothing to do with the overall plan. Bloomington and the Comptroller both indicated in their correspondence that the central purpose of the reorganization plan was to effectuate Hoosier's full ownership of the bank by eliminating the minority shareholders. See Letter from John R. Zerkle to Leann Brit-ton, Comptroller of the Currency (Nov. 27, 1985), Appellee’s Brief at exh. A; Memorandum from David J. Rogers to Richard F. Coe (Jan. 14, 1986), Appellee’s Brief at exh. B. The reduction in capital was only a means to achieve that end. The bank will not be allowed to invoke section 59 of the Act to effectuate its elimination of the minority shareholders’ interests.
B. The Comptroller’s Authority to Approve Bloomington’s Plan
Bloomington next argues that the Comptroller’s interpretation is entitled to extreme deference. The Comptroller made this same argument in his motion for summary judgment and the district court rejected it.
The Comptroller’s authority is limited. Normally, courts will defer to an agency’s interpretation of federal law. See City Fed. Savings & Loan Ass’n v. Federal Home Loan Bank Bd., 600 F.2d 681, 688 (7th Cir.1979); 5 U.S.C. § 706(2)(A) (1988). But there are limits on the Comptroller’s authority. In Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court established a two-prong test for evaluating an agency’s interpretation of federal law. If the intent of Congress is clear the court and the agency must give effect to the expressed intent of Congress. See id. at 842-43, 104 S.Ct. at 2781-82. If, on the other hand, the court determines that the statute is silent or ambiguous, then the court should impose its view of the law only if the agency’s view is based on an impermissible interpretation of the relevant statute. See id. at 843, 104 S.Ct. at 2782; see also Simmons v. ICC, 808 F.2d 22, 24 (7th Cir.1986) (following the Supreme Court’s two-part test in Chevron).
We find that the National Banking Act clearly prohibits a reorganization plan, which necessitates a reacquisition of stock in violation of section 83 and fails to provide the appraisal rights required by sections 214a-215a. The requisite silence or ambiguity that might require our deference to the Comptroller’s interpretation is not present in this case.
Moreover, the Comptroller failed to consider sections 83 and 214a-215a when he gave his approval to the bank’s plan. The Comptroller relied solely on section 59. None of the Comptroller’s interpretive letters, in which he approved similar bank reorganizations, mentions or considers the other relevant portions of the Act. See Bloomington, 699 F.Supp. at 193; see also Letter No. 313, [1985-1987 Transfer Binder] Fed.Banking L.Rep. (CCH) ¶ 85,483 (Oct. 22, 1984); Letter No. 275, [1983-1985 Transfer Binder] Fed.Banking L.Rep. (CCH) ¶ 85,439 (Oct. 21, 1983); Letter No. 264, [1983-1985 Transfer Binder] Fed. Banking L.Rep. (CCH) 1185,428 (Aug. 4, 1983). While the Comptroller later advanced additional reasons for his decision, the district court correctly rejected these post hoc explanations. See Bloomington, 699 F.Supp. at 193. The Comptroller is in a position to interpret federal banking laws, but his interpretation can be overturned if he ignores or overlooks relevant portions of the law. See Investment Co. Inst. v. Camp, 401 U.S. 617, 627-28, 91 S.Ct. 1091, 1097-98, 28 L.Ed.2d 367 (1971).
Bloomington attempts to argue that the district court should have given prece-dential weight to the Comptroller’s three interpretive letters. These interpretations are not binding on courts. See Bright v. Ball Memorial Hosp. Ass’n, 616 F.2d 328, 331 n. 1 (7th Cir.1980). These agency constructions are subject to the same type of review as the Comptroller’s decision in this case. We will not defer to these letters when they contravene the clear intent of Congress. See Zuber v. Allen, 396 U.S. 168, 192-93, 90 S.Ct. 314, 327-28, 24 L.Ed.2d 345 (1969).
Finally, Bloomington attempts to save its plan by minimizing the need to protect minority shareholders’ appraisal rights. Bloomington points to the Indiana Business Corporation Law, which permits short form mergers that squeezeout minority shareholders. Ind.Code Ann. §§ 23-l-25-4(a) & 23-1-38-2(4) (Burns 1989). Reliance on state corporation laws is irrelevant to this case. National banks are subject to the National Banking Act. Bloomington’s plan to reorganize the bank clearly violated several sections of that Act. That Act is the supreme law of the land in this case.
