task
stringclasses 223
values | output
stringlengths 2
5
| instruction
stringlengths 576
44.2k
|
|---|---|---|
songer_direct1 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
PORTO RICO FERTILIZER COMPANY, Plaintiff, Appellant, v. Pedro GANDIA, Defendant, Appellee.
(Circuit Court of Appeals, First Circuit.
October 23, 1925.)
No. 1876.
Appeal from the Supreme Court of Porto Rico.
Cayetano Coll y Cuchi, of San Juan, Porto Rico, for appellant. Jose A. Poventud, of New York City, for appellee.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
PER CURIAM.
The judgment of the Supreme Court of Porto Rico, March 19, 1925, conforms to the mandate of this court of February 14, 1025, and the order is: Judgment affirmed, with, costs to the appellee. See, also, 2 F. (2d) 611.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_respond1_3_2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
MITCHELL, Secretary of Labor v. JOYCE AGENCY, Inc.
No. 10936.
United States Court of Appeals Seventh Circuit.
March 29, 1954.
Rehearing Denied April 23, 1954.
Stanford Clinton, Robert A. Sprecher, Pritzker, Pritzker & Clinton, Crowley, Sprecher & Weeks, Frank A. Karaba, Chicago, Ill., of counsel, for appellant.
Stuart Rothman, Sol., Bessie Margolin, Chief of Appellate Litigation, U. S. Department of Labor, Washington, D. C., Herman Grant, Regional Atty., Department of Labor, Chicago, Ill., E. Gerald Lamboley, Harold S. Saxe, Attys., U. S. Department of Labor, Washington, D. C., for appellee.
Before MAJOR, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
This is an appeal by the defendant, Joyce Agency, Inc., from a judgment entered on May 7, 1953, by the United States District Court for the Northern District of Illinois, Eastern Division, finding that the defendant has violated sections 7 and 15(a) (2) of the Fair Labor Standards Act of 1938, as amended, Act of June 25, 1938, c. 676, 52 Stat. 1060; 29 U.S.C.A. § 201 et seq., as amended, 63 Stat. 910, and ordering, pursuant to section 17, that the defendant be enjoined from further violating the provisions of section 15(a) (2) of the Act.
The question for decision is whether defendant’s employees were engaged in interstate commerce or in the production of goods for interstate commerce at four warehouses of Goldblatt Bros, and at defendant’s central office, so as to bring them within the coverage of the act.
From the parties’ stipulation of facts the following situation appears to have existed at all times hereinafter mentioned.
Defendant is an Illinois corporation with its central office at 343 South Dear-born Street, Chicago. It engages in the business of furnishing watchman, guard, detective, fire inspection and shopping service to Goldblatt Bros. Inc., hereinafter called “Goldblatt”, and employs 72 persons.
Goldblatt owns and operates a chain of 14 retail department stores. Of these stores, 10 are in the city of Chicago and one in each of the cities of Joliet, Illinois, Hammond, Gary, and South Bend, Indiana. It has a central office in Chicago, Illinois, where the administrative work in connection with Goldblatt’s organization is performed, including the purchase of various kinds of merchandise usually found in a large department store. To service its 14 department stores, Gold-blatt maintains in Chicago, Illinois, warehouses at 3913 South Wentworth Avenue, 3161 South Ashland Avenue, 201 East 63rd Street, and 328 South Wabash Avenue. At these warehouses goods are received and stored and thereafter shipped to the defendant’s various retail stores. Most of the goods received are from points outside Illinois and a substantial part of the goods shipped to retail stores is to those located in Indiana. At one of the warehouses, which is known as the Ashland warehouse, there are also a furniture renovating shop, a radio and television clinic, a carpet and linoleum department, and a sewing machine department, as well as a garage where nine persons are employed by Goldblatt in maintaining its motor transportation fleet.
Defendant’s employees include guards and watchmen who guard the warehouses and their contents against all risks, including fire, and the loading and unloading of goods on the loading platforms of the warehouses, check all packages being carried out, keep records of the names of people working after closing hours for the use of the watchmen, open railroad doors to receive freight cars during the night, control ingress and egress of trucks in and out of the garage, and about 5 A. M. check out a truck carrying advertising material to the Indiana stores. Certain guards check the locks and seals on trucks before permitting them to unload or to leave the warehouses when loaded. Guards performing this particular service will be hereinafter referred to as the “seal-checking guards”. Defendant’s employees do not physically handle the goods received or shipped, except insofar as they may handle stolen goods recovered by them, valued at approximately $300.00 per year.
The furniture renovating shop reconditions, upholsters, repairs, replaces broken parts, assembles, refinishes and polishes furniture which has been damaged while on display in the stores or in transit. The clinic removes television and radio sets from their cases, repairs new, display and customers’ sets. The carpet and linoleum department cuts carpets and linoleums to size, edges and binds carpeting and prepares carpets and linoleum for laying. The sewing machine shop unpacks sewing machines and their accessories and cabinets, whereupon it attaches the accessories to the machines and the latter are tested and then installed in cabinets or portable cases.
Defendant has two watchmen at Gold-blatt’s Lexington bakery and the parties agree that their activities constitute production of goods for commerce and hence they are covered by the act.
Defendant employs about ten persons in its central office. They perform administrative work in connection with defendant’s furnishing watchman, guard, detective, fire inspection and shopping service to Goldblatt. They hire, assign and direct the work of all employees employed by defendant in Goldblatt’s warehouses and stores. At the central office employees maintain all the books and records in connection with defendant’s business. Defendant’s payroll is kept there and from there weekly bills are sent to Goldblatt for the payroll plus social security and unemployment compensation contributions, the latter of which is sent by defendant to the State of Illinois or the State of Indiana and the United States Collector of Internal Revenue. At the central office, as a part of her duties, one employee communicates with the various employees of defendant stationed in the Goldblatt warehouses and stores and advises them when a truck will arrive at a warehouse after closing time. When a bad check is cashed in a Goldblatt store, that fact is telephoned to this woman, who, in turn, telephones the same information to defendant’s detectives in all Goldblatt stores. There is a direct telephone line from the central office to all Goldblatt stores and warehouses.
Counsel for both parties have in their briefs treated the Fair Labor Standards Act of 1938, as subsequently amended, including the 1949 amendment to section 3 thereof, 29 U.S.C.A. § 203, as governing this case.
Under the plain language of the act we are convinced that plaintiff was required to show that Goldblatt was engaged in the production of goods for interstate commerce and that defendant’s employees now under consideration were engaged in occupations directly essential to such production or that they were employees engaged in interstate commerce. Engebretsen v. E. J. Albrecht Co., 7 Cir., 150 F.2d 602, at page 604.
Plaintiff contends that the Goldblatt warehouse employees are engaged in “handling” and “working on” goods intended for interstate shipment, which, under the definition of “produced” in section 3(j) and the decisions of this court and of the United States Supreme Court, constitutes “production of goods for commerce”, and that the employees of defendant, which furnishes the guard, watchman, detective, and fire inspection service for these warehouses, are engaged in a “closely related” process or occupation “directly essential” to such production within the meaning of section 3(j) and are, therefore, engaged in producing goods for commerce.
Section 3(j), as amended, reads as follows:
“(j) ‘Produced’ means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.”
As to the work done in the furniture renovation shop, television and radio clinic, carpet and linoleum and sewing machine shops, there is no production. Such work constitutes the rendering of services upon articles already produced. Insofar as these activities pertain to goods theretofore sold to Goldblatt’s customers, they fall within the exemption of a retail servicing occupation in accordance with the Regulations issued by the Wage and Hour Division of the Department of Labor, which provide in Section 779.14(c) in part as follows:
“Work performed on the customer’s own goods where the completed job will not result in the creation of a different product from that which the customer brought in will be considered as ‘services’ for purposes of the exemption, and, if recognized in the particular industry as retail services, will be considered as such in determining the applicability of section 13(a) (2). For example, the recapping of a tire for a customer, the reupholstering of a chair for a customer, the repairing of an automobile for a customer regardless of the degree of repairs, the rebuilding of a pair of shoes for a customer, the rebuilding of a typewriter for a customer, will be regarded as the performance of services for purposes of the application of Section 13(a) (2) exemption to retail or service establishments and employees employed by them.”
As to those activities relating to Gold-blatt's own goods, the work done in the clinic and shops does not create a different product, and hence does not constitute production.
From a consideration of the processes occurring in the warehouses it is inescapable that there is physical touching by Goldblatt’s employees of the goods in the warehouses which are intended for movement in interstate commerce. Plaintiff contends also that these goods are “worked on” by Goldblatt employees in the warehouses. The words “handled” or “worked on” include every kind of incidental operation preparatory to putting goods into the stream of commerce. But there is a distinction between handling in transportation, on the one hand, and producing, on the other hand, which is put to naught by a contention such as plaintiff’s that by definition everyone who handles goods is thereby made a producer. As was said in Western Union Tel. Co. v. Lenroot, 323 U.S. 490, at page 504, 65 S.Ct. 335, at page 342, 89 L.Ed. 414:
“One would not readily impute such an absurdity to Congress; nor can we assume, contrary to the statute, that ‘produced’ means one thing in one section and something else in another. To construe those words to mean that handling in carriage or transmission in commerce makes one a producer makes one of these results inevitable. Congress, we think, did not intend to obliterate all distinction between production and transportation.”
In the warehouses, Goldblatt’s employees receive, store, in some cases split up large packages of goods into smaller ones, and re-ship. These are not acts of production. They do nothing to affect the character of the articles themselves. Such handling is not production. There is no “working on” the goods by these employees. It will be noted, therefore, as a matter of fact that in the case at bar the employees of Goldblatt do not produce any goods in these warehouses. There being no production in the warehouses by Goldblatt employees, it cannot be said that any duties of defendant’s employees on said premises are performed in any process or occupation related or essential to the production of goods, within the meaning of section 3 (j).
In Engebretsen v. E. J. Albrecht Co., supra, relied upon by plaintiff, this court concluded that a janitor and watchman performed a service essential to an operation which the court found to be the production of goods for commerce, and, therefore, held that that employee was covered by the act. That case is not controlling here where we find there was no production of goods for commerce carried on in the Goldblatt warehouses.
Plaintiff also contends that the receiving, handling, and shipping of goods interstate at the Goldblatt warehouses constitutes engagement “in commerce” and that the guards, watchmen, detectives and fire inspectors, who are employed by the defendant to furnish a highly integrated fire and theft protection service at such warehouses, who control the departure of interstate shipments and who protect the actual transportation of the goods, are “engaged in commerce”.
The real test as to defendant’s employees is whether they (the employees themselves) are engaged in an interstate commerce activity. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638. We must look to the employee’s activity rather than the employer’s activity, so far as “ ‘engaged in commerce’ ” determines liability. Engebretsen v. E. J. Albrecht Co., supra, 150 F.2d at page 605. At the outset of this part of the discussion, it is to be noted that the seal-checking guards examine the seals on trucks before incoming trucks are unloaded and after outgoing trucks are loaded and sealed. Until incoming trucks are actually unloaded and the contents deposited on the warehouse platform they are in interstate commerce, and after outgoing trucks are loaded and sealed they are also in interstate commerce. The seal-checking guards in performing their function of checking these seals in the interest of security of the contents of the trucks are engaged in interstate commerce and are, therefore, subject to the act. Walling v. Goldblatt Bros., Inc., 7 Cir., 128 F.2d 778, at page 782.
Defendant admits in its brief that some of the Goldblatt warehouse employees are involved in interstate commerce (appellant’s brief, 50). The facts in this case show, however, that none of the employees of defendant working at the warehouses, except the seal-checking guards, is himself engaged in commerce.
It will be noted that section 7(a) of the act, 29 U.S.C.A. § 207(a), provides:
“(a) Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce * * * for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
In Carrigan v. Provident Trust Co. of Philadelphia, 3 Cir., 153 F.2d 74, the court, in considering whether a bank guard was subject to the act, said, beginning at page 74:
“In § 8(j), 29 U.S.C.A. § 203 (j), ‘production’ is broadly defined * * *. ‘Commerce’, on the other hand, is narrowly limited in § 3(b), 29 U.S.C.A. § 203(b) * * *
“An important distinction between the two definitions is evident. Congress described ‘production’ to include acts merely necessary to the production of goods. ‘Commerce’, on the other hand, is so closely circumscribed that acts merely necessary to commerce are not included. The wide variation in the scope of the two terms has been frequently noted.”
The court cited McLeod v. Threlkeld, 319 U.S. 491, at page 497, 63 S.Ct. 1248, 87 L.Ed. 1538, saying that there it was declared:
“that ‘The test under this present act, to determine whether an employee is engaged in commerce, is not whether the employee’s activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it. Employee activities outside of this movement, so far as they are covered by wage-hour regulation, are governed by the other phrase, “production of goods for commerce.” ’
******
“Only one question is involved here, namely, is appellant ‘engaged in commerce’ within the meaning of the Fair Labor Standards Act.
“This court held in Blumenthal v. Girard Trust Co., 3 Cir., 1944, 141 F.2d 849, that a caretaker or janitor of a building, containing at least one tenant engaged in interstate commerce, was not an employee within the terms of the Act. * * *
“As the courts have consistently maintained, it is the work of the employee and not the nature of his employer’s business that determines the applicability of the Act. * * * That the employer’s entire business is not interstate in character is unimportant so long as a substantial part of the employee’s work relates to the interstate movement of goods. Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460. That a building is wholly occupied by an employer, whose business is partly interstate in character, or only partially occupied by such an employer, is immaterial with respect to the status under the Act of a building guard. It would seem that the instant case cannot be distinguished in character of fact from its predecessors in this court unless appellant’s duties of guarding appellee’s bank building are ‘so closely related to the movement of the commerce as to be a part of it.’ * * *
“But for a rather remote possibility that the law would be violated by a person or persons violently and forcefully breaking into the bank premises with the intent of robbery, or that some emergency should arise as a fire or leaky pipe, the watchman’s services could have no effect upon commerce, and even then the effect of the watchman’s acts would be negative and not acts in commerce. He had no hand whatever in the affirmative acts which constitute commerce.”
There is nothing stated in Carrigan v. Provident Trust Co. of Philadelphia, supra, which is inconsistent with the holding in Walling v. Goldblatt Bros., Inc., 7 Cir., 128 F.2d 778.
Accordingly, we hold that none of the defendant’s employees in the warehouses, with the exception of the seal-checking guards, is covered by the act.
As to the employees in defendant’s central office, it appears that there is one employee who gives a substantial part of her time to making and receiving telephone calls to and from defendant’s guards at the Goldblatt warehouses and stores, some of the latter being in the State of Indiana. It will be noted that these telephone calls are from and to persons entirely in the service of defendant. When employees talk to each other in performing their duties for their employer, they are not engaged in commerce as that word is used in the act now under consideration. That is true whether they sit at adjoining desks or are at the opposite ends of a telephone wire and regardless of whether that wire crosses state lines. This is still true even though another, who owns the- wire, may be engaged in commerce in the transmitting of the sound of- human voices over that wire. Section 3 of the act, 29 U.S.C.A. § 203, declares that “ ‘Commerce’ means trade, commerce, transportation, transmission, or communication” interstate. As was said in Fleming v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395, at page 398:
“Transportation is only a part of it. Trade is another part, and according to the old maxim, it takes two to make a trade. Importer as well as exporter, buyer as well as seller, is a participant; and ordering and paying for goods are included.”
If it takes two to make a trade, these two must be the employer and another person or firm with which he is dealing. Communication means from one person to another; that is from the employer to some other person or firm. It cannot reasonably be said to mean a communication by one of the employees of an employer to another employee of the same employer. In the case at bar, the person doing the telephoning to points in another state did not call anyone outside of the defendant’s own staff of employees. There was no communication within the definition of commerce contained in the act. Neither by the statutory definition nor as commonly understood does “commerce” include communication by word of mouth between the servants of a common employer in the course of the latter’s business. Telephoning by an employee to persons not in the employer’s organization, on behalf of his employer, for the benefit of a third party with whom the employer has a contract for such service, would be an act in commerce. But that is not the factual situation which confronts us. It follows that the telephoning done by the employee in question does not bring her under the act.
This conclusion is strengthened by the fact that this particular employee is not engaged in selling and delivering across state lines or at buying and receiving across state lines, and hence would not fall within the category referred to in Fleming v. Jacksonville Paper Co., supra, 128 F.2d at page 398, where the court said:
“Those who work either at selling or delivering across State lines, or at buying and receiving across State lines, are employed in commerce, whether they write the letters, keep the books, or load and unload or drive the trucks.”
There are other employees in the central office of defendant. Their duties include the supervision of the various guards and watchmen stationed by defendant in the Goldblatt warehouses and stores, as well as the keeping of payroll records and the making of payments to said employees of salaries, less tax deductions. Inasmuch as the only employees in this group serviced by the central office who are engaged in interstate commerce are the seal-checking guards, of whom there are only three, and two watchmen at the Lexington bakery, which is engaged in production, and since the record is silent as to the amount of time actually expended by the employees in the central office in connection with these five employees, the plaintiff has not established that in connection therewith central office employees are devoting a substantial part of their time to these five employees, Walling v. Jacksonville Paper Co., 317 U.S. 564, at page 572, 63 S.Ct. 332, 87 L.Ed. 460, and hence this court cannot say that the said central office employees are covered by the act. In all other respects it is clear on this record that none of the central office employees of defendant is subject to the act.
Conclusion.
For the reasons above stated, we conclude that as to the seal-checking guards the decree of the court below is affirmed and in all other respects it is reversed.
Affirmed in part; reversed in part.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer: |
songer_usc2 | 49 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 42. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
H.K. PORTER COMPANY, INC., Plaintiff-Appellant, v. METROPOLITAN DADE COUNTY, John Dyer, individually and as Contracting Officer for Metropolitan Dade County, Defendants-Appellees.
No. 86-5448.
United States Court of Appeals, Eleventh Circuit.
Aug. 24, 1987.
Guy W. Harrison, Mershon, Sawyer, Johnston, Dunwody & Cole, Charles C. Kline, Miami, Fla., for plaintiff-appellant.
Robert S. Ginsburg, Dade Co. Atty., R.A. Cuevas, Jr., Asst. Co. Atty., Miami, Fla., for defendants-appellees.
Before FAY and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
PER CURIAM:
The dispute in this case arises out of the award of a federal construction contract for the electrified third rail of Miami’s metropolitan transit system. Appellee, Metropolitan Dade County (“MDC”) awarded the contract to the second lowest bidder, Transit Products, Inc. based upon an affirmative action plan. The low bidder, H.K. Porter, Inc., appellant, alleged that the affirmative action plan was unconstitutional. The district court awarded summary judgment to MDC. Finding no error, we affirm.
The facts and procedural history are set out in detail in this court’s opinion, H.K. Porter Co., Inc. v. Metropolitan Dade County, 650 F.2d 778, 779-81 (5th Cir.1981). For the purposes of the immediate controversy, however, we here set forth a brief synopsis of the relevant facts.
On November 6, 1978, Congress passed the Surface Transportation Assistance Act of 1978 (“STAA”), Pub.L. No. 95-599, 92 Stat. 2689 (1978), which appropriated sums of federal money for the construction of highways and mass transportation systems. In the STAA legislative history, the House report of the Committee on Public Works and Transportation acknowledged a departmental initiative on behalf of the Department of Transportation (“DOT”) to encourage the participation of minority business enterprises in the DOT’s programs. H.R.Rep. No. 95-1485, 95th Cong., 2d Sess., reprinted in 1978 U.S.Code Cong. & Admin.News 6575, 6647. To facilitate this initiative, grantees of STAA funds were required to establish written affirmative action plans which included percentage goals for minority business participation.
a business enterprise that is owned and controlled by one or more socially or economically disadvantaged persons. Such disadvantage may arise from cultural, racial, chronic economic circumstances or background, or other similar cause. Such persons would include, but not be limited to, Blacks (not of Hispanic origin); Hispanics; Asians or Pacific-Islanders; American Indians or Alaskan Natives; and women, regardless of race or ethnicity.
In 1979 MDC proposed to construct a rapid transit system for the metropolitan Miami area. Pursuant to the STAA, the Urban Mass Transit Administration (“UMTA”) of the Department of Transportation (“DOT”) would finance 80% of the costs of the project. MDC would contribute the remaining 20%. On December 30, 1977, DOT issued Circular 1165.1 — a statement of DOT’s policy and requirements for UMTA grant recipients. The circular stated that “It is UMTA policy that MBE’s [minority business enterprises] shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with UMTA funds.” The circular further stated that failure to follow UMTA policy could result in disqualification of grantee funds. Additionally, on March 6, 1978, DOT issued Order 4000.7A, which re-emphasized the enforcement of DOT’s MBE program. Both the circular and the order encouraged all grant recipients to establish percentage goals for MBE participation.
On June 10, 1979, MDC advertised for bids from prime contractors interested in the electrified third rail to be used in the construction of the transit system under contract Y-621. Pursuant to STAA’s initiative, MDC’s bid invitation included a minority contractor provision which required each bidder to either (a) involve MBE’s in 5% of the contract work or (b) demonstrate that it has made every reasonable effort to contract and negotiate with minority contractors in an attempt to achieve the stated goal. The bid invitation also contained a provision which allowed the bidder to demonstrate that it was unable to involve minority business, notwithstanding their efforts to contact and negotiate, because minority contractors were either not qualified to do the work required of the contract or because minority contractors were unavailable. The contract’s Minority Contractor Participation Provision required each bidder to list the minority contractors the bidder intended to use if awarded the contract.
MDC received three bids for contract Y-621. The two lowest bids were received from Transit Products, Inc., (“Transit”) and H.K. Porter (“Porter”). The bid from Transit was for $8,373,502 and the bid from Porter was for $8,076,506.30. However, Porter, rather than list the minority contractors it intended to use if awarded the contract, left the six pages in contract Y-621’s Minority Contractor Participation Provision blank. Porter instead attached a letter stating that no minority firms produced the required materials and that Porter would therefore “follow the same plan and outlines that we have had approved on other transit programs.” The bid submitted by Transit involved 5% minority contractor participation in compliance with contract Y-621’s 5% MBE goal. MDC decided, after extensive proceedings both at the administrative level and in federal court, to accept the bid proposed by Transit, despite the fact that Porter’s bid was lower since Porter’s bid did not comply with the contract’s MBE provisions. Porter was given a compliance hearing on November 28, 1979. At the compliance hearing Porter was asked by MDC’s Compliance Officer, Dr. James Corbin, to explain why it had not complied with contract Y-621’s bidding procedure of listing the minority contractors it had contacted in order to meet the 5% MBE goal. Porter responded by stating that it had made a recent investment in an in-house assembly plant in Chicago that totally assembled all the component parts of the electrified third rail. Porter stated that due to its in-house assembly plant, only four items from outside sources were necessary to produce the electrified rail. Porter stated that no minority firms produced any of these four items. Porter testified that because of the nature of its in-house plant, it was “economically impracticable” to break down contract Y-621 in an attempt to subcontract to MBE’s.
On December 10, 1979, MDC’s Contracting Officer, John Dyer, opined to MDC’s Board of County Commissioners that Porter’s bid was not in compliance with the minority participation provisions of contract Y-621. On December 10, 1981, Porter brought the immediate action against MDC, and John Dyer, as the Contracting Officer. Porter’s complaint alleged that MDC’s 5% MBE goal was both unconstitutional on its face and as applied in violation of 42 U.S.C. §§ 1981, 1983, 2000d (1982) and 49 U.S.C. § 1615 (1982). Porter also contended that MDC and John Dyer acted in an arbitrary and capricious manner in denying contract Y-621 to Porter. Porter also alleged $1,510,544.00 in damages as a result of not being awarded the contract.
Both MDC and Porter filed cross-motions for summary judgment before the district court. The district court held a pretrial conference, allowing both parties to present their arguments. The district court ruled that MDC’s bidding procedure for contract Y-621 was not unconstitutional and that MDC, in denying the contract to Porter did not act arbitrarily or capriciously. The district court granted summary judgment in favor of MDC and against Porter. Under Fed.R.Civ.P. 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Since we find that there is no genuine issue as to any material fact, we affirm.
DISCUSSION
This case presents three issues: (1) whether the MBE program promulgated by the UMTA and MDC was violative of 42 U.S.C. § 2000d and 49 U.S.C. § 1615 thereby making the program unconstitutional on its face; (2) whether MDC acted unconstitutionally by employing a 5% MBE participation provision in its bidding procedure for contract Y-621; and (3) whether MDC acted arbitrarily and capriciously in denying the award of contract Y-621 to Porter.
With respect to the facial unconstitutionality of MDC’s MBE program, Porter argues that the UMTA did not have the authority to promulgate such a program because Congress has statutorily prohibited any and all UMTA-funded programs from employing affirmative action. 42 U.S.C. § 2000d (1982) provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Porter argues § 2000d, therefore, cannot be used to authorize the MBE program propounded by UMTA. 49 U.S.C. § 1615(a)(1) provides:
(a)(1) No person in the United States shall on the grounds of race, color, creed, national origin, sex, or age be excluded from participation in, or denied the benefits of, or be subject to discrimination under any project, program, or activity funded in whole or in part through financial assistance under this chapter.
Accordingly, Porter argues, any use of racial, ethnic or sexual criteria in awarding contract Y-621 is facially violative of both 42 U.S.C. § 2000d and 49 U.S.C. § 1615. Although we agree with Porter that the use of racial, ethnic or sexual preferences as a basis to award government contracts appears to be contrary to the clear language of the statutes, we are constrained to follow the precedential mandates of the Supreme Court. The Supreme Court has recently stated, “[i]t is now well established that government bodies ... may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination.” United States v. Paradise, — U.S. -, -, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987). In United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Court held that Congress, in Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended 42 U.S.C. § 2000e et seq., left free both private unions and employers to voluntarily employ a collectively bargained plan that reserves for black employees 50% of the opening positions in an in-plant craft-training program until the percentage of black craftsmen in the plant is commensurate with the percentage of blacks in the local labor force. In Weber, the respondent argued that Congress intended in Title VII to prohibit all race-conscious affirmative action plans. Respondent’s argument was based upon a literal interpretation of § 703(a) and (b) of Title VII. Those sections on their face make it unlawful to discriminate on the basis of race in the hiring and selection of apprentices for training programs. Weber, 443 U.S. at 201, 99 S.Ct. at 2726. In rejecting a literal interpretation of those statutes, the Court stated, “[i]t is a ‘familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.’ ” Id., (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)). The Court stated that the prohibition against discrimination contained in § 703(a) and (b) must be construed in light of the legislative history of the acts and the historical context in which the acts arose. Id.
In Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Supreme Court upheld the facial constitutionality of a similar federally funded project, which included a similar MBE provision. In Fullilove, Congress had enacted the Public Works Employment Act of 1977, 42 U.S.C. §§ 6701-6736, which authorized $4 billion dollars for federal grants made by the Secretary of Commerce to state and local governmental entities for use in local public work projects. Section 103(f)(2) of the Act, the MBE provision, required at least 10% of any local works project to be set aside for minority business enterprises. In upholding the constitutionality of the MBE provision as a legitimate remedial congressional objective, the Court stated that, “[t]he legislative objectives of the MBE provision must be considered against the background of ongoing efforts directed toward deliverance of the century-old promise of equality of economic opportunity.” Fullilove, 448 U.S. at 463, 100 S.Ct. at 2767.
Therefore, we here analyze the prohibitions against discrimination contained in § 2000d and 49 U.S.C. § 1615(a)(1) in light of the legislative and historical context in which the acts arose. An examination of the legislative and historical background giving rise to the promulgation of § 2000d and § 1615(a)(1) clearly indicates that Congress was addressing the need to ensure that minority business firms would be provided with a fair opportunity to participate in federally-funded government contracts. Indeed, in § 1615(a)(2) of the Act, Congress delegated to the Secretary of Transportation the responsibility to take affirmative action to assure compliance with Congress’ determination that minorities were not fully participating in public contracts at the federal, state, and local level.
Here we deal, as we noted earlier, not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees. Congress not only may induce voluntary action to assure compliance with existing federal statutory or constitution antidiscrimination provisions, but also, where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct.
Fullilove, 448 U.S. at 483-84, 100 S.Ct. at 2777. Thus we conclude that in this case the UMTA had the authority, pursuant to the clear and strong Congressional mandate, to promulgate the MBE program relative to contract Y-621.
Porter also argues, however, that the MBE provisions of contract Y-621 were unconstitutional as applied. Porter’s argument is grounded solely in Porter’s interpretation of this court’s opinion in South Florida Chapters of Associated Contractors of America v. Metropolitan Dade Co., 723 F.2d 846 (11th Cir.), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984). Porter alleges that the MBE provisions of contract Y-621 were unconstitutionally applied because the authorities failed to follow the three “common concerns” enunciated in South Florida. Id., at 851-52. Porter argues that South Florida provides “a clear and detailed blueprint” for evaluating all minority preference programs. We think Porter’s reliance on South Florida is misplaced. South Florida involved the constitutionality of a county ordinance and resolution granting to black contractors preferential treatment in the county’s bidding process. South Florida, 723 F.2d at 847-48. In South Florida the Dade County Commission, in response to the May 1980 disturbances in Liberty City, passed an ordinance which operated to waive altogether the formal contract bidding process and to grant to black contractors the exclusive right to bid on the construction projects of the county. The ordinance also contained a sub-contractor’s provision requiring that fifty percent of the dollar value of any county contract be awarded to black sub-contractors. Id., at 848-49. The ordinance was challenged both facially and as applied to the county construction project for the Earlington Heights Metro-rail Station. Id. at 848.
In analyzing the constitutionality of the race-conscious legislation, this court, “[wjithout adopting a formal ‘test,’ ” South Florida, 723 F.2d at 852, articulated what it construed to be the three common concerns to the various views of the Supreme Court in Regents of the Univ. of Califor nia v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and Fullilove, 448 U.S. 448, 100 S.Ct. 2758: “(1) that the governmental body have the authority to pass such legislation; (2) that adequate findings have been made to ensure that the governmental body is remedying the present effects of past discrimination rather than advancing one racial or ethnic group’s interest over another; and (3) that the use of such classifications extend no further than the established need of remedying the effects of past discrimination.” South Florida, 723 F.2d at 851-52. These common concerns were set forth merely as safeguards to be used by a reviewing court in analyzing “[legislation employing benign racial preferences.” Id., (emphasis supplied). We therefore reject Porter’s contention that South Florida provides federal courts with a detailed set of mandatory guidelines with which to analyze the constitutionality of any and all MBE programs.
Moreover, the Supreme Court has set forth a two-prong test to be applied in situations wherein preferential classifications are based upon racial and ethnic distinctions. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, -, 106 S.Ct. 1842, 1846, 90 L.Ed.2d 260 (1986). In Wygant, the Court was called upon to decide the constitutionality of whether a school board could, consistent with the Equal Protection Clause, extend preferential employment protection to certain employees solely because of their race or ethnic origin. Wygant, 106 S.Ct. at 1844. The Court stated the classifications operated “against whites and in favor of certain minorities, and therefore constitutes a classification based on race.” Id. at 1846. The Court went on to state such classifications must be justified by a compelling government interest. Id. Secondly, the means chosen to effectuate this interest or purpose must be narrowly tailored to the achievement of that goal. Id. (citing Fullilove, 448 U.S. at 480, 100 S.Ct. at 2775).
In addition, the Court has recently set forth factors to be considered in analyzing the appropriateness of race-conscious remedies. Paradise, 107 S.Ct. at 1067. These factors include, “the necessity for the relief and the efficacy of alternative remedies, the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.” Id. We will therefore analyze the constitutionality of contract Y-621’s MBE provision under the test set forth in Wygant while also considering the factors articulated in Paradise.
We have noted that MDC, in implementing the MBE provisions of contract Y-621, was acting pursuant to Congress’ compelling interest in eradicating the continuing effects of past discrimination against minorities in the participation of government contracts. See Fullilove, 448 U.S. at 497, 100 S.Ct. at 2784 (Powell, J., concurring); Further, the Supreme Court has recently made it clear that “[t]he government unquestionably has a compelling interest in remedying past and present discrimination by a state actor.” Paradise, 107 S.Ct. at 1065. Congress’ determination to foster greater MBE participation in government contracts was due, in part, to the fact that other potential possible remedies had proven unsuccessful. See Fullilove, 448 U.S. at 511, 100 S.Ct. at 2791 (Powell, J., concurring).
As for the duration of the relief, there is nothing in the record to suggest that MDC’s bidding procedure for contract Y-621, including the MBE provision, was anything more than a temporary remedy. It was simply an absolute condition MDC had to meet to receive federal funds through the UMTA in order to finance the construction of the metrorail system. This procedure, being temporary, was not a policy of MDC to maintain a racial or ethnic balance, but was rather intended by Congress to eliminate a manifest racial and ethnic imbalance. See Weber, 443 U.S. at 208, 99 S.Ct. at 2729. Indeed, this particular program ended when the construction for contract Y-621 was completed. MDC’s bidding procedure for contract Y-621 also contained a waiver provision which operated to excuse the bidder from contracting or subcontracting with MBE’s if the bidder demonstrated that it had made every reasonable effort to contact and negotiate with MBE’s, but was unable to achieve the 5% goal despite such efforts due to the fact that minority contractors were not qualified or not available. See Fullilove, 448 U.S. at 487, 100 S.Ct. at 2779 (significant that an administrative scheme provides waiver mechanism under MBE program).
We next consider whether the 5% goal implemented by MDC in connection with contract Y-621 is sufficiently narrowly tailored to achieve the stated goal of fostering greater minority participation in government contracts. See Paradise, 107 S.Ct. at 1064-74; Wygant, 106 S.Ct. at 1846. In Wygant, the Supreme Court decided a case involving constitutional implications analogous to the constitutional questions presented in this case. Id. at 1844. As we noted earlier in Wygant, the Court was called upon to decide whether a school board could, consistent with the equal protection clause, extend preferential employment protection against layoffs to its employees solely because of their race or national origin. Wygant, 106 S.Ct. at 1844. In Wygant, community racial tensions prompted the Jackson Board of Education to include a layoff provision in the collective bargaining agreement between the Board of Education and the Jackson Education Association that operated to lay off tenured non-minority teachers while allowing minority teachers on probationary status to be retained. Id., 106 S.Ct. at 1844-45. When layoffs became necessary the Board retained the tenured non-minority teachers, thus refusing to follow the layoff provision of the collective bargaining agreement. Id., 106 S.Ct. at 1845. The Jackson Education Association, along with two minority teachers who had been discharged, alleged the Board’s failure to adhere to the layoff provision violated the equal protection clause of the fourteenth amendment and Title VII of the Civil Rights Act of 1964. Id. On cross motions for summary judgment, the district court, inter alia, dismissed the claims holding “that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination.” Id., at 1846. The Court of Appeals for the Sixth Circuit affirmed. Id. The Supreme Court reversed holding that the layoff plan was not sufficiently narrowly tailored, inter alia, because the plan was not supported by finding of past discrimination. Id., at 1846-52. The court pointed out that “some showing of prior discrimination by the governmental unit involved” must be demonstrated before allowing even a limited use of racial and ethnic classifications in order to remedy prior discrimination. Id. at 1847.
Porter argues that since Congress delegated to MDC the actual implementation of contract Y-621’s MBE provision, MDC was required to make detailed and specific findings concerning past discrimination. We disagree. As indicated, MDC in implementing the MBE provisions of contract Y-621, was relying on Congress’ legislative findings which clearly established that minorities were not participating in government contracts. See Fullilove, 448 U.S. at 478, 100 S.Ct. at 2774. Indeed, Congress’ findings led the STAA to require that minority percentage goals be established as an absolute condition precedent to the receipt of federal funds. We hold that under the circumstances of this case, MDC was not constitutionally required to make additional findings of past discrimination regarding the awarding of this contract. Congress was concerned about a national problem. Its findings provide adequate support for such local projects.
Porter argues, nevertheless, that the 5% MBE goal in contract Y-621 is not narrowly tailored and thus unconstitutional as applied because the goal was not based upon a study or investigation of the availability of qualified MBE’s to participate in contract Y-621. The record does not suggest that MDC conducted such detailed studies regarding past discrimination against MBE’s in the awarding of construction contracts or investigations regarding the availability of MBE’s qualified to participate in contract Y-621. We must concede that we are troubled by MDC’s decision to use the 5% figure without supporting or substantiating the figure with some sort of consideration of the 5% goal to the relevant labor market of MBE’s available to participate in contract Y-621. See Paradise, 107 S.Ct. at 1071. We share the Supreme Court’s concern with racial and ethnic factors when used as a basis for affirmative action programs. See Wygant, 106 S.Ct. at 1847. (“Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.” Wygant, 106 S.Ct. at 1846 (quoting Fullilove, 448 U.S. at 491, 100 S.Ct. at 2781). Opinion of Burger, C.J.). However, federal courts have upheld affirmative action programs utilizing figures much higher than the modest 5% figure MDC implemented in this case. As noted, the Supreme Court in Ful-lilove, approved the use of a 10% MBE goal as sufficiently narrowly tailored to be a constitutionally acceptable means of redressing the present effects of past discrimination. Fullilove, 448 U.S. 448, 100 S.Ct. 2758. In Weber, the Court held Title VII did not prohibit an affirmative action plan collectively bargained between the United Steelworkers of America and Kaiser Aluminum & Chemical Corporation which reserved for black employees 50% of the opening positions in a sought after training program. Weber, 443 U.S. at 208-09, 99 S.Ct. at 2729-30. The Court in Paradise, 107 S.Ct. at 1067-74, upheld a one-black-for-one-white race conscious promotional requirement within the Alabama Depart-
ment of Public Safety imposed by the district court as being sufficiently narrowly tailored to remedy past discrimination. It is also significant that MDC’s implementation of this affirmative action program does not unnecessarily trammel the interest of non-minority contractors or sub-contractors, and thus does not impose an unacceptable burden on innocent third parties. See Paradise, 107 S.Ct. at 1073; Weber, 443 U.S. at 208, 99 S.Ct. at 2729. All that was required by Porter was that Porter demonstrate that it had made every reasonable effort to meet the 5% MBE provision, or demonstrate that it was unable to do so despite such efforts because minority contractors were not qualified or were not available. Further, the record reflects that MDC’s decision to deny the award of contract Y-621 to Porter was not based solely on Porter’s failure to meet the 5% MBE goal. The decision was also based on Porter’s failure to make any effort to attempt to locate and contract or sub-contract with MBE’s. The district court, in granting summary judgment against Porter, noted that Porter did not contact a single MBE, other than its already existing suppliers. We agree with MDC and the district court’s conclusion that Porter has not demonstrated that it made every reasonable effort to attempt to locate and contract or sub-contract with MBE’s. The district court concluded that the MBE provision of contract Y-621 was not unconstitutional. After our own examination of the record, taking into consideration the particular facts of this case and the relevant case law, we hold that MDC’s use of a 5% MBE goal in contract Y-621 is not unconstitutional.
Porter’s last argument is that MDC acted arbitrarily and capriciously in denying the award of the contract to Porter. Having held that MDC’s bidding procedure for contract Y-621 is constitutional, this argument is without merit.
AFFIRMED.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) this court adopted as precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
. For the purposes of contract Y-621, a minority business enterprise was defined as:
.Order 4000.7A stated in pertinent part:
a. It is the policy of the Department of Transportation to encourage and increase the participation of businesses owned and controlled by minorities, including women, (MBEs) in contracts and projects funded by the Department. Economically and socially disadvantaged individuals, including minorities and women, have traditionally been underrepresented as owners and managers of businesses in this country. The executive and legislative branches of the federal government have long recognized the need to promote the development of businesses owned by the economically and socially disadvantaged to achieve the goal of equal opportunity. To overcome the traditional underrepresentation of these groups in the business community, the federal government has used its procurement authority and its financial assistance programs to state and local governments as vehicles to assist minority business enterprises. Executive Order 11625 directs the Department of Commerce to provide technical and financial assistance to promote MBEs. Executive Order 11625 further requires that federal executive agencies develop comprehensive plans and programs to encourage minority business enterprise.
b. The Department of Transportation is firmly committed to fulfilling its responsibilities under this Executive Order and to meet the goal of greater MBE participation in contracts and projects funded by the Department, although this may result in some increased cost to DOT. To this end, DOT is requiring each of its operating elements and all aid recipients and their contractors to make strong affirmative action efforts designed to set and meet goals for increasing MBE involvement. These efforts will encompass all aspects of the procurement of supplies, equipment, construction and services, including professional service contracts, concession contracts and bank deposits.
c. The Department recognizes that meaningful gains in the level of MBE participation can be achieved only with energetic enforcement of this order and the commitment of all DOT employees, grantees and contractors to the goals of equal opportunity-
. Contract Y-621's bidding requirements and procedures required each bidder, as part of its bid submission, to submit:
a completed Schedule for Participation by Minority Contractor, listing those Qualified Minority Contractors with which the Bidder intends to contract for the performance of portions of the work under the Contract, specifying the agreed price to be paid to each such Minority Contractor for such work, identifying in detail the contract items or parts thereof to be performed by each such Minority Contractor, including a proposed timetable for the performance of each such contract item and providing other information as may be required by the Schedule. No work shall be included in the Schedule which the Bidder has reason to believe the listed Minority Contractor will subcontract, at any tier, to a non-Minority Contractor:
a completed and signed Letter of Intent for each Minority Contractor listed in the Schedule;
a completed and signed Minority Contractor Identification Statement of each Minority Contractor listed in the Schedule and for the Bidder if it is a Minority Contractor, but no Minority Contractor Identification Statement is required for any Minority Contractor named in the Minority Contractor List; and in the event the work listed on the Schedule is not sufficient to fulfill the stated goal, a statement by the Bidder of the reasons why it believes it is in compliance with this Provision and a list of the names, addresses and telephone numbers of the Minority Contractors contacted by the Bidder with respect to the performance of work under the Contract. The listing of a Minority Contractor by a Bidder on its Schedule shall constitute a representation by the Bidder that such Minority Contractor is Qualified and not Unavailable, and a commitment by the Bidder that if it is awarded the Contract it will enter into a subcontract with such Minority Contractor for the portion of the work and at the price set forth in its bid submission, subject to the terms of this Provision.
The bidding procedures further stated that "MDC shall not award a [cjontract to any [b]id-der which it determines fails to comply with the applicable requirements of this [p]rovision.”
.One of the minority firms Transit originally included in its bid for contract Y-621 was questioned by Porter as not being a bona fide MBE. Transit thereafter substituted a legitimate MBE, as it was allowed to do under contract Y-621’s bidding procedure.
. See H.K. Porter, 650 F.2d 778 (5th Cir.1981).
. The General Manager of Porter’s in-house assembly plant in Chicago, Mr. Gerhard O. Mietz, stated that contract Y-621 required four basic components: (1) steel rail, (2) aluminum extrusions, (3) a bolt holding the steel rail and aluminum together, and (4) oxide-inhibiting paste to be applied to aluminum and steel.
. The Earlington Heights Metrorail Station is one of the metrorail stations located in Dade County.
. Regents of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) was the Supreme Court's first direct confrontation with affirmative action programs. Petitioner Bakke challenged an admission program of the University of California’s Davis Medical School, whereby sixteen of one hundred spaces available for the entering class were set aside solely for minority applicants. The case produced no majority, however, five justices held the quota invalid.
. MDC in fact proffered studies allegedly supporting the determination of a 5% MBE goal for contract Y-621 at the district court, however, the district court did not allow the proffered studies into evidence. MDC has not cross-appealed this ruling. Thus, no such studies appear in the record for our consideration.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 42. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_appel2_1_4 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second 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.
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: This question concerns the second 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_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, Appellee, v. Robert L. DONOVAN and Albert Andrews, Defendants-Appellants, and Hyman Cohen, Defendant.
No. 269, Docket 24821.
United States Court of Appeals Second Circuit.
Argued March 14, 1958.
Decided March 14, 1958.
Jacob W. Friedman, New York City (Frank E. Healey, New York City, on the brief for Robert L. Donovan), for defendants-appellants.
Adelbert C. Matthews, Jr., Asst. U. S. Atty., S.D.N.Y., New York City (Paul W. Williams, U. S. Atty., and Robert Kirtland, Asst. U. S. Atty., New York City, on the brief), for appellee.
Before CLARK, Chief Judge, HINCKS, Circuit Judge, and BRENNAN, District Judge.
PER CURIAM.
Judgment affirmed in open court.
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 | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Sylvester L. MARABLE, Jr., Plaintiff-Appellant, v. Francis J. WALKER, Defendant-Appellee.
No. 82-7022.
United States Court of Appeals, Eleventh Circuit.
May 9, 1983.
Robert L. Wiggins, Jr., Bryan, Wiggins & Quinn, Birmingham, Ala., for plaintiff-appellant.
Robert R. Sexton, Barnett, Tingle & Noble, David L. Allen, Birmingham, Ala., for defendant-appellee.
Before RONEY and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.
RONEY, Circuit Judge:
In the first appeal of this case, this Court held that “the unequal application of defendants’ rental criteria, including marital status and employment and credit histories, as between Marable and white applicants demonstrates disparate treatment on the basis of race” in violation of the Fair Housing Act, 42 U.S.C.A. § 3601 et seq., and the Civil Rights Act of 1866, 42 U.S.C.A. §§ 1981 and 1982. Marable v. H. Walker & Associates, 644 F.2d 390, 397 (5th Cir.1981). Judgment for defendant was reversed, and the case was remanded for consideration of damages, attorney’s fees, and injunctive relief. The district court denied plaintiff’s request for an evidentiary hearing. On his final day in office, the trial judge entered an order denying compensatory damages for emotional distress, awarding $1,000 in punitive damages, enjoining the defendant from applying rental criteria in a discriminatory manner, and awarding $8,000 for attorney’s fees.
Deciding that an evidentiary hearing as to attorney’s fees was required, the court improperly applied a statutory maximum to punitive damages, and the injunction was inadequate, we vacate the order in all respects and remand to the district court for reconsideration in light of this opinion.
I Compensatory Damages
Our review of this issue is limited by the district court’s failure to enter findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). The plaintiff testified at trial that he had been embarrassed and humiliated by defendant’s refusal to rent an apartment to him. The evidence showed defendant openly laughed at plaintiff’s desire to live in a predominantly white section of town and then hung up the telephone on him.
This Court has held that damages for emotional distress in cases of this type “may be inferred from the circumstances as well as proved by the testimony.” Gore v. Turner, 563 F.2d 159, 164 (5th Cir.1977). See Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 636 (7th Cir.1974) (“Humiliation can be inferred from the circumstances as well as established by the testimony”). Defendant stresses that plaintiff’s claims are based on mental injuries only. There was no evidence of pecuniary loss, psychiatric disturbance, effect on social activity, or physical symptoms. It strikes us that these arguments may go more to the amount, rather than the fact, of damage. That the amount of damages is incapable of exact measurement does not bar recovery for the harm suffered. The plaintiff need not prove a specific loss to recover general, compensatory damages, as opposed to actual or special damages. See McNeil v. P-N & S, Inc., 372 F.Supp. 658 (N.D.Ga.1973). In any event, the plaintiff offered sufficient evidence to establish his right to an evidentiary hearing for the court to carefully resolve issues as to sufficiency of the proof of compensatory damages and the amount thereof.
II. Punitive Damages
The district court fixed the punitive damage award at the $1,000 maximum authorized by the Fair Housing Act, 42 U.S. C.A. § 3612(c). When a plaintiff prevails on a claim under both the Fair Housing Act and § 1982, as is the case here, he is entitled to benefit from the more liberal recovery provisions applicable to § 1982 violations. Dillon v. AFBIC Development Corp., 597 F.2d 556, 563-64 (5th Cir.1979). The Fair Housing Act and § 1982 are independent statutory schemes. The provisions of § 3612(c) do not limit the amount of damages recoverable under § 1982. 597 F.2d at 563. Whether $1,000 was correct or incorrect, the plaintiff is entitled to have the punitive damage claim considered without the burden of a statutory maximum.
III. Injunctive Relief
The district court permanently enjoined defendants from “unequally applying rental criteria, including marital status and employment and credit histories, in a manner that discriminates against plaintiff or anyone else on the basis of race” in violation of the Fair Housing Act and §§ 1981, 1982.
Once a court finds that a landlord has discriminated against prospective tenants, it may enjoin the landlord from engaging in such practices. 42 U.S.C.A. § 3610(d). The Act also authorizes “such affirmative action as may be appropriate.” Id. Injunctive relief should be structured to achieve the twin goals of insuring that the Act is not violated in the future and removing any lingering effects of past discrimination. United States v. Jamestown Center-in-the-Grove Apartments, 557 F.2d 1079 (5th Cir.1977). The relief must be tailored in each instance to the needs of the particular situation, a matter peculiarly within the discretion of the district judge. Gore v. Turner, 563 F.2d at 165.
In United States v. West Peachtree Tenth Corp., 437 F.2d 221, 229-31 (5th Cir.1971), this Court set forth an injunctive decree for use in an apartment rental discrimination case. There is no indication why a similar decree should not be entered in this case. The court found that defendant willfully discriminated against the plaintiff on the basis of race in refusing to rent him an apartment, but refused to order the defendant to lease an apartment to the plaintiff. The defendant admitted that no black applicants had ever been accepted as tenants at defendant’s apartment complex, and the record established the existence of racially subjective leasing criteria and procedures. The order fails to require any affirmative act by the defendant to correct the lingering effect of past discriminatory policies.
The evidence presented belies defendant’s contention that there was no flagrant, widespread discrimination apparent in this case. On remand the district court should tailor an injunction to more nearly comply with the relief required in prior eases of this kind.
IV. Attorney’s Fees
The district court, without an evidentiary hearing, reduced both the hourly rate and the number of compensable hours set forth by affidavit. The district court’s order is as follows:
In accordance with Fed.R.Civ.P. 43(e), the court has determined that an evidentiary hearing is not necessary and that the matter can be decided on the affidavits presented by the respective parties. With but one exception, plaintiff’s affidavit filed in support of his request for attorney’s fees more than adequately considers the guidelines established by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), for properly determining a fee award. His affidavit does not, however, sufficiently consider the guideline dealing with awards in similar cases. Based upon prior rulings of this court and of other courts in this jurisdiction in similar cases filed during the same period of time, the court is of the opinion that $40.00 per hour is fair and reasonable. Furthermore, the court is of the opinion that no more than 200 hours is a reasonable amount of time to have spent in the prosecution of plaintiff’s claims.
This order lacks the clarity required for intelligent appellate review. King v. McCord, 621 F.2d 205 (5th Cir.1980). There is no basis in the record for the $40 an hour rate fixed by the court. The plaintiff should be given the opportunity to respond to the reference to prior rulings. The reason for the reduction in hours is unexplained. This Court has consistently required district courts to conduct evidentiary hearings, King v. McCord, supra, and to enter specific findings of fact and conclusions of law in rendering fee awards where disputes cannot be otherwise resolved. Fitzpatrick v. I.R.S., 665 F.2d 327, 332 (11th Cir.1982); Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir.1980); Matter of First Colonial Corp. of America, 544 F.2d 1291, 1298 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974).
We vacate the award and remand for proceedings consistent with the relevant cases decided by this Court.
VACATED AND REMANDED.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? 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.
UNITED STATES of America, Plaintiff-Appellee, v. Helen JENKINS, Defendant-Appellant.
No. 78-5088.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 13, 1978.
Decided Nov. 2, 1978.
James E. Roberts, Chief Federal Defender, Kenneth R. Sasse, Detroit, Mich., for defendant-appellant.
James K. Robinson, U. S. Atty., Ellen Ritteman, Detroit, Mich., for plaintiff-appellee.
Before WEICK and EDWARDS, Circuit Judges, and LAWRENCE, District Judge.
Honorable Alexander A. Lawrence, United States District Judge for the Southern District of Georgia, sitting by designation.
PER CURIAM.
Appellant Jenkins was convicted after a jury trial on a charge of smuggling goods into the United States, in violation of 18 U.S.C. § 545 (1976). She received a two-year sentence.
On appeal she contends that the customs regulation was so overbroad and vague that it denied defendant due process, that the jury instruction tended to shift the burden of proof to the defendant, and that the prosecutor improperly prejudiced the result by an accusation of an unrelated crime.
While 19 C.F.R. § 148.11 does contain broad language, 19 C.F.R. § 123.3, which deals specifically with customs relations between the United States and Canada and Mexico, provides such particularity as to make this argument valueless.
As to the jury instruction taken as a whole, we find no reversible error.
Recognizing that in the closing argument of the prosecutor a prejudicial assertion (that the goods sought to be imported may have been stolen) was injected, we nonetheless find no reason to reverse. When the trial judge had heard an objection to said comment, he offered defendant the opportunity to move for mistrial, which was rejected, and gave as a substitute a curative instruction which was agreed upon by defendant. We find no reversible error in proceeding with the trial under these circumstances.
The judgment of conviction is affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_geniss | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Appellant, v. John P. ROONEY, Jr., Defendant-Appellee.
No. 240, Docket 92-1229.
United States Court of Appeals, Second Circuit.
Argued Oct. 9, 1992.
Decided Feb. 18, 1993.
Paul D. Silver, Asst. U.S. Atty. (Gary L. Sharpe, U.S. Atty., of counsel, for the N.D. of N.Y., Albany, NY), for appellant.
Edward M. Shaw, New York City (Still-man, Friedman & Shaw, P.C.) for defendant-appellee.
Before: VAN GRAAFEILAND, PRATT, WALKER, Circuit Judges.
WALKER, Circuit Judge:
In a three-count indictment filed May 8, 1991, John P. Rooney, Jr. was charged in Counts I and II with violations of 18 U.S.C. § 1001 (false statements to the government) and in Count III with violating 18 U.S.C. § 666 (solicitation of a bribe). In an order dated March 20, 1992, the United States District Court for the Northern District of New York (Cholakis, J.) dismissed Count III on the ground that the jurisdictional element of 18 U.S.C. § 666, which requires an organization to receive $10,000 in Federal “benefits” within a twelvemonth period had not been satisfied. Count III alleged as a jurisdictional predicate the receipt from the federal government of loans in excess of $10,000. But, the district court held that “benefits” within the meaning of § 666 do not include government loans. Since we hold that government loans may constitute “benefits” under § 666, we reverse the order of the district court and reinstate Count III of the indictment.
BACKGROUND
There is no dispute as to these basic facts. Rooney is the general partner of Dawnwood Properties (“Dawnwood”). In 1978, Dawnwood applied to the Farmers Home Administration (“FmHA”) for a loan to construct a rural senior citizens’ housing project. In 1985, the FmHA advanced loan proceeds to Dawnwood which began construction on the project. As of 1990, Dawnwood had not yet finished the project and it owed the general contractor, Debrino Associates, a substantial sum of money for work already completed. Rooney agreed to apply to the FmHA for an additional $300,000 loan beyond the $1.5 million borrowed to that date, but only if Debrino Associates promised to build a pond on the property adjacent to the project land without extra cost. Rooney’s proposal to Debrino Associates is the subject of Count III which charged that the proposal was a bribe solicitation in violation of 18 U.S.C. § 666.
Before the trial, Rooney moved pursuant to Fed.R.Crim.P. 7 and 12 to dismiss Count III on jurisdictional grounds. Count III alleged as its jurisdictional predicate that Dawnwood was “an organization that received Federal assistance in the form of loans in excess of $10,000 during the one year period commencing on February 6, 1989 and ending on February 5, 1990.” However, Rooney argued, inter alia, that government loans could not be “benefits” within the meaning of 18 U.S.C. § 666 and therefore the jurisdictional requirement of § 666 was not met.
On March 20, 1992, the district court agreed with Rooney and dismissed Count III. The court held that Dawnwood, the recipient of Federal loans totalling $1.5 million, had not received a “benefit” as required by § 666.
DISCUSSION
Title 18, U.S.C. § 666 provides in pertinent part:
(a) Whoever, if the circumstances described in subsection (b) of this section exists—
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—
(A) ...
(B) corruptly solicits or demands for the benefit of any person ... anything of value from the person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization ... involving anything of value of $5,000 or more ...
******
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
18 U.S.C. § 666.
The sole question presented by this appeal is whether a loan can be a “benefit” within the meaning of § 666(b) so as to bring this case within the Federal court’s jurisdiction. If so, Dawnwood received such benefits and the jurisdictional requirement of § 666(b) is satisfied. The district court, in answering this question in the negative, relied on United States v. Stewart, 727 F.Supp. 1068, 1070 (N.D.Tex.1989) and United States v. Webb, 691 F.Supp. 1164, 1169 (N.D.Ill.1988), which concluded that § 666(b) does not apply when the government receives something in return for its money—a situation of quid pro quo. The district court accepted Rooney’s contention that the loan repayment plus interest constitutes such a quid pro quo, and therefore, a loan may not be considered a benefit for purposes of § 666(b). We disagree.
In evaluating the scope of a Federal criminal statute, we must look closely at its language, legislative history, and purpose. Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985); United States v. Hong-Liang Lin, 962 F.2d 251, 253 (2d Cir.1992). The Supreme Court directs, us to use restraint in interpreting Federal criminal statutes based “ ‘on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.’ ” Dowling, 473 U.S. at 214, 105 S.Ct. at 3131 (quoting United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37 (1820)).
1. Statutory Language
The statutory language does not support Rooney’s interpretation. To fall within § 666(b), an organization must “reeeive[], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.” 18 U.S.C. § 666(b). The district court stated that the statute does not expressly equate a “benefit” with a loan, and “merely provides that the Federal program from which the ‘benefit’ is received may involve a loan.” (emphasis in the original).
Common sense suggests that the “benefit” from a program which involves a loan would be the loan itself. Webster defines the word “benefit,” inter alia, as “advantage.” Webster’s Ninth New Collegiate Dictionary, 144 (1990). Rooney’s receipt of the loan afforded him an “advantage” since it allowed him to build a senior citizens’ housing project and hopefully make a profit.
The statute expressly equates “benefits” with “Federal assistance.” Federal statutes commonly include loans within the rubric of “Federal assistance.” For example, the Civil Rights Act, which prohibits discrimination under any Federally assisted programs, 42 U.S.C. § 2000d, specifically includes loans within its definition of financial assistance. See 42 U.S.C. § 2000d-l. In the statute we are examining, Federal programs “involving a grant, contract, subsidy, loan, guarantee, insurance” are a subset of “form[s] of Federal assistance,” which therefore demonstrates that Congress considered a loan a benefit, even if Rooney does not.
Rooney contends that loan proceeds are not “benefits,” since the borrower must agree to repay them, and argues that a loan can be a “benefit” only if it affords the recipient a direct economic advantage such as a reduced interest rate. This interpretation of the statute would create an anomaly: Federal jurisdiction would depend on the daily interest rate. A loan granted at a lower interest rate than the market commanded would be a benefit. But the loan would cease to be a benefit if the market rate dropped below the interest rate of the loan. The jurisdictional reach of § 666 would thus hinge upon national economic conditions and would be turned on and off by interest rate fluctuations.
2. Legislative History
Apart from its lack of support in the language of § 666, Rooney’s interpretation is inconsistent with the provision’s legislative history. Congress enacted § 666 as part of the Comprehensive Crime Bill of 1984, and stated that the provision was “designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations or State and local governments pursuant to a Federal program.” S.Rep. No. 225, 98th Cong., 2d Sess. 369 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510 (hereinafter S.Rep.). The principal policy objective behind § 666 is to “protect the integrity of the vast sums of money distributed through Federal programs.” Id. at 3511. To this end, the Senate Judiciary Committee Report accompanying the statute states that the “[cjommittee intends that the term ‘Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance, or another form of Federal assistance’ be construed broadly.” Id.
The Senate Report states, however, that “not every Federal contract or disbursement of funds would be covered”, and exempts from § 666 instances in which, for example, “a government agency lawfully purchases more than $10,000 in equipment from a supplier.” Id. The district courts in United States v. Stewart, supra, and United States v. Webb, supra, seized upon this language in the Senate Committee Report to preclude § 666 from applying to all situations in which the government receives a tangible material return from its funds. Stewart, 727 F.Supp. at 1070; Webb, 691 F.Supp. at 1169. However, in light of the statute’s purpose, we think that Congress only intended to exclude money spent by the government as a commercial entity, such as payments for supplies or equipment. Stewart is consistent with this reading since that case involved a defense contractor that supplied custom-made goods to the government, which in essence is a purchase of equipment from a supplier. 727 F.Supp. at 1070.
The Webb court held that funds paid by the Department of Housing and Urban Development (“HUD”) to a private accounting firm to manage and administer a Federal program were not § 666(b) benefits. Rather, the Webb court held, the funds were “monies paid in consideration for its services.” 691 F.Supp. at 1169. While we express no opinion as to what the result in Webb should have been, we believe that the Webb court’s construction of the limitation on “benefit” was broader than the facts of that case required, broader than Congress intended, and contrary to the stated purpose of § 666. As we have noted, § 666 was designed to protect the integrity of funds distributed through Federal programs. S.Rep. at 3510. The Senate Report targeted the application of the statute to monies distributed through “Federal programs” for which there is “a specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives.” Id. at 3511. The Report enumerated three cases to illustrate situations § 666 is intended to include: United States v. Hinton, 683 F.2d 195 (7th Cir.1982), aff’d sub nom. Dixson v. United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984) (involving bribery by an employee of non-profit corporation with contract to administer HUD funds); United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) (involving bribery by a State administrator of funds from CETA program); and United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (involving bribery of city employees administering funds from HUD program). S.Rep. at 3511. In each of these cases, the organization or city agency provided the Federal government with a service by administering a government program. Thus, the holding in Webb is in conflict with the legislative history.
We find that the district court’s focus on whether the Federal government receives something of value for its funds is misplaced. The inquiry is not whether there is a quid pro quo, but, rather, whether the funds disbursed can be considered Federal assistance within a specific statutory scheme intended to promote public policy objectives and not payments by the government as a commercial entity.
As discussed above, loans are a common vehicle for distributing Federal assistance. Rooney received the loans from the FmHA pursuant to Section 515 of the Housing Act of 1949, codified at 42 U.S.C. § 1485. Section 1485(a) authorizes loans to provide housing for “elderly or handicapped persons or families of low or moderate income or other persons and families of low income in rural areas____” The FmHA granted Dawnwood the loan to construct rural low-income housing. Therefore, the funds Rooney received from the Federal government were authorized according to a statutory scheme in order to promote Congress’s public policy objective of providing low-cost rural housing, and are exactly the type of monies Congress intended to protect when it enacted § 666. We hold that Dawnwood received a benefit from the FmHA loans under § 666(b). Accordingly, the statute’s jurisdictional requirement is satisfied as to Rooney.
CONCLUSION
We reverse the order of the district court and reinstate Count III of the indictment.
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_crossapp | B | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
ANDREWS BROS. OF CALIFORNIA v. CENTRAL PRODUCE CO.
No. 11653.
United States Court of Appeals Sixth Circuit
April 14, 1953.
Henry O. Wackerbarth, Los Angeles, Cal., for appellant.
E. D. Jackson, Nashville, Tenn., for ap-pellee.
Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
PER CURIAM.
The appellant instituted a reparation proceeding pursuant to the Perishable Agricultural Commodities Act of 1930, as amended, Title 7 U.S.C.A. § 499a et seq. Following the decision of the administrative agency set up by that Act, appellant instituted an action in the United States District Court for the Middle District of Tennessee in which the District Judge concurred in the findings of fact of the designated officer of the Secretary of Agriculture, who filed findings of fact, conclusions and an order from which both the appellant and the appellee appealed to the District Court seasonably for a de novo trial of the issues.
The United States District Court approved and adopted as its own the findings of the administrative official of the Department of Agriculture. The court also adopted the conclusions of that agency, except in one particular, which was that the appellee should have been permitted to assert its counterclaim for affirmative relief. We think the District Court ruled correctly in this respect, in applying sections 8745, 8746 and 8749 of the Tennessee Code. See Harvey v. Campbell, 166 Tenn. 369, 61 S. W.2d 465. Compare Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079.
This court is of opinion that there was ample substantial evidence to support the findings of fact of the designated agent of the Secretary of Agriculture and the concurring findings of the District Court. It has been held that the Perishable Agricultural Commodities Act was not intended to repeal the law of sales or to destroy rights or liabilities of contracting parties. Ernest E. Fadler Co. v. Hesser, 10 Cir., 166 F.2d 904.
Appellee refused to accept from appellant 28 cars of fruit out of a total of 36 cars contracted to be purchased for the reason that six of the first eight carload shipments contained spoiled and unfit fruits. Flowever, appellee withdrew its objection to four of the 28 cars, when it ascertained that these four cars had already been delivered to the railroad company, f. o. b. cars in California for shipment to appellee at Nashville, Tennessee. The position of ap-pellee is, in our judgment, correct upon the proposition that, on account of the spoiled condition of the fruit in a substantial part of the first eight carloads received, the ap-pellee produce company was not required as a matter of law to accept delivery of the remaining 24 cars of fruit which had not been delivered f. o. b. cars at the shipping point in California for shipment to appellee at Nashville, Tennessee; and appellee had a right to rescind the contract as to the purchase of such cars.
The amount awarded appellee on its counterclaim was consistent with the proof adduced in the case. Likewise, the fee allowed appellee’s attorney to be paid by appellant was justifiably awarded.
Accordingly, the judgment of the District Court is affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: |
songer_casetyp1_7-2 | E | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
UNITED STATES of America, Appellant, v. MICHAEL SCHIAVONE & SONS, INC., Appellee.
No. 71-1194.
United States Court of Appeals, First District.
Argued Sept. 8, 1971.
Decided Oct. 1, 1971.
Leonard Schaitman, Atty., Dept, of Justice, with whom Morton Hollander, Atty., Dept, of Justice, Herbert F. Trav-ers, Jr., U. S. Atty. and L. Patrick Gray, III, Asst. Attys. Gen., were on brief, for appellant.
Kevin M. Keating, Boston, Mass., with whom Joseph S. Oteri and Crane, Inker & Oteri, Boston, Mass., were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
When this case was remanded to the district court, United States v. Michael Schiavone & Sons, Inc., 430 F.2d 231 (1st Cir. 1970), it was a new ball game with new ground rules. The district court’s ruling on remand that it was too late to go into the dollar amount of the defendant’s gross cost was erroneous — an error for which we take some responsibility because of a reasonable, though unintended, interpretation of language in our opinion. The fact is that the expenditure for the office building was not an obligation under the lease. Under our prior ruling, therefore, it was not appropriately included in computing the total purchase price and the amount of the illegal rebate. The judgment entered below, 325 F.Supp. 48, must be modified accordingly.
Further questions have arisen as to whether the court’s judgment should carry interest and, if so, whether from the date of the original judgment or that of the judgment as finally modified. 28 U.S.C. § 1961 is clear in providing that “[i]nterest shall be allowed ' on any money judgment in a civil ease recovered in a district court.” In arguing that an Elkins award is in reality a “penalty or forfeiture” and therefore should not bear interest, appellee has failed to distinguish between (1) the accrual of interest from the date of final judgment to the date of actual payment and (2) prejudgment interest which may under appropriate circumstances be assessed as an item of damages to compensate more adequately for a proven wrong. Moore-McCormack Lines, Inc. v. Amirault et al., 202 F.2d 893, 895 (1st Cir. 1953); United States v. United Drill & Tool Corp., 87 U.S.App.D.C. 236, 183 F.2d 998 (1950). A claim of interest on a statutory penalty for the period prior to judgment, in the absence of specific statutory authorization or persuasive showing of congressional intent, falls outside the latter rationale and under the general rule proscribing interest on penalties. Rodgers v. United States, 332 U.S. 371, 373, 68 S.Ct. 5, 92 L.Ed. 3 (1947), and cases cited therein. But a penalty reduced to judgment is not a penalty simpliciter. Regardless of whether the judgment itself contains a specific award of interest, once final judgment has been entered in a civil suit in a federal court the prevailing party becomes a judgment creditor and is entitled to post-judgment interest under the mandatory terms of 28 U.S.C. § 1961. See, e. g., United States v. West Texas Cottonoil Co., 155 F.2d 463 (5th Cir. 1946). Since it is settled law that subsequent action by this court in reducing a judgment does not prevent interest from attaching upon the reduced amount from the date of the original judgment (see, e. g., Swartzbaugh Manufacturing Co. v. United States, 289 F.2d 81, 85 (6th Cir. 1961), and cases cited therein), interest should run from June 30, 1969, the date of the district court’s original judgment, 304 F.Supp. 773.
The case is remanded to the District Court with directions to enter judgment for plaintiff in the amount of $113,578.-86, with interest to run from June 30, 1969.
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_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.
WISCONSIN WINNEBAGO BUSINESS COMMITTEE, Plaintiff-Appellee, Cross-Appellant, v. John P. KOBERSTEIN & Ho-Chunk Management Corporation, Defendants-Appellants, Cross-Appellees.
Nos. 84-1768, 84-1863.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 29, 1985.
Decided May 29, 1985.
Douglas B.L. Endreson, Sonosky, Chambers, Sachse & Guido, Washington, D.C., for Wis. Winnebago Business.
John P. Koberstein, Madison, Wis., pro se.
Before BAUER, COFFEY, and FLAUM, Circuit Judges.
COFFEY, Circuit Judge.
The defendants, John P. Koberstein and the Ho-Chunk Management Corporation, appeal the determination of the district court that its Bingo Management Agreement with the Wisconsin Winnebago Business Committee is null and void under 25 U.S.C. § 81. We affirm.
I.
On July 9, 1983, the Wisconsin Winnebago Business Committee (“Business Committee”), the governing body of the federally recognized Wisconsin Winnebago Tribe (“Tribe”), hired Koberstein, the defendant, as its tribal attorney. At Koberstein’s suggestion, the Tribe entered into a Bingo Management Agreement (“Agreement”) with the co-defendant, the Ho-Chunk Management Corporation (“Ho-Chunk”), providing that Ho-Chunk would construct and manage a tribal bingo hall located near Lake Delton, Wisconsin. Koberstein is the president of the Ho-Chunk Management Corporation. Under the terms of the Agreement, Ho-Chunk was to receive $27,-000 for preparing a proposal to be presented to the federal Department of Housing and Urban Development for federal funds and for supervising the construction of the hall. Ho-Chunk also was engaged under the terms of the contract for a five-year period “commencing the first day of operation of the Bingo Hall, to assist the [Business Committee] in obtaining financing, construct, improve, develope [sic], manage, operate and maintain the Property as a facility for the conduct of bingo games____” The Agreement granted Ho-Chunk the exclusive right to “operate and maintain the Property” as a tribal bingo hall and to control “all business and affairs in connection with the operation, management and maintenance of the Property.” Furthermore, the Business Committee
“specifically warranted] and represented] to [Ho-Chunk] that [the Business Committee] shall not act in any way whatsoever, either directly or indirectly, to cause this Management Agreement to be altered, amended, modified, canceled, terminated and/or attempt to assign or transfer this Management Agreement or any right to or interest in said Agreement. Further, [the Business Committee] warranted] and represented] that it shall take all actions necessary to ensure that the Management Agreement shall remain in good standing at all times.”