AFFIRMED.
. The value of each old share was set at fifty-six dollars. See Appellee’s Brief at 5.
. After summary judgment was entered against Bloomington, the parties agreed to a stipulation of damages for the purpose of appeal. The parties agreed that Bloomington would pay fifty-six dollars for each of the 4,297 shares held by the appellees. The bank also agreed to pay six thousand dollars in prejudgment interest. Total damages were set at $246,632. See Joint Stipulated Motion to Dismiss Certain Claims and Counterclaims with Prejudice at 3. The thirty-one dollar difference between the two values ($56 and $25) multiplied times the 4,297 shares equals $133,207.
. The district judge signed a second judgment entry on November 29, 1989, which only mentions section 83. However, given that the district judge relied on sections 214a-215a in his dismissal of the Comptroller and Bloomington's motions for summary judgment, and because the facts of this case implicate sections 83 and 214a-215a, we consider all of these sections of the Act in our decision.
.We specifically decline to answer the broader question of whether section 83 prohibits any reacquisition by a bank of its own capital stock. Our holding in this case is limited to the facts stated herein.
. Bloomington also directs our attention to a Federal Reserve Board Private Letter Ruling. See 5 Fed. Banking L.Rep. ¶ 94,733 (Aug. 14, 1967). The letter ruling concludes that a bank’s acquisition of stock for the purpose of retirement constitutes a capital reduction in accord-anee with section 59. The Board stated that section 83 did not bar this transaction. See id. at 79,772. We do not rule on the correctness of this decision, we simply note that it is inapplicable to the facts in this case.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_numappel | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Stephen LUMETTA, Appellant, v. UNITED STATES of America, Appellee.
No. 18170.
United States Court of Appeals Eighth Circuit.
June 23, 1966.
Rehearing Denied Aug. 23, 1966.
J. A. Gochenour, St. Louis, Mo., for appellant ; Charles R. Cuntz, St. Louis, Mo., on the brief.
Robert J. Koster, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. Fitz-Gibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief.
Before VOGEL, Chief Judge, MEHAFFY, Circuit Judge, and McMANUS, District Judge.
MEHAFFY, Circuit Judge.
Lumetta, president of Stephens Cement Contractors, Inc., (Stephens) appeals from convictions upon each count of a three-count indictment charging the willful failure to file tax returns for Stephens in violation of 26 U.S.C.A. § 7203. Each count alleged a separate offense for the fiscal years ending March 31, 1959, 1960 and 1961. A jury found Lumetta guilty on each count and the court sentenced him to a term of one year for each violation, the sentences to run concurrently. He was also fined $500 on each of the three counts, for a total fine of $1,500.
Lumetta first assigns as error the admission of evidence reflecting the corporation’s income for the years involved. A government witness summarized the substantial receipts and disbursements of Stephens for the years in question, using as a basis a schedule prepared from trial testimony, stipulations and exhibits. The summary reflected profits for each year. Summary type of evidence has long been approved. Hoyer v. United States, 223 F.2d 134, 138 (8th Cir. 1955) and cases cited. Lumetta asserts, however, that the existence or amount of net income is not the gist of the offense and for that reason inadmissible. The testimony was admitted as relevant to the issue of whether Lumetta’s failure to file was willful. This evidence indicated that Stephens was a going concern dealing in substantial amounts of money and operating at a profit; and that had Lumetta filed a return it would have shown a tax owing to the government. The aforementioned factors were relevant because of defenses interposed as well as to show Lumetta’s willfulness in failing to file the returns. The jury could properly take all of them into consideration in reaching its decision. No case has been cited on the precise question of admissibility of this type evidence in such cases as this and ■our research has disclosed none but such evidence appears without challenge in a numerosity of cases. E.g. Hellman v. United States, 339 F.2d 36 (5th Cir. 1964). See also United States v. Cirillo, 251 F.2d 638, 639 (3rd Cir. 1957), cert. denied, 356 U.S. 949, 78 S.Ct. 914, 2 L.Ed. 2d 843 (1957); Yarborough v. United States, 230 F.2d 56, 58 (4th Cir. 1956), cert. denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487 (1956). We hold, in addition to the necessity here to combat the ■defenses, that the disputed evidence was proper for the jury’s determination of the ■question of willfulness in failure to file the tax returns.