The Agreement recited a legal description of the Property, located on tribal trust land, and allowed Ho-Chunk to record the Agreement “in any Public Record.” Furthermore, the Agreement provided that the Business Committee “shall not act in any way whatsoever, either directly or indirectly to cause any party to become an encumbrancer of the Property subject to this Agreement without the prior written consent of [Ho-Chunk].” In return for providing management services, Ho-Chunk was to receive “25 percent of net operating profits for each fiscal year resulting from and in connection with any business activities upon the Property.”
On August 23,1983, Ho-Chunk submitted the Agreement and the Wisconsin Winnebago Business Committee resolution adopting the Agreement to the Bureau of Indian Affairs (“BIA”) for approval under 25 U.S.C. § 81. 25 U.S.C. § 81 provides in relevant part:
“No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments, or other monies, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as follows: * * * * * *
“(2) It shall bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed upon it. Sic * * * * *
“All contracts or agreements made in violation of this section shall be null and void.”
Sometime during the second week of November, 1983, the Minnesota Area Office of the BIA requested an opinion from the Department of Interior’s Office of the Field Solicitor concerning the Agreement. On November 16, 1983, the Field Solicitor’s Office advised the BIA that the Department of the Interior’s approval was required only of contracts in which a “tribe purports to pay ‘money or other thing of value’ when such money or thing derives from amounts due to the tribe from the United States or is trust property or proceeds from trust property.” Although the Field Solicitor found “[t]here is no doubt that the Agreement is related to lands of the Wisconsin Winnebago Tribe,” section 81 did not apply because the funds Ho-Chunk was to receive were not “trust funds or proceeds of trust property.” Ho-Chunk was not formally notified of this decision until February 28, 1984.
Sometime during the late summer or early fall of 1983, the Ho-Chunk Management Corporation directed that the construction of the Bingo Hall proceed even though it had not received a response from the BIA. On November 12, 1983, the same day that the Bingo Hall opened, the Business Committee voted to rescind the Agreement with Ho-Chunk. Some two weeks thereafter, on November 27, 1983, the Business Committee enacted, an ordinance regulating bingo on tribal lands providing inter alia “No person shall engage in the operation of bingo games on Wisconsin Winnebago trust lands, unless duly licensed or permitted to do so by the Wisconsin Winnebago Tribe in accordance with the terms of this ordinance.” Even though the Bingo Management Agreement had been rescinded, Ho-Chunk, which had not applied to the Winnebago tribe for a bingo license, continued to operate the bingo enterprise.
On December 8, 1983, the Business Committee filed suit in the United States District Court for the Western District of Wisconsin to enjoin Ho-Chunk from operating bingo games on tribal trust lands on the Winnebago Reservation. The Business Committee alleged that the Agreement between Ho-Chunk and the Business Committee was void under 25 U.S.C. § 81, and alternatively that Ho-Chunk’s bingo operation violated the Tribe’s Bingo Ordinance. Subsequently, the Business Committee moved for summary judgment. On April 2, 1984, the district court granted summary judgment holding that the Agreement was null and void since it had not been approved by the Department of Interior as required by 25 U.S.C. § 81. Because the court “believe[d] that equity demands that defendants be given a period of time to cure the defect which mandated summary judgment against them or to resolve its responsibilities in an orderly fashion,” it declared that the Agreement would become null and void effective June 30, 1984. Additionally, the district court found that the bingo ordinance “left the WWBC in the position to exercise absolute discretion as to whether Ho-Chunk would be allowed to operate a bingo game. There is little doubt, under the facts in this case, that the WWBC would exercise its discretion against Ho-Chunk.” The Court concluded that it could “see no reason why the bingo ordinance adopted by the tribe, respecting the manner of operation, and to the extent not specifically in conflict with contract provisions, cannot be given immediate implementation. However, the requirement that Ho-Chunk be licensed is directly contrary to the powers granted Ho-Chunk in the contract.” The parties raise three issues on appeal: (1) whether the Bingo Management Agreement must be submitted for approval to the Secretary of the Interior pursuant to 25 U.S.C. § 81; (2) whether the Ho-Chunk Management Corporation relied on the Field Solicitor’s opinion that § 81 did not apply to the Bingo Management Agreement; and (3) whether the Bingo Management Agreement could bar application of the tribal licensing ordinance to Ho-Chunk.
II.
A. Applicability of Section 81.
Ho-Chunk argues that the question of whether a contract is “relative to Indian lands” is irrelevant when determining whether section 81 requires Interior Department approval of a contract with Indian tribes. According to Ho-Chunk, the only relevant inquiry is whether “the tribe purports to pay ‘money or other thing of value’ when such money or thing derives from amounts due to the tribe from the United States or is trust property or proceeds from trust property.” Section 81 was enacted in 1872 “to protect the Indians from improvident and unconscionable contracts____” In re Sanborn, 148 U.S. 222, 227, 13 S.Ct. 577, 579, 37 L.Ed. 429 (1893). No federal cases have been presented to us nor have we been able to discover any federal case law that comprehensively analyzes the scope of coverage of section 81. Moreover the Supreme Court cases that do address the scope of section 81 in a cursory fashion do not present a detailed explanation of why the statute applied and are quite ancient. In Green v. Menominee Tribe, 233 U.S. 558, 34 S.Ct. 706, 58 L.Ed. 1093 (1914), the Supreme Court held that an oral contract between an Indian tribe and a trader for supplies to be used in logging Indian land was
“so clearly within the text of the statute that it suffices to direct attention to such text without going further. But if it be conceded for argument’s sake that there is ambiguity involved in determining from the text whether the statute is applicable, we are of the opinion that the case made is so within the spirit of the statute and so exemplifies the wrong which it was intended to prevent and the evils which it was intended to remedy as to disspell any doubt otherwise engendered.”
Id. at 569, 34 S.Ct. at 710. In Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658 (1927), the Supreme Court held that a contract by a tribal chief agreeing that an attorney should represent the tribe in its claim “to an enormous tract of country” for a fee of one-half interest in the tract was “void by force of § 2103 [now § 81] and § 2116 [now § 177] of Title 25....” Id. at 320, 47 S.Ct. at 362. Ho-Chunk distinguishes these decisions by arguing that they were rendered at a time when Indians were more in need of the protection of the statutes and at a time prior to the present federal policy favoring tribal self-determination. Ho-Chunk urges us to consider intervening acts of Congress and to consult present federal Indian policy for guidance in construing section 81. According to Ho-Chunk, present federal Indian policy strongly promotes tribal self-determination and tribal capacity to deal effectively in the business world. Furthermore, the defendant argues that Congress has taken explicit action where it believed necessary to protect Indian property interests. Ho-Chunk concludes that requiring Interior Department approval of contracts “relative to their land” would “create a situation in which both the tribal entity and any outside contractor dealing with the tribe would operate in an atmosphere- of complete uncertainty.”
Initially, we note that the defendants have failed to cite a case holding that when construing Indian statutes, the courts are “guided” by intervening acts of Congress and current federal Indian policy. The rule enunciated by the Supreme Court is that, “[u]ntil Congress repeals or amends the Indian ... statutes ... we must give them ‘a sweep as broad as their language’ and interpret them in light of the Congress that enacted them.” Central Machinery Co. v. Arizona State Tax Com’n., 448 U.S. 160, 166, 100 S.Ct. 2592, 2596, 65 L.Ed.2d 684 (1980) (citations omitted) (emphasis added) (Indian Trader Statutes).
“ ‘Indian law’ draws principally upon the treaty drawn and executed by the Executive Branch and legislation passed by Congress. These instruments, which beyond their actual text form the backdrop for the intricate web of judicially made Indian law, cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them.”
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206, 98 S.Ct. 1011, 1019, 55 L.Ed.2d 209 (1978) (jurisdiction of Indian tribal courts) (emphasis added). Our inquiry when determining the effect of intervening acts of Congress on Indian statutes is whether the Indian statute has been repealed by implication. See Morton v. Mancari, 417 U.S. 535, 546; 94 S.Ct. 2474, 2480, 41 L.Ed.2d 290 (1974) (effect of the Equal Employment Opportunities Act of 1972 on the Indian Reorganization Act of 1934); United States v. Crawford, 47 Fed. 561, 569 (1891) (section 81 impliedly repealed by statutes specifically dealing with the sale of Oklahoma). “Repeals by implication are not favored.” Mancari, 417 U.S. at 549, 94 S.Ct. at 2482. “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Id. at 550. Absent a clear and manifest legislative intent to repeal a statute, apparently conflicting statutes must be read to give effect to each if such can be done by preserving their sense and purpose. Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981). If a later act covers the whole subject matter of an earlier act and embraces new provisions which plainly show that the later act was intended as a substitute for the earlier act, the later act will operate as a repeal of the earlier act. Crawford, 47 Fed. at 569. It is obvious from the broad language “relative to their lands” that Congress intended to cover almost all land transactions in Indian property. This literal reading of the statute is supported by the history of Federal regulation of Indian lands. Before independence, colonial legislatures safeguarded the Crown’s right to negotiate exclusively with the Indian tribes for the extinguishment of their aboriginal title by restraining private land purchases from the Indians and by requiring all acquisitions of Indian land to be licensed or approved in advance by the colonial authorities. F. Cohen, Handbook of Indian Law, 508 (1982 ed.). After the War of Independence, the Federal government continued the policy of restraining alienation of Indian land in order to avoid war with the Indian tribes. Id. at 508-09. Because of this longstanding policy of regulating all transactions in Indian land, we find no reason to disregard the plain language of the statute and hold that Congress intended to continue its policy of regulating all transactions in Indian land when it enacted § 81 in 1872. Indeed, Congress continues to regulate transactions in Indian land to insulate Indian lands from the full impact of market forces and to preserve the Indian land base for the furtherance of Indian values. Id. at 509. Specifically, Congress has passed a number of statutes requiring the Department of Interior’s approval of Indian land transactions, including leases, mineral agreements and mortgages. However, in arguing that § 81 has been impliedly repealed, Ho-Chunk does not contend that Congress has passed statutes subsequent to § 81 specifically regulating every conceivable form of transaction relative to Indian land. As we previously stated, the Supreme Court has held that Indian statutes must be construed in light of the Congress that enacted the statutes; holding that a particular statute has been repealed “by implication” is disfavored by our courts. Thus, a party seeking to make such a showing must demonstrate that the statute has been effectively amended or repealed by subsequent acts of Congress affecting the conduct covered by the statute’s original terms. Ho-Chunk has not presented any evidence that Congress has passed legislation affecting the broad coverage of 25 U.S.C. § 81 and its application to the facts of this case. Thus, because the later acts of Congress do not cover the entire subject matter of § 81, we are convinced the later acts of Congress pertaining to Indian land transactions did not impliedly repeal § 81. Because subsequent acts of Congress have not covered the whole subject matter of the “relative to their lands” provision of section 81, we hold that section 81 governs transactions relative to Indian land for which Congress has not passed a specific statute.
Our second inquiry is whether the Bingo Management Agreement is an “agreement ... relative to [Indian] land.” The bingo facility, located near Lake Del-ton, Wisconsin is situated on tribal trust lands that have been proclaimed and designated by Congress as part of the Wisconsin Winnebago Indian Reservation. The Agreement granted Ho-Chunk the exclusive right to “operate and maintain the Property as a tribal bingo hall and to control “all business, management and maintenance of the Property.” Furthermore, Ho-Chunk was allowed to record the Agreement “in any Public Record” and the Business Committee was prohibited from “causpng] any party to become an encumbrancer of the Property subject to this Agreement without the prior written consent of [Ho-Chunk].” Because the Agreement gives Ho-Chunk the absolute right to control the operation of the bingo facility located on tribal trust lands and prohibits the exercise of the Business Committee’s right to encumber tribal trust property, we hold that the Bingo Management Agreement is an “agreement ... relative to [Indian] land,” as that term is used in 25 U.S.C. § 81. Cfi, Contracts for the Employment of Managers of Indian Tribal Enterprises, 61 Op. Solicitor, Dept, of Interior, No. M-36119 (Feb. 14, 1952) (contract to operate a tribal farming enterprise, including the cultivation of tribal lands, the development of livestock industries to utilize the crops raised by the enterprise, and the marketing of surplus crops is relative to Indian lands as that term is used in § 81).
Our final inquiry is whether section 81 applies to the Bingo Management Agreement. As we held above, unless Congress has passed a statute specifically regulating the transaction in question, § 81 applies to Indian land transactions concerning their tribal trust property. Ho-Chunk has failed to produce, and our research has failed to reveal, a statute governing a management contract of the nature of the Bingo Management Agreement. Because in our research we have been able to discover no statute expressly regulating management contracts such as this agreement to manage a bingo facility located on tribal trust lands, we hold that it is the intent of Congress that § 81 govern this transaction. We therefore affirm the judgment of the district court finding the contract null and void as of June 30, 1984 for failure to gain the approval of the Department of the Interior.
B. Estoppel.
Ho-Chunk argues that it justifiably relied on the representations of the Depart-
ment of Interior’s Field Solicitor Office that approval of the Bingo Management Agreement by the Department of the Interior was not required under section 81 and that “it is grossly inequitable for the district court to now order that the Department must approve the contract after the WWBC has since taken a position in opposition to the contract.” To establish an estoppel, “the party claiming the estoppel must have relied on its adversary's conduct ‘in such a manner as to change his position for the worse’ and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading.” Heckler v. Community Health Services of Crawford, — U.S. -, 104 S.Ct. 2218, 2223, 81 L.Ed.2d 42 (1984). The party claiming the estoppel must demonstrate that its reliance caused it to lose “[a] legal right, either vested or contingent, or suffer [an] adverse change in its status.” Id. 104 S.Ct. at 2225. In Community Health Services, the Supreme Court declined to decide whether “estoppel may not in any circumstance run against the Government” because the private party litigant was unable to demonstrate the presence of the judicial element of an estoppel. Id., 104 S.Ct. at 2224-25. In the case at hand, we need not decide whether the Government can under any circumstances be estopped because examination of the facts presented to the district court reveals that the traditional elements of an estoppel are not present. “To analyze the nature of a private party’s detrimental change in position, we must identify the manner in which reliance on the Government’s misconduct has caused the private citizen to change his position for the worse.” Id. at 2224-25. The Field Solicitor’s letter to the Area Director of the Minnesota Area Office of BIA stating that section 81 did not apply to the Bingo Management Agreement was dated November 16, 1983, four days after the Bingo Hall opened for business. Because the government did not act before the Bingo Hall was opened, Ho-Chunk cannot assert that it relied on-the Field Solicitor’s opinion when it opened the Bingo Hall. To the contrary, Ho-Chunk relied on its unilateral expectation that the contract would be approved by the Department of Interior. Furthermore, Ho-Chunk fails to specify any action it took after learning of the Field Solicitor’s Opinion in reliance on that opinion. Because Ho-Chunk fails to establish the traditional elements of an estoppel —specifically, because Ho-Chunk fails to set forth any action taken by Ho-Chunk in reliance on the government’s conduct to Ho-Chunk’s detriment — we hold that the government is not estopped by the Field Solicitor’s opinion that § 81 did not apply to the Bingo Management Agreement.
C. Bingo Ordinance.
The last issue presented for our consideration is whether the Bingo Ordinance was an exercise of the tribal governing body’s authority to regulate activities in the interest of the tribe’s health and welfare thus overriding any rights granted to Ho-Chunk under the contract. The district court found that the Bingo Ordinance “left the WWBC in the position to exercise absolute discretion as to whether Ho-Chunk would be allowed to operate a bingo game. There is little doubt, under the facts in this case, that the WWBC would exercise its discretion against Ho-Chunk.” Thus, the specific harm to the Ho-Chunk Management Corporation advanced by the defendants was the possibility that the Business Committee would deprive it of its contract rights by refusing to grant Ho-Chunk a bingo license. “Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983). “[Mjootness has two aspects: ‘when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’ ” United States Parole Com’n. v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980); Davis v. Ball Memorial Hosp. Ass’n., Inc., 753 F.2d 1410, 1416 (7th Cir.1985). Mootness has been defined as “the doctrine of standing set in a timeframe: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence.” Geraghty, 445 U.S. at 397, 100 S.Ct. at 1209. At the initiation of this litigation, Ho-Chunk’s “personal interest” in the validity of the bingo ordinance was grounded upon its fear that the Business Committee would deprive it of its rights under the Bingo Management Agreement by refusing to grant it a bingo license. We affirm the district court’s judgment that the Bingo Management Agreement was null and void as of June 30, 1984 because it had not been approved by the Department of Interior as required by 28 U.S.C. § 81. Ho-Chunk failed to obtain contract rights because of its failure to receive approval of the Bingo Management Agreement from the Department of Interior. Because Ho-Chunk’s Bingo Management Agreement with the Business Committee is null and void, it may no longer argue that the Business Committee may possibly deprive it of its rights under the Agreement by refusing to grant it a bingo license. Thus, Ho-Chunk, whose contract is null and void and without legal effect, fails to assert a personal interest in the question of whether the Tribe’s Bingo Ordinance would override previously existing contract rights. Since Ho-Chunk’s “personal interest” no longer exists, i.e., the fear that the Business Committee would deprive it of its contract rights by refusing to grant it a bingo license, the question of whether the Bingo Ordinance could override the rights granted to Ho-Chunk under the Bingo Management Agreement is moot.
We AFFIRM the judgment of the district court.
. For convenience, the defendants will be referred to collectively as “Ho-Chunk."
. "The Office of the Solicitor performs all of the legal work of the Department [of the Interior] with the exception of that performed by the Office of Hearings and Appeals and the Office of Congressional and Legislative Affairs____ The Division of Indian Affairs [of the Office of the Solicitor] is responsible for legal matters involving the programs of the Assistant Secretary — Indian Affairs and the Bureau of Indian Affairs.”
The United States Government Manual, Office of the Federal Register (1984-85).
. "‘Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory1____ The sovereignty retained by tribes includes 'the power of regulating their internal and social relations.' ” New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 2385, 76 L.Ed.2d 611 (1983) quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) and United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). The Wisconsin Winnebago Tribe rather than the State of Wisconsin regulates bingo games conducted by the tribe on the Winnebago reservation because Wisconsin's bingo law, a civil regulation, is inapplicable to games conducted on Indian reservations. Oneida Tribe of Indians of Wis. v. State of Wis., 518 F.Supp. 712 (W.D.Wis.1981). See also Barona Group v. Duffy, 694 F.2d 1185 (9th Cir.1982) (California law regulating bingo games inapplicable to bingo games conducted on the Barona Tribe's reservation because the state law was civil and regulatory rather than criminal and prohibitive in nature); Seminole Tribe v. Butterworth, 658 F.2d 310 (5th Cir.1981) (Florida law regulating bingo games inapplicable to bingo games conducted on the Seminole Tribe's reservation because the state law was civil and regulatory rather than criminal and prohibitive in nature.)
. On April 10, 1984, Ho-Chunk resubmitted the Agreement to the BIA for approval. The Director of the BIA's Minnesota Area Office found that tribal control over trust lands, tribal self-government and tribal economic development were jeopardized because the Agreement gave inequitable financial advantages and excessive control over the bingo operations to the defendants. Furthermore, the Area Director determined that “by his failure to disclose the [potential conflict of interest between his duties as tribal attorney and his position as president of Ho-Chunk] prior to the execution of the Agreement, ... Mr. Koberstein took unfair advantage of the Tribe at a time when it was most susceptible to his influence.” The Area Director of the BIA Minnesota Area Office disapproved the Agreement. The Area Director's disapproval of the Agreement was affirmed by the Interior Department’s Deputy Assistant Secretary-Indian Affairs on September 11, 1984.
. See, e.g., 25 U.S.C. § 311 (public highways); §§ 312-318 (railroad, telegraph, telephone line rights-of-way, and town site stations); § 319 (telephone and telegraph rights-of-way); § 320 (railway reservoirs or materials); § 321 (pipeline rights-of-way); § 323 (rights-of-way for any purpose); §§ 396a-396g (leases for oil and gas mining and permits to prospect); § 399 (leases for mining purposes); § 407 (sale of dead and fallen timber); § 415 (leases of tribal land for public, religious, educational, recreational, residential or business purposes); §§ 416-416j (leases on Sand Xavier and Salt River Reservations); §§ 641-646 (authorizing Hopi Tribal Council to mortgage Hopi land for industrial park); 25 U.S.C. §§ 2101-2108 (mineral agreements).
. On November 18, 1983, a bill was introduced in the United States House of Representatives which would regulate bingo management agreements. The bill provided that, "subject to the approval of the Secretary, a tribe may enter into a management contract for the operation and management of a tribal gambling enterprise for a reasonable fee which shall not be based upon any percentage of the gross or net revenue from operation____" H.R. 4566, 98th Cong., 1st Sess. (1983). The bill died in committee but has been reintroduced. H.R. 1920, 99th Cong., 1st Sess. (1985); S. 902, 99th Cong., 1st Sess. (1985).
. In an affidavit dated January 23, 1984, Kurt V. Blue Dog, an attorney for the defendants, stated "that in the course of my representation of these parties, I inquired by telephone with the Field Solicitor for the Department of Interior for this area, Mr. Mark Anderson, as to why the Department of Interior had not taken formal action on the Ho-Chunk Management Contract with the Wisconsin Winnebago Business Committee signed and enacted on July 9, 1983. Mr. Anderson, on January 20, 1984, informed me in no uncertain terms that Secretarial approval under 25 U.S.C. § 81 or otherwise, was not required in this instance, and that he had so informed the Bureau of Indian Affairs." Although Ho-Chunk may have learned of the Field Solicitor’s opinion that section 81 did not apply to the Bingo Management Agreement on January 20, 1984 rather than November 16, 1983, this would not change our analysis because in either case, Ho-Chunk learned of the Field Solicitor’s opinion after it opened the Bingo Hall. Because Ho-Chunk learned of the government's position on the applicability of § 81 after it opened the Bingo Hall, it cannot argue that it relied on the Field Solicitor’s opinion before it opened the Bingo Hall.
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_usc2 | 28 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Martin R. LONG, Appellant, v. UNITED STATES of America, Appellee.
No. 16779.
United States Court of Appeals Eighth Circuit.
Nov. 8, 1961.
Martin R. Long, pro se.
F. Russell Millin, U. S. Atty., Kansas City,, Mo., and John S. Royer, Jr., Asst, U. S. Atty., Kansas City, Mo., were on the brief for appellee.
Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.
PER CURIAM.
Martin R. Long appeals herein from an order of the United States District Court for the Western District of Missouri overruling his motion to vacate sentence filed under 28 U.S.C.A. § 2255.
' On February 11, 1954, a two-count indictment was returned against the appellant. The first, count charged a violation of the Dyer Act, 18 U.S.C.A. § 2312. Such count was dismissed. The second count charged a violation of 18 U.S.C.A. § 752, m which it was alleged:
That on or about the 16th day of February, 1953, one Martin Robert Lon^ did unlawfully, wilfully, know- and feloniously aid and assist m escape from the Greene Coun- & Jail< Springfield, Missouri, of Fred Paul Shannon and Jack Harold Richardson, who had been arrested upon a warrant issued under the law of the United States and committed to the custody of the Attorney General, and said custody and confinement was by virtue of an arrest 0n a charge of felony.”
Tried before a jury, the appellant was found Suilty and on April 20> 1954> was sentenced on said Count 2 to serve four years
“* * * Sentence to begin at the expiration of sentence or sen-fences now serving in any prison or institution.”
At £be yme 0£ indictment and prior to trial appellant had been serving a sen_ tence in the Arizona State Prison at Florence, Arizona. After trial herein be was returned to complete service of guch sentence. On July 5, 1960, being released therefrom, he was transferred to the United gtates Penitentiary at Leavenworth, Kansas, where he began serving the sentence under attack here.
_ m „ , ,,, , On February 10, 1961, appellant filed bjs fp-g-fc motion to vacate sentence under g 2255. This motion was overruled by the District C(mrt by order dated Febru_ ary 24, 1961. On March 21, 1961, appellant filed a second motion, supported by an affidavit, for vacation of sentence in forma pauperis. Such motion was overruled by the District Court on March 22, 1961. Appellant’s notice of appeal to this court covered both applications jointly. In an order dated May 26, 1961, this court denied Long’s application to appeal in forma pauperis from the District Court’s order of February 24, 1961, for the reason that the question sought to be raised represented on the face of the record a matter which would be cognizable only on an appeal from the conviction. Long’s application for leave to appeal in forma pauperis from the District Court’s order of March 22, 1961, was granted. It is that order which is on review here.
Appellant was indicted, tried, convicted and sentenced under 18 U.S.C.A. § 752, which provides:
Ҥ 752. Instigating or assisting escape
“Whoever rescues or attempts to rescue or instigates, aids or assists the escape of any person arrested upon a warrant or other process issued under any law of the United States, or committed to the custody of the Attorney General or to any institution by his direction, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or, if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both.” (Enacted June 25,1948.)
It is the appellant’s contention that the foregoing statute is applicable only to “prison officials and outsiders” and accordingly, he being an inmate confined in the Greene County Jail at Springfield, Missouri, at the time of the commission of the acts charged, could not be prosecuted thereunder. In support of his contention he cites Kahl v. United States, 10 Cir., 1953, 204 F.2d 864, 865. That case was concerned with a charge of conspiracy to commit the offense of causing or attempting to cause the escape of prisoners in violation of 18 U.S.C.A. § 252, which the court there does refer to as “(now § 752)”. It does contain dictum supportive of Long’s assertion here, in that the court there said:
“Upon the hearing of the motion to vacate, it was apparently conceded, and the trial court held, that the facts alleged in the indictment do not charge a valid conspiracy under § 252. This is so because § 252 applies only to prison officials and outsiders, and is inapplicable to inmates.”
It could be that the court in Kahl in referring to 18 U.S.C.A. § 252 (1940 edition) was misled by the first words of the opening sentence of that statute, which read
“Any person employed at any Federal penal or correctional institution as an officer or employee of the United States, or any other person who instigates, connives at, wilfully attempts to cause, * * * ” etc., (emphasis supplied)
and in so doing overlooked the words underlined above, “or any other person”. The point, however, is utterly immaterial. The statute which Long is charged with violating here was applicable to “Whoever rescues or attempts to rescue or instigates, aids or assists the escape of”, etc. (Emphasis supplied.) It is not confined to prison officials and outsiders. ■Its plain words encompassed anyone— “whoever” does the prohibited thing. It was applicable to the appellant even though he was an inmate of the jail at the time. His contention to the contrary may not be sustained.
Appellant also attempts to attack the validity of his indictment on the ground that it “failed to state mandatory essential ingredients of the crime charged”. A reading of the indictment indicates that it clearly and succinctly states the charge against the appellant with sufficient clarity to apprise him of the nature thereof, make it possible for him to intelligently defend against it, and also to plead it in bar to future prosecution. More may not be expected or required. Even if details had been necessary, a request for a bill of particulars at the time of trial should have been made. Any such attack on the indictment now comes too late.
Affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_numappel | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
THE JOSEPHINE. TEXAS CO. (SOUTH AMERICA), Limited, et al. v. CUMMINS et al.
No. 4408.
Circuit Court of Appeals, Third Circuit.
April 6, 1931.
Acker, Manning & Brown, of Philadelphia, Pa., and Bigham, Englar, Jones & Houston and Osear R. «Houston, all of New York City, for appellants.
Howard M. Long, of Philadelphia, Pa., and Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Roscoe H. Hupper and William J. Dean, both of New York City, of counsel), for appellees.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.
WOOLLEY, Circuit Judge.
The Schooner “Josephine,” having sailed from Port Arthur, Texas, arrived at Pernambuco, Brazil, her port of destination, long overdue with her cargo damaged by water taken aboard during heavy weather. The Texas Company, the ostensible owner of the cargo and party to the charter, filed a libel in rem for damages. Although The Texas Company (South America) Limited, an affiliated corporation, .intervened as the real party injured, we shall, for convenience, speak of the cargo owner as the libellant.
The case was tried on an issue of law arising from the owner’s warranty of the schooner’s seaworthiness and on a corresponding issue of fact. The District Court, finding her seaworthy, entered a decree dismissing the libel. The libellant appealed.
Before coming to the facts we pausé to make certain the issue raised by the pleadings and briefly to examine the applicable law.
The cargo owner avers in its libel that in December 1917 it entered into a charter party whereby the shipowner agreed to let and the libellant agreed to hire the schooner for transportation of petroleum products on a voyage between the ports stated; that early in April 1918, the libellant put aboard the schooner, then lying at Port Arthur, Texas, the agreed cargo in good order and condition; that on April 13 she sailed and after a voyage of four months reached her port of destination and delivered the cargo not in the good order and condition in which it was shipped but damaged through negligence of the schooner in respect to loading, stowage, custody and care, and through her unseaworthiness. As the issue raised by the libellant’s averment of negligence in loading, stowage, etc. was not separately pressed at the trial, the pertinent part of the schooner’s answer may be limited to the owner’s traverse of the libellant’s averment of her unseaworthiness and to his reply that he had used due diligence and ordinary care to make the schooner seaworthy in all respects and that at the time of sailing she was seaworthy and was properly manned, equipped and supplied for the voyage, and that any damage sustained by the cargo was not caused or contributed to by any fault on his part but was occasioned by perils of the sea which were excepted in the charter party and bill of lading.
Thus it is clear from the pleadings that the libellant relies for its law upon the owner’s express warranty in the charter party as to seaworthiness, namely, that the schooner was “tight, staunch, strong, and in every way fitted for the voyage.” The Edwin I. Morrison, 153 U. S. 199, 14 S. Ct. 823, 825, 38 L. Ed. 688; The Caledonia, 157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644; The Lockport (D. C.) 197 F. 213. The owner however pleads the Harter Act (27 Stat. 445 [46 USCA §§ 190-195]) which makes no change in his duty under the warranty to furnish a seaworthy vessel, The Carib Prince, 170 U. S. 655, 18 S. Ct. 753, 42 L. Ed. 1181; The Cornelia (D. C.) 15 F.(2d) 245, but does modify liability to the extent that if he used diligence to see that the vessel was seaworthy he and his vessel are exempt from liability for loss arising from various causes — among them perils Of the sea. The Fort Gaines (D. C.) 21 F.(2d) 865; Id. (D. C.) 24 F.(2d) 849, affirmed Federal Forwarding Co. v. Lanasa (C. C. A.) 32 F.(2d) 154; The Agwimoon (D. C.) 24 F.(2d) 864; affirmed Atlantic Gulf & West Indies S. S. Lines v. Interocean Oil Co. (C. C. A.) 31 F.(2d) 1006, distinguished. The distinction between due diligence imposed upon an owner by the Harter Act and his relief from liability on the one hand and the owner’s duty and liability under his general warranty of seaworthiness on the other hand need not be discussed in this case because the evi denee bears equally upon the question of due diligence and the question of seaworthiness. And so evidently thought the proctors for the opposing parties, for both looked upon the schooner’s seaworthiness as the center of the ease and each voluntarily, and at once, assumed the burden of proving the opposite of the issue, respectively. This, however, does not relieve the respondent owner of his burden of proving the seaworthiness of his schooner, or of proving the exercise of due diligence in making her seaworthy as a prerequisite to availing himself of the liberality of the Harter Act, by showing that damage to the cargo arose from one of the exceptions in the charter party, The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748, which, as pleaded in this ease, is perils of the sea. The Cornelia, supra. Therefore the first question, (and, it may be, the only one), is that of the schooner’s seaworthiness under the warranty. In considering this question we shall follow the voyage through the evidence in order to determine the schooner’s condition at the start and her condition at sea in view of the perils she encountered.
As a warranty of seaworthiness must be construed as requiring the vessel to be seaworthy when she sails, Federal Forwarding Co. v. Lanasa (The Fort Gaines) 32 F.(2d) 154 (C. C. A.); Luckenbach v. McCahan Sugar Co., 248 U. S. 139, 150, 39 S. Ct. 53, 63 L. Ed. 170,1 A. L. R. 1522, the first question of fact bears on the condition of the schooner when she put to sea.
The “Josephine” was a wooden craft of about 940 gross tons, originally built with barkentine rigging but later changed to a four mast schooner. She was launched in 1896. Advancing in age, she was in 1916 stiffened by placing heavy top sister keelsons along her entire length and heavy tumbuckle rods athwartship. Nevertheless she was in 1917 hogged to the extent of fourteen inches.
From December 1915 to March 1918, a period of twenty-eight months, the “Josephine” was repaired four times at a cost of $17,500, of which $1,742 was expended upon her late in 1917. These facts and figures were used by the libellant as proof of the schooner’s bad condition and were relied upon by the owner as evidence of her good condition and of his diligence in making and keeping her seaworthy. To fortify its interpretation of these figures the libellant produced two witnesses who had surveyed the schooner in-1919 — nine months after she had sailed from Texas on the voyage in question and two months after she, had grounded on a later voyage. They testified that the condition of her hull was bad and gave their opinion that judging from what they saw when they examined her in January 1919 she must have "been, unseaworthy when she sailed on the voyage in April 1918. Against this opinion evidence by relation back to the critical time of departure there was direct evidence for the owner which showed that the schooner was under repairs at Mobile late in 1917 and after their completion she was reelassed by-the American Bureau of Shipping as A 1% for a six year period, the highest class for a schooner of her age; and there was testimony by the surveyor for the bureau that he examined the sehooner in the doek at Mobile and made a report on March 29,1918, specific as to details, and concluding: “Ship in good condition, this has been endorsed on her Class Certificate.” He also testified that at the time of his certificate she was seaworthy and in condition to take the cargo on the chartered voyage. Two weeks later she sailed.
True, the schooner was old, but age alone is not evidence of unseaworthiness. A wooden ship may be old and still be fit.
Finding the sehooner seaworthy at the inception of the voyage, the next question is, did she afterward become unseaworthy at a time and under circumstances which rendered the owner by due diligence capable of reconditioning her?
Sailing from Port Arthur, Texas, on April 13 the schooner’s troubles began the very next day when, encountering high winds in the Gulf of Mexico, she began to. lose her sails. The winds increased to hurricane force until by April 19 she had been practically stripped of her sails. She then put about and staggered back to the coast, arriving at Galveston on April 23, where she laid by awaiting new sails. There is no evidence that in this experience the hull of the sehooner had become unseaworthy. Indeed, no one seems to have thought anything about it; at least there is no evidence that she leaked during the gulf storm, or that loose planking or loose caulking was discovered after her return to port or that, except her sails, any repairs were needed or made, or that her cargo had been damaged. So, we find that when starting on her voyage a second time she was seaworthy.
Having received her sails, the sehooner made her second start on May 15 and proceeded through the Gulf without incident. But on June 21, when in the Atlantic Ocean, she encountered another storm rising to the force of a gale or hurricane. Again the schooner lost her sails. During seven days of pounding, she shipped much water, her deck seams and butts opened and let water into the hold, the steam pump refused to work for a time and the hand pumps did not keep the water from "the cargo, with the result that it suffered the damage of which the libellant complains.
Having found from the evidence that the schooner was seaworthy when first she sailed and, from the same evidence confirmed by the fact that she weathered the gulf storm without known strain, that she was staunch and strong when next she put to sea, it is evident the behavior of her hull in the ocean storm arose from something which occurred after she was well on her voyage. There is no evidence that anything had happened before the storm which contributed to the damage to the ship and her cargo. It follows that it must have been the storm to which the hull yielded. Was, therefore, the storm a “peril of the sea” within the exception of the charter party? This is always a troublesome question because a peril of the sea is not susceptible of a satisfactory, or comprehensive, definition. A storm may or may not be such a peril. The test, however, seems to be — at least it is the one we shall apply in this instance — that when a storm is of Such unusual violence that it cannot reasonably be anticipated and avoided or cannot be resisted by ordinary exertions of skill and prudence and when it has caused unusual and unexpected damage to the hull of a seaworthy vessel resulting in damage to her cargo, the loss may fairly be attributed to a peril of the sea and falls within the exception of the charter party. The Warren Adams (C. C. A.) 74 F. 413; Id., 163 U. S. 679, 16 S. Ct. 1199, 41 L. Ed. 316; The Frey (C. C. A.) 106 F. 319; The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546,15 Ann. Cas. 748; The Newport News (D. C.) 199 F. 968; 24 R. C. L. 1314. And such we are constrained to hold was the case in this marine disaster.
But the owner’s warranty of seaworthiness extends to the ship’s equipment and the owner’s duty to make her seaworthy also extends to her equipment. This rule, clearly recognized by the parties, appears in the averments of both the libel and answer. Of her- equipment that did not withstand the ocean storm were her sails. As most of these were new when she encountered that storm we imagine the libellant does not hopefully charge unseaworthiness or negligence in respect to them. It does, however, very earnestly charge unseaworthiness in respeet to the steam pump, a vital part of a ship’s equipment, saying that, “At no time on the voyage could the steam pump be made to' work.”
So, as in case of the hull, we must examine the pump at the inception of the voyage and at the time of the storm.
There is no evidence as to the condition of the steam pump on April 13 when the schooner first put to sea other than the favorable inference from the survey and classification made by the American Bureau of Shipping immediately before and testimony as to her seaworthiness in general. Entries in the ship’s log on four days before and during the gulf storm show “Lights and pumps attended to.” There are no entries or other evidence that the steam pump would not work during the gulf storm or after the schooner returned to port. It is fair to assume that on her second start the pump was in the condition the log seems to have recorded.
On the first day of the ocean storm the log shows: “Steam pump broke down.” It also discloses that on June 22, 23, 24, 27, 28 and 29 the crew worked the hand pumps. The log does not reveal when, if ever, the steam pump was repaired. In the master’s protest, however, there is an entry: “Steam pump failed to work and vessel’s pumps were worked by hand until repairs were made on steam pump.” This contradicts to some extent the libellant’s statement that “At no time on the voyage could the steam pump be made to work.” That statement is also contradicted by the cook who testified that the steam pump “choked and they cleared it.”
“Q. How long did it take to clear it? A. Didn’t take long, about an hour or two, and it was dear.
“Q. Then did your steam pump operate on the voyage after that? A. Yes, sir; our steam pump operates all times. It would be ninety days, God knows where we would have been if the pump wasn’t going.”
Yet, truly, her steam pump did not work for a time. This was because of a defect in equipment which so far as the record shows was not there before the storm. What caused it ? In the absence of evidence indicating any other probable cause we must hold it was the storm. Being violent enough to rip the sails and damage the hull we are constrained to hold that it was, equally in respect to the pump, a peril of the sea within the exception of the charter party.
The decree of the court dismissing the libel is affirmed.
Question: What is the total number of appellants in the case? 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.
Monte W. DURHAM, Appellant, v. UNITED STATES of America, Appellee.
No. 12810.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 17, 1956.
Decided March 29, 1956.
Petition for Rehearing In Banc Denied May 3, 1956.
Mr. Milton M. Gottesman, Washing-, ton, D. C., with whom Mr. William E. Leahy, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.
Mr. Lewis A. Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., Arthur J. McLaughlin and John W. Kern, III, Asst. U. S. Attys., were on the brief, for appellee. Mr. Carl W. Belcher, Asst. U. S. Atty., also entered an appearance for appellee.
Before EDGERTON, Chief Judge, and BAZELON and WASHINGTON, Circuit Judges.
BAZELON, Circuit Judge.
On Durham’s former appeal, we reversed his conviction of housebreaking and remanded the case for a new trial because the trial court had erroneously applied “existing rules governing the burden of proof on the defense of insanity * * In addition, we announced a new test of criminal responsibility. Upon re-trial, Durham has again been convicted. We must again reverse and remand for a new trial because of fatally defective instructions to the jury.
The judge told the jury that the Acting Superintendent of St. Elizabeths Hospital had advised the court on February 12, 1953 that Durham was found competent to stand trial and assist in his own defense. Later, after correctly stating that he would commit Durham to St. Elizabeths if he were found not guilty by reason of insanity, the judge added that Durham would remain there until determined to be “of sound mind” by the hospital authorities; and that “if the authorities adhere to their last opinion on this point, he will be released very shortly.” Thus the judge conveyed to the jury the idea, which he also expressed at a bench conference with counsel, that the authorities had found Durham to be “of sound mind” and that he would be discharged “very shortly” after commitment unless their opinion changed. This was plain error.
The “last opinion” referred to by the court was apparently the February 12, 1953 letter of Dr. Silk, Acting Superintendent of St. Elizabeths, regarding Durham’s competency to stand trial. This letter was not in evidence.» Nor could it have been. The “fair meaning” of § 4244 of Title 18 U.S.C. is that “the jury should not be told that the accused has been found competent to stand trial.” Hence the court erred in calling the jury’s attention to the letter.
But there is an even more critical fault. Competency to stand trial is entirely different from such soundness of mind as would warrant discharge from the hospital. A striking illustration of the difference is found in this very ease in these word's from Dr. Silk’s letter: “Prolonged psychiatric study has established that [Durham] suffers from psychological illness but is mentally competent to stand trial and is able to consult with counsel to properly assist in his own defense.” (Emphasis supplied.) This court recognized in Durham’s former appeal that a defendant who is competent to stand trial may nevertheless be suffering from a mental illness presenting dangers against which protection is necessary. We specifically pointed out that upon acquittal by reason of insanity the defendant “may be confined as long as ‘the public safety and * * * (his) welfare’ require.” This is what the judge should have told the jury hjere.
The judge’s statement that the defendant would “be released very shortly” was highly prejudicial, for it implied a warning that dire consequences might result from a finding that the defendant was not guilty by reason of insanity. Such a warning goes far to deprive the insanity defense of any real meaning as a jury issue. The judge’s statement that such a warning is justified by our decision in Taylor v. United States, supra, note 5, is erroneous.
Reversed and remanded for a new trial.
. Durham v. United States, 1954, 94 U.S.App.D.C. 228, 230, 214 F.2d 862, 864, 45 A.L.R.2d 1430.
. We allowed Durham leave to proceed in forma pauperis after the District Court had denied such leave in a memorandum opinion, D.C.D.C.1955, 130 F.Supp. 445.
. Later the trial judge repeated this statement and added a sentence which did not change the total effect of what he had previously said.
. “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Rule 52(b), Fed.Rules Crim.Proc, 18 U.S.C.A. Stewart v. United States, 1954, 94 U.S.App.D.C. 293, 296, 214 F.2d 879, 882, note 7; Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 379, 222 F.2d 398, 404.
. Taylor v. United States, 95 U.S.App.D.C. at page 378, 222 F.2d at page 403.
Section 4244 provides in pertinent part: “A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.” 63 Stat. 686 (1949).
. See Gunther v. United States, 1954, 94 U.S.App.D.C. 243, 246, 215 F.2d 493, 496; Sobeloff, Insanity and the Criminal Law: From McNaghten to Durham and Beyond, 41 A.B.A.J. 793, 879 (1955).
For example, although persons suffering from pyromania or kleptomania may be competent to stand trial, their affliction may make them dangerous to themselves or others. In an early Texas case, Harris v. State, 1885, 18 Tex.App. 287, 293, kleptomania was described as “a species of insanity” constituting a defense to the crime of theft. Pyromania and kleptomania have been described as psychoneuroses in Guttmacher & Weihofen, Psychiatry and the Law 57 (1952), and as psychopathic states in Henderson & Gillespie, Textbook of Psychiatry 399 (7th ed. 1953).
. Note 57, 94 U.S.App.D.C. at page 242, 214 F.2d at page 876, citing Barry v. White, 1933, 62 App.D.C. 69, 71, 64 F.2d 707, 709. See also Sobeloff, supra, note 6.
. Taylor v. United States, 95 U.S.App.D.C. at page 379, 222 F.2d at page 404.
The jury should now be advised in accordance with Public Law No. 313, 84th Cong., 1st Sess., Aug. 9, 1955. That law, which amends D.C.Code, § 24-301, was enacted after the trial herein and our decision in Taylor. In pertinent part, it provides for mandatory commitment to a mental hospital of a person acquitted by reason of insanity, and conditions release on, inter alia, the opinion of the hospital superintendent that “such person will not in the reasonable future be dangerous to himself or others * * 69 Stat. 610.
. See Annotation, 44 A.L.R.2d 973, State v. Johnson, Mo.1954, 267 S.W.2d 642, 44 A.L.R.2d 973.
. This statement appears in the trial judge’s memorandum opinion denying Durham’s motion for leave to appeal in forma pauperis. 130 F.Supp. at page 448.
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_const1 | 2 | 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.
In re Leonard E. BRISCOE, Sr., Petitioner.
No. 92-3203.
United States Court of Appeals, District of Columbia Circuit.
Oct. 27, 1992.
As Amended Dec. 8, 1992.
Barry William Levine, Elaine Metlin, and Charles J. Clark, Washington, D.C., for petitioner.
Jay B. Stephens, U.S. Atty., John R. Fisher, Elizabeth Trosman, Suzanne G. Curt, and Karen L. Atkinson, Asst. U.S. Attys., Washington, D.C., for respondent.
Before: EDWARDS, D.H. GINSBURG, and RANDOLPH, Circuit Judges.
Opinion for the court filed Per Curiam.
PER CURIAM:
On June 12, 1991, a grand jury in the United States District Court for the Southern District of Florida returned two separate, but related indictments against Leonard E. Briscoe, Sr. Briscoe successfully moved to transfer both cases to the United States District Court for the District of Columbia, where he had also been indicted on similar charges. Federal Rule of Criminal Procedure 21(b) permits a district judge, “upon motion of the defendant,” to transfer a criminal case for the convenience of parties and witnesses, and in the interest of justice. After the two cases arrived here, the United States District Court for the District of Columbia issued an order transferring one of the cases back to the Southern District of Florida. Bris-coe now seeks a writ of mandamus directing the district court to vacate this order.
There is first a question regarding our jurisdiction. The basic rule in civil practice is that if a ease is physically transferred before an appeal or a petition for mandamus has been filed, the court of appeals in the transferor circuit has no jurisdiction to review the transfer. Starnes v. McGuire, 512 F.2d 918, 924 (D.C.Cir.1974) (en banc). The idea apparently is that sending the case file to another court — the “physical transfer” — leaves the transferor court with nothing to act upon. See Drabik v. Murphy, 246 F.2d 408, 409 (2d Cir.1957). A corollary is that, unless exceptional circumstances appear, the transferee court should not directly review the transfer order. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816-17, 108 S.Ct. 2166, 2177-78, 100 L.Ed.2d 811 (1988). If the order is carried out rapidly it therefore may effectively become immune from appellate scrutiny. See 28 U.S.C. § 1294(1); McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 954 (10th Cir.1989); Starnes, 512 F.2d at 924, 935. Despite the statement in Starnes that transfers should be delayed for twenty days to allow adequate and orderly review, 512 F.2d at 935, the indictment, docket entries and pleadings file were mailed to the Clerk of the Southern District of Florida just four days after the order issued here. Briscoe thereafter filed his mandamus petition.
While this sequence of events ordinarily would deprive us of jurisdiction, the basic rule is subject to an exception. When there is a substantial issue whether the district court had “power to order the transfer,” Starnes, 512 F.2d at 924 n. 6, we will not consider' the clerk’s compliance with the order as destroying our jurisdiction. See NBS Imaging Systems, Inc. v. United States District Court, 841 F.2d 297, 298 (9th Cir.1988); Gower v. Lehman, 799 F.2d 925, 927-28 (4th Cir.1986); Farrell v. Wyatt, 408 F.2d 662, 664 (2d Cir.1969). An alternative to exercising jurisdiction now would be for us to request, informally, that the Southern District of Florida return the file and to proceed only after the file came back. We followed this course in Fine v. McGuire, 433 F.2d 499, 500 n. 1 (D.C.Cir.1970). See In re Sosa, 712 F.2d 1479,1480 (D.C.Cir.1983). But we did so only after determining that the mandamus petition presented a substantial claim regarding the legality of the order— that is, only after exercising our jurisdiction, at least to that extent. We see no reason for making such an informal request in this case. To do so would needlessly delay this already protracted proceeding. Even without the original file, we can rectify a usurpation of judicial power. See A. Olinick & Sons v. Dempster Bros., 365 F.2d 439, 447-48 (2d Cir.1966) (Friendly, J., concurring). Furthermore, the framing of the order, retransferring the action “forthwith,” Order of May 22, 1992, 792 F.Supp. 1 (italics added), in disregard of the orderly procedure outlined by the en banc court in Starnes, together with the government’s ill-advised assurance to the district court that a retransfer order would be unreviewable in this court (Suggestion for Reconsideration of Transfer at 5-6), brings the mandamus petition squarely within the traditional office of the All Writs Act empowering this court to issue writs “necessary or appropriate in aid of” its appellate jurisdiction. 28 U.S.C. § 1651(a).
One of the Florida indictments charged Briscoe and a codefendant with bribing an official of the Department of Housing and Urban Development (“HUD”) in Florida in order to obtain HUD funding for certain real estate development projects, including the Wedgewood Plaza Apartments in Riviera Beach, Florida. The other Florida indictment charged that Briscoe and a different codefendant conspired to misrepresent the progress and expenses of the Wedge-wood Plaza project. The District of Columbia indictment, returned at the request of the Independent Counsel appointed to investigate alleged corruption at HUD, charged Briscoe and three codefendants with conspiring to submit false statements and bribe a HUD official concerning several projects, including Wedgewood Plaza.
On Briscoe’s transfer motion, joined by his codefendant in one of the cases and not opposed by his codefendant in the other, the Florida district court concluded that both cases “arise[] from the same factual circumstances as one brought in the [District of Columbia],” and that “Briscoe has been charged in three separate indictments regarding his activities related to a HUD-sponsored Urban Development Action Grant (UDAG) program.” Order of January 28, 1992. After the two cases arrived here, the government suggested that the Florida district court had transferred the case involved in Briscoe’s petition due to “confusion between the subject matter of the cases.” Suggestion for Reconsideration of Transfer at 3. Stating that it would seek to consolidate for trial one of the transferred cases with the case originally filed in the District of Columbia, the government advised the district court that this “change in circumstances” would justify retransferring the remaining case back to Florida. Id. at 5-6.
On May 22, 1992, the district court ordered the case retransferred because the two cases in the District of Columbia “charge distinct offenses in separate stages of the [HUD] program,” and because “the benefit to the defendant resulting from trial in this jurisdiction is far outweighed by the inconvenience to the government.” 792 F.Supp. at 3, 4.
Rule 21(b) of the Federal Rules of Criminal Procedure differs from its civil counterpart (28 U.S.C. § 1404(a)) in one critical respect: Rule 21(b) authorizes the transfer of a criminal case only on the defendant’s motion. See, e.g., United States v. Choate, 276 F.2d 724, 729 (5th Cir.1960); In re Application to Take Testimony in Criminal Case Outside District, 102 F.R.D. 521, 523 (E.D.N.Y.1984). “The United States cannot move for transfer nor can the court order transfer to another district on his own motion.” 2 C. Wright, Federal Practice and Procedure: Criminal 2d § 341, at 245 (1982) (citations omitted). The Advisory Committee Notes to Rule 21(b) (1944 adoption) explained that the “rule provides for a change of venue only on defendant’s motion and does not extend the same right to the prosecution, since the defendant has a constitutional right to a trial in the district where the offense was committed.”
The fact that this case was retransferred to the original forum means that Briscoe cannot complain about being deprived of his constitutional right, under Article II, § 2, and the Sixth Amendment, to be tried in the state and district where the crime was committed. The district court recognized as much when it said, in the portion of the order we have italicized:
However, Rule 21 is premised on the fact that the government selects the jurisdiction in which to file an indictment. It would be illogical and unfair if the Rule were to allow the government then to seek a transfer to a different district. Such concerns are not implicated in this case, because the government simply seeks to have the case returned to the original district in which the indictment was returned.
792 F.Supp. at 3-4. But the concern here is not with Briscoe’s constitutional rights. It is with the power of the district court under Rule 21(b), a power that does not exist in the absence of a motion from the defendant to transfer the case to another district.
The retransfer order also violates the fundamental principle that the propriety of the transferor court’s exercise of discretion under Rule 21(b) is not subject to review by the district court to which the case is transferred. See United States v. United States District Court for the Eastern District of Tennessee, 209 F.2d 575, 577 (6th Cir.1954); Holdsworth v. United States, 179 F.2d 933, 937 (1st Cir.1950). The district court here is on an equal footing with the Florida district court. But it was in the Florida district court, and the Florida court alone, that Rule 21(b) reposed the discretion to decide whether the convenience of the parties and witnesses, and the interest of justice, warranted a transfer. See Platt v. Minnesota Mining Co., 376 U.S. 240, 245, 84 S.Ct. 769, 772, 11 L.Ed.2d 674 (1964). Yet the district court here issued its decision on the basis that the Florida court’s transfer order was ill-considered. The district court cites, as reasons justifying retransfer, the “convenience to the parties,” the fact that government attorneys and some witnesses would be required to travel to Washington for trial, and the lack of “substantial evidentiary overlap between the cases.” See 792 F.Supp. at 3. The court .concluded that “the benefit to the defendant resulting from trial in this jurisdiction is far outweighed by the inconvenience to the government.” Id. at 4. These issues were necessarily committed to the discretion of the Florida district court, where they were fully briefed and argued when Briscoe made his Rule 21(b) motion.
We see no need to decide whether the government is correct that, despite Rule 21(b), a district court has “inherent authority” to retransfer a criminal case sua sponte or on the government’s motion. There is only the barest support among the courts of appeals for the proposition. A single footnote in one case, United States v. Blackwell, 946 F.2d 1049, 1052 n. 1 (4th Cir.1991), states that a district court could retransfer a case when “the reasons for the initial Rule 21(b) transfer no longer exist.” The only authority cited is “Cf. United States v. Mohney, 476 F.Supp. 421, 427-28 (D.Haw.1979) (district court opined that it possessed the authority to retrans-fer but declined to exercise it for reasons of judicial economy).” • The statement in Blackwell was unnecessary to the decision; the court held that it could not review the transfer order. 946 F.2d at 1052. Even if we read the dictum for all it is worth, there is nothing in this record to indicate that matters have changed since the Florida court issued its order. We are not informed that any witnesses have moved, or that Briscoe’s attorney has changed offices from Washington, D.C., to Florida, or that the Southern District of Florida’s docket is now comparatively light. The most that can be said is that the Florida court incorrectly evaluated the circumstances or, to put it in legal terms, abused its discretion in granting Briscoe’s motion. While that seems to be the government’s view, it was improper for the government to relitigate the issue here, even by way of its mere “Suggestion for Reconsideration of Transfer.” The district court, which did not purport to act on the-basis of any “inherent authority,” exceeded its judicial power when it retransferred the case to Florida at the government’s suggestion and in the absence of a defense motion under Rule 21(b).
The petition for a writ of mandamus is therefore granted. The district court is directed to request the Clerk of the United States District Court for the Southern District of Florida to return the file in United States v. Briscoe, et al., No. 91cr8065 (S.D.Fla.), and upon return of the file to vacate its Order of May 22, 1992, 792 F.Supp. 1. A copy of this opinion shall be delivered to the Clerk of the United States District Court for the Southern District of Florida.
So Ordered.
. The other case was consolidated with the District of Columbia case. Trial in the consolidated cases, United States v. Briscoe, Wilson & Steier, No. 91cr399 (D.D.C.1991), began on September 29, 1992.
. The district court issued its order on May 22, 1992, 792 F.Supp. 1. The Clerk of the District Court for the District of Columbia then transmitted the case to the Florida district court on May 26, 1992, where it was docketed on June 1, 1992.
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_appel1_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 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.
CREDIT ALLIANCE CORPORATION, Plaintiff-Appellant, v. Patricia Ann CAMPBELL, Defendant-Appellee.
No. 87-1385.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 26, 1987.
Decided April 29, 1988.
Sol D. Bromberg, New York City, Corneal L. Domeck, III, Louisville, Ky., for plaintiff-appellant.
James F. Flynn, Newman, Trockman, Lloyd, Flynn, & Rheinlander, P.C., Evansville, Ind., for defendant-appellee.
Before BAUER, Chief Judge, WOOD and MANION, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
This case is an appeal from the district court’s grant of defendant’s motion for relief from judgment under Federal Rule of Civil Procedure 60(b). Plaintiff had obtained on October 21, 1980, a default judgment in the Southern District of New York enforcing a guaranty contract against the defendant. The judgment was in the amount of $1,302,954.80. The plaintiff registered the judgment in the District Court for the Southern District of Indiana on December 4, 1980 in accordance with 28 U.S.C. § 1963 (1982). On January 9, 1984, Patricia Campbell filed her motion for relief in the district court in Indiana. The court granted this motion on November 26, 1984. We reverse the district court’s grant of relief setting aside the judgment.
I. FACTUAL BACKGROUND
In late 1977 or early 1978 Ralph Douglas Campbell, the defendant’s husband, was a heavy equipment salesman for Stockberger Machinery, Inc. Steve Stockberger, Campbell, another salesman, Tom Marshall, and a physician, James Spahn, entered into a partnership they called Indicoal. The partners’ intention was to strip-mine coal at a mine in Kentucky, and, to further this purpose, the partners acquired equipment from the Stockberger Company. A Credit Alliance sales representative, Harold Kap-lan, sold floor-plan and end-user financing arrangements for Credit Alliance Corporation in the Evansville, Indiana area. Kap-lan arranged financing for the business venture through Credit Alliance. The partners executed a conditional sales contract with Stockberger on May 18, 1978; Stock-berger assigned the contract to Credit Alliance the same day; and the partners and their wives, including the defendant, signed a guaranty for Indicoal’s debts on May 22, 1978. There was undisputed testimony that the wives did not play an active role in Indicoal’s operations. The defendant signed the guaranty without reading it, and she did not receive a copy of the document.
Indicoal began to experience financial difficulties soon after its formation, and fell behind in its payments to Credit Alliance. Meanwhile, the defendant and her husband developed serious marital difficulties which led to their separation at the end of 1978 and divorce in March of 1979. On September 29, 1978, Indicoal and Credit Alliance entered into an agreement to extend Indicoal’s payment period. Although the original guaranty had provided that the guarantors consented to “any agreement or arrangements whatever with subject or anyone else, including without limitation, agreements and arrangements for payment extension,” Credit Alliance customarily executed new extension agreements with all guarantors. The defendant’s husband signed the agreement for the defendant without her knowledge or consent. Credit Alliance granted Indicoal a second extension on March 29, 1979, again without the knowledge or consent of the defendant, whose marriage to Campbell had been dissolved two weeks earlier.
On January 15, 1980, Credit Alliance compromised and settled the Indicoal debt with Dr. Spahn and on August 14, 1980, compromised and settled with the Mar-shalls. A proposed settlement March 6, 1980, between Credit Alliance, Campbell, and Marshall fell through when Campbell’s check was dishonored. The defendant was unaware of these events.
On May 2, 1980, the plaintiff filed this action in the United States District Court for the Southern District of New York. In accordance with the terms of the guaranty, summonses were served on Credit Alliance as agent for the defendants. Credit Alliance sent two certified letters to the defendant notifying her of the lawsuit, but both letters were returned.
The defendant remained unaware of the lawsuit, the entry of default judgment October 21, 1980, and the registry of the judgment in the Southern District of Indiana December 4, 1980, until shortly after the United States Marshal attached all the funds in her bank account. The writ of execution was issued, and the defendant became aware of it, in November of 1983.
The defendant filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). The Southern District of Indiana stayed enforcement of the New York judgment. The parties stipulated, contrary to the guaranty language, that Indiana was the proper forum and Indiana law should apply. We find this to be a reasonable stipulation as to the applicable law. Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 n. 2 (7th Cir.1987); Lloyd v. Loeffler, 694 F.2d 489, 495 (7th Cir.1982). On November 10, 1986, the court heard evidence on the motion. The court considered defendant’s arguments that the guaranty was unsupported by consideration and that her obligation had been so altered as to discharge her. The court found validity in the latter assertion, and granted defendant’s motion.
II. DISCUSSION
Although the parties did not raise the issue, we first consider the propriety of the Indiana courts as a forum for defendant’s Rule 60(b) motion.
“The decision to grant or deny relief under Fed.R.Civ.P. 60(b) is committed to the discretion of the trial court.” Fuhrman v. Livaditis, 611 F.2d 203, 204 (7th Cir.1979). We therefore need only determine whether the court abused its discretion.
In the Fuhrman case Fuhrman, a citizen of Iowa, sued Livaditis, a citizen of Illinois, in the Northern District of Iowa, based on diversity of citizenship. Process was served by certified mail. The return receipt indicated that Livaditis had received notice of the suit. He did not file an appearance and the court entered a default judgment against him. Notice of the default judgment was sent through certified mail to the defendant.
Fuhrman registered the judgment in the Northern District of Illinois pursuant to 28 U.S.C. § 1963. Almost a year after the judgment was registered in Illinois, Livadi-tis filed a motion for relief from judgment under Rule 60(b). The Northern District of Illinois denied the motion without prejudice, noting that Livaditis could file his motion in the Northern District of Iowa, the court that rendered the judgment.
As we mentioned on appeal, “[o]rdinarily, a motion for relief from judgment is addressed to the court which rendered judgment.” 611 F.2d at 204. Generally, “it is more convenient for motions for relief from judgment to be addressed to the [rendering] court.” Id. Two policy considerations support the general rule:
(1) comity among the federal district courts is furthered if the registering court refers the question of relief from judgment to the court which ordinarily entered the judgment; (2) efficient judicial administration is furthered if the registering court defers to the original court, which is likely to be more familiar with the issues raised by the motion for relief from judgment.
Id.
In Fuhrman, as here, there was no litigation with which the rendering court could become familiar. There was simply a default. In Fuhrman, however, Livaditis argued that the rendering court lacked personal jurisdiction over him. This challenge required the court to apply the laws of the state of Iowa, laws with which the district court in Iowa was more familiar than was the district court in Illinois. The federal court in Iowa was thus a more convenient forum for the motion.
The defendant here does not argue that the district court in New York lacked personal jurisdiction over her. The terms of the guaranty provided that an attorney for Credit Alliance would accept service of process for the guarantors, and that they would “agree to the venue and jurisdiction of any court in the State and County of New York.” They agreed as well that the guaranty “shall be interpreted according to the laws of the State of New York.” The defendant instead asserted that there was no consideration for her guaranty, that she terminated her consent, and that she was discharged. Because the parties stipulated to the application of Indiana law before the court in Indiana there was no reason to defer to the district court in New York on the interpretation of state law. And because the judgment was a default judgment, the rendering court had no more familiarity with the facts than did the registering court. Additionally, when “the creditor seeks to utilize the enforcement machinery of [the registering] district court it is not unreasonable to hold that the [registering] court has the power to determine whether relief should be granted the judgment debtor under 60(b).” 7 Moore’s Federal Practice ¶ 60.28[1], at 60-313 (2d ed. 1987). We therefore believe that the district court for the Southern District of Indiana was an appropriate forum for the defendant’s Rule 60(b) motion. There was no abuse of discretion in the court’s decision to entertain the motion. As to the merits of the defendant’s motion, we cannot reach the same conclusion. We find that the district court abused its discretion in granting defendant’s Rule 60(b) motion.
Although “[t]his circuit has a well-established policy favoring a trial on the merits over a default judgment,” C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984), a default judgment will not be set aside unless “ ‘the moving party ... alleges a meritorious defense to the action.’ ” A.F. Dormeyer Co. v. M.J. Sales & Distrib. Co., 461 F.2d 40, 43 (7th Cir.1972) (quoting Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C.Cir. 1966)); see also Passarella v. Hilton Int’l Co., 810 F.2d 674, 675-76 (7th Cir.1987). The defendant’s arguments do not present a meritorious defense to the plaintiff’s action.
The defendant argues that her guaranty was not supported by consideration, that she terminated her consent to the guaranty, and that she was discharged from her obligation by the plaintiff’s extensions of the guaranty. The district court discussed only the latter issue, finding that there was “an alteration of her obligation that effected a discharge.” This finding is incorrect under Indiana law.
It is undisputed that the defendant signed the original guaranty of Indicoal’s obligations. It is also undisputed that she did not read the document, that it was not explained to her, and that she did not receive a copy of it. This is unfortunate; under Indiana law, as in most jurisdictions, however, “[a] person is presumed to understand the documents which he signs.” Carney v. Central Nat. Bank, 450 N.E.2d 1034, 1038 (Ind.App.1983). The defendant has described the stressful circumstances under which she. signed the agreement. Although we are sympathetic to her distress, the defendant has not suggested that her signature was obtained by duress or undue influence, and she has not cited to us cases which would justify relieving her from her contractual obligations because of her emotionally trying situation. We therefore must find that she bound herself to the terms of the guaranty.
Those terms included consent without notice “to any agreement or arrangements whatever with subject or anyone else, including without limitation, agreements and arrangements for payment extension, subordination, composition, arrangement, discharge or release of the whole or any part of the Security Obligations.” The defendant argues that Credit Alliance’s extensions of the guaranty so altered her obligation that she was discharged. She points out that an unconsented extension of time for payment or an agreement to compromise and settle the principal obligation discharges a guarantor. Id.; Indiana University v. Indiana Bonding & Surety Co., 416 N.E.2d 1275, 1280 (Ind.App.1981); Lutz v. Frick Co., 242 Ind. 599, 602, 181 N.E.2d 14, 16 (1962). This assertion, while true, overlooks the fact that the defendant consented to the extensions and settlements when she signed the guaranty. Although “ordinarily a surety is released if the creditor, without consent of the surety, renews the note, extends the time of payment, impairs the collateral, or alters the contract with the principal; prior consent contained in the instrument is sufficient to bind the surety.” Franklin Bank & Trust Co. v. Reed, 496 N.E.2d 596, 602 (Ind.App.1986), aff'd in part and vacated in part, 508 N.E.2d 1256 (Ind.1987); Carney, 450 N.E.2d at 1038. Indiana law provides that a guarantor is a surety. Id. at 1036 (citing Ind.Code § 26-1-1-201(40)).
The defendant also directs us to cases holding that revocation of a continuing guaranty terminates a creditor’s rights to alter the obligation without notice to and consent of the guarantor. She argues that she revoked her consent by unknowingly failing to execute her consent on the extension agreements. She bolsters this evanescent argument by citing Indiana cases that hold a continuing guaranty may be revoked in a reasonable manner. Houin v. Bremen State Bank, 495 N.E.2d 753, 758 (Ind.App.1986) (citing LaRose v. Logansport Nat. Bank, 102 Ind. 332, 344-45, 1 N.E. 805, 812 (1885)); Vidimos, Inc. v. Vidimos, 456 N.E.2d 455, 458 (Ind.App.1983) (citing LaRose ). Again it is true that Indiana recognizes revocations that are reasonable under the circumstances. It is also true, how ever, that guaranties are interpreted in the same manner as are other contracts, Kordick v. Merchants Nat. Bank & Trust Co., 496 N.E.2d 119, 122 (Ind.App.1986); Loudermilk v. Casey, 441 N.E.2d 1379, 1383 (Ind.App.1982), and where the guaranty language is unambiguous, “the construction of the guaranty is a question of law.” Skrypek v. St. Joseph Valley Bank, 469 N.E.2d 774, 777 (Ind.App.1984); Loudermilk, 441 N.E.2d at 1383. “Parol evidence is inadmissible where there is no ambiguity in the [guaranty] language.” Skrypek, 469 N.E.2d at 777.
The guaranty at issue here clearly states that the guarantors must provide written notice of their termination. The language is unambiguous. In the Vidimos case, by contrast, the guaranty did not specifically provide for a method of revocation. “A continuing guaranty which is for an indefinite period is revocable by the guarantor provided that he does so reasonably.... This right of revocation exists absent any provision in the guaranty agreement recognizing it.” Vidimos, 456 N.E.2d at 458 (citations omitted). The court’s concern in this case was that the guaranty not be understood as irrevocable, when it did not explicitly provide for a method of revocation. Where the parties agree to a method for revoking the guaranty, as in Houin, that method should be followed. Although the defendant relies on Houin for the proposition that any reasonable method of revocation is effective, the Houin court specifically stated, albeit in dicta, that “oral notice of revocation when the contract called for written notice was not reasonable.” Houin, 495 N.E.2d at 759.
The defendant suggests that the “revocation event occurred in the only reasonable manner one can employ, when one is permitted to remain ignorant of the guaranty: By Mrs. Campbell’s failure to execute her consent on the Extension Agreement prepared by Credit Alliance for her signature.” The defendant, however, had consented to the extension in the original guaranty. This prior consent was binding. Franklin Bank, 496 N.E.2d at 602; Carney, 450 N.E.2d at 1038. Thus her failure to sign an unnecessary extension agreement cannot be said to effect a revocation. The defendant remained bound by the terms of her guaranty. Extensions of the time for payment, because of her earlier consent, did not discharge the defendant. Although we, like the district court, are sympathetic to the defendant’s plight, we find that the district court abused its discretion in finding under Indiana law that the defendant was discharged.
The fact that the defendant did not receive actual notice of the plaintiffs suit in the Southern District of New York does not relieve the defendant from her obligations. By the .terms of the guaranty she waived her right to personal service of process. She and the other guarantors designated a New York attorney and Credit Alliance as agents for service of process, with notice of such service to be sent by mail to the guarantors within three days at the address shown on the guaranty. The plaintiff fulfilled its obligations by sending two letters by certified mail to the address defendant had provided on the guaranty. These letters were returned to the plaintiff, however, because the defendant had moved to a new address. The defendant’s failure to notify the plaintiff of her change of address is perhaps understandable in light of the fact that she did not read the guaranty before (or after) signing it; as we discussed above, however, the defendant is bound by the terms of the guaranty. She cannot now complain about the plaintiff’s failure to notify her of the lawsuit when the failure was a result of defendant’s own actions.
The defendant argues that the guaranty was not supported by consideration. The district court apparently found this argument to be meritless and did not discuss it. We also find no merit to this contention.
The guaranty was dated May 22, 1978. The conditional sales contract and the assignment were dated May 18, 1978. The check that Credit Alliance issued to Stock-berger Machinery for Indicoal’s purchase of the mining equipment was dated May 23, 1978. The guaranty’s stated purpose was to induce Credit Alliance to accept the assignment from Stockberger Machinery. Credit Alliance did accept the assignment as evidenced by its issuance of the check to Stockberger Machinery.
Where a guaranty is executed subsequently to the principal contract, in order for the guaranty to be regarded as being made at the same time so as to constitute a part of the same transaction and be supported by the same consideration it must generally be shown that:
(1) The guaranty was executed pursuant to an understanding had before and was an inducement to the execution of the principal contract; or
(2) The guaranty was delivered before any obligation or liability was incurred under the principal contract; or
(3) The guaranty was made pursuant to a contract provision; or
(4) The principal contract does not become operative until the execution of a guaranty; or
(5) The guaranty expressly refers to a previous agreement between the principal debtor and creditor which is exec-utory in its character and embraces prospective dealings between the parties.
Davis v. B.C.L. Enters., Inc., 406 N.E.2d 1204, 1205-06 (Ind.App.1980). Because these requirements are expressed in the disjunctive, only one need be satisfied to demonstrate that the guaranty is supported by consideration. We believe that the first requirement, at least, is satisfied. The guaranty was executed on May 22, 1978, in order to induce the plaintiff, Credit Alliance, to accept the assignment of the conditional sales contract. The conditional sales contract, dated May 18, 1978, reflected the seller’s intention to assign the contract. The plaintiff accepted this assignment when it issued its check to Stockberger Machinery on May 23, 1978, one day after the guaranty was executed. The guaranty was supported by adequate consideration.