In addition, Lumetta asserts as error the use of the evidence because government witness O’Donnell omitted from "the deductible expenses an alleged attorney’s fee incurred by Stephens and an alleged salary of $150 per week payable “to Lumetta. There is no evidence reflecting the liability for either of these items in Stephens’ books and records ■even though this evidence was available to Lumetta.
Even assuming the evidence would establish that both omitted expenses had in Tact been incurred, the result would not change. If the deductions were allowed, “the resulting figures would still show ■substantial receipts and disbursements. The exact amount of profits is not significant and such a slight discrepancy does not result in prejudicial error. See Fowler v. United States, 352 F.2d 100, 109 (8th Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). See also McKenna v. United States, 232 F.2d 431 (8th Cir. 1956) ; United States v. Burdick, 221 F.2d 932 (3rd Cir. 1955), cert. denied, 350 U.S. 831, 76 S.Ct. 65, 100 L.Ed. 742 (1955); United States v. Chapman, 168 F.2d 997 (7th Cir. 1948), cert. denied, 335 U.S. 853, 69 S.Ct. 82, 93 L.Ed. 401 (1948); Rose v. United States, 128 F.2d 622 (10th Cir. 1942).
Lumetta alleges that it was an error for the trial court to overrule his motion for judgment of acquittal at the close of the government’s case. In support of this position Lumetta argues that (1) the government failed to prove willfulness; (2) he was not the person responsible to file the corporate return; and (3) because of the forfeiture of this corporate charter, a return was not necessary.
Willfulness:
Much has been said concerning the distinction between “willfulness” as found in § 7203 (misdemeanor) and § 7201 (felony). Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943); United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); Edwards v. United States, 321 F.2d 324 (5th Cir. 1963), rev. en banc; Edwards v. United States, 334 F.2d 360 (5th Cir. 1964), cert. denied, 379 U.S. 1000, 85 S. Ct. 721, 13 L.Ed.2d 702 (1965).
The resulting concensus imposes upon the government the duty of providing substantial evidence that the failure to file a return was prompted by a bad purpose and without grounds for believing that the failure to file was lawful, as opposed to a careless, thoughtless or inadvertent oversight. The court instructed the jury that “willful” as used in § 7203 means:
“ * * * voluntary, purposeful, deliberate and with the specific intent to do that which the law forbids as distinguished from accidental, inadvertent or negligent.” and that
“ * * * the only bad purpose or evil motive which the government must prove in this case is the deliberate intention not to file a return which the defendant knew the law required him to file so that the government would not know the extent of the liability of the corporation.”
Several government witnesses and scores of stipulations established substantial receipts and disbursements of Stephens. Lumetta was deeply involved in all of these transactions and was astute enough in corporate affairs to be instrumental- in the management of other companies related to Stephens. It would be folly to even suggest that he was unaware Stephens was a going concern. Lumetta signed the return for 1958 and agreed to certain assessments for three prior years. Clearly, there is evidence from which the jury could conclude that Lumetta was aware of the law requiring him to file a return and that his failure to do so was “willful.”
Additionally, Lumetta argues that his failure to file returns for the years in question is mitigated by the fact that Stephens allegedly operated at a loss during these periods. Not only do we think the government produced considerable evidence indicating a net profit was in fact made, but prosecution for willful failure to file a return is imposed without regard to existence of a tax liability. Spies v. United States, supra.