III. CONCLUSION
Because we have found that the defendant raised no meritorious defenses to the default judgment entered against her, we find the district court abused its discretion in granting defendant’s Rule 60(b) motion for relief from judgment. Each party shall bear its or her own costs. The district court’s order is therefore
Reversed.
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_majvotes | 3 | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Eugene Duvalcourt WALKER and Irving Goldheimer, Appellants, v. UNITED STATES of America, Appellee.
No. 17382.
United States Court of Appeals Ninth Circuit.
Jan. 17, 1962.
Robert W. Armstrong, Huntington Park, Cal., for appellant Walker.
Russell E. Parsons, Harry E. Weiss, Los Angeles, Cal., for appellant Goldheimer.
Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Crim. Div., Meyer Newman, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES, MERRILL and BROWNING, Circuit Judges.
BARNES, Circuit Judge.
Appellants Walker and Goldheimer, together with defendants Wilson, Medina and Mendez, were indicted on two counts of violating Title 21 United States Code Annotated, §§ 174, 176. The first count charged that beginning on or about July 13, 1960, and continuing to August 30, 1960, appellants together with other named defendants conspired together to knowingly and unlawfully receive, conceal, transport and facilitate the concealment and transportation, and sell and facilitate the sale, of heroin which, the defendants knew had been imported into, the United States contrary to § 173, Title 21, United States Code Annotated; to knowingly smuggle and clandestinely introduce into the United States from Mexico, heroin with intent to defraud the United States (which merchandise should have been invoiced prior to importation into the United States) in violation of § 174, Title 21, United States. Code. The second count charged that during the same period appellants, and' other defendants, violated the same law with respect to marihuana (21 U.S.C.A. § 176)
Appellants pleaded not guilty to both counts and were tried by jury.
The jurisdiction of the district court was found upon 18 U.S.C. § 3231. This court has jurisdiction to hear the appeal and review the judgments under the provisions of 28 U.S.C. §§ 1291 and 1294.
Facts
Because of alleged insufficiency of the evidence to support each conviction, it becomes necessary to consider it in some detail.
James R. Webster, a special employee of the Federal Bureau of Narcotics, testified that he met Goldheimer in a jail in Long Beach, California, in the latter part of May 1960, that Goldheimer told him that he had been to Mexico, that he had narcotics sources there and that he had previously imported marihuana from Mexico to New York and that he had just returned from Mexico not long prior to his arrest, and that he had an associate or friend who had a boat and that they were intending to import a large quantity of marihuana “up to this area”; that they had the “contacts on the Mexican side ‘all lined up.’ ” Webster further testified that he met Donald Wilets, an agent of the Federal Bureau of Narcotics, on June 3, 1960, and on June 23, 1960, and outlined to Wilets the conversations he had with Goldheimer.
On June 29, 1960, Webster met Goldheimer and Walker and was asked, by Goldheimer, if he wanted to see the boat. While on the yacht Goldheimer (Walker not being present) showed Webster certain nautical charts and told him that he and Walker had one chart on which they had worked out a course to some point below Ensenada with a landing area where “a transshipment could be made of the narcotics on board the vessel.” During a conversation that night, Walker stated that the best plan, and what he intended to do, was to have the narcotics wrapped in waterproofed packages, compressed, and put into sail bags (which are canvas bags that are put on or below decks when the ship is at sea, and which are usually empty when the sails are being used). Walker also stated that he was not absolutely sure of the customs formalities in returning from a foreign run on a yacht and that he was going to check into it. In discussing finances Goldheimer stated that he had some money on deposit with one Bryce Wilson in Guadalajara; that if their venture was successful Goldheimer, Walker, Wilson and Webster were each to receive twenty-five per cent of the total profits above expenditures and that Webster was to put some money into the enterprise depending on the final amount of narcotics that was to be handled.
On June 27, 1960, Webster had suggested to Goldheimer that he meet his financial backer. Goldheimer had previously expressed a desire to meet him. On July 13, 1960, Webster and Wilets met Goldheimer at a restaurant on the Sunset Strip and Goldheimer told Wilets that there were narcotics available through his sources and that a source of transportation, a yacht, was readily available.
On July 14, 1960, Goldheimer, Walker, Webster and Wilets, met together at a restaurant and then went for a ride during which Goldheimer asked Webster and Wilets how the plan “looked” and Walker asked if Wilets were going to “front any money.”
On July 28, 1960, Webster met Goldheimer who said he would be ready to go to Mexico the following day and requested Webster to make all the arrangements. Arrangements were made and on the next day Wilets drove Webster out to pick up Goldheimer and then, drove Webster and Goldheimer to the airport. The conversation in the car concerned bringing the matter “to a head” and obtaining a clear commitment down below on what they were supposed to get. Webster and Goldheimer deplaned at Guadalajara but they could not find Wilson there, and Goldheimer then left Guadalajara and flew to Puerto Vallarta, and returned the following day with Wilson. Goldheimer told Webster that Wilson had spent his money and that they would go to the Jalisco State Jail in Guadalajara the following day to meet with one of the sources of supply. They went to the prison where they met an inmate named Talaveras with whom they discussed the availability of heroin; it was learned that marihuana was available in a week or two but that Talayeras did not know about the heroin but that he would send someone out to see about it. One Ramundo was contacted and he stated that there was a kilogram of heroin available in a week or two and that the price would be $10,000. Webster said the price was too high but Goldheimer and Wilson said that it was a fair price and Goldheimer also stated, “Well that’s the price its always been.” Webster and Goldheimer returned to their hotel with Wilson and when Goldheimer went with Wilson to the hotel at which Wilson was stopping, Webster called Wilets and outlined what had happened in the jail. Webster, Goldheimer and Wilson returned to the jail a few days later and Webster stated that $10,000 would be acceptable but that he would want a firm delivery date and Ramundo stated that there would be a kilo available on August 14, which could be held until August 21. Goldheimer suggested that the heroin and marihuana should be bought at one time for one delivery on the yacht and Talaveras said that the marihuana would be available at the same time as the heroin. Ramundo then gave Wilson, Webster and Goldheimer the name and address of a man outside of the prison whom he said was the heroin and opium connection. Ramundo s “connection” was a man named Medina and his name and address were written by Ramundo on a slip of paper which he gave to Wilson.
After leaving the jail the plans for delivery were discussed in Guadalajara by Wilson, Goldheimer and Webster and Wilson said he would go back to his home and that he would return to Guadalajara on August 14, at which time he would meet Medina to get a sample of the heroin and that he would then forward a sampie to Webster in the United States. Goldheimer said that nothing should be done about the marihuana until the heroin was obtained so that it could be put together in one package and one delivery could be made. It was agreed that Goldheimer and Webster would return to Guadalajara on August 21, after having received the heroin sample in the United States, and that in the meantime Wilson would remain in Guadalajara and see about getting the marihuana together and starting to package it. Goldheimer said he would contact Walker to arrange for a final delivery of the heroin and the marihuana by them to Walker in Ensenada. Webster stated that as to the payment for their trip to Mexico, Goldheimer had given him a $100 bill but said that he was a little short and Webster paid the remaining $37.50 for the tickets and that in addition he had purchased lunch for Goldheimer several times in Mexico but that he had given him no other funds. Webster and Goldheimer returned to the United States together on August 4, and they were met at the airport by Wilets. Goldheimer told Wilets that arrangements had been made to pick up both heroin and marihuana in Guadalajara on August 21, and that it had been decided to make it a package deal so that the heroin would not be imported without the marihuana and the price was $10,000.
Another meeting was held between Webster, Walker, Goldheimer and Wilets on August 10, and after a cup of coffee in a restaurant they drove around and discussed the arrangements that had been made. Due to the fact that Goldheimer had to make a court appearance and would not be able to return to Guadala jara on August 21, alternate arrangements had to be made and it was decided that Webster and Wilets would go to Mexico to receive delivery. Webster
could then return to the United States on August 22 and Goldheimer could follow them down in order to transport the narcotics from Guadalajara to Ensenada. During the conversation Wilets wanted to know how the marihuana was to be packed and Walker said it was to be packed as tightly as possible and wrapped in waterproofed containers so that just in case it was necessary to kick them overboard it could be done, although he (Walker) .envisioned no problem. Walker also stated that he would be ready on twenty-four-hour notice to meet Webster or Wilets or any of the coconspirators at a pick-up point in Lower California. He asked for an advance of $250 to defray the costs of renting a boat but he did not receive this sum. On August 18, Webster returned to Mexico; driving to Tijuana with Wilets, then flying on to Guadalajara alone. But when he reached Guadalajara he did not find Wilson, so he left by plane the next day for Puerto Vallaría where he located Wilson. Wilson would not return to Guadalajara with Webster as he stated that he had to go to Jalapa and Webster then accompanied Wilson and his wife to that town. Webster inquired why nothing had been done and why no sample had been received, and Wilson stated that he did not have the funds to stay in Guadalajara but that he had gone there anyway and found that the heroin which he thought was available was not available; that he had met with Medina concerning this; and that he was returning to Jalapa to wait for a letter from Medina stating when the heroin was available. Wilson returned to Guadalajara with Webster where they met Agent Chappell of the United States Bureau of Narcotics. Wilson told Chappell and Webster that he was sorry the deal had not gone off as originally scheduled and that he did not think that it was quite final enough to convince the people from whom they were buying. Wilson said that now that Chappell and Webster were both on the scene he (Wilson) would get everything rolling at once. Wilson suggested that he and Webster go back to the penitentiary to see Talaveras who was the contact man for Medina so they could once again talk to Medina. Talaveras sent them to Medina and Wilson, Chappell and Webster had a discussion with Medina at a bar in Guadalajara in which Medina stated that he was sorry he had not made the delivery but that he did not quite believe the whole thing was real and that he thought that somebody was trying to get a kilo of heroin reserved in case he could raise the money; but that since the parties were on the scene Medina would be able to supply the heroin on one week’s notice. Wilson inquired whether it would be possible to get the heroin before one week, but Medina said they would have to get the opium from the fields and process it through their laboratory to make the heroin and that it would take about a week; Medina said there was no problem with the marihuana. A meeting was arranged for two days later so that Chappell, Wilson, Webster and Medina could talk to the man who was the grower and who supplied the opium. His name was Mendez and the meeting was held at a hotel in Guadalajara; Wilson was not present at this meeting. At the meeting Mendez told Chappell that he had the opium but that it would take about a week to make it into heroin. Chappell got into a disagreement with Medina and Mendez. The latter wanted Chappell, Wilson and Webster to go to Uruapan (an Indian village about one hundred miles from Guadalajara, up in the mountains) because they were not too sure that the others were not federal agents and they were worried about federal agents in Guadalajara and also did not want to take the chance of being highjacked by other entrepreneurs. Chappell took the position that he did not want to take the chance of being in a remote Mexican village with large sums of money. It was finally decided that Wilson would go with Medina and Mendez to Uruapan and would accompany them to the farm to inspect the narcotics. At the meeting the delivery date was set for August 28 and Chappell and Webster were to wait in Guadalajara for a telephone call from Wilson which came late on the night of the 28th.
On that night Chappell and Webster accompanied by Mexican narcotics agents drove to Uruapan. On the morning of the 30th they met Wilson in Uruapan and Wilson told Chappell that there was 500 kilos of marihuana and 15 kilos of opium at Mendez’s farm and that Mendez had brought five kilos of opium to Uruapan to show that the narcotics were available.
Webster, Wilson, Chappell and a Mexican narcotics agent then proceeded to a hotel room where Mendez and Medina were present; Chappell requested to see the narcotics and Mendez left the room and returned with a shopping bag which he put on the bed and from which he extracted a shoe box. Chappell looked at the contents and confirmed that it was opium and then went in to brush his teeth, extracted a revolver from a handbag and placed Wilson, Medina and Mendez under arrest. The opium seized at that time weighed approximately two kilos.
Under cross-examination Webster testified that Goldheimer had given him his telephone number while they were in jail together in Long Beach; also he reaffirmed his testimony that when Goldheimer had shown him certain charts or maps on the yacht he had displayed one to him and said: “We have one all set up.” As to his discussion with Wilets, he stated that Wilets specifically instructed him to appear to go along with Goldheimer “but not to lead him.” He was told to contact Goldheimer but was instructed to “let them make the first move.” Webster stated that he was told by Wilets after he had described the conversation which he had had with Goldheimer and Walker, that “if there is a conspiracy I am to go along with it; but that I wasn’t to attempt to build a case.”
Corroborative testimony was given by Agent Chappell, agent in charge of the Los Angeles office of the Federal Bureau of Narcotics, and Agent Wilets. Appellants Goldheimer and Walker testified in their own behalf.
At the conclusion of all testimony, both sides rested; the court instructed the jury; and, after deliberation, the jury returned verdicts of guilty as charged in each count against each appellant. A judgment of twenty years was entered on both counts, to run concurrently, against each appellant. From the verdict and judgment, appellants appeal to this court.
Specification of Errors
Appellant Goldheimer contends the following errors were committed by the trial court:
“1. The Court erred in denying defendant and appellant’s motions to grant a judgment of acquittal and in denying the motions for new trial. Entrapment was conclusively proven.
“2. The defendant and appellant was denied a fair trial by reason of incidents occurring during the course of the trial, and particularly, the instruction of the trial court on the question of entrapment.
“3. As a matter of law, the guilt of the defendant was not established. The evidence was not sufficient, even if the evidence by all of the Government’s witnesses is to be fully believed, as must be the situation here.”
Appellant Walker contends the following errors were committed by the trial court:
“1. The Court erred in denying defendant and appellant’s motion to grant a judgment of acquittal and in denying the motion for a new trial.
“2. The evidence was insufficient to support the verdict against Appellant Walker.
“3. The defendant and appellant was denied a fair trial by reason of rulings made during the course of the trial and particularly the instruction of the trial court on the question of entrapment which was an improper statement of the law.
“4. That the Court erred in refusing to consider the affidavits filed in support of the motion for new trial, particularly since the misunderstanding set forth therein was occasioned by the improper instructions of the Court on the law of entrapment.
“5. The Court erred in admitting testimony of Agent Chappell whose testimony related incidents which were beyond any schemes or plans known to Appellant Walker.”
I
The Defense of Entrapment
Appellants rely on two leading Supreme Court cases to support their argument that the law of entrapment is applicable to their cases.
The first is Sorrells v. United States, 1935, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. The facts of that case clearly distinguish it from the instant case. In Sorrells the Court reversed a conviction, holding that the district court was in error when it refused to submit the defense of entrapment to the jury, and held that there was no entrapment as a matter of law. in the instant case, the district court did submit the issue to the jury under the principles enunciated in Sorrells, and even made reference, as an example, to the facts of the Sorrells case. The record supports appellee’s contention that this issue was submitted to, and determined by, the jury. Thus, Sorrells v. United States, supra, is not in point.
The second case cited by appellants is Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. In Sherman the facts clearly indicate that entrapment was shown as a matter of law. There the defendant was not “in the trade” and attempted to avoid narcotics; i. e., he repeatedly refused to discuss narcotics with the government’s informer. The two met while supposedly taking medical treatment for addiction. The informer, a supposed addict, appealed to the sympathy of the defendant, a former addict who was trying to cure himself of the habit. The informer gradually wore the defendant’s resistance down. The defendant finally consented to the scheme offered by the informer. In Sherman, the Court stated, in holding that entrapment was established as a matter of law, that it was not choosing between conflicting witnesses, nor judging credibility; but was reaching its conclusion from the undisputed testimony of the prosecutor’s witnesses. The Court, in the Sherman case, supra, stated:
“It is patently clear that petitioner was induced by [the informer].— The informer himself testified that, . believing petitioner to be undergoing a cure for narcotics addiction, he nonetheless sought to persuade petitioner to obtain for him a source of narcotics. In [the informer’s]— own words we are told of the accidental, yet recurring, meetings, the ensuing conversations concerning mutual experiences in regard to narcotics addiction, and then of [the informer’s] — resort to sympathy. One request was not enough, * * * additional ones were necessary to overcome, first, petitioner’s refusal, then his evasiveness, and then his hesitancy in order to achieve capitulation. — [The informer] not only procured a source of narcotics but apparently also induced petitioner to return to the habit. Finally, assured of a catch, [the informer]— informed the authorities so that they could close the net. The Government cannot disown — [the informer] and insist it is not responsible for his actions. * * * In his testimony the federal agent in charge of the case admitted that he never bothered to question — [the informer] about the way he had made contact with petitioner. The Government cannot make - such use of an informer and then claim disassociation through ignorance.” (356 U.S. 373-375, 78 S.Ct. 821.)
The record of the instant case clearly shows that the conduct of the government agents did not approach that found in the Sherman case. Here, Agent Wilets questioned Webster. When Webster initially contacted Wilets, he was specifically instructed to go along with Goldheimer “but not to lead him”; Webster was told to contact Goldheimer but was instructed to “let him [Goldheimer] make the first move.” Webster further testified that he had been cautioned by Wilets after Webster had reported the conversations he had had with Goldheimer and Walker; Wilets told Webster: “If there is a conspiracy * * * go along with it; but * * * [do not] attempt to build a case.” When Webster called Wilets to report the happenings on the first trip to Mexico, Wilets again cautioned Webster “to let Goldheimer lead, not to try to take over himself.” Whether the jury accepted such testimony at its face value, we do not know, but it did have the right to so accept it.
The record does not indicate that appellants made the slightest attempt to avoid contact with narcotics. They freely discussed narcotics, and their introduction into this country. They were not addicts; Webster made no appeals to their habits; supplied them with no narcotics; and there was no gradual wearing down of their resistance. We cannot believe the Sherman case, supra, is in point.
The instant case more closely parallels the case of Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, which case was decided by the Supreme Court on the same day as Sherman v. United States, supra, was decided. The contrast between the two cases is revealing.
In Masciale, as in the case of Goldheimer, the appellant was acquainted with the government’s special employee without knowing that the latter was an undercover agent. There, as here, the government agent was introduced as a man with money interested in talking about and buying large quantities of high grade narcotics. Here, as in Masciale, appellant could have withdrawn from the conversations, or refused to conduct further meetings, but instead appellants had additional meetings and conversations and Goldheimer discussed his “contacts” in Mexico and his plan to smuggle narcotics into the United States; Walker with full knowledge of this plan agreed to join the conspiracy as the water transportation specialist. He explained how the narcotics should best be packaged, and requested funds with which to charter a boat.
Where did the criminal design originate? It was Goldheimer who had the “contacts” in Mexico, and knew where to find them. The government had no prior knowledge of Walker’s sailing ability, it was Goldheimer who induced Walker to join the conspiracy. It was Walker who had previously observed the laxness of customs officials in inspecting private pleasure vessels; it was he who devised the plan of wrapping the narcotics in the sailing bags, and it was he who volunteered to study further the customs procedures at ports of entry to the United States in order to assure success.
This court has repeatedly held, follow-ing the rationale of Masciale, supra, that when the issue of entrapment is present, and there is conflicting testimony and credibility factors are involved, the trial court cannot fulfill its functions unless it submits the issue to the jury. It is then that the jury may, on the evidence submitted, determine whether the criminal design originated with the defendants and thereby find, as it did here, for the prosecution on the issue of the defendants’ guilt, or that the criminal design originated with the government’s agents, and constituted entrapment.
Entrapment was not proved as a matter of law, and the trial court properly submitted the issue to the jury.
II
Court’s Instructions on Entrapment
Appellants contend that they were denied a fair trial because the trial court commented on the law of entrapment in such a way as to “emasculate” the instructions given on entrapment to the jury. The instructions given the jury, and the court’s comments on entrapment, are set forth on pages 426-430 of the transcript. The appellants contend that these instructions and comments resulted in a denial of a fair trial. We cannot so read them. But if we could, we note that the court asked each side whether they were satisfied with the instructions, as they were given with comments. The court asked:
“Now, are there any matters that either side wish to take up before the jury finally retires to deliberate on the verdicts?”
Each counsel replied that they were satisfied to have the case then submitted to the jury. No exceptions were taken to any instructions given the jury before it retired for its deliberation.
Rule 30 provides in pertinent part: “* * # No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * * ”
Having failed to comply with Rule 30, and not contending that plain error had been committed, and because the instructions taken as a whole and read together do not appear prejudicial, the appellants are barred from presenting this issue on appeal.
Ill
Agent Chappell’s Testimony
Appellants contend that the testimony of Agent Chappell should not have been admitted and that its admission was highly prejudicial to their case.
We do not believe the admission into evidence of this testimony was erroneous under the pleading of conspiracy. The jury was admonished by the court and the court gave instructions relating to the law of conspiracy.
It should be noted that this testimony covered events which terminated on August 29, 1960; that the indictment alleged a conspiracy which continued to August 30, 1960; and that the evidence does not indicate that either appellant had withdrawn, or that the conspiracy had terminated, prior to August 29, I960.
Chappell’s testimony mainly concerns admissions and declarations made by Wilson, or other unindicted coconspirators, to him with regard to the operations and scheme from which the conspiracy was formed. It is well settled that every act or declaration of each member of the conspiracy in furtherance thereof, while the conspiracy is in operation, is considered the act or declaration of each member of that conspiracy. Barnett v. United States, 9 Cir. 1949, 171 F.2d 721.
IV
Sufficiency of Evidence as to Walker
While Walker did not participate as actively in the conspiracy as did Goldheimer, a review of the record indicates that appellant Walker was actively interested in participating in the plan to smuggle narcotics into the United States; that it was agreed he was to perform one of the vital functions in the conspiracy (that of providing the transportation, and transporting the narcotics into the United States), and that he at no time withdrew from his participation in the conspiracy.
It is apparent therefore that there was sufficient evidence to go to the jury concerning Walker’s participation and role in the conspiracy. It is well settled that, on review, the evidence must be viewed in the light most favorable to the government. Glasser v. United States, 1941, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Under such an examination, there exists ample evidence to include Walker as a conspirator. That he received the same sentence as did a more active participant is a matter of the trial court’s discretion — concerning which we legally have nothing we can say.
V
The Juror’s Affidavit
Appellant Walker offered an affidavit of a juror in support of his motion for a new trial; the affidavit concerns, not extrinsic matters or pressures on the jury, but an alleged misconception by the jurors of the court’s instructions on entrapment. This same question was presented in Rotondo v. Isthmian Steamship Lines, 2 Cir., 1957, 243 F.2d 581, 583, where the court said:
“The motion wholly misconceives the law relating to this subject. There have indeed been cases where the court has set aside a verdict because evidence was brought before the jury outside of court. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917, is the leading decision upon that point. However it is completely well settled that, when objection rests upon the juror’s testimony as to what were the reasons that in fact induced them to find their verdict, the court will not hear them.”
The Supreme Court discussed this same question — and some of the considerations therein involved — in Stein v. People of State of New York, 1953, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, where it said:
“ ‘If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation [of the jury within the jury room], the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.’ [Citation.]” (346 U.S. at 178, 73 S.Ct. at 1089.)
We believe the trial court properly refused to consider the affidavit offered by appellant Walker. Therefore the trial court’s denial of a new trial was proper.
The judgment of conviction as to both appellants is affirmed.
. 21 U.S.C.A. § 174 provides in part as follows:
“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. * * *
“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.”
. 21 U.S.C. § 176a provides in part as follows:
Ҥ 176a. Smuggling of marihuana; penalties, evidence; definition of marihuana.
“Notwithstanding any other provision of law, whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. V *1* W
“Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.
“As used in this section, the term ‘marihuana’ has the meaning given to such term by section 4761 of the Internal Revenue Code of 1954.”
. An electronic recording device had been installed in the car and the entire conversation during the car ride had been recorded on tape. These tapes were identified as Exhibits 1A, IB and 10 and were introduced into evidence.
. When these discussions were conducted in Wilets’ car they were being recorded on a tape recorder which Wilets had placed in the car. The recordings were identified and introduced into evidence as Exhibits 2A, 2B and 20.
. At this point counsel for Goldheimer objected to the introduction of evidence of the conversation at this meeting as not binding upon anyone who was absent and the court stated that it could only be binding upon anyone who was absent if it was connected np to show a conspiracy and that the indictment did allege that Medina and Mendez were members of the conspiracy.
. There was an objection by defense counsel that the proceedings testified to were hearsay as to the appellants and the court again gave cautionary instructions on the question of conspiracy.
. The statement of facts is condensed from the testimony of Webster; Chappell and Wilets corroborated this evidence. Appellee sets forth a detailed and exhaustive statement of facts in its brief, pp. 5-22.
. Though appellants submit separate briefs, several questions are common to both; Walker’s brief raises two additional questions which are not presented in Goldheimer’s brief. The common questions will be treated first; Walker’s two additional questions being treated in conclusion.
. Matthews v. United States, 9 Cir., 1961, 290 F.2d 198; Young v. United States, 9 Cir., 1960, 286 F.2d 13; Hattem v. United States, 9 Cir., 1960, 283 F.2d 339; Cellino v. United States, 9 Cir., 1960, 276 F.2d 941; Bruno v. United States, 9 Cir., 1948, 259 F.2d 8.
. Fed.R.Crim.P. 30 (18 U.S.C.A.).
. Fed.R.Crim.P. 52(b) (18 U.S.C.A.).
. On September 5, 1960, Goldheimer met Wilets to discuss the status of the operation and four days later, on September 9, 1960, Goldheimer and Walker met with Wilets to discuss and plan the final phase of the operation — still unaware of the fact that Wilets was a federal officer.
. Appellant Walter in his brief at p. 27 admits that be entered into a “purported conspiracy to import narcotics into the United States”; “His wliole defense was based upon the fact that he was unlawfully entrapped * * (Br. 23.)
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer: |
songer_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
VON PATZOLL v. UNITED STATES. BRANDON v. SAME. FEEZELL v. SAME. EVANS v. SAME.
Nos. 3442-3445.
Circuit Court of Appeals, Tenth Circuit.
July 9, 1947.
Rehearing Denied Aug. 14, 1947.
Writ of Certiorari Denied Oct. 27, 1947.
See 68 S.Ct. 110.
BRATTON, Circuit Judge, dissenting.
See also 10 Cir., 163 F.2d 221.
Earl Pruet and J. B. Barnett, both of Oklahoma City, Old., for appellants.
Robert E. Shelton, U. S. Atty., of Oklahoma City, Okl., for the United States.
Before PHILLIPS, BRATTON and MURRAH, Circuit Judges.
PHILLIPS, Circuit Judge.
Von Patzoll, Brandon, Feezell, and Evans were charged by information containing two counts with violations of 27 U.S.C.A. § 223, which makes it unlawful to “import, bring, or transport any intoxicating liquor into any State in which all sales * * * of intoxicating liquor containing more than 4 per centum of alcohol by volume are prohibited * * * or assist in so doing.” The first count charged that they unlawfully transported intoxicating liquor from the State of Texas into the State of Oklahoma, the latter being a state wherein all sales of intoxicating liquor containing more than 4 per cent of alcohol by volume are prohibited. The second count charged that they unlawfully assisted in such transportation. They were tried to the court without a jury and found not guilty on the first count and guilty on the second count.
The defendants offered no evidence at the trial. The government’s evidence established these facts: On June 8, 1946, Roy B. Mogridge and Ralph Bratcher, investigators for the Alcohol Tax Unit, knowing that Von Patzoll had been a liquor dealer in Oklahoma City for a number of years, were watching liquor stores in Dallas, Texas. They were in an automobile. They saw Von Patzoll’s automobile, a Buick coupe, parked in front of the LaMar Liquor Store at Dallas, Texas, and observed two men in the street, and Von Patzoll talking to the manager of the Liquor Store. They drove past the Buick coupe and stopped for a traffic light. The Buick coupe came up beside them and passed on ahead of them. They followed it a short distance and then turned around and came back to the Liquor Store and parked. About an hour later, they again observed the Buick coupe at the Liquor Store. Von Patzoll and one other man were in the Buick coupe and a third man was in the store. In a short time, Von Patzoll and the two men left the Liquor Store. About 10 o’clock that night, the investigators saw a man, later identified as Brandon, get out of the Buick coupe and walk across the street to the Leeway Parking Lot and go to an International truck with a semi-trailer bed. He drove away in the truck. The truck was then empty. The truck proceeded to a filling station on Corinth Street. The investigators passed the filling station, turned, drove back, and observed the truck at the filling station with some one in it. Mogridge and Bratcher advised investigators Lamphear and Pauly by radio that they had followed the truck and that it was at the filling station. Lamp-hear and Pauly then drove past the filling station and saw a Buick sedanette move into the filling station and park alongside the truck, and observed a man loading a package, which resembled a case of whiskey, into the truck. They advised Mogridge and Bratcher of that fact by radio. Mogridge and Bratcher then drove back to the filling station and observed the International truck moving north on LaMar Street, followed by the Buick sedanette. They then notified Lamphear and Pauly that the truck wa.s moving and the four investigators followed it to Davis, Oklahoma. From the time they started to follow the International truck, it was within their sight until they seized it a short distance beyond Moore, Oklahoma. The International truck stopped at Davis, Oklahoma; and the driver went into an eating house, apparently to obtain coffee. Later, a man came out of the eating house, boarded the International truck, and drove it on to Moore, Oklahoma, arriving at the latter point about 4:05 a. m., June 9, 1946. The investigators did not identify the man who entered the eating house, neither was there testimony that the man who left the International truck at Davis to go into the eating house was the same man who drove the International truck from Davis to Moore. The International truck stopped alongside the road at Moore, Oklahoma. About 4:35 a. m., the' Buick coupe came from the south and passed the International truck. It was followed by a Buick truck. The Buick coupe and the Buick truck stopped near to the International truck and Feezell alighted from the Buick coupe and boarded the In- , ternational truck. Von Patzoll also alighted from the Buick coupe and walked over to the International truck. Brandon, the driver of the Buick truck, also came over to the International truck. There was a short conference between Von Patzoll and Brandon, and the trucks and the Buick coupe then proceeded on. The International truck was in front, the Buick truck behind it, and the Buick coupe behind the latter. The investigators followed them. After the International truck, the Buick truck, and the Buick coupe had proceed- ' ed outside of Moore, the Buick truck passed the Internationl truck and disappeared. The Buick coupe continued to follow the International truck. The investigators first stopped and took charge of the Buick coupe driven by Von Patzoll. A short distance further, they stopped the International truck. They found Feezell and Evans in the International truck. They identified themselves as investigators and asked Evans what he had in the truck. Evans replied, “I have got what you are looking for.” Mogridge replied, “We are looking for liquor.” Evans said, “Well, I have got it.” They searched the truck and found about 30 cases of whiskey therein. They seized the International truck, the Buick coupe, and the whiskey.
Lamphear and Pauly then undertook to locate Brandon and the Buick truck. After proceeding about 100 yards, they observed a car running without lights. They stopped it and found Brandon in the car. They searched the Buick truck but found no liquor. The investigators found a fifth of tax-paid whiskey in the Buick coupe.
The investigators searched Von Patzoll at the time they arrested him and found sheets out of a notebook in his pocket with notations of prices and brands of whiskey, and addresses of liquor dealers in Dallas, T exas.
18 U.S.C.A. § 550 provides, “whoever directly commits any act constituting an offense defined' in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.”
This statute does away with the subtle distinctions recognized, with respect to felonies at common law, between principals and accessories before and at the fact and makes them all principals, whether the offense is a felony or a misdemeanor.
Conviction of the principal is not a prerequisite to the conviction of the aider and abettor.
And the acquittal of the principal presents no impediment to the trial and conviction of a person charged with aiding and abetting the commission of the crime. This because one who aids or abets the commission of a crime is guilty as a principal of a substantive, independent offense.
The proof must establish that the offense was committed by some one and that the person charged as an aider and abettor, aided and abetted in its commission. However, it is not necessary to identify the actual perpetrator of the crime. He may be unknown.
The fact that one mistakenly supposed to have committed the crime was tried therefor and acquitted does not affect the guilt or liability to punishment of one proven to have been present aiding and abetting, so long as it is established that the crime was committed by some one. In Regina v. Wallis, 91 Eng.Rep. R. 294, there was an indictment against A for the murder of Cooper, and against E and others, as persons present assisting, aiding, and abetting A therein. In the opinion the court said; “* * * upon evidence it appeared, that the person slain was a constable, and in the execution of his office with divers other constables in May-Fair. That E. the prisoner first drew his sword, and with divers others, to the number of forty persons, fell upon the constables; that this affray continued an hour after, till in the end one of the constables, viz. the said John Cooper, was slain; but by whose hand it did not appear. It also appeared that A. had been tried on this indictment and acquitted. * * * Though the indictment be against the prisoner for aiding, assisting, and abetting A. who was acquitted; yet the indictment and trial of this prisoner is well enough, for who actually did the murder is not material; the matter is, that a murder was committed, and the other is but a circumstance, and all are principals in this case; therefore, if a murder be proved, it is well enough.”
Under § 550, supra, an aider and abettor may be charged directly with the commission of the crime and the charge may be supported by proof that he aided and abetted in its commission.
The transportation of the intoxicating liquor from Dallas, Texas, to the point beyond Moore, Oklahoma, where the International Truck was seized, was a single transportation. Throughout the journey, the movement retained the character of interstate commerce. It continued to be a single transportation into Oklahoma. It, therefore, was a continuing offense. But where the transportation of intoxicating liquor into a state, in which all sales of intoxicating liquor are prohibited, reaches its intended destination in such state, or where the transportation otherwise ceases, and the intoxicating liquor comes to rest in such state, the offense is no longer a continuing one, and a subsequent transportation thereof within the state is not a transportation into such state. Counsel for appellants rely on Morgan v. United States, 10 Cir., 159 F.2d 85. What was said in the opinion in that case must be read in the light of the particular facts there presented. In the Morgan case, investigators for the Alcohol Tax Unit observed Morgan driving an automobile a short distance south of Lawton, Oklahoma, traveling toward that city. They stopped Morgan and found 20 cases of whiskey in the automobile. Morgan admitted the whiskey came from Fort Worth, Texas, but refused to admit that he transported it from Fort Worth into Oklahoma. There was no proof of the actual transportation from Texas into Oklahoma, except what might be inferred from the fact that the whiskey was found in Oklahoma and originated in Texas. There was a total absence of proof that the transportation by Morgan was a part of the transportation from Fort Worth into Oklahoma. For aught that appears, the transportation into Oklahoma may have been completed and the whiskey come to rest in Oklahoma before it was transported in Oklahoma by Morgan.
In the instant case, there was proof that the whiskey seized was transported in the International truck from Dallas, Texas, to a point beyond Moore, Oklahoma; that the truck was driven from Davis to Moore,. Oklahoma, by Evans, and from Moore to-the point of seizure by either Evans or Feezell. The proof did not establish the identity of the driver of the International truck from Dallas to Davis. The movement from Davis to the point beyond Moore, where the International truck was seized, was a part of a single continuous transportation from Dallas to the point of seizure, and warranted the court in finding that there was an unlawful transportation into Oklahoma by some one, and that Evans and Feezell assisted in that transportation. On the facts, we think the instant case is distinguishable from the Morgan case.
There was also proof that Von Patzoll transported Brandon from the Liquor Store to the Leeway Parking Lot in his Buick coupe; that Brandon drove the International truck from the Leeway Parking Lot to the filling station in Dallas; that the whiskey was loaded into the International truck from the Buick sedanette; that Von Patzoll also, transported Feezell from some point south of Moore to Moore, Oklahoma, and there conferred with Brandon, Feezell, and Evans, the latter having arrived at Moore in the Buick truck. There can be no doubt, under the evidence, that Von Patzoll and Brandon were interested in the transportation. It warranted the court in finding that Von Patzoll and Brandon induced or- procured Feezell and Evans to assist in the unlawful transportation, and adjudging them guilty as principals.