Lumetta’s Responsibility:
Lumetta also alleges that he was not shown to be that “person” responsible for filing the corporate returns. The evidence produced by the government revealed that Lumetta had been president of Stephens from its inception until trial date and had signed the 1958 return and the assessment agreements for 1956,1957 and 1958, respectively. Lumetta acted for Stephens in filing the Federal Employer’s Quarterly return, the Missouri Employer’s Wage & Salary Report, and made application for reinstatement of the corporate charter in 1959 and 1962. From 1959 to trial date Lumetta was a major stockholder and was responsible for the daily affairs of running Stephens, There was also substantial evidence that other concerns conducted their business through Lumetta and considered him in control of Stephens. Clearly, there was enough evidence to raise the fact question for the jury that Lumetta was the “person” required by law to file a corporate return. Lumetta’s reliance upon United States v. Fago, 162 F.Supp. 125 (W.D.N.Y.1958) is misplaced. While we find no disagreement with the law as expressed in Fago, the facts and circumstances are clearly distinguishable from the case at bar.
Corporate Status:
Also, we think there is sufficient evidence to raise the question of whether Stephens possessed sufficient corporate characteristics to be taxable as such. Stephens existed as successor to Vitale Cement Contractors, Inc. until January, 1959, when its charter was forfeited for failure to file certain annual statements with the Missouri Secretary of State. However, Lumetta filed application to rescind the forfeiture order in March, 1959, and Stephens was restored to its old status until January of 1960 when the same incident again occurred. This time the corporate status was not restored until January of 1962. In this period during which the charter was forfeited, there were no changes in the method of conducting the day to day operations of the corporation. Stephens maintained its continuity of business activity, had stockholders and a Board of Directors, accepted liabilities and receivables in its corporate name and was operated for the purpose of making a profit.
26 U.S.C.A. § 7701(a) (3) defines “corporation” as including “associations, joint-stock companies, and insurance companies” and, while its status may possibly have changed under Missouri law, its tax status for federal purposes remains the same. Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263 (1935); Burk-Waggoner Oil Ass’n v. Hopkins, 269 U.S. 110, 46 S.Ct. 48, 70 L.Ed. 183 (1925); Coast Carton Co. v. Commissioner, 149 F.2d 739 (9th Cir. 1945); Crocker v. Commissioner, 84 F.2d 64 (7th Cir. 1936).
Finally, Lumetta challenges the court’s Instructions Nos. XIII and XVII.
It is argued that Instruction Xm “ * * * allowed the jury to consider, as an offense, the failure to sign the returns.” There is no valid basis for this argument as the instruction does nothing more than tell the jury in the language of the statute the persons who shall sign corporate income tax returns. Lumetta was charged in the indictment with being required by law to make an income tax return on behalf of the corporation, and in order to convict, the jury had to find under other instructions of the court that he was a proper person required by law to file the corporate return. In order for the jury to intelligently perform its fact-finding function, it was proper and necessary for the court to instruct the jury as to the persons under law required to sign corporate returns. We know of no better way to instruct the jury than by the plain and simple language of the statute. It is proper practice to employ the language of a statute in an instruction when the statute is composed of clear and simple language. Compare Caldwell v. United States, 338 F.2d 385 (8th Cir. 1964); Williams v. United States, 328 F.2d 256 (8th Cir. 1964), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964).
As instruction No. XIII or a similar one was necessary, in view of other instructions, the utilization of such instruction was proper.
Lumetta’s attempt to invoke specific objection to Instruction No. XVII for the first time on appeal is specifically forbidden by Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Even though we are not required to rule upon the accuracy of this instruction in isolation, we have carefully examined it in light of the trial court’s charge as a whole. Franano v. United States, 310 F.2d 533 (8th Cir. 1962), cert. denied, 373 U.S. 940, 83 S.Ct. 1545, 10 L.Ed.2d 694 (1963); Johnson v. United States, 291 F.2d 150 (8th Cir. 1961), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961); Segal v United States, 246 F.2d 814 (8th Cir. 1957), cert. denied, 355 U.S. 894, 78 S.Ct. 269, 2 L.Ed.2d 192 (1957). We find that the comprehensive charge was without error and adequately and accurately guided the jury in the protection of Lumetta’s rights.
Finding no error, the judgment of conviction is affirmed.
. 26 U.S.C.A. § 7203
“Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015 or section 6016), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.”
. The government mildly asserts that Lu-metta has waived any rights growing out of the denial of this motion as he offered and presented evidence in his own behalf. This would be a valid position had not Lumetta renewed his motion at the close of all the evidence. Gendron v. United States, 295 F.2d 897 (8th Cir. 1961); McDonough v. United States, 248 F.2d 725 (8th Cir. 1957).
. Although the trial court’s instruction in the case here does not present the issue, we would be hard pressed to exclude from the definition of “willful” “a careless disregard” to obey the law. See Judge Wisdom’s dissent in Haner v. United States, 315 F.2d 792, 795 (1963).
. 26 U.S.C.A. § 6062
“The return of a corporation -with respect to income shall he signed by the president, vice-president, treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized so to act. • # * ”
. Instruction No. XIII
“An income tax return required to be made by a corporation, shall be signed for the corporation by the president, vice-president, treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized to sign such return.”
Instruction No. XVII
“As to Count One of the indictment, the Court instructs the jury that if you find and believe from the evidence, beyond a reasonable doubt, that during the fiscal year ending March 31, 1959, the defendant Stephen Lumetta was president of the Stephens Cement Contractors, Inc., a corporation not expressly exempt from tax; that said corporation had its principal place of business in the City of St. Louis, Missouri; that the defendant Stephen Lumetta was the person who had the responsibility and duty to file the Stephens Cement Contractors, Ine., income tax return with the District Director for the Internal Revenue District of St. Louis, Missouri, at St. Louis, Missouri, in the Eastern Division of the Eastern District of Missouri, on or before September 15, 1959, stating specifically the items of the corporation’s gross income and the deductions and credits allowed by law for the fiscal year ending March 31, 1959; and further, if you find and believe from the evidence beyond a reasonable doubt that the defendant Stephen Lumetta did willfully and knowingly fail to make such an income tax return on behalf of the Stephens Cement Contractors, Inc., to the said District Director of Internal Revenue or to any other proper officer of the United States, then you should find the defendant Stephen Lumetta guilty as charged in Count One of the indictment, and unless you so find, you shall find the defendant Stephen Lumetta not guilty.”
Identical instructions were given for the other two counts.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_habeas | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Celeste BROUGHTON, Appellant, v. STATE OF NORTH CAROLINA; John Baker; Rufus Edmisten, Appellees.
Nos. 82-6469, 82-6504.
United States Court of Appeals, Fourth Circuit.
Argued March 9, 1983.
Decided Sept. 19, 1983.
Rehearing and Rehearing En Banc Denied Nov. 2, 1983.
Michael W. Patrick, Chapel Hill, N.C. (Haywood, Denny & Miller, Chapel Hill, N.C., on brief), for appellant.
M. Edward Taylor, Third Year Law Student (Rufus L. Edmisten, Atty. Gen., Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C., on brief), for appellees.
Before WIDENER, PHILLIPS and SPROUSE, Circuit Judges.
PER CURIAM:
Celeste Broughton appeals from the order of the district court dismissing her petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We dismiss the appeal because Broughton has served the sentence which she received upon her contempt of court conviction and the controversy is moot.
Broughton was cited for criminal contempt of court because of her outburst during a civil trial in the Superior Court of Wake County, North Carolina. She was convicted on the contempt charge on August 14, 1981, and sentenced to 30 days of confinement in the Wake County Jail. The imposition of this sentence was delayed pending her pro se appeal of the conviction to the North Carolina Court of Appeals. The Court of Appeals subsequently dismissed Broughton’s appeal, after she failed, despite several time extensions, to file a record of the contempt proceedings within the time required by the North Carolina Rules of Appellate Procedure. Broughton then filed several petitions in both the North Carolina Supreme Court and the Court of Appeals seeking to overturn the contempt conviction, but they, too, were denied.
Broughton began serving her 30-day sentence in March, 1982, and immediately launched a collateral attack upon her conviction under North Carolina’s post-conviction relief statute. After a state court hearing, her request for habeas relief was denied. Immediately thereafter, she filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254 alleging eleven constitutional violations in the conduct of the state court contempt proceedings. The district court dismissed the petition by order dated April 2,1982, ruling that Brough-ton’s failure to perfect her original appeal to North Carolina’s intermediate appellate court constituted a procedural default which barred federal consideration of the constitutional claims. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980) (en banc), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). Broughton completed her sentence five days later and was released from custody. She then unsuccessfully petitioned the district court to reconsider its dismissed order, and appealed to this court.