The facts within the knowledge of the investigators, and of which they had reasonable trustworthy information, were sufficient to lead a reasonably discreet and prudent man to believe that intoxicating liquor was being transported in the International truck into Oklahoma. It was not practical for the investigators to obtain a search warrant. The search and seizure was, therefore, lawful.
Section 223, supra, became applicable with respect to importation into Oklahoma on the enactment of 37 Okl.St.Ann. §§ 41 to 48, inclusive, in 1939. The Legislature of Oklahoma, at its 1947 session, enacted House Bill No. 254, 37 O.S.Supp. § 163.1 et seq. It carried the emergency clause and, therefore, became effective on April 24, 1947, the date of its approval. Section 22 of the latter Act in part provided: “37 O.S.1941 §§ 41, 42, 43, 44, 45, 46, 47, and 48, are hereby repealed.” Laws 1947, p. 296.
Here, the defendants were charged and convicted under a Federal law which is still in force and effect. It is true that the existence of the requisite prohibitory laws of Oklahoma is a factual ingredient of the Federal offense with respect to importations into Oklahoma, but that factual ingredient existed when the offense was committed. The repeal of 37 O.S.1941 §§ 41 to 48, inclusive, in nowise repealed the Federal statute. It merely brought to an end a continuing fact which is an essential factual element of the Federal offense. Since the facts essential to the Federal offense were present at the time that offense was committed, the subsequent repeal of the Oklahoma statute does not bar the Federal prosecution. United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763, 89 A.L.R. 1510, is distinguishable. It involved a prosecution under rhe National Prohibition Act, 27 U.S.C.A. § 1 et seq. The court held that pending prosecutions under the National Prohibition Act could not be maintained after the effective date of the Twenty-first Amendment of the Constitution of the United States, because the National Prohibition Act, to the extent that its provisions rested upon the grant of authority to the Congress by the Eighteenth Amendment, immediately fell with the withdrawal by the people of the essential constitutional support. Here, the Federal Act remains in full force and effect. We hold that prosecutions, under the Federal statute, may be maintained for offenses committed while the requisite Oklahoma prohibitory laws were in effect.
Affirmed.
Rooney v. United States, 9 Cir., 203 F. 928, 932; Colbeck v. United States, 7 Cir., 10 F.2d 401, 403; Sugar v. United States, 6 Cir., 252 F. 79, 85; Di Pre-ta v. United States, 2 Cir., 270 F. 73, 75; Kelly v. United States, 6 Cir., 258 F. 392, 402; Richardson v. United States, 3 Cir., 181 F. 1, 6; Ruthenberg v. United States, 245 U.S. 480, 483, 38 S.Ct. 168, 62 L.Ed. 414; United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 88 L.Ed. 48. See, also, Morei v. United States, 6 Cir., 127 F.2d 827.
Kaufman v. United States, 2 Cir., 212 F. 613, 617, Ann.Cas.l916C, 466; Beauchamp v. United States, 6 Cir., 154 F.2d 413, 416; Rooney v. United States, 9 Cir., 203 F. 928, 933; State v. Bogue, 52 Kan. 79, 34 P. 410, 412; Goins v. State, 46 Ohio St. 457, 21 N.E. 476, 478; State v. Smith, 100 Iowa 1, 09 N.W. 289; State v. Anderson, 89 Mo. 312, 1 S.W. 135, 142; Boyd v. State, 17 Ga. 194, 196.
Rooney v. United States, 9 Cir., 203 F. 928, 933; Kelly v. United States, 6 Cir., 258 F. 392, 402; Regina v. Wallis, 91 Eng.Rep.R. 294; King v. Taylor and Shaw, 168 Eng.Rep.R. 283; Brown v. State, 28 Ga. 199, 217; Skipper v. State, 150 Fla. 259, 7 So.2d 128, 129, 130; State v. Wilson, 235 Iowa 538,17 N.W.2d 138, 140; Id., Iowa, 19 N.W.2d 232, 239; Christie v. Commonwealth, 193 Ky. 799, 237 S.W. 660, 681, 24 A.L.R. 599; Smith v. Commonwealth, 216 Ky. 813, 288 S.W. 752, 753; Bruce v. Smith, 99 Ga. 50, 25 S.E. 760, 761; Montague v. State, 17 Fla. 662, 665; Goins v. State, 46 Ohio St. 457, 21 N.E. 476, 478; People v. Kief, 126 N.Y. 661, 27 N.E. 556, 557; State v. Martino, 27 N.M. 1, 192 P. 507, 509; Note, 24 A.L.R. p. 603; Note, 8 Ann. Cas. 439; United States v. Hart-well, 26 Fed.Cas.No.15318, pp. 198, 199.
State v. Smith, 100 Iowa 1, 69 N.W. 269; Hornsby v. State, 29 Ohio App. 495, 163 N.E. 923, 924; Hanoff v. State, 37 Ohio St. 178, 184, 41 Am.Rep. 496; Noland v. State, 19 Ohio 131, 132.
Goucher v. State, 113 Neb. 352, 204 N.W. 967, 968, 41 A.L.R. 227.
Regina v. Wallis, 91 Eng.Rep.R. 294; Spies v. People (The Anarchists Case), 122 Ill. 1, 12 N.E. 865, 912, 17 N.E. 898, 3 Am.St.Rep. 320; Howard v. Commonwealth, 110 Ky. 356, 61 S.W. 756, 757, 758.
Jin Fuey Moy v. United States, 254 U.S. 1S9, 192, 41 S.Ct. 98, 65 L.Ed. 214; Greenberg v. United States, 8 Cir., 297 F. 45, 48; Harris v. United States, 2 Cir., 273 F. 785, 790; Di Preta v. United States, 2 Cir., 270 F. 73, 75; Kelly v. United States, 6 Cir., 258 F. 392, 402; Vane v. United States, 9 Cir., 254 F. 32, 33, 34; Wood v. United States, 4 Cir., 204 F. 55, 58; Colbeck v. United States, 7 Cir., 10 F.2d 401, 403; Madigan v. United States, 8 Cir., 23 F.2d 180, 181; Collins v. United States, 8 Cir., 20 F. 2d 574, 578; Rosencranz v. United States, 9 Cir., 155 F. 38, 41, 43. See, also, Regina v. Manning, 175 Eng.Rep. R. 372, 380, construing a similar English statute; and People v. Bliven, 112 N.Y. 79, 19 N.E. 638, 639-645, 8 Am. St.Rep. 701; Spies v. People (The Anarchists Case), 122 Ill. 1, 12 N.E. 865, 912, 17 N.E. 898, 3 Am.St.Rep. 320; Chambers v. State, 194 Ga. 773, 22 S.E. 2d 487, 489^492; People v. Outeveras, 48 Cal. 19, 21-26, construing similar state statutes.
McBoyle v. United States, 10 Cir., 43 F.2d 273, 275 (reversed on another ground, 283 U.S. 25, 51 S.Ct. 340, 75 L. Ed. 816).
See Jewel Tea Co. v. Williams, 10 Cir., 118 F.2d 202, 207.
Jenkins v. United States, 10 Cir., 161 F.2d 99; Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Husty v. United States, 282 U.S. 694, 701, 51 S.Cfc. 240, 75 L.Ed. 629, 74 A.L.R. 1407. Cf. Hart v. United States, 10 Cir., 162 F. 2d 74.
Tucker v. United States, 10 Cir., 123 E.2d 280. Cf. Dunn v. United States, 10 Cir., 98 F.2d 119, 117 A.L. R. 1302.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_applfrom | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Carl Lee JOHNSON, Appellant, v. Officer SWYKA, Capt. L.G. Tohey, Robert Maroney, Deputy Supt., George Petsock, Superintendent.
No. 82-5594.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Feb. 10,1983.
On Remand from the Supreme Court Submitted Under Third Circuit Rule 12(6) June 6,1985.
Decided June 19, 1985.
Carl Lee Johnson, pro se.
Leroy S. Zimmerman, Atty. Gen., José Hernandez-Cuebas, Deputy Atty. Gen., Pittsburgh, Pa., for appellee.
Before ALDISERT, HUNTER, and SLOVITER, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
We have been directed by the United States Supreme Court to reconsider our previous decision in this case, reported at 699 F.2d 675 (3d Cir.1983), in light of Wilson v. Garcia, 471 U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Johnson v. Swyka, — U.S. -, 105 S.Ct. 2108, 85 L.Ed.2d 474 (1985). Upon reconsideration we remand the cause to the district court for further proceedings.
Appellant Carl Lee Johnson, a prisoner at the State Correctional Institution at Pittsburgh, alleged that he was taken to the institution’s Restricted Housing Unit following a sit-down demonstration. The next day he received a misconduct report that he contends was false and did not provide him with adequate notice of the charges against him. He was afforded a disciplinary hearing on August 31, 1981, before the institution’s Hearing Committee and found guilty. After an unsuccessful appeal to the institution’s Program Review Committee, he brought this civil rights action under 42 U.S.C. § 1983 in the district court on May 13, 1982. The magistrate to whom the action was referred concluded that the action was time-barred by 42 Pa. Cons.Stat.Ann. § 5522(b)(1), Pennsylvania’s six-month limitations period. Her report was adopted by the district court in an order entered on October 25, 1982, and Johnson appealed.
When we first decided this case, we vacated the judgment of the district court and remanded the proceedings for reconsideration of the statute of limitations issue in light of this court’s decision in Knoll v. Springfield Township School District, 699 F.2d 137 (3d Cir.1983). See Johnson v. Swyka, 699 F.2d at 676. Subsequently, the Supreme Court granted petitions for certiorari in both Knoll and this case, vacated our judgments, and remanded both cases to us for reconsideration in light of Wilson v. Garcia, 471 U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). On remand in Knoll v. Springfield Township School District, 763 F.2d 584 (3d Cir.1985), we observed that the Court in Wilson v. Garcia held that “the state statute of limitations governing tort actions for the recovery of damages for personal injuries provides the appropriate limitation period [for § 1983 actions].” Id. at 585 (citing Wilson v. Garcia, 471 U.S. at -, 105 S.Ct. at 1947). We held that Pennsylvania’s two-year limitations period for personal injuries now should be applied to actions brought under § 1983. Id. at 585.
In our original decision in this case, we noted that the Supreme Court had granted a petition for certiorari in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), and that the disposition of Hewitt could affect the decision on the merits here. Hewitt has now been decided. Upon remand, therefore, the district court will adjudicate this case in light of Wilson v. Garcia, 471 U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254, Knoll v. Springfield Township School District, 763 F.2d 584, and Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675.
We will vacate the judgment of the district court and remand the cause for proceedings consistent with the foregoing.
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_applfrom | L | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
CUMBERLAND FARMIS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 92-2008.
United States Court of Appeals, First Circuit.
Heard Jan. 5, 1993.
Decided Feb. 4, 1993.
Philip J. Moss, with whom Moon, Moss, McGill & Bachelder, P.A., was on brief, for petitioner.
Deborah E. Shrager, Atty., with whom Jerry M. Hunter, Gen. Counsel, Yvonne T. Dixon, Acting Deputy Gen. Counsel, Nicholas E. Karatinos, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Peter Winkler, Supervisory Atty., were on brief, for respondent.
Before TORRUELLA, SELYA and STAHL, Circuit Judges.
TORRUELLA, Circuit Judge.
This case is before us on petition to review a decision and order of the National Labor Relations Board (the “Board”) filed by Cumberland Farms, Inc. (the “Company”), and the cross-application of the Board to enforce its order. The Board found that the Company violated §§ 8(a)(1) and (3) of the National Labor Relations Act (the “Act”), 29 U.S.C. §§ 158(a)(1) and (3) (1973), by engaging in coercive interrogation of its employees regarding their union activities, discharging employees because of these activities, and threatening to arrest a union agent while he distributed handbills on public property. Accordingly, the Board ordered the Company to reinstate the discharged employees with back pay, and to post notices admitting these violations and disclaiming future illegal action.
The Company challenges the findings of the Board, claiming that they are unsupported by substantial evidence on the record considered as a whole. We disagree and thus affirm the Board’s order.
THE FACTS
The record supports the Board’s finding of the following facts. The Company owns a dairy business that operates four plants, including one in Florence, New Jersey. In the summer of 1990, the United Food and Commercial Workers, Local 1360, United Food and Commercial Worker’s International, AFL-CIO (the “Union”) began organizing in this plant. Two employees, John Mariano and John Bartosh, distributed union authorization cards to the employees.
Shortly after they began the membership drive, their immediate supervisor, Company foreman John Messner, questioned them on several occasions regarding their actions and progress. Thomas Sweeney, the Company's Human Resources Director, also questioned Mariano about his union activities in the presence of Bartosh. Mariano and Bartosh admitted involvement with the drive.
On August 3, 1990, six days after Mariano and Bartosh began distributing Union authorization cards, the Company issued a letter to the employees urging them not to sign. At 5:30 p.m. of the same day, Emanuel Cavaco, the Company’s Manager of Dairy Operations, Robert Wood, the Florence plant manager, Sweeney, and plant engineer Allen Canney met with Mariano in a conference room and stated that they had received complaints about his distribution of union authorization cards. Mariano responded that he distributed them during non-working time. Cavaco contended, however, that given the number of complaints received, he must have engaged in these activities during working hours as well. The meeting became more confrontational when Cavaco accused Mariano of violating a Company no-solicitation rule. After further questioning Cavaco stated, “John, we took you out of the cooler; we put you in with the maintenance to learn something, and this is how you repay us. Do you have anything to say for yourself?” When Mariano said no, Cavaco suspended him indefinitely. Wood and Canney then escorted Mariano off the property and denied him access to his locker. Upon reaching the gate Wood said, “John, didn’t we just speak [about a salary increase] a ... week before this—and then you pull something like this? Do you have anything to say?”
Mariano left with the impression that the Company would further investigate. However, a week later, although no further inquiry was made, Mariano received a letter from the Company terminating him due to a “comprehensive investigation concerning the no-solicitation policies.”
On the day that Mariano was suspended, Cavaco, Sweeney, and Wood subjected Bar-tosh to a similar interrogation regarding alleged complaints against him for violation of the no-solicitation rule. Bartosh flatly denied these charges. Cavaco reminded Bartosh that the Company treated him favorably by moving him to the maintenance department and that he therefore “owed them.” Bartosh was then escorted off the Company premises after he locked his tools. When Bartosh returned to the plant to retrieve his tools, Wood fired him for having solicited on company property.
On August 16, various non-employee union organizers, including Mariano and Bar-tosh, distributed union handbills on the public highway near the Company’s plant entrance. Although the organizers were on public property, three Company security officers told one of them that they were on Company property and would be arrested if they did not leave. When they arrived, the Florence police officers indicated that, the handbillers were not violating the law.
STANDARD OF REVIEW
We uphold the Board’s findings of a violation as long as substantial evidence on the record as a whole supports them, even if we would have reached a different conclusion. 29 U.S.C. §§ 160(e) and (f).
ANALYSIS
I. Coercive Interrogation
Section 8(a)(1) of the Act protects employees from coercive interrogation regarding their union activities. NLRB v. Otis Hosp., 545 F.2d 252, 256 (1st Cir.1976). The existence of coercion is generally a factual issue and depends on the totality of the circumstances, id., including the setting of the interrogation and the status of the interrogators. P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 383 (1st Cir.1978). An interrogation need not contain explicit threats to be coercive. NLRB v. Gogin, 575 F.2d 596, 600 (7th Cir.1978).
Given the circumstances of this case, we cannot conclude that the evidence does not support the Board’s findings regarding the coercive nature of the interrogations. A team of high level managers confronted Mariano and Bartosh shortly after they began their concerted activities, questioned them about their Union affiliation, and accused them of ingratitude. Moreover, during the confrontations, the managers denied Mariano and Bartosh access to the evidence against them, and in essence, denied them an opportunity to defend themselves. Accordingly, the Board reasonably found the interrogations coercive.
II. Interfering with Lawful Union Activities
An employer lacks a legitimate interest in interfering with union activities which occur away from the employer’s property. Threatening to call the police, in the presence of employees, to interfere with lawful union activity violates the Act. NLRB v. Schlegel Oklahoma, Inc., 644 F.2d 842, 843 (10th Cir.1981). In the present case, Company security officers threatened to have the union organizers arrested in front of Mariano and Bartosh, who as unfair labor practice dischargees, continued to retain employee status under the Act, see 29 U.S.C. § 152(3). Accordingly, the Board correctly concluded that the threat violated Section 8(a)(1) of the Act.
III. Discharge
When an employer discharges an employee for supporting a union, he violates the Act, 29 U.S.C. § 158(a)(3), unless he proves that he would have taken the same action in the absence of the employee’s union activities. NLRB v. Amber Delivery Serv., Inc., 651 F.2d 57, 68-69 (1st Cir.1981). The employer fails to meet this burden, however, if the proposed reason for discharge is shown to be a mere pretext to disguise discrimination. NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 118 (1st Cir.1979).
In reaching its determination on motive, the Board may consider the timing of the discharge, id. at 117, any differences in the application of disciplinary rules, NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 959 (2d Cir.1988), cert. denied, 490 U.S. 1108, 109 S.Ct. 3162, 104 L.Ed.2d 1025 (1989), the procedures used for discharge, NLRB v. American Spring Bed Mfg. Co., 670 F.2d 1236, 1245 (1st Cir.1982), the investigation of the purported reasons for the discharge, Sioux Products, Inc. v. NLRB, 684 F.2d 1251, 1259 (7th Cir.1982), and the purported justifications for the ultimate actions, American Spring Bed Mfg. Co., 670 F.2d at 1245.
We conclude that substantial evidence on the record as a whole supports the Board’s findings regarding the discharges of Mariano and Bartosh. The Company admits that it discharged the employees for distributing union authorization cards. It argues, however, that by distributing those cards, Mariano and Bartosh were soliciting, and that the no-solicitation rule therefore justified the discharges.
We conclude, as did the Board, that the Company’s reliance on the no-solicitation rule was a pretext to justify discharges for engaging in union activity. At the time of the discharges, the Company knew that Mariano and Bartosh were the in-plant leaders of the union’s organizational effort. The Company then coercively interrogated them and then discharged them based solely upon a cursory investigation, affording them no opportunity to defend themselves. Moreover, the Company’s employees were generally unaware of the no-solicitation rule, much less its enforcement. Indeed, Mariano and Bartosh were the only employees that the Company ever disciplined for alleged violations of the no-solicitation rule. Accordingly, the Board reasonably determined that the no-solicitation rule was merely a pretextual justification for an illegal discharge.
In a final attempt to salvage the validity of the discharges, the Company claimed that Mariano and Bartosh engaged in time card irregularities. However, the Company failed to even mention this serious accusation at the time of the employees’ discharges. Thus, the Board reasonably afforded no credit to this argument.
CONCLUSION
We have considered all other allegations made by the Company and conclude that they lack merit. The Board’s judgment was rational and effectively promotes the goals of the Act. As such, we affirm the Board’s order.
The petition for review is denied and the Board’s request for enforcement of its order is granted.
Costs to the Board.
. The Board’s order is reported at Cumberland Farms, Inc., 307 N.L.R.B. 231 (1992).
. On one occasion, Messner said, "I heard you guys are giving out union cards. I'm all for the union; how’s the guys responding? Are you getting a lot signed?” On another occasion, he said: "How are you guys doing? Have you got a lot of cards signed? How’s the guys responding? I’m all for the union.”
.Sweeney asked, "Hey, John, ... anything new I should know about around here, like the union?”
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_treat | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Appellee, v. Joel Robert SCHEER, Appellant.
No. 521, Docket 83-1308.
United States Court of Appeals, Second Circuit.
Argued Dec. 13, 1983.
Decided Feb. 24, 1984.
Barry E. Griffith, Rutland, Vt., for appellant.
Holly K. Harris, Asst. U.S. Atty., Rut-land, Vt. (George W.F. Cook, U.S. Atty., D. Vt., Peter W. Hall, Asst. U.S. Atty., Rut-land, Vt. of counsel), for appellee.
Before MESKILL, KEARSE and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
Joel R. Scheer, a prisoner held under state charges in California, was transferred to the State of Vermont to answer federal charges. The transfer was made under the Interstate Agreement on Detainers Act (IADA or Act), 18 U.S.C. App., pp. 545-48; (1982); Pub.L. 91-538, §§ 1-8, 84 Stat. 1397-1403 (1970). Scheer claims on this appeal that his motion to dismiss the federal indictment in Vermont should have been granted because his rights under the Act were violated. He asserts that he was not brought to trial within 120 days of his arrival in Vermont, that a certificate setting forth the terms of his commitment, time served, time remaining to be served and the like was not furnished by the State of California and that his transfer was effected less than 30 days after receipt of á request for it. This appeal follows a judgment of conviction entered in the United States District Court for the District of Vermont (Coffrin, C.J.) pursuant to a written plea agreement, under which Scheer reserved the right to appeal the denial of his dismissal motion for the claimed violations of the Act. We turn to the facts, which are not in dispute.
I
On January 14,1982 a federal grand jury in Vermont handed down a six count indictment charging Scheer, a previously convicted felon, with various violations of the federal firearm statutes. On March 15, 1982 Scheer was arrested in California on state charges under the name of Randolph Bach-man. While Scheer was in jail awaiting disposition of those charges, federal authorities discovered his whereabouts and in April filed a detainer with the Los Angeles County Jail on the federal charges pending against him in Vermont. On May 27 Scheer pled guilty to grand theft in California and was sentenced to 16 months imprisonment, with credit for time served of 109 days. With the state charges resolved, Scheer contacted the United States Attorney’s office in Vermont and requested a prompt resolution of the outstanding federal charges. He also sent a telegram on June 7 to the same office stating that he “would appreciate if you could clear the problems up as expediently as possible.”
On May 28, 1982 the government filed a petition for a writ of habeas corpus ad prosequendum requesting that the court have the defendant brought to Vermont. Judge Holden issued the writ on June 1 directing that defendant be brought before him for arraignment. On June 5 United States Marshals took custody of the defendant, shuttled him across the country and delivered him in the District of Vermont on June 25, where he was immediately arraigned. Judge Holden set July 9 as the deadline for filing pretrial motions and August 2 as a tentative trial date. Defendant was represented at the arraignment by retained counsel, who moved on July 6 to withdraw. At a hearing on the motion on July 8, and upon defendant’s request for an additional two weeks in which to retain another attorney, Judge Holden granted retained counsel’s motion to withdraw, appointed counsel to represent the defendant, and extended the time for the defendant to file pretrial motions until July 23.
On July 23 defendant filed two motions to suppress, alleging that his arrest and the search of his residence giving rise to the federal charges were illegal. Hearings were scheduled on these motions for August 6. On August 3 the defendant filed a motion, which was granted the next day, for a continuance in order to obtain a transcript of his prior state court proceedings. The transcript was obtained and filed one week later and the suppression hearing was scheduled for August 27. To accommodate defense counsel’s schedule, the hearing was later rescheduled for September 3, when testimony was taken. At the defendant’s request, the hearing was adjourned until September 13 to take further testimony. At its conclusion both parties were told to submit proposed findings. Defendant filed his papers on September 28, and the government’s memoranda were filed on October 4. On October 4 the government filed a motion to reopen the evidence on the suppression issues. The defendant filed opposition papers, and a hearing on the motion was held on October 20. After entertaining oral argument, and in the presence of the defendant, the court granted the government’s motion to reopen the record. On October 28 the court denied defendant’s motions to suppress.
Since Judge Holden was engaged in a protracted civil trial, he decided on November 17 to transfer this case to Judge Coffrin for trial, scheduled to begin on December 8. But on December 1 and 7 the defendant asked the court ex parte to issue subpoenas for certain individuals to ensure their availability as witnesses. After a hearing, with defendant present, the applications were granted and the trial date was continued until January 11,1983. On January 5 the defendant sought another continuance because one of his witnesses had been hospitalized and one of the subpoenas had not been served. Scheer indicated at the time that his need for a continuance to secure these witnesses outweighed his interest in a speedy trial. By order dated January 10 the court granted defendant’s request and set the trial date for February 8.
On January 28 the defendant moved to dismiss the indictment claiming that the government had violated certain provisions of the Interstate Agreement on Detainers Act. Judge Coffrin continued the trial from February 8 to a date subsequent to the disposition of this motion, which he heard and denied on March 2. Immediately thereafter a jury trial commenced. Following a guilty verdict, Judge Coffrin, for evidentiary reasons, granted defendant a new trial. Prior to the commencement of the second trial defendant entered a plea of guilty to two counts of the federal indictment. Under the plea agreement, he reserved his right to this appeal.
II
Before discussing the issues it is helpful to examine the circumstances surrounding the passage of the Interstate Agreement on Detainers Act. The Act contains no definition of detainer, but the Senate Report recommending enactment of the Agreement defines it to be “a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.” S.Rep. No. 1356, 91st Cong., 2d Sess. 2 (1970), reprinted in 1970 U.S.Code Cong. & Ad.News 4864, 4865. The Act was entered into by the United States in order to provide a prisoner with a method of clearing up detainers filed against him and to provide prosecutors with a uniform set of rules governing temporary transfers for purposes of trial. Born because of abuses arising from the ease of filing detainers, which prejudiced the prisoner against whom they were lodged, the Act was conceived upon the premise that justice demanded prompt disposition of such detainers. The Director of the Bureau of Prisons advised Congress that lodging a detainer against a prisoner seriously disadvantages him in several ways. Since he is in custody, he is unable to organize a defense to the charges related in the detainer. He is prejudiced in the eyes of those who hold him because the detainer indicates criminal proclivity on his part making him ineligible for desirable work assignments. Interest in rehabilitation tends to evaporate when a person confined in one jurisdiction has unresolved charges pending in another. See 116 Cong. Rec. 13,999 (1970). Once one jurisdiction had tried and convicted a prisoner, another jurisdiction without any requirement of judicial oversight would simply file a detainer against the prisoner, instead of moving to extradite and try him on charges. Upon the prisoner’s completion of the first term, a second jurisdiction could then bring the prisoner to trial. And, if the prisoner was convicted in the second jurisdiction, still other jurisdictions seeking to press charges might file detainers with the prison where he was next incarcerated. See generally United States v. Ford, 550 F.2d 732 (2d Cir.1977), aff’d sub. nom., United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).
It was against this backdrop of abuse that the Joint Committee on Detainers worked out a statement of principles which later served as the underpinnings of the Act. These principles were directed at those authorities that file detainers — prosecutors, prison, law enforcement and parole officials — and provided that:
1. Every effort should be made to accomplish the disposition of detainers as promptly as possible.
2. There should be assurance that any prisoner released to stand trial in another jurisdiction will be returned to the institution from which he was released.
3. Prison and parole authorities should take prompt action to settle detainers which have been filed by them.
4. No prisoner should be penalized because of a detainer pending against him unless a thorough investigation of the detainer has been made and it has been found valid.
5. All jurisdictions should observe the principles of interstate comity in the settlement of detainers, and each should bear its own proper burden of the expenses and effort involved in disposing of the charges and settling detainers.
See J. Bennett, The Last Full Ounce, 23 Fed.Probation 20, 22 (June 1959).
Congress passed the Act into law without opposition and with little discussion. See 116 Cong.Rec. 13,997-14,000, 38,840-38,842 (1970). The findings and purposes of the Act are set forth in Section 2, Article I. In finding “that charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation,” the Act states as its purpose “to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints.” 18 U.S.C.App., p. 545 (1982). Article I also states that the purpose of the agreement is to provide cooperative procedures for the disposition of such charges and detainers. Id.
Article III provides the procedures for the prisoner to initiate a request for the disposition of detainers lodged against him. Article IV, with which we are concerned, governs requests initiated by the prosecutor and provides the means by which the government can secure the presence of a prisoner in another jurisdiction to dispose of outstanding charges against him. Article IV(c) states:
In respect of any proceeding made possible by this article, trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
After a prosecutor has filed a detainer and a request, Article IV(a) provides that “there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.” Article IV(b) further provides that “the appropriate authorities having the prisoner in custody shall furnish the officer [of the receiving state] with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State parole agency relating to the prisoner.” These three subdivisions — (a), (b) and (c)— of Article IV, which defendant Scheer claims were violated in this case, will be discussed in reverse order.
Ill
We turn first to Article IV(c) of the Act and Scheer’s claim that he was not brought to trial within the 120 day period. Defendant and the government agree that a total of 249 days elapsed between June 25, 1982 — the date Scheer arrived in Vermont — and March 2, 1983, the date his trial commenced. Scheer argues that, notwithstanding the fact that some of the elapsed 249 days were attributable to his requests, the 120 day time limit was exceeded. He concedes that the 62 days from December 8, 1982 to February 8, 1983 occasioned by continuances he sought to obtain witnesses for trial should be charged to him, but maintains that the remaining 187 days were all chargeable to the government, thereby clearly violating the 120 day statutory period. The government asserts that there were 77 other days, in addition to the 62 conceded days, properly chargeable to defendant and that this total of 139 days when subtracted from the total of 249 indicates Scheer was brought to trial within the statutory time period.
In ruling on the motion to dismiss, Judge Coffrin engaged in the following analysis: he charged the defendant with one week (7 days) from July 16-23 for an enlargement of time for filing of defense motions because of defendant’s change of counsel; 21 days from August 6-27 when the supression hearing was continued to obtain a state court transcript; 7 days from August 27 to September 3 to accomodate the rescheduling request of defense counsel; 21 days from September 3 to September 24, the date the suppression hearing commenced to the date the court set for filing of memoranda; 30 days from September 28 to October 28, from the filing of defendant’s memoranda until the ruling on the motions. The total of these days charged to defendant, including the 62 conceded, amounts to 148 days, which also indicates defendant was timely brought to trial.
Article VI of the IADA provides as follows:
‘(a) In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.’
Thus, in computing whether or not the requirements of Article IV(c) have been satisfied, it is appropriate to exclude all those periods of delay occasioned by the defendant. See, e.g., Bush v. Muncy, 659 F.2d 402, 408-09 at n. 4 (4th Cir.1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1259, 71 L.Ed.2d 449 (1982); United States v. Black, 609 F.2d 1330, 1334-35 (9th Cir.1979), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980). Upon our review of the record, we conclude that nearly all of the claimed delays found by Judge Coffrin in this case were directly attributable to various defense motions. The defendant asked for additional time to procure an attorney, to suppress evidence and to procure a state transcript. He requested continuances based on the unavailability of his witnesses and moved that the court allow these witnesses to be subpoenaed. Considering that the defendant requested these delays solely for his benefit, we are unpersuaded that his rights under Article IV(c) of the Act were violated. See Foran v. Metz, 463 F.Supp. 1088, 1097-98 (S.D.N.Y.), aff'd mem., 603 F.2d 212 (2d Cir.), cert. denied, 444 U.S. 830, 100 S.Ct. 58, 62 L.Ed.2d 38 (1979) (courts need not “decide defense motions immediately upon filing on pain of dismissal of the indictment for delay”). See also State v. Finley, 277 S.C. 548, 290 S.E.2d 808, 809 (1982) (where defendant’s motion is cause of the delay, he cannot expect dismissal of the charges because the case was not tried within 120 days); State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978), cert. denied, 441 U.S. 935, 99 S.Ct. 2060, 60 L.Ed.2d 665 (1979) (request that trial be continued to secure witnesses constituted waiver of 120 day period); People v. Grubbs, 39 Colo.App. 436, 570 P.2d 1299 (1977) (delays incurred with defendant’s acquiescence or as accommodation to him were not included in calculating 120 day period).
The defendant's reliance on Stroble v. Anderson, 587 F.2d 830 (6th Cir.1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), is misplaced. In Stroble the court held that good cause was not shown in open court for the continuances granted to the prosecutor by the court in the absence of defense counsel’s knowledge. Id. at 839. In contrast, Scheer was present with his counsel in court and involved in the planning of his defense strategy which included instigating many of the delays referred to earlier. Since the orderly administration of justice required that defendant’s motions be heard and determined prior to the commencement of the trial, we conclude that the requirements of Article IV(c) were satisfied in this case.
IV
The defendant next asserts that the indictment should have been dismissed because the California authorities did not timely furnish a certificate detailing the terms of his commitment. According to the defendant, he was “in federal custody for thirteen months, not knowing and unable to learn the status of his overriding California sentence,” and claims that he would have been able to do a variety of things had the certificate been timely forwarded. This claim is without merit.
As noted, Article IV(b) requires a sending jurisdiction to furnish specific information about the defendant’s history to the receiving jurisdiction. The purpose of requiring such a certificate is to assure that the prosecutor and the court have sufficient factual information regarding the prisoner to make an informed decision as to how best to proceed with the case. In order to do that the information must be in the hands of the receiving state in timely fashion. Subdivision (b) is silent as to the precise timing. In that connection, the statute also contains a scrivener’s error when it states that the certificate shall be furnished “[ujpon. request of the ... request,” when plainly what is intended is that it be forwarded “[ujpon receipt of the ... request.” Inasmuch as the IADA’s focus is on prompt disposition of detainers, ordinarily the certificate should arrive in the receiving state no later than the prisoner. Although the California officials did not timely furnish such a certificate to the federal authorities, the defendant contacted the federal officials promptly after being sentenced in California and sought an expedited resolution of his case in Vermont. Since no evidence was offered that the defendant was unaware of the terms of his own sentence, his current claim of ignorance is unworthy of belief. Further, since the California report was available to the district court at the time of the defendant’s sentencing on the federal charges, we cannot conclude that the purposes of the Act were in any way frustrated.
Defendant’s reliance on People v. Esposito, 37 Misc.2d 386, 201 N.Y.S.2d. 83 (Queens County Ct.1960), and People v. Lincoln, 42 Colo.App. 512, 601 P.2d 641 (1979), misses the mark. In Esposito, the dismissal occurred because the prosecutor’s untimely failure to act after the prisoner had requested disposition of the charges was not excused by the lack of a certificate. Here, of course, the prosecutor moved swiftly — and in accordance with the prisoner’s request — even in the absence of a certificate. In Lincoln the question was whether a sending state properly notified the prisoner of any detainers lodged against, him and his right to request the prompt disposition of the underlying charges. Unlike Lincoln, here there is no question that Scheer was well aware of the charges lodged against him in Vermont. Significantly, it was that awareness which prompted him to contact the Vermont authorities and request the speedy disposition of such charges. Hence, under the circumstances of this case, we conclude that the district court was correct in refusing to dismiss the indictment under Article IV(b).
V
The defendant’s final challenge revolves around the district court’s refusal to dismiss the indictment under Article IV(a) of the Act. Defendant maintains in substance that he was transferred too soon after the California authorities received the writ of habeas corpus ad prosequendum, and alleges that his transfer prior to the expiration of the 30 day period violated his rights by not affording him sufficient time to challenge the writ.
The 30-day period was plainly inserted into the law to permit the prisoner to object or the Governor of the sending state to order that the prisoner not be transferred. 116 Cong.Rec. 14,000, 38,841. Although it could be argued that this proviso applies only to the “State” parties to the Agreement and not to the United States, that position is difficult to justify since the definition of “State” in the Act includes the United States. What little legislative history exists indicates that the United States and the District of Columbia became full parties to the Detainer Agreement with the States “so that all jurisdictions will have uniform and simplified rules for the disposition of detainers and the exchange of prisoners.” Id. at 38,841 (emphasis supplied). More significantly, the Supreme Court has indicated that Article IV(a) envisions that following the filing of a written notice of request for custody “[f]or the next 30 days, the prisoner and prosecutor must wait while the Governor of the sending State, on his own motion or that of the prisoner, decides whether to disapprove the request.” Cuyler v. Adams, 449 U.S. 433, 444, 101 S.Ct. 703, 710, 66 L.Ed.2d 641 (1981).