Broughton, on appeal, contends that the court committed a number of errors, but since we conclude the case is moot, we do not reach those contentions. Broughton completed serving her contempt sentence five days after the district court dismissed her petition for federal habeas relief. Thus, the relief she ultimately seeks in this appeal has been achieved.
It is true that unconditional release from state custody will not always moot a claim for habeas relief, for the collateral consequences of a criminal conviction may create “a substantial stake in the ... conviction which survives the satisfaction of the sentence.” Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968) (quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946). Where the criminal conviction, for example, results in the continued denial of important civil rights, such as the right-to-vote or the right to be considered for jury duty, the claim for habeas relief will remain a live controversy even after the prisoner has been released from custody. Carafas, 391 U.S. at 237, 88 S.Ct. at 1559. Similarly, where the criminal conviction may result in an enhanced sentence should the petitioner later be convicted of another crime, her stake in habeas relief permits the court to exercise its judicial function long after she has been freed. See Harrison v. Indiana, 597 F.2d 115, 117 (7th Cir.1979).
Broughton, however, will suffer none of these collateral consequences as a result of her misdemeanor contempt conviction. The contempt conviction, for example, will not prevent her from voting, N.C. GemStat. § 163-55, serving on a jury, N.C. Gen.Stat. § 9-3, obtaining a license to practice law, see In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979), becoming an official of a labor union, 29 U.S.C. § 504, or qualifying for state elective offices, N.C.Const. VI, § 8. Nor will the criminal conviction expose her to the possibility of an enhanced sentence if she commits a later criminal act. N.C.Gen.Stat. § 15A-1340.4. In sum, Broughton will suffer no collateral legal consequences as a result of her challenged conviction, Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982); see also, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); United States v. Sultani, 704 F.2d 132 (4th Cir.1983); hence, her unconditional release from state custody has ended the controversy.
Accordingly, since this case does not present a controversy capable of repetition, yet evading review, the judgment of the district court is vacated and the case remanded with instructions to dismiss the controversy as moot.
VACATED AND DISMISSED.
. Broughton v. Baker, 537 F.Supp. 274 (E.D.N.C.1982).
. Rule 12(a), N.C.Gen.Stat.App. I (1981).
. We are not insensitive to the continued repu-tational interests Broughton has in overturning her criminal contempt conviction. This personal stake in the challenged conviction, however, is not a ‘legal consequence’ which is remediable in a federal habeas petition. See, e.g., Lane v. Williams, 455 U.S. 624, 633, 102 S.Ct. 1322, 1328, 71 L.Ed.2d 508 (1982); see also Malloy v. Purvis, 681 F.2d 736 (11th Cir.1982).
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer: |
songer_state | 26 | 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. Walton I. FRONIABARGER, Appellant. UNITED STATES of America, Appellee, v. Walton I. FRONIABARGER, Appellant.
Nos. 72-1182, 72-1183.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 14, 1972.
Decided Oct. 17, 1972.
Lewis E. Pierce, Kansas City, Mo., for appellant.
Bert C. Hurn, U. S. Atty., Anthony P. Nugent, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before VOGEL, Van OOSTERHOUT and ROSS, Circuit Judges.
VOGEL, Circuit Judge.
On June 18, 1970, Walton I. Fronia-barger, defendant-appellant herein, was charged in case No. 23143-4 in a 30-count indictment involving some 17 defendants, of which appellant was one, and in which indictment he was named in 11 of the counts. All dealt with narcotics violations. On August 6, 1970, in case No. 23182-4, appellant was charged in a two-count indictment in which he was the only named defendant and in which other narcotics violations were charged. At arraignment, and represented by employed counsel, appellant entered pleas of not guilty. Judge Hunter, the trial judge, carefully explained appellant’s rights to him. Subsequently thereto Assistant United States Attorney Calvin K. Hamilton and Harold Leap of the Bureau of Narcotics and Dangerous Drugs agreed with the appellant that if he would cooperate and work with BNDD agents, the government would consent to appellant’s entering a plea of guilty to only a possession count in each indictment and would fully advise the court at the time of sentencing as to the extent of appellant’s cooperation. All remaining counts in the two indictments involving appellant were to be dismissed. Thereafter, on September 11, 1970, in case No. 23182-4 appellant changed his plea as to Count 1 of the indictment from not guilty to guilty of what amounted to mere possession of a narcotic drug, in violation of 26 U.S. C.A. § 4704(a), the maximum penalty for which was ten years’ imprisonment and a $20,000 fine.
On January 11, 1971, in case No. 23143-4 appellant changed his plea as to Count 15 from not guilty to guilty. In each instance he was represented by his counsel and in each instance the trial court was particularly careful to see that all the provisions of Rule 11, F.R. Crim.P., regarding pleas were carried out.
We have read the transcript from which we are forced to conclude that the changes of plea were made voluntarily, with complete understanding of the nature of the charge in each count, and of the consequences of the plea. On each occasion Judge Hunter satisfied himself that there was indeed a factual basis for the plea. We cannot help but commend the care which he observed in accepting the changes of plea. The remaining counts in the two indictments were subsequently dismissed insofar as this appellant was concerned.
March 8, 1971, was set for sentencing in appellant’s two cases. On that date he appeared with his counsel but upon being shown by his counsel a letter from Mr. Hamilton, an Assistant United States Attorney, to the court, he “ * * * disagreed most violently with some of the things in the letter” and promptly disappeared and was not apprehended until the following December 1971. Thereafter appellant moved to set aside his guilty pleas in the two indictments. His motion came on for hearing on January 18, 1972, before Judge Hunter. There followed a complete eviden-tiary hearing at which appellant testified and introduced the testimony of other witnesses. At the hearing on his motion to set aside his guilty pleas to Count 1 and Count 15 of the original indictments, the appellant testified that both before and after his guilty pleas had been entered and received Harold Leap, BNDD agent, had promised that if he cooperated with the government he would get probation and not serve any time in the penitentiary. Leap testified and denied having promised probation, but conceded that the agreement with the appellant was that Leap would personally furnish the information regarding appellant’s cooperation to the probation officer so that it would be available to the sentencing judge. He said this promise was kept.
After the hearing, Judge Hunter dictated his findings into the record in part as follows:
“I am completely in agreement with counsel in this case and with the witness who testified, namely, Mr. Leap, that Mr. Froniabarger is an intelligent, perceptive, reasonably knowledgeable person who is very capable of understanding what is being conveyed to him in normal English. I find from the evidence in this case that the arrangement between Mr. Froniabar-ger and Mr. Leap was that if Mr. Froniabarger would become a reasonably cooperative citizen with the Bureau of Narcotics and Dangerous Drugs and Mr. Leap as its supervisor, and in that posture endeavor to help the Bureau and Mr. Leap to gain information and intelligence concerning illegal drug activities that in return for that Mr. Leap would fairly, faithfully, and accurately convey that fact in some reasonable detail to the probation office here in the Western District of Missouri in order that that office could make at least in summary fashion the fact of that cooperation and some of the detail of it available to this Court where it would in the customary practice be considered by this Court in determining what an appropriate sentence would be in Case No. 23143 and in Case No. 23182.
“I further find that Mr. Leap explained on more than one occasion to Mr. Froniabarger that the customary procedure for getting information to a sentencing judge in the Federal Court system was through the method of conveying of information to the probation office which, in turn, would convey at least the substance of it in its pre-sentence report to the sentencing judge. I am convinced from all the evidence in this case that Mr. Leap did not promise Mr. Froniabar-ger that in return for the mentioned cooperation Mr. Froniabarger would be assured of probation, nor did Mr. Leap promise Mr. Froniabarger that he would get or obtain probation for him. I base this first upon the credibility issues as I weigh them which are sufficient for my finding and sufficient to persuade me and also I recognize this is the common sense situation of it well known by Mr. Leap. Mr. Leap is an old hand and knows that he could not promise anybody that he could obtain probation for them from the judge without overstepping what he would know he could accomplish. At best, he knows he could only recommend and could not guarantee to obtain probation. Apparently, in this case, according to his testimony, he did not recommend or agree to recommend, but simply to convey certain information to the probation office which might help a judge to consider or motivate a judge to consider probation, at least to in some respect mitigate what the sentence might otherwise be.