The government urges that we hold the 30-day period not violated because the writ of habeas corpus ad prosequendum was not abrogated by the United States becoming a party to the Act. We recognize that the historic power of a federal court to issue such a writ to secure a state prisoner for federal trial has existed since Chief Justice Marshall held it was included under the rubric of habeas corpus in Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 2 L.Ed. 554 (1807). Nonetheless, employing that rationale would be treating the federal government’s participation in the IADA on a different footing than that of the States. Further, the Supreme Court has held that once a detainer has been lodged, as here, it triggers the procedural rules of the Act so that the later filing of a writ of habeas corpus ad prosequendum is simply equivalent to a “written request for temporary custody” and may not be used as a basis for the federal government to avoid its obligations under the Act. United States v. Mauro, supra, 436 U.S. at 362, 98 S.Ct. at 1848. Thus, the historic power of the writ seems unavailing once the government elects to file a detainer in the course of obtaining a state prisoner’s presence for disposition of federal charges.
We believe a more solid ground for rejecting defendant’s challenge may be found in his waiver of the 30-day period. The Act sets forth statutory rules relating to procedures to be followed in prisoner transfer. But these procedural rules are not rights guaranteed by the Constitution. Inasmuch as the IADA “ ‘has appropriately been characterized as a statutory right to a speedy trial,’ ” see United States v. Odom, 674 F.2d 228, 230 (4th Cir.) (quoting Bush v. Muncy, supra, 659 F.2d at 406-07 n. 2), cert. denied, 457 U.S. 1125, 102 S.Ct. 2946, 73 L.Ed.2d 1341 (1982), a defendant may waive the time limitations imposed under it. See United States v. Odom, supra; United States v. Black, supra, 609 F.2d at 1334; United States v. Eaddy, 595 F.2d 341, 344 (6th Cir.1979); Camp v. United States, 587 F.2d 397, 399-400 (8th Cir.1978); United States v. Ford, supra, 550 F.2d at 742; cf. People v. White, 33 A.D.2d 217, 221, 305 N.Y.S.2d 875, 879 (N.Y.1969) (a prisoner “may not continue to participate in the proceedings indefinitely and then, at his pleasure, demand and be granted a dismissal of the indictment.”). Some courts have found waivers of the Act when there is proof that a prisoner affirmatively requests to be treated in a manner contrary to the Act’s procedures. See United States v. Odom, supra; United States v. Eaddy, supra, 595 F.2d at 344. Under similar circumstances other courts, have held that a defendant is estopped from invoking the Act. See Gray v. Benson, 608 F.2d 825 (10th Cir.1979), aff'g 458 F.Supp. 1209 (D.Kan.1978); United States v. Scallion, 548 F.2d 1168 (5th Cir.1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2844, 56 L.Ed.2d 784 (1978).
The purposes for which the 30-day period was included in the Act clearly are not frustrated by a finding of a waiver in this case. If anything, those purposes wholly justify such a finding. Article IV(a) gives the governor of the sending State authority to disapprove a transfer request on his own motion. Thus, one policy underlying the 30-day period is the preservation of states’ rights to refuse extradition. United States v. Ford, supra, 550 F.2d at 741. But California did not object to the procedures followed by the federal district court in Vermont, nor did it object to Scheer’s transfer having taken place within the 30-day period. We doubt that Scheer’s real concern was for the rights of the sending State. He argues mainly his own rights.
Reliance on a prisoner’s rights to contest a transfer — another purpose of Article IV(a) — is the real basis of Scheer’s challenge. Common sense suggests that a prisoner will only make such a motion when he opposes transfer. Further, Article III of the IADA, under which the prisoner (as opposed to the receiving state in Article IV) initiates the request for transfer, contains no provision comparable to a 30-day waiting period. This omission implies that the drafters of the Act did not deem the 30-day period necessary for those prisoners who advocate their transfer. Accordingly, despite the fact that this case was handled under the rubric of Article IV, not Article III, the defendant unquestionably favored an expeditious transfer. He twice contacted federal authorities in Vermont, once by telephone and later by telegram, and in these contacts expressly requested that his problems be cleared up “as expediently as possible.” Far from challenging his transfer, Scheer was urging it. Thus, while we fully recognize the duty of courts under Article IX liberally to interpret the IADA to ensure and preserve rights that prisoners are entitled to, the Act should not be construed to sanction the impossible. No prisoner can ask the court to speed disposition of the out-of-state charges against him today, and to delay them tomorrow.
When viewed in this light, Cuyler v. Adams, supra, does not support defendant’s position. In Cuyler the prisoner actively sought to prevent his transfer and the court interpreted the Act as preserving the right of a prisoner to a pre-transfer hearing under the provisions of the Uniform Criminal Extradition Act. Here, of course, inasmuch as one of the stated purposes of the Act is “to- encourage the expeditious and orderly disposition of [outstanding] charges,” that purpose was well served by the- defendant’s prompt transfer to Vermont. See United States v. Graham, 622 F.2d 57, 59-60 (3d Cir.), cert. denied, 449 U.S. 904, 101. S.Ct. 278, 66 L.Ed.2d 135 (1980); United States v. Bryant, 612 F.2d 799, 802 (4th Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1855, 64 L.Ed.2d 274 (1980). In fact, it is plain, as this case illustrates, that the salutary purposes of the Act may be short-circuited by playing off the thrust of the Act for prompt disposition of detainers against the delay of 30 days in Article IV(a). Scheer may not press for prompt disposition of his outstanding federal detainer and later be permitted successfully to argue that the Act grants him a stay of 30 days. Instead, we view his initial requests for prompt disposition of the federal detainer as a waiver of the 30 day period and therefore conclude that the district court correctly denied the motion to dismiss Scheer’s indictment under Article IV(a).
For all these reasons, the judgment is affirmed.
. In this connection, we were informed at oral argument that the district court had not been made aware of the applicability of the Act until the defendant moved for dismissal under its provisions. Notwithstanding that Article IV(c) was unavailing to the defendant in this case, in future cases the United States Attorney should advise the court early in the proceedings of the applicability of the IADA.
. We harbor some doubt as to the importance of this purpose inasmuch as Article III has no comparable 30-day waiting period. A sending State’s policy reasons for preventing transfer of a prisoner would seem as strong under Article III as they are under Article IV.
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_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.
Horst VON HENNIG, Ancillary Executor of the Estate of Carlo von Wedekind, Deceased, Appellant, v. Robert F. KENNEDY, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellee. Robert F. KENNEDY, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellant, v. Horst VON HENNIG, Ancillary Executor of the Estate of Carlo von Wedekind, Deceased, Appellee.
Nos. 16199, 16201.
United States Court of Appeals District of Columbia Circuit.
Argued May 15, 1961.
Decided Oct. 19, 1961.
Petition for Rehearing Denied Dec. 11, 1961.
Petition for Rehearing En Banc Denied En Banc Dec. 11, 1961.
Mr. James H. Mann, Washington, D. C., with whom Mr. John W. Pehle, Washington, D. C., was on the brief, for appellant in No. 16,199 and appellee in No. 16,201.
- Mr. Irving Jaffe, Atty., Dept, of Justice, with whom Mrs. Mary P. Clark, Atty., Dept, of Justice, was on the brief, for appellee in No. 16,199 and appellant in No. 16 201
Before EDGERTON, WASHINGTON, and BASTIAN, Circuit Judges.
PER CURIAM.
The plaintiff executor of Carlo von Wedekind has appealed from a judgment of the District Court dismissing on the merits an action to recover certain property vested by the Alien Property Custodian on the ground that plaintiff’s decedent was not authorized by Section 9 (a) of the Trading with' the Enemy Act of 1917, 40 Stat. 419, as amended, 50 U.S.C.A.Appendix, § 9(a), to claim the vested property because he was resident outside the United States (in Switzerland) and doing business in Italy during the war years, and was an “enemy” as defined in Section 2(a) of the Act, 50 U.S.C.A.Appendix, § 2(a). The District Court’s findings of fact and conclusions of law are reported at 1960, 187 F.Supp. 914.
We bave viewed with care the record and aPPebant s contentions. We are unabIe to sa^that the District Court clearly erred in its findings or was wrong in its conclusions.
There is abundant evidence that planitiff’s decedent, the original plaintiff, exercised exclusive supervision for himself and the other owner over the firm of Carlo Wedekind & Company, a societa, in name collettivo doing business in Italy, though he may not have followed in detail the operations of the business. In addition to the matters referred to by the District Court, the record shows that he fixed the remuneration of Mueller, the firm’s manager in Italy, and insofar as ? “volved a monthly bonus of 200 Swiss francs’ Paid jt himself (apparently all d”mg tbe war years? through Fides a °W1SS firm which he dominated and controlled. As late as 1940 he advanced needed funds to the Italian firm; Mueller received instructions pr direetives for running the firm only from him; prior to the outbreak of the war in Europe, he made frequent visits to Italy to confer with Mueller about the firm’s business. It seems also that he must bave retained continuing power to revoke the authority delegated to Mueller and to aPPoint a new manager. The original Plaintiff s active supervision of the business Pperi to the war was dearly sbown exdst> and although during the war period his visits to Italy ceased and his correspondence with Mueller was perhaps more limited, he did not show that his powers of supervision over the business were materially changed. And he admittedly had unlimited personal liability for the firm’s debts, malting his identity with its business even clearer. We think that under all the circumstances the original plaintiff could properly be found to be doing business in Italy during wartime, and hence to be an “enemy” under the Act. Cf. The William Bagaley, 1866, 5 Wal. 377, 72 U.S. 377, 18 L.Ed. 583.
The judgment ia
Affirmed.
. The Government filed a protective cross-appeal with respect to the District Court’s bolding that the original plaintiff was not doing business in Germany during the war years. In view of our conelusion on the principal appeal, it is unnecessary to decide the questions raised in tbe cross-appeal No. 16,201.
. The record contains two letters from Mueller to plaintiff written in 1940, one written in 1941, one written in 1942, and one written in 1943. It also contains a letter from plaintiff to Mueller written in 1941. These letters refer to others which are not in evidence.
. Compare Uebersee Finanz-Korporation v. Brownell, D.C.D.C.1955, 133 F.Supp. 615, 620, affirmed sub nom. von Opel v. Brownell, 100 U.S.App.D.C. 341, 244 F.2d 789, certiorari denied, 1957, 355 U.S. 878, 78 S.Ct. 141, 2 L.Ed.2d 108.
. A societa 'in name collettivo■ — such 'as the firm here involved — is neither a partnership nor a corporation under Italian-law, according to the testimony of the ' expert witnesses; in addition to provi- . sion for it, Italian law provides for gen- . eral partnerships, corporations limited in shares (or closely held corporations), and general stock' corporations. As the District Court pointed out, the societa has some characteristics of corporations under American law concepts, but because of its unlimited personal liability feature, it- is 'far more analogous to a partnership. "• ' ■
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_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.
HOTEL McALLISTER v. COBURN.
(Circuit Court of Appeals, Fifth Circuit.
March 17, 1927.)
No. 4848.
1. Appeal and error @=>237(5) — Without motion to direct verdict, assignments that verdict is contrary to evidence, excessive, and conflicts with instructions, present nothing for review.
In absence of motion to .direct verdict, assignments of error that verdict was contrary to evidence, that damages fixed thereby were excessive, and that it contravened instructions, present nothing for review, though all the evidence is brought up in record.
2. Courts @=>405(2) — Objection that jurisdiction of District Court by diversity of citizenship is not shown, not raised in District Court, is settled by verdict.
Objection that record does not show jurisdiction in the District Court by diversity of citizenship", not raised in District Court, will not be considered by Circuit Court of Appeals, and is settled by verdict. ,
3. Courts @=>322(2) — Allegation In declaration of diversity of citizenship Is not denied by plea of not guilty.
Under Florida practice, allegation in declaration of diversity of citizenship is not denied by plea of not guilty, but goes merely to a denial of the wrongful act on which action for false imprisonment is based.
In Error to the District Court of the United States for the Southern District of Florida; William I. Grubb, Judge.
Action by George H. Cobum against the Hotel McAllister. Judgment for plaintiff, and defendant brings error.
Affirmed.
St. Clair Adams, of New Orleans, La., and John C. Gramling, of Miami, Fla. (Gramling & Flowers, of Miami, Fla., on the brief), for plaintiff in error.
John S. Benz .and E. B. Kurtz, both of Miami, Fla. (Kurtz & Reed and Shutts & Bowen, all of Miami, Fla., on the brief), for defendant in error.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
Defendant in error, plaintiff below, brought suit to recover damages for false imprisonment, to which the defendant filed a plea of not guilty. The case was tried to a jury, and resulted in a'verdict for $3,500, on which judgment was entered.
The only errors assigned are as follows: (1) the verdict is contrary to the evidence; (2) the damages fixed by said verdict are excessive; (3) the verdict is in contravention with the instructions of the court. The errors assigned present nothing for review in this court. The entire evidence, apparently, is brought up in the record; but, as there was no motion to direct a verdict, we are not at liberty to examine it, with the view of reversing the judgment.
Plaintiff in error also suggests that the record does not show jurisdiction in the District Court by diversity of citizenship. This question was not raised in the District Court. The declaration alleges that the plaintiff is a resident and citizen of the state of New Jersey and defendant is a corporation organized and existing under the laws of Florida. We do not understand that, under the practice in Florida, this averment is denied by a plea of not guilty, which goes merely to a denial of the wrongful act upon which' the action is based. Varnes v. Seaboard Air Line R. Co., 80 Fla. 624, 86 So. 433. Furthermore, we think this question is also settled by the verdict.
Affirmed.
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_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
FREMONT ENERGY CORPORATION, et al., Plaintiffs-Appellees, v. The SEATTLE POST INTELLIGENCER, the Hearst Corporation, et al., Defendants, John E. Moss, Chairman, Movant-Appellant.
No. 81-4567.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 18, 1982.
Decided Sept. 28, 1982.
Steven R. Ross, Washington, D.C., for movant-appellant.
James R. Prochnow, Constantine & Prochnow, P.C., Englewood, Colo., for plaintiffs-appellees.
Before MERRILL and HUG, Circuit Judges, and BROWN , District Judge.
Honorable Wesley E. Brown, Senior United States District Judge for the District of Kansas, sitting by designation.
MERRILL, Circuit Judge:
John E. Moss appeals from an order of the district court for the Eastern District of California adjudging him in contempt of court for failure adequately to respond to the directions of a subpoena duces tecum.
Moss is a former member of Congress and the former chairman of the Subcommittee on Oversight and Investigation of the House Committee on Interstate and Foreign Commerce. In December 1978, that subcommittee issued a report on uranium lode mining claims on federal lands. The report apparently was critical of the activities of the Fremont Energy Corporation, and two articles in the Seattle Post Intelligencer reporting that criticism are the subject of a libel suit brought by Fremont against that newspaper in the Western District of Washington. Through its discovery efforts in that case Fremont learned that Dan Seligman, a reporter for the Post Intelligencer, had telephoned Moss concerning the report on January 28, 1979, some three weeks after Moss’s final term in Congress had expired. Fremont thereupon secured the issuance of a subpoena duces tecum by the Clerk of the District Court for the Eastern District of California, which subpoena was served upon Moss in Sacramento, California. It called on him to appear at the offices of the Sacramento Deposition Reporters of Sacramento, California to testify on behalf of plaintiffs. He was further instructed to bring with him “any and all reports, records, files, notes, memoranda, correspondence or other documents pertaining to certain remarks and comments more specifically described in attachment A” to the subpoena.
The attachment identified five items as follows:
1. Certain remarks made by Moss to Seligman on or about January 23, 1979.
2. An official report compiled and issued by the subcommittee chaired by Congressman Moss — identified by plaintiff as the “Moss Report,” also known as a Report on Uranium Lode Mining Claims on Federal Lands.
3. The subcommittee hearings on which the Moss Report was based.
4. Certain comments made to Seligman by a member of the subcommittee staff concerning Fremont Energy Corporation, the Moss Report, or the subcommittee hearings.
5. The procedures and rules of the subcommittee and of Congress during the course of the subcommittee hearings.
On March 4,1981 in the District Court for the Eastern District of California Moss moved to quash the subpoena claiming that its subject was privileged by the Speech or Debate Clause of the Constitution. On May 6, the court granted the motion insofar as the subpoena related to Moss’s legislative activities (items 2, 3, and 5 of the attachment to the subpoena), and entered a protective order to that effect. As to the conversations with Seligman (items 1 and 4 of the attachment to the subpoena), however, the court denied the motion finding that they were not “part and parcel or essential to the deliberative process.” This court dismissed Moss’s appeal from the court’s order for lack of finality.
Fremont conducted its deposition of Moss on August 26, 1981. Moss failed to bring to the deposition any documents meeting the specifications of items 1 and 4 of the subpoena and refused on Speech or Debate grounds to answer virtually all of Fremont’s more probative questions. Fremont then applied for an order to show cause why Moss should not be held in contempt. The court issued the requested order and scheduled a show cause hearing for October 19, 1981. At that hearing the court held Moss in contempt and ordered that he be committed to the custody of the United States Marshall “until such time as he should see fit to comply with and obey the specifics and mandate of that subpoena duces tecum.” The court also awarded to Fremont the costs and attorneys fees it had incurred in taking the fruitless deposition and in pursuing the contempt order. The court stayed incarceration pending the outcome of this appeal. We conclude that the district court erred in holding Moss in contempt.
We note first that because Moss was in violation of no court order, if he is in contempt, it is for failure to comply with the demands of the subpoena duces tecum. In this respect, Rule 45(f), Fed. R. Civ. P., provides:
Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.
The subpoena served on Moss directed him to appear and testify at a deposition. This Moss did. The subpoena did not direct Moss to answer any of the specific questions propounded by Fremont. If he is to be held in contempt for failure to answer questions, then, it must be pursuant to Rule 37(b)(1), Fed. R. Civ. P., which provides:
Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court.
Since there was no such court direction, Moss cannot be adjudged in contempt for failure to answer questions.
The subpoena also directed Moss to produce all documents meeting the specifications stated by Freemont. Whether any such documents actually exist, however, the record does not show. Without such a showing, we cannot be certain that a violation of the subpoena has occurred, and therefore cannot affirm the imposition of sanctions.
On a related point, Moss argues that the district court denied him an opportunity to show “adequate excuse” for any noncompliance with the subpoena and that such opportunity is required by Rule 45(f). We agree. At the contempt hearing, Moss offered to provide an explanation (which he termed “defenses”) for his failure to produce. The court rejected this offer stating that it was interested only in the discussion of sanctions.
REVERSED and REMANDED with instructions that the order holding appellant in contempt be vacated.
. Participating as amicus curiae, the Seattle Post Intelligencer argues that the information Fremont seeks from Moss is not relevant to Fremont’s libel suit under Washington law, and accordingly that we need not reach the merits of the contempt order. In this forum ancillary to the underlying libel action, we decline to pass judgment on the relevancy question. See Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 425 (1st Cir. 1961).
. The court’s May 6 order granting in part and denying in part Moss’s motion to quash the subpoena did not constitute an order “directing]” him to answer specific questions. Indeed, as the court acknowledged, the order left the scope of permissible questioning far from clear.
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_genapel1 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Plaintiff-Appellee, v. BOB STOFER OLDSMOBILE-CADILLAC, INC., Jack W. Graham, First National Bank of Effingham as Trustee of Trust No. 221, Sam P. Sgro, and Bernard O. Nelson, and Washington Savings & Loan Association, Defendants, Robert H. Stofer and Marcia I. Stofer, Defendants-Appellants.
No. 84-2325.
United States Court of Appeals, Seventh Circuit.
Argued April 8, 1985.
Decided July 10, 1985.
Bruce E. Reppert, Asst. U.S. Atty., East St. Louis, 111., for plaintiff-appellee.
Guy E. McGaughey, Jr., McGaughey & McGaughey, Lawrenceville, 111., for defendants.
Before BAUER and POSNER, Circuit Judges, and PECK, Senior Circuit Judge.
. The Honorable John W. Peck, Senior Circuit Judge of the Sixth Circuit, is sitting by designation.
JOHN W. PECK, Senior Circuit Judge.
This case is before the court upon an appeal from the order of the district court granting summary judgment to the United States. For the reasons set forth below, we affirm.
Appellants Robert Stofer and Marcia Stofer (“the Stofers”) were the sole shareholders of Bob Stofer Oldsmobile-Cadillac, Inc. in Effingham, Illinois, a General Motors Corporation (“GM”) franchise. In October 1980, the Small Business Administration (“SBA”) loaned Bob Stofer Oldsmobile-Cadillac, Inc. $667,900.00, secured by a mortgage on the corporation’s business property, the Stofers’ personal residence, and a security agreement covering inventory and other collateral. In addition, Robert Stofer and Marcia Stofer each signed a personal guaranty. The note executed by the Stofers provided in part:
Holder is authorized to declare all or any part of the Indebtedness immediately due and payable upon the happening of any of the following events:
(4) The reorganization (other than a reorganization pursuant to any of the provisions of the Bankruptcy Reform Act of 1978, as amended) or merger or consolidation of the undersigned (or the making of any agreement therefore) without the prior written consent of the Holder____
In July 1982, the Stofers entered into an agreement for the sale of all of the stock in Bob Stofer Oldsmobile-Cadillac, Inc. to Sam P. Sgro, Bernard 0. Nelson, and Jack W. Graham for the sum of $20,000.00 plus an agreement by the buyers to hold the Stof-ers harmless from debts to the SBA and various financial institutions, as well as for unpaid taxes and payroll. The agreement was executed without the prior consent of the SBA; the SBA, however, was made aware of the transaction shortly after its occurrence.
A dispute arose between the Stofers and the buyers of Bob Stofer Oldsmobile-Cadillac, Inc. which resulted in a lawsuit in state court. The action centered around an alleged error in the legal description of the real property conveyed and upon GM’s refusal to transfer the franchise to the buyers, thus precluding them from operating the business as a GM dealership.
Following the purchase of the auto dealership in July 1982, Nelson and Graham operated the business, selling new and used cars and car parts. They made no loan payments to the SBA from the proceeds of the sale of the mortgaged assets. At about the same time the Stofers sold their interest in Bob Stofer Oldsmobile-Cadillac, Inc., the First National Bank of Effingham offered to bring the mortgage payment to the SBA current; the SBA refused to accept the delinquent payment offered on behalf of the Stofers. From July 1982 to April 1983, no payments were made to the SBA on the loan. The SBA made no demand for payment from the Stofers during that time period.
In April 1983, the United States instituted the present action in the United States District Court for the Southern District of Illinois. In its second amended complaint, the United States alleged two causes of action. The first cause sought the foreclosure of the mortgage on the real property of the auto dealership and the mortgage on the Stofers’ personal residence. The second cause of action sought an accounting of the collateral under the security agreement and a foreclosure of the same plus a personal deficiency decree against the Stofers, based upon their personal guaranty of the $667,900.00 loan.
In their answer, the Stofers pleaded affirmatively the indemnity and hold harmless provision of the July 1982 agreement. Their answer also contained the affirmative defenses of laches and delay of the SBA in exercising its rights under the security agreement. Specifically, the Stofers stated that the SBA allowed Sgro, Nelson, and/or Graham to dissipate the assets of Bob Stofer Oldsmobile-Cadillac, Inc., all to the Stof-ers’ detriment. Also in their answer, the Stofers filed cross-claims against Sgro, Nelson and Graham based on the indemnity agreement.
At a pre-trial conference held before the magistrate on July 14, 1983, the parties agreed that discovery could be completed by November 1, 1983. The court set that date as the deadline for completion of discovery, and scheduled a final pre-trial conference for December 1, 1983. At the December 1st conference, counsel for the Stofers sought and received a 30-day extension to complete discovery. A final pre-trial conference was set for January 5, 1984. On December 19, 1983, the Stofers’ counsel first filed a notice to take depositions.
On December 22, 1983, the United States filed a motion for summary judgment. During late December and early January, the Stofers’ attorney deposed cross-defendant Nelson and the chief operating officer of the defendant First National Bank of Effingham. Cross-defendant Sgro failed to appear for his scheduled deposition, alleging a death in the family. George Danks, a director of the First National Bank of Eff-ingham, also failed to appear for his deposition. Danks, however, apparently had not been served with a subpoena even though he was not a party to the litigation. At the pre-trial conference on January 5, 1984, the attorney for the Stofers again moved to extend the discovery deadline. The magistrate denied the motion.
On January 20, 1984, the Stofers, in their response to the government’s motion for summary judgment, requested that the court defer ruling until they could take five more depositions. They contended that such testimony would establish that the SBA “acquiesced in what appears to be a conspiracy by Sgro, Nelson and Graham to take the business over, sell the assets and cannibalize the business.” Accompanying the response was an affidavit of Robert Stofer which adopted as true the allegations set forth in the response. The Stof-ers alleged that the government was equitably estopped from asserting a default on the mortgage because of its acquiescence in the actions of Sgro, Nelson and Graham.
The magistrate, in the report and recommendation filed on January 27, 1984, rejected the Stofers’ contention that the government was equitably estopped by the doctrine of laches from asserting a default on the mortgage. The magistrate also concluded that “[t]he Stofers’ conclusory statements that something significant will be disclosed by further discovery will not suffice to defeat summary judgment.” Further, the magistrate noted that there had been no showing by the Stofers as to why they had failed to conduct discovery prior to the original November 1, 1983 deadline, nor had they offered any explanation for their dilatory conduct in not filing their first notice to take depositions until December 19, 1983. The magistrate recommended that the government’s motion for summary judgment be granted.
On March 5, 1984, the Stofers moved to amend their answer and also moved for an evidentiary hearing on the issue of laches and equitable estoppel. The district court denied both motions. On March 7, 1984, the district court adopted the report and recommendation of the magistrate, with exceptions. The district court made the following conclusions of law:
1. The Note, Mortgage, Guaranty, Security Agreement, and Financing Statement are valid obligations enforceable according to the terms thereof.
2. The Small Business Administration has not released, modified, or waived the Guaranty Agreement.
3. The Agreement entered into between Robert H. and Marcia I. Stofer and certain of the defendants does not operate as a release or novation as to the Guaranty.
4. There are no valid existing claims or defenses which would defeat plaintiff’s right of foreclosure.
5. There is no genuine issue of material fact.
6. Plaintiff is entitled to a Judgment and Decree of Foreclosure as a matter of law.
On May 30, 1984, the district court amended the order to certify it as a final judgment under 54(b). On appeal, the Stof-ers argue that (1) there were genuine issues of material fact regarding equitable estoppel which made summary judgment improper, and (2) under Fed.R.Civ.P. 56(f), the trial court erred in denying them the opportunity to reopen discovery.
In Dreher v. Sielaff, 636 F.2d 1141, 1143, n. 4 (7th Cir.1980), the court reviewed the purpose and limitations of summary judgment:
It is well accepted that the purpose of summary judgment is to prevent an unnecessary trial where, on the basis of the pleadings and supporting documents, there remains no material issue of fact to be tried. Kirk v. Home Indemnity Co., 431 F.2d 554, 559 (7th Cir.1970). Summary judgment is appropriate only if it appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.1976); Fed.R.Civ.P. 56(c). The burden is upon the moving party to show that there is no issue of material fact in dispute, Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir.1973)....
The record in this case indisputably establishes the facts that the SBA made a loan, personally guaranteed by the Stofers, to Bob Stofer Oldsmobile-Cadillac Inc.; the Stofers entered into an agreement to sell their interest in the auto dealership to Sgro, Nelson and Graham, and the agreement included a hold harmless provision indemnifying the Stofers from the debt to the SBA; the SBA was not a party to the agreement nor did the SBA release the Stofers from the guarantee; and, finally, that the Stofers defaulted on the loan. The Stofers argue that the trial court had before it sufficient allegations of facts to support the defenses of equitable estoppel and laches, and the government failed to meet its burden of showing that there was no issue of material fact in dispute. The Stofers submit that the pleadings, motions and affidavits before the court alleged that the SBA had full knowledge of the agreement between the Stofers and Nelson, Sgro and Graham, and the SBA allowed the buyers to deplete the mortgaged assets of the dealership without making any payments to the SBA. During this ten-month period, the SBA made no demand on the Stofers for payments on the loan and mortgage. The Stofers contend that the conduct of the SBA’s representatives amounted to a false representation that led them to believe that the SBA would not enforce its rights to a foreclosure action and personal deficiency decree against them. Further, the Stofers claim that they reasonably and detrimentally relied on the words and conduct of the SBA, making no further loan payments and not concerning themselves with whether Nelson, Graham or Sgro were making the payments. The Stofers allege that the SBA was part of a conspiracy with the buyers to “cannibalize” the auto dealership and then have the SBA foreclose and seek a personal deficiency decree. Because the government produced no evidence to contradict the alleged facts of the affirmative defense, the Stofers submit, summary judgment was improperly granted.
The affirmative defense of equitable estoppel is not applicable against the government in the same manner as against a private party. In Portmann v. United States, 674 F.2d 1155, 1167 (7th Cir.1982), this court adopted the standard for estoppel against the government set forth by the Ninth Circuit in TRW, Inc. v. Federal Trade Commission, 647 F.2d 942 (9th Cir.1981), as the minimum showing that a plaintiff is required to make. In Pratte v. NLRB, 683 F.2d 1038, 1041 (7th Cir.1982), the court summarized the elements of a claim of estoppel against the government:
Estoppel will be applicable if the Governmental actions amount to “affirmative misconduct” and if four other requirements are met:
First, the party to be estopped must know the facts. Second, this party must intend that his conduct shall be acted upon, or must so act that the party asserting estoppel has a right to believe it is so intended. Third, the party asserting estoppel must have been ignorant of the facts. Finally, the party asserting estoppel must rely reasonably on the other’s conduct to his substantial injury.
The district court in the instant case, after recognizing that estoppel may apply to the government in certain limited situations, found that summary judgment in favor of the United States was appropriate because the
Stofers have failed to produce any evidence in favor of their estoppel allegations beyond the affidavit of defendant Robert Stofer. This affidavit adopts as true the eonclusory allegations set forth in defendants response to plaintiff’s Motion for Summary Judgment. No other evidence has been presented and the Court is not inclined to deny a Motion for Summary Judgment on the contingency that defendants may be able to prove these facts.
Applying the analysis set forth in Pratte, we agree that the Stofers have produced insufficient evidence to establish any issue of material fact as to the applicability of equitable estoppel. Even assuming that the SBA knew the alleged facts and intended that its conduct would be acted upon, the Stofers have failed to allege any conduct of the SBA that they reasonably relied upon to their substantial injury. In response to the government’s interrogatories, the Stofers responded that they could not identify any oral communication made by or on behalf of the SBA on which they had relied. Further, they responded that the only written documents which they intended to enter into evidence were the July 8, 1982 contracts. Although they conditioned both answers upon the fact that discovery was incomplete, the fact remains that they have not produced any evidence of affirmative misconduct on the part of the SBA upon which they relied. Indeed, in their January 20, 1984 response to the government’s motion for summary judgment, the Stofers stated that the SBA had “acquiesced in what appears to be a conspiracy by Sgro, Nelson and Graham to take the business over, sell the assets, and cannibalize the business____” (emphasis added). Thus, because the Stofers failed to satisfactorily establish the prerequisites of equitable estoppel, there were no genuine issues of material fact to preclude the granting of summary judgment.
Next, the Stofers make the argument that under Fed.R.Civ.P. 56(f), the district court abused its discretion in refusing to grant a continuance so that more depositions could be taken. Fed.R.Civ.P. 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
The Stofers submit that Rule 56(f) is applicable here because they were prevented by the “stonewalling tactics” of Sgro and Danks from taking their depositions. Further, they assert that Rule 56(f) is particularly applicable because the adverse parties had exclusive knowledge of many of the alleged material facts. The Stofers argue that the SBA’s motive, intent and knowledge in allowing the assets of the auto dealership to be depleted are critical issues within the exclusive knowledge of the SBA and accordingly, summary judgment was inappropriate under Rule 56(f).
We reject the Stofers’ contention for two reasons. First, as discussed above, even if the SBA intended that its conduct would be acted upon, the Stofers have made only eonclusory allegations as to any affirmative misconduct on the part of the SBA upon which they reasonably relied to their substantial injury. Thus, even if the SBA’s intent were established, the Stofers have failed to make any concrete allegations as to another essential element of equitable estoppel. Secondly, we agree with the district court that the Stofers’ arguments regarding Rule 56(f) are merit-less. The district court noted, as did the magistrate, that counsel for the Stofers has never offered any explanation for his dilatory efforts in undertaking discovery. Although the original discovery cut-off date was set at the July pre-trial conference for November 1, 1983, counsel for the Stofers did not seek an extension until December 1, 1983, and did not file his first notice to take depositions until December 19, 1983. Under these circumstances, the magistrate refused to grant another continuance on January 5, 1984, when the Stofers’ attorney moved for an extension based on the lack of cooperation of the adverse parties. We agree with the district court that, considering counsel’s dilatory tactics, there is no basis for a finding that the magistrate abused his discretion in refusing to grant further discovery. A party who has been dilatory in discovery may not use Rule 56(f) to gain a continuance where he has made only vague assertions that further discovery would develop genuine issues of material fact. See Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 57, 38 L.Ed.2d 86 (1973); see also Waldron v. Cities Service Co., 361 F.2d 671 (2d Cir.1966), aff'd 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 reh’g denied 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1967).
Accordingly, the order of the district court granting summary judgment is AFFIRMED.
. Two assignments were actually executed on July 8, 1982. The first instrument conveyed the Stofers' interest to Sgro and Nelson; Sgro then conveyed his interest to Graham.
. The cross-claims are not the subject of this appeal.
. See Magistrate's Report and Recommendation, January 27, 1984, p. 5 ("George G. Danks is not a party to this litigation and no showing has been made that he was ever subpoenaed for purposes of his deposition.”). We do not address the issue of whether a subpoena is required for a director of a bank which is a party to the litigation.
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_circuit | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Appellee, v. Antonio Cruz VAZQUEZ, Benito Luis Cortina, Antonio Gonzalez, Andres Rene Rappard, and Jose De La Fe-Quintas, Appellants.
Nos. 678, 694, 695, 706 and 707, Dockets 78-1366, 78-1370, 78-1378, 78-1379 and 78-1398.
United States Court of Appeals, Second Circuit.
Argued Feb. 26, 1979.
Decided Aug. 24, 1979.
Gerald L. Shargel, New York City (Graham Hughes, Fischetti & Shargel, New York City, of counsel), for defendant-appellant Vazquez.
David Breitbart, New York City, for defendant-appellant Cortina.
Lawrence S. Bader, New York City (Se-gal & Hundley, New York City, of counsel), for defendant-appellant Gonzalez.
Michael Young, New York City (Goldberger, Feldman & Dubin, New York City, of counsel), for defendants-appellants Rappard and De La Fe-Quintas.
Susan E. Shepard, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Harvey M. Stone, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for the United States of America.
Before FEINBERG, TIMBERS and MES-KILL, Circuit Judges.
MESKILL, Circuit Judge:
Antonio Cruz Vazquez, Benito Cortina, Antonio Gonzalez, Andres Rene Rappard, arid Jose De La Fe-Quintas appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. Appellant Vazquez was convicted, after a jury trial, of conspiring to distribute heroin, in violation of 21 U.S.C. § 846; possessing with intent to distribute 44 pounds of heroin, 21 U.S.C. § 841(a)(1); and conducting a continuing criminal enterprise, 21 U.S.C. § 848. Cortina, Gonzalez, Rappard and De La Fe were convicted only on the conspiracy count — Cortina and Gonzalez after a jury trial, Rappard and De La Fe after guilty pleas. Each has been sentenced to a term of imprisonment and a special parole term; in addition, Vazquez and Gonzalez have been fined.