“I think Mr. Froniabarger simply wants to make more of his understanding with Mr. Leap than the actual facts will permit. Mr. Fronia-barger is obviously in a bad situation, because he faces sentencing in these two cases, he has cooperated to a substantial extent with the Bureau of Narcotics and Dangerous Drugs and with Mr. Leap, and apparently has suffered some public exposure, unfortunately for him, as a result of that. I believe him when he tells me that he thinks his life may be endangered by it, because those are the hard facts of the illicit drug situation in this or any other area. It is dangerous to reveal to be an informant.
“I simply do not believe Mr. Fronia-barger when he said Mr. Leap specifically promised him probation. I think, as I indicated, he simply wishes that were the fact in view of the danger to himself from this cooperation.”
The court thereupon denied the motion to change the guilty pleas to not guilty and after ascertaining that the government through Mr. Leap and the probation office had complied with the promises made, proceeded to arrange for sentencing on the two counts.
In passing sentence on the appellant in connection with the two cases, Judge Hunter was again meticulously careful and most considerate of appellant’s rights. He completely disregarded the statements and recommendations contained in the Hamilton letter; he treated the Count 15 charge as a first offense, whereas it could well have been considered as a second offense which would have called for a maximum of 20 years’ imprisonment. Out of consideration for the cooperation of the appellant with the government in other criminal matters, the court also chose to sentence the appellant to only 8 years’ imprisonment in each case, directing that the sentences be served consecutively for a total of 16 years. Appellant could very well have been sentenced to 10 years on each count.
Appellant’s first contention is that there was a failure to comply with the requirements of Rule 11 of the Federal Rules of Criminal Procedure in that the court was unaware of the promises made which obviously induced the guilty pleas to Count 1 and Count 15. The contention borders on the frivolous. How the trial court could know of something the defendant refused to tell him and specifically denied is not explained. Judge Hunter carefully complied with every provision of Rule 11. Appellant cites and relies on Shelton v. United States, 1958, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579, reversing 246 F.2d 571. The case is of no help to the appellant herein. The Supreme Court there reversed the Fifth Circuit on a confession of error by the Solicitor General that the plea of guilty might have been improperly obtained. That is not the situation here. True enough, the court did find that promises had been made to the appellant, but only to the extent that if he, the appellant, cooperated the court, through Mr. Leap and the probation office, would be informed of that cooperation.
Appellant’s second contention is that the government broke its promise to recommend clemency and therefore his plea was not voluntary. Judge Hunter’s findings after the detailed evidentiary hearing were that no promises such as probation had been made or relied on by the appellant, and that the only promise given appellant was that in exchange for his cooperation they would call the attention of the sentencing court to such cooperation.
Appellant’s third point seems to be that his plea of guilty was not voluntary because he understood he would receive probation instead of confinement. On substantial testimony, Judge Hunter found against the appellant on this contention and, in addition, specifically found that the appellant understood the promise made to him but really wanted to make more of it than was testified.
Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, is the Supreme Court’s most recent expression on the question of plea bargaining. Therein, the majority, speaking through Mr. Chief Justice Burger, said, at page 262 of 404 U.S., 92 S.Ct. at 499:
“This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or con-sideratiori, such promise must be fulfilled.”
Here there were indeed promises (to dismiss all counts excepting the two to which pleas of guilty were received and to advise the court through the probation office of the extent of cooperation given by appellant). These promises were fully and completely complied with.
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_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.
James HANNA et al., Libellants-Appellants, v. The Steamship METEOR, her engines, etc., and Abe Krause et al., Claimants-Appellees.
No. 34, Docket 21718.
United Slates Court of Appeals Second Circuit.
Argued Oct. 6, 1950.
Decided Oct. 6, 1950.
Logan Cresap, Jr., New York City, for libellants-appellants.
Bernard Tompkins, New York City, for claimants-appcllees.
Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.
PER CURIAM.
Decree, 92 F.Supp. 530, affirmed in open court on the authority of Hanna v. S. S. Meteor, 2 Cir., 179 F.2d 957.
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: |
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