I. Background
The issues raised by the appeals before us do not necessitate a detailed elaboration of the complex and extensive narcotics operation in which appellants participated. Briefly, the government presented evidence showing that, with the help of an airline employee stationed in Arizona, participants in the conspiracy imported from Mexico large quantities of heroin and exported, in exchange, large sums of cash. The evidence indicated that the heroin was then transferred from the western states to New York or New Jersey, where it was ultimately sold.
Although the government called many witnesses and introduced many exhibits, a great deal of trial time was devoted to presenting to the jury, over the objections of the defendants, the contents of various intercepted telephone conversations in which one or more of the conspirators had participated. The federal statute governing wiretapping both restricts the availability of this singularly intrusive investigative technique and imposes a number of obligations on those federal or state authorities who are involved in its authorization, implementation or supervision. Failure to comply with certain of the procedures specified necessitates the suppression of the evidence obtained. Thus, in reviewing the district court’s decision not to exclude the challenged evidence, we must closely examine the route by which the intercepted conversations got into court in order to determine whether the statutory pre-conditions to its admission were satisfied.
On July 5, 1977, an investigator representing the Narcotics Strike Force of the Hudson County, New Jersey, Prosecutor’s Office applied to Judge Arthur J. Blake of the New Jersey Superior Court for an order authorizing the interception of certain wire communications pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act. The investigator’s supporting affidavit stated that the Prosecutor’s Office had obtained information from several sources (including interviews with confidential informants, visual surveillance of suspects, and examination of telephone company records) linking the use of four New Jersey telephones with the operation of a large narcotics conspiracy controlled by appellant Vazquez. According to the affidavit, the Prosecutor’s Office was of the view that electronic surveillance of four specified telephones would reveal information concerning the imminent shipment of a large quantity of heroin into the New York-New Jersey area. On the basis of this affidavit, the adequacy of which is discussed in part III of this opinion, Judge Blake issued an order dated July 5th, 1977, authorizing 20-day wiretaps on the four telephones, the last four digits of which are 0027, 9462, 5693, and 5699. On July 22, 1977, the New Jersey Superior Court authorized a 10-day extension of these four wiretaps, effective that day, oh the basis of an affidavit that both incorporated the original July 5th affidavit and included information gathered through interceptions under the initial order. On August 1, the New Jersey court authorized a second 10-day extension of the initial order on the basis of an affidavit that again incorporated the earlier affidavits and set forth information gathered during prior interceptions. On August 11, 1977, the Prosecutor’s Office sought and received a new order authorizing 20-day interceptions on the same four telephones. Again the supporting affidavit incorporated all previous affidavits and set forth new information gathered during previous interceptions.
On August 31, 1977, yet another 20-day order was issued. Because service had been terminated on one of the four tapped telephones, number 9462, no authorization was sought for continued interception of that line. However, the affidavit submitted to the New Jersey court by the Prosecutor’s Office stated that new information had been obtained indicating that telephone number 6299 was emerging as a focal point for communications between the subjects of the investigation, and authorization was sought and received for the initiation of a wiretap on this number. On September 19, a 10-day extension was sought as to three of the four phones covered by the August 31 order, and on September 29 a second extension was authorized covering these three lines.
No further orders or extensions were sought in connection with this investigation until January 3, 1978. A 20-day order issued on that date authorized the wiretapping of three previously untapped telephone lines, numbers 3016, 6656, and 7511. On January 23 a 10-day extension order was issued authorizing the continued interception of lines 3016 and 6656. After the expiration of this extension, all wiretap activity relevant to the instant appeals ceased. All intercepted conversations had been recorded on tape; the wiretaps conducted pursuant to the orders and extensions just enumerated generated over 200 reels of tape.
II. The Sealing of the Tapes
The argument most vigorously pressed by all five appellants, and the only one requiring extended discussion, focuses on what happened after the intercepted conversations were recorded. Appellants contend that the government should not have been permitted to rely on any of the tapes recorded during the interceptions described above because unacceptable delays preceded the judicial sealing of these tapes.
Both the federal wiretap statute and the corresponding New Jersey statute require the “immediate” judicial sealing of tapes recorded in the course of a wiretap, and under the terms of both statutes the admissibility of such tapes into evidence is conditioned upon the presence of a judicial seal or the offer of a satisfactory explanation for its absence. Federal and state courts have interpreted such sealing provisions to require, by implication, a satisfactory explanation even when a judicial seal is present, if such seal was not obtained “immediately.” See, e. g., United States v. Ricco, 566 F.2d 433,435 (2d Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); United States v. Gigante, 538 F.2d 502, 506 (2d Cir. 1976); State v. Cerbo, 78 N.J. 595, 600, 397 A.2d 671, 674 (1978). We have had occasion before to discuss the importance of the sealing provisions of the federal act.
Congress, in enacting Title Ill’s sharply detailed restrictions on electronic surveillance, intended to “ensure careful judicial scrutiny throughout” the process of intercepting and utilization of such evidence.
The immediate sealing and storage of recordings of intercepted conversations, under the supervision of a judge, is an integral part of this statutory scheme. Section 2518(8)(a) was intended, to “insure that accurate records will be kept of intercepted communications”. Clearly all of the carefully planned strictures on the conduct of electronic surveillance... would be unavailing if no reliable records existed of the conversations which were, in fact, overheard.
United States v. Gigante, supra, 538 F.2d at 505 (citations omitted). Gigante held that where tapes have not been properly sealed, suppression is appropriate even in the absence of any showing that the tapes have been altered. The Court reasoned that to condition suppression of improperly sealed tapes on a showing of tampering would controvert the language of the statute and would vitiate the congressional purpose. But see United States v. Cohen, 530 F.2d 43, 46 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976); United States v. Sklaroff, 506 F.2d 837, 840 (5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975); United States v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975).
The 208 tapes here at issue were judicially sealed in three groups. On September 13, one hundred fourteen reels were sealed; on October 17, an additional twenty-one reels were sealed; and on February 9, 1978, the final seventy-three tapes were sealed by order of Judge Blake. The chronology of events crucial to our calculation of the sealing delays involved in this case is set out in a chart in the margin.
The parties disagree not only as to whether the sealing delays incurred in this case were justified, they disagree as well as to how these delays are to be calculated. We note at the outset that the measurement of a particular sealing delay and the determination of whether that delay requires suppression of a wiretap tape otherwise admissible in a federal trial are matters of federal law. United States v. Sotomayor, 592 F.2d 1219, 1223-26 (2d Cir.), cert. denied, - U.S. ——, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). Cf. United States v. Turner, 558 F.2d 46, 49 (2d Cir. 1977) (“This is a federal prosecution, and federal law determines whether suppression is appropriate.”). Thus, tapes sealed in compliance with the federal standards are admissible in federal court regardless of whether under applicable state law the tapes have been properly sealed. Under federal law, sealing delays are to be measured from the termination date of the continuous period of interception of a given telephone, regardless of the number or length of judicial orders that have been issued to authorize that surveillance. United States v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Fury, 554 F.2d 522, 533 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977). Section 2518(5), which permits the issuance of 30-day orders and 30-day extensions, places no limit on the number of orders or extensions that may be issued to authorize continuation of a given interception, provided, of course, that all statutory conditions are met. Therefore, the duration of “the period of the order, or extensions thereof,” will depend in each case on the authorizing judge’s determination of the length of time interception is justified. And it is only the “expiration” of this “period of the order, or extensions thereof,” that triggers the sealing requirement of § 2518(8)(a).
Sotomayor turned on the distinction “between procedures governing the interception of wiretap evidence and those governing the preservation of such evidence after interception for trial.” 592 F.2d at 1225.
We believe that... in determining whether to admit a wiretap obtained by a state officer acting under a state court order issued pursuant to a state statute, [we are required] to apply only those more stringent state statutory requirements or standards that are designed to protect an individual’s right of privacy, as distinguished from procedural rules that are essentially evidentiary in character.
. Since a state’s protection of privacy normally reflects principles central to its social and governmental order, our failure to respect its more stringent protection of privacy rights would not only violate principles of federalism, but encourage state and federal law enforcement officials to by-pass state law and to engage in federal forum-shopping.... On the other hand, rules pertaining to the admissibility of evidence are ordinarily governed by the law of the forum.
Id. (footnotes omitted). This reasoning dictates the same result in the instant case. The New Jersey courts have had little occasion to interpret the state wiretap statute, and we are aware of no case precisely on point. Whether the sealing obligation of the New Jersey statute is eventually interpreted as attaching upon the expiration of each separate order or extension, as in New York, or as attaching only upon the termination of the entire period of interception of a particular telephone, as in the federal courts, we must be guided by federal law in this area. In contrast to the federal act, the New Jersey statute permits issuance only of 20-day orders and 10-day extensions. Furthermore, under the New Jersey statute only two 10-day extensions of a particular 20-day order may be issued. To obtain authorization for the continuation of a wiretap beyond the period covered by an order and the two permitted extensions thereof, law enforcement officials must apply for a new order. By setting the standards for issuance of a 20-day order higher than those governing issuance of a 10-day-extension, and by permitting the issuance of only two extensions of each order, the New Jersey legislature has established a method somewhat different from that chosen by Congress for protecting against unwarranted interceptions. Under United States v. Sotomayor, supra, 592 F.2d at 1223-26, this choice, insofar as it affects the validity of an order issued by a New Jersey judge, will be respected by the federal courts. However, New Jersey’s policy choice regarding the authorization of continuous wiretaps cannot logically be viewed as affecting the approach to be taken by the federal courts in assessing the adequacy of the sealing of the tapes obtained in the course of those taps.
We interpret the phrase “period of the order, or extensions thereof,” in the sealing provision of the federal statute, § 2518(8Xa), to encompass a continuous authorized wiretap in its entirety, regardless of whether the judicial orders authorizing the initiation or continuation of the tap are denominated “orders,” “extensions,” “renewals,” or “continuations.” To interpret federal law otherwise would result in permitting the timeliness of the sealing of tapes offered in evidence in federal court to be determined by a state decision to label orders authorizing the continuation of wiretaps by any term other than the term “extension.” Such a result, although in no way increasing the protection afforded individual privacy, would diminish federal control over evidentiary procedures in the federal courts. Keeping in mind the principles enunciated in United States v. Sotomayor, supra, we deem it most unlikely that Congress intended such a result. Therefore, we conclude that the term “extensions,” as used in the phrase “period of the order, or extensions thereof” is to be understood in a common sense fashion as encompassing all consecutive continuations of a wiretap order, however designated, where the surveillance involves the same telephone, the same premises, the same crimes, and substantially the same persons. See United States v. Scafidi, supra, 564 F.2d at 641; cf. United States v. Principie, 531 F.2d 1132, 1142 n.14 (2d Cir. 1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1173, 51 L.Ed.2d 581 (1977). It follows that the sealing obligation under federal law is not accelerated by New Jersey’s method of authorizing the continuation of a wiretap beyond the period of the initial order.
Having determined that the sealing obligation attached, under federal law, on the date each tap terminated, we can now calculate how long the sealing of the eight sets of tapes generated by the eight wiretaps was delayed. The delays relevant to this appeal range from 7 to 13 days:
Date of Wiretap Termination Dates of Days of Sealing Delay
0027 Sept. 19,1977 9/13/77 [0]
9462 Aug. 81,1977 9/13/77 13
5693 Oct. 9,1977 9/13 & 10/17/77 8
5699 Oct. 9,1977 9/13 & 10/17/77 8
6299 Oct. 9,1977 10/17/77 8
6656 Feb. 2,1978 2/ 9/78 7
* 7511 Jan. 23,1978 2/ 9/78 [17]
3016 Feb. 2, 1978 2/ 9/78 7
The law is clear that if no explanation had been offered for these delays we would be obliged to reverse, as a sealing achieved one to two weeks after expiration of a wiretap cannot be considered “immediate.” Cf. United States v. Gigante, supra, 538 F.2d 502 (8 to 12 month delays). The cases illustrate that sealing is often possible within one or two days. See, e. g., United States v. Sotomayor, supra, 592 F.2d at 1221. Thus, in our view, any delay beyond that certainly calls for explanation. Unfortunately, there is no clear consensus as to what constitutes a “satisfactory explanation,” under the statute, for a less-than-immediate sealing.
No evidence was offered to controvert the affidavit submitted by the govern-merit at the suppression hearing or the testimony of task force agents at trial regarding the carrying out of the wiretapping. The task force experienced shortages in both qualified personnel and equipment. Surveillance on each wire was conducted 24 hours a day and as many as five lines were monitored at any givén time. Because the great majority of the conversations intercepted were conducted in Spanish, it was necessary, in order to observe the minimization requirements of the New Jersey statute, to have at least one agent fluent in Spanish monitoring the tapes on each 8-12 hour shift. Although the Prosecutor’s Office borrowed Spanish-speaking agents from other law enforcement agencies, only four qualified agents were available. An attempt was made to record both original tapes and duplicate tapes simultaneously but because too few tape recorders were available, even after borrowing, this was possible less than half the time. Due to round-the-clock use, the tape recorders required frequent repair work. Further, because personnel and equipment were engaged in the monitoring and recording process, machines and personnel were not always available to duplicate those tapes for which no duplicates had been made during the interception itself. And because the Spanish speaking personnel were engaged in monitoring conversations, they were not always available to spot-check the duplicate tapes for audibility. In addition, during the effective period of each order or extension, strike force personnel needed to gain sufficient familiarity with the tapes to enable them to decide which taps should be continued and which should be terminated. Each application for continued authorization of a tap contained information obtained during the effective period of the prior order or extension so that the issuing judge would have sufficient information on which to base a determination that continued surveillance was justified. This on-going evaluation of the conversations intercepted made further demands on the personnel and equipment available. Finally, the fact that over 200 reels of tape required duplicating, labeling, and checking made difficult the-prompt preparation of the tapes for sealing.
Although the question is close, in our view the circumstances just detailed provide a satisfactory explanation for the 7 to 13 day sealing delays. When the wiretaps were first instituted, the government had reason to believe that the investigation would be quickly concluded, as their information indicated that a drug shipment was due to arrive in the area. Had the evidence needed been gathered during the first week or two of surveillance, perhaps the personnel and equipment on which the project depended would have been able to handle the necessary monitoring, duplication and transcription without incurring delays in sealing. In the circumstances of this case, where we discern on the government’s part no bad faith, no lack of diligence, and no attempt to gain an advantage over the defendants, we believe that the government’s lack of foresight regarding the actual scope of the investigation does not justify the exclusion of probative evidence lawfully obtained.
Congress has explicitly established “two possible prerequisites to the use of wiretap evidence — the presence of a judicial seal, or a satisfactory explanation of its absence..” United States v. Gigante, supra, 538 F.2d at 506 (emphasis added). Unless we are to read the second alternative out of the statute, we must decide in each case whether the explanation tendered can be deemed “satisfactory.” In the instant case, although the delays were not miniscule, neither were they of Gigante proportions. In this Circuit delays of comparable length have been deemed excusable in some circumstances and inexcusable in others. Compare United States v. Scafidi, supra, 564 F.2d 633 (7-day delay excused); United States v. Fury, supra, 554 F.2d at 533 (6-day delay excused); United States v. Poeta, 455 F.2d 117 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972) (13-day delay excused); United States v. Aloi, 449 F.Supp. 698 (E.D.N.Y.1977) (5-day and 7-day delays excused); United States v. Caruso, 415 F.Supp. 847 (S.D.N.Y.1976), aff’d, 553 F.2d 94 (2d Cir. 1977) (24-day and 42-day delays excused) with United States v. Ricco, 421 F.Supp. 401 (S.D.N.Y.1976), aff’d, 566 F.2d 433 (2d Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978) (pre-Sotomayor, applying New York law, 12-day or 13-day delay not excused). See also United States v. Angelini, 565 F.2d 469 (7th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978) (9-day, 26-day and 38-day delays excused); United States v. Sklaroff, supra, 506 F.2d 837. Taken together, the factors discussed above appear to us to explain adequately the delays incurred.
However, in law as in life, today’s satisfactory explanation may very well be tomorrow’s lame excuse. As the federal and state case law in this area grows, the failure to foresee and, where possible, prevent sealing delays becomes less justifiable, as law enforcement officials must be expected to learn from their own experiences and those of others. As other courts have done: “We decline to allow the police to rely on their own failure to use proper equipment or to institute more efficient procedures as an excuse for delay.” People v. Washington, 46 N.Y.2d 116, 124, 412 N.Y.S.2d 854, 859, 385 N.E.2d 593, 597 (1978). The wiretapping statute imposes a duty on the judiciary as well as on the prosecutor. It is our role to exclude from evidence tapes not sealed in conformance with the law, and we are aware that by faithfully performing this statutory duty we encourage law enforcement officers to perform their duties in an equally rigorous manner. For this reason, we will continue to scrutinize wiretap cases with care, and will not hesitate to exclude evidence when exclusion is appropriate.
III. Probable Cause
Not only do appellants contend that the wiretap tapes were improperly sealed, they argue, in addition, that this evidence was improperly obtained. Appellants claim that the affidavits supporting the wiretap authorization orders failed to establish probable cause for the interceptions and that Judge Mishler erred in denying defense motions to suppress the tapes on this ground.
The New Jersey statute permits a state judge to enter an ex parte interception order if the court determines on the basis of the facts submitted by the applicant that there is probable cause to believe inter alia that:
(a) The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense as provided in... this act;
(b) Particular communications concerning such offense may be obtained through such interception;
(d) The facilities from which, or the place where, the wire or oral communications are to be intercepted, are or have been used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by, such individual....
NJ.Stat.Ann. 2A.156A-10. We are not the first court that has been called upon to evaluate the challenged affidavits under the statutory standards. A neutral and detached magistrate, Judge Blake of the New Jersey Superior Court, concluded that these affidavits established probable cause for his issuance of the several orders requested, and such a determination is to be accorded substantial deference. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Gomez Londono, 553 F.2d 805, 810 (2d Cir. 1971); State v. Murphy, 137 N.J.Super. 404, 420, 349 A.2d 122, 131 (Super.Ct.Law Div.1975), rev’d on other grounds, 148 N.J.Super. 542, 372 A.2d 1315 (Super.Ct.App.Div.1977). Judge Mishler has also carefully reviewed the challenged affidavits and has found them to be more than adequate. Our own study of the affidavits leads us to the same conclusion.
No purpose would be served by setting out in detail the contents of these lengthy affidavits. Suffice it to say that each one provided ample factual material on which to base a determination of probable cause. The information presented in the initial 37-page affidavit was gathered from several sources, including tips from three confidential informants. Considerable evidence was provided to support the affiant’s conclusion that the informants were reliable. Two had previously supplied the Prosecutor’s Office with information concerning drug-related activity and this information had been corroborated by the investigators and found to be correct. See Aguilar v. Texas, supra; Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Rueda, 549 F.2d 865, 870 (2d Cir. 1977); United States v. Edmonds, 535 F.2d 714 (2d Cir. 1976); United States v. Fantuzzi, 463 F.2d 683, 687-88 (2d Cir. 1972). Cf. United States v. Fiorella, 468 F.2d 688, 691-92 (2d Cir. 1972), cert. denied, 417 U.S. 917, 94 S.Ct. 2622, 41 L.Ed.2d 222 (1974). The information given by the third informant was confirmed by a DEA agent. Significantly, the statements provided by the confidential informants to some extent corroborated one another. Furthermore, the Prosecutor’s Office had, where possible, verified details of the informants’ stories in order to ensure that the tips were based “on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969); United States v. Edmonds, supra, 535 F.2d at 720. Cf. United States v. Dunloy, 584 F.2d 6 (2d Cir. 1978). Although some of the information had been gathered in the early stages of the investigation, there was ample indication that the criminal activity was of an ongoing nature and that the information was therefore still pertinent. State v. Murphy, supra, 137 N.J.Super. at 421; 349 A.2d at 131-32. Moreover, appellants’ contention that the affidavit was defective due to certain omissions is without merit. We agree with Judge Mishler that assuming that the omitted facts are true and that their omission was intentional, they would not be material to a determination of probable cause. Therefore no hearing on this issue was necessary. Cf. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Steinberg, 525 F.2d 1126, 1131 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). Viewed as a whole, the initial affidavit was sufficient to establish probable cause to believe that by tapping the target phones investigators could intercept communications between the members of the alleged drug conspiracy and that those conversations would relate to that conspiracy. The subsequent affidavits, all of which incorporated new information gleaned during the most recent interceptions, also clearly met the standard set by statute.
Defendants correctly observe that wiretapping is “not to be routinely employed as the initial step in criminal investigation,” United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341 (1974). The New Jersey statute provides that a wiretap application shall include, in addition to the requirements just discussed:
A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ....
N.J.Stat.Ann. 2A:156A-9(c)(6). However, “the purpose of the statutory requirements is not to preclude resort to electronic surveillance until after all other possible means of investigation have been exhausted by investigative agents; rather, they only require that the agents inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods.” United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976). See also United States v. Fury, supra, 554 F.2d at 529-30; United States v. Steinberg, supra, 525 F.2d at 1130. The challenged affidavits were clearly sufficient in this regard. As Judge Mishler stated:
The affidavit details the standard investigative techniques that were utilized prior to the wiretap application and indicates the paucity of admissible evidence resulting therefrom.
Prior to resorting to wiretapping, the Prosecutor’s Office had interviewed informants, both confidential and identified; had undertaken physical surveillance; and had checked bank, telephone, motor vehicle, public utilities and police records; and yet, had been unable to gather sufficient evidence to arrest the conspirators.
The district court correctly concluded that the challenged wiretap orders were properly issued.
The judgments of conviction are affirmed.
. With the agreement of the government and the approval of the court, Rappard and De La Fe preserved the right to appeal the district court’s denial of their motions to suppress certain wiretap evidence. See United States v. Price, 599 F.2d 494, 496 n.1 (2d Cir. 1979), and cases cited therein.
. Vazquez was sentenced on the criminal enterprise count to a term of 15 years’ imprisonment, lifetime special parole, and a $25,000 fine, and on the possession count to a term of 15 years’ imprisonment (concurrent) and a $100,000 fine. Cortina was sentenced to a term of 15 years’ imprisonment and a special parole term of 15 years. Gonzalez was sentenced to a term of 10 years’ imprisonment, a special parole term of 15 years, and a $25,000 fine. Rappard was sentenced to a term of 5 years’ imprisonment and a special parole term of 10 years. De La Fe was sentenced to a term of 3 years’ imprisonment and a special parole term of 7 years.
. No challenge has been made to the sufficiency of the evidence presented to support the verdicts rendered as to the three appellants who proceeded to trial: Vazquez, Gonzalez and Cortina.
. The intercepted conversations were conducted almost entirely in Spanish. Although none of the jurors spoke Spanish, tapes of a few key conversations were played in court. On these occasions, the jurors were given transcripts of English translations of the conversations. These transcripts did not identify the speakers. The jurors were permitted to read along, and to make notes if they wished to do so, while an agent on the witness stand read aloud government-prepared English translations, identifying the various speakers as he read. On other occasions, the playing of the Spanish tapes was omitted but the rest of the procedure remained the same.
No challenge to the accuracy of either the transcriptions or the translations has been made. Appellant Cortina, however, does challenge the district court’s decision to allow the government to proceed in this manner. Judge Mishler cautioned the jury to evaluate the testimony bearing on the accuracy of the transcription, the translation from the Spanish, and the identification of the speakers, and he made clear that the transcripts were to be used only as aids: “The mere fact that it is in typewritten form does not mean you must accept it.... [The transcripts] are merely guides, subject to assessment by you as to the accuracy and the weight to be given... Tr. at 890. Under these circumstances, we cannot agree with Cortina’s contention that the procedures followed deprived him of a fair trial. Cf. United States v. Lam Lek Chong, 544 F.2d 58, 71 (2d Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977); United States v. Chiarizio, 525 F.2d 289, 294 (2d Cir. 1975); United States v. Marin, 513 F.2d 974, 977 (2d Cir. 1975); United States v. Koska, 443 F.2d 1167, 1169 (2d Cir.), cert. denied, 404 U.S. 852, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971).
. Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. §§ 2510 et seq.
. See id. §§2518(10)(a) and 2518(8)(a); but see United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977).
. N.J.Stat.Ann. 2A:156A-1 et seq.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_casetyp1_7-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
SMITH v. COMMISSIONER OF INTERNAL REVENUE.
No. 2669.
Circuit Court of Appeals, First Circuit.
May 31, 1932.
Lawrence E. Green (of Hale & Dorr) of Boston, Mass., for the petitioner for review.
J. Louis Monarch, Sp. Asst, to the Atty. Gen. (G. A. Youngquisf, Asst. Atty. Gen., Bewail Key, Sp. Asst, to Atty. Gen., and C. M. Gharest, Gen. Counsel, and Philip A. Bayer, Bp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for the Commissioner.
Before BINGHAM and WILSON, Circuit Judges, and MeLELLAN, District Judge.
BINGHAM, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals determining deficiency income taxes for the years 1925 and 1926 in the sum of $498.53 and $494.35 respectively under the provisions of section 219(g) of the Revenue Acts of 1924 (26 USCA § 960 note) and 1926 (44 Stat. 32), which, in the particulars here in question, are the same in both acts.
The petitioner, the wife of Emelins W. Smith, on December 26, 1924, created four trusts, one for each of her sons, Reginald Heber Smith, Cecil H. Smith, Harold C. Smith, and Kendall K. Smith. The trust agreements are the same except as to the name of the beneficiary, and each was accompanied by a schedule of property so given in trust. Two of the sons, Reginald and Cecil, were made trustees of each trust. In the trust to Reginald the income was payable to him during his life, and, on his death, it provided for the payment of the trust fund to his children if any survived him. It further provided:
“C. Upon the death of my said son leaving no issue him surviving the trustees shall distribute and pay over the remaining principal of the trust fund and any unpaid or accumulated income in equal shares to the trustees for my son Cecil H. Smith, my son Harold C. Smith, and my son Kendall K. Smith, under instruments of trust similar to this instrument and bearing even date herewith as aforesaid, except that so far as the trusts under any one or more of said instruments shall have come to an end by the death of the first life tenant without issue or by failure of his issue the distribution shall bo to the trusts for the other sons or son, and if when my said son dies without issue he has survived all'iny other issue then the trustees shall if T still survive repay to me said remaining principal and unpaid or accumulated income, or in ease I have died shall distribute said property to and among those persons who would have been entitled to take my personal estate under the Massachusetts statutes of distribution if I had died domiciled in Massachusetts immediately after the death of such child.”
Each trust agreement further provided:
“5. I hereby create in myself, my husband Emelins W. Smith, Reginald Heber Smith, Cecil II. Smith, and James Adams of Brook-line in (lie County of Norfolk, a joint power exercisable at any time or from time to time by any three of said persons by instrument or instruments in writing signed by said three and delivered to- any trustee hereunder who may be one of themselves:
“A. To remove any trustee hereunder.
“B. To appoint a successor to any trustee who dies, resigns, or is removed.
“C. To change and alter any of or all the trusts herein set forth and declare new trusts of the properly in any way or manner; also to terminate or modify the beneficial interests of any person, or class of persons and to name or appoint any other person or classes of persons as beneficiaries whether by way of addition or substitution; also to determine and alter the number of, the powers of, and the succession among the Committee. No exercise of this power shall exhaust it. It may, however, bo released, extinguished, or restricted by a like instrument so signed by any three of the Committee and delivered to a trustee as aforesaid. If either or both the powers to remove and appoint trustees shall have been released and/or extinguished, I reserve to myself acting alone and independent power to remove and appoint trustees in the manner aforesaid.”
The income of the four trusts amounted in 1925 to $5,353.47 and in 1926 to $11,679.-90. These amounts were added to the petitioner’s income for the respective years on the ground that the trusts were revokable. In each of the years the beneficiary under each trust received the income and returned it as his taxable income. The creator of the trust did not.
The Revenue Acts of 3924 and 1926 each contain the following provisions:
“Sec. 219. * * (g) Where the grantor of a trust has, at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to revest in himself title to any part of the corpus of the trust, then the income of such part of the trust for such taxable year shall be included in computing the net income of the grantor.
“(h) Where any part of the income of a trust may, in the discretion of the grantor of the trust, either alone or in conjunction with any person not a beneficiary of the trust, be distributed to the grantor or be held or accumulated for future distribution to him, or where any part of the income of a trust is or may be applied to the payment of premiums upon policies of insurance on the life of the grantor (except policies of insurance irrevocably payable for the purposes and in the manner specified in paragraph (10) of subdivision (a) of section 214), such part of the income of the trust shall be included in computing the net income of the grantor.”
In reaching the conclusion that,the income of each of the four trusts was properly taxable to their creator, the Board of Tax Appeals held: (1) That the words of the statute, “or in conjunction with any person not a beneficiary of the trust,” meant the same as though it read “in conjunction with any person or persons not a beneficiary or beneficiaries of the trust” (U. S. 0. title c. 1, § 1 [1 USCA § 1]); (2) that, while the two sons, Reginald and Cecil, named as members of the committee, were beneficiaries, Emelius W. Smith, the husband, 'and James Adams, were not, and therefore the creator of the trust had the power, in 'conjunction with Emelius W. Smith and James Adams, at anytime to revoke or change the trusts; and (3) that the statute, as thus construed and applied to the facts in this case, was constitutional.
The Board also took the view that the word “beneficiary” in section 219 (g) has reference “to a present beneficiary of a trust, not to one who has only a remote possibility of becoming a beneficiary in the future,” and because the likelihood of Emelius W. Smith, the husband, ever taking a vested interest under the trust was remote, he was not a beneficiary. It also .expressed the view that Emeli-us took, if at all, by virtue of the statute of distribution of Massachusetts. This manifestly is not so. The statute of distribution of Massachusetts, is made use of in the declaration of trust simply to define a class of persons, of which Emelius would be one, to whom the trust property would go upon the happening of a contingency named in the trust instrument. Then again in the trust •created for Reginald Heber Smith, Cecil H. Smith, one of the committee, is not a present beneficiary of that trust. His interest under that trust is conditional upon Reginald’s dying without issue surviving him, and his interest therein.may be greater or less, depending upon whether the other two brothers are then alive.. It is true that the possible vesting of his interest under that trust is less remote than that of Emelius, the father, but it is nevertheless contingent, not a present or fixed one. And .the same is true with reference to the interest of Reginald in the trust in which Cecil is the direct and immediate beneficiary. And, if the reasoning of the Board of Tax Appeals is correct — that the Revenue Act “has reference to a present beneficiary of a trust” — then neither Reginald, Cecil, nor the father, Emelius, would be a beneficiary under the other trusts created for Harold C. Smith or Kendall K. Smith, for their interests under each of those trusts are contingent.
It would seem that Congress did not intend, by the use of the term “beneficiary” in section 219(g) only a beneficiary having a present vested interest, but intended to include within that term a beneficiary or beneficiaries having contingent interests as well as those haying present or vested ones.
Undoubtedly Congress could have drawn a line between beneficiaries holding vested and contingent interests, or between those having contingent interests based on their respective degrees of remoteness, but it has done neither of these things. It is therefore far more reasonable to conclude that by the word “beneficiary” Congress intended to include persons or classes of persons designated, in the particular trust under consideration, entitled to take present or contingent interests thereunder.
If this is the correct construction and meaning of the Revenue Acts (and we think it is), Emelius is a beneficiary, and, aside from the creator of the trust, there is no member of the committee who is not a beneficiary except Mr. Adams. In this situation, under the terms of the power reserved, these two (the creator of the trust and Mr. Adams) c.ould not exercise it, and the creator of the trust, within the language of the statute, would not have the power to revoke the trust.
As the income was not taxable to Mrs. Smith within the meaning of the Revenue Acts, it is unnecessary to pass upon their constitutionality.
The decision of the Board of Tax Appeals is reversed, and the case is remanded to that Board for further proceedings not inconsistent with this opinion.
Question: What 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_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.
Arthur J. HOHMANN, Plaintiff-Appellant, and Harold S. Burman et al., Plaintiffs-Appellants, v. PACKARD INSTRUMENT COMPANY, INC., et al., Defendants-Appellees.
No. 71-1462.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 20, 1972.
Decided Jan. 17, 1973.
A. Bradley Eben, Arnold I. Shure, John Enright, Chicago, Ill., for plaintiffs-appellants.
George S. Hoban, Perry L. Fuller, George W. Hamman, Roger W. Barrett, Chicago, Ill., for defendants-appellees.
Before HASTINGS, Senior Circuit Judge, CUMMINGS, Circuit Judge, and GORDON, District Judge
District Judge Myron L. Gordon of the Eastern District of Wisconsin is sitting by designation.
HASTINGS, Senior Circuit Judge.
This long pending litigation first began in 1963 when two actions were filed in the federal district court. The cases were subsequently consolidated for trial and finally proceeded to trial by jury in March 1971. At the conclusion of plaintiffs’ evidence, the trial court granted the motions of all defendants for a directed verdict and entered judgment against plaintiffs and for defendants. Plaintiffs appealed. We affirm.
On May 29, 1963, in No. 63-C-953, Arthur J. Hohmann filed his action alleging a violation by defendants of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b), and Rule 10(b)-5(2) promulgated thereunder, which proscribes the use of a manipulative device or contrivance prohibited by the rules and regulations of the Securities and Exchange Commission. Hohmann is the sole plaintiff and is an investment counselor residing in London, England, and at the time was engaged in the advertising business. This shall be referred to as the Hohmann case.
On June 4, 1963, in No. 63-C-981, Harold S. Burman, Robert L. Burman and Marshall R. Burman, d/b/a Burman Investments, a partnership, (together with Charles Ashbroók, later dismissed as a plaintiff) filed their action (later amended), alleging a violation by defendants of § 11 of the Securities Act of 1933, 15 U.S.C.A. § 77k. They claimed that a prospectus filed with a registration statement of Packard Instrument Company, Inc., for a stock offering in 1963, was untrue and misleading because of the omission of material facts required to be stated therein. The Bur-mans are three brothers, one of whom filed the action as an attorney. This shall be referred to as the Burman case.
Each of these actions was brought by plaintiffs on their own behalf and as a class action on behalf of persons similarly situated. After extensive discovery and during preparation for trial, the trial court, on June 30, 1967, on motion of defendants, entered an interlocutory order striking the class actions of the two complaints. Hohmann v. Packard Instrument, N.D.Ill., 43 F.R.D. 192 (1967). On appeal, we held the actions were properly brought as class actions and reversed. Hohmann v. Packard Instrument Co., 7 Cir., 399 F.2d 711 (1968).
Remaining as named defendants at the subsequent trial and common to both suits were (1) Packard Instrument Company, Inc. (Packard Instrument), an Illinois corporation located in Brookfield, Illinois, with its principal manufacturing business in Downers Grove, Illinois; (2) Lyle E. Packard, its president, chairman of the board, a director and majority stockholder; (3) A. G. Becker & Co., Incorporated (Becker), an Illinois corporation, of Chicago, which underwrites and sells securities; and (4) Joseph J. Levin, chairman of the executive committee of Becker and also a director of Packard Instrument.
In this consolidated class action the class was defined to be all persons who purchased shares of stock in Packard Instrument during the period from February 19, 1963, through March 26, 1964, inclusive. After a history of intermittent vigorous prosecution and bitter defense from 1963 to March 1, 1971, the case was called for trial by jury on the latter date. The trial proceeded until plaintiffs rested their case on March 11, 1971. On that date the trial court granted the motions of all defendants for a directed verdict and entered judgment against plaintiffs and for all defendants.
The technical nature of the devices manufactured by Packard Instrument causes us to accept its undisputed description of the same on brief and as substantially represented in its prospectus of February 19,1963, as follows:
“The company’s products are instruments for the detection and measurement of radioactive isotopes used primarily in tracer studies in scientific research. The principal purchasers of the equipment are research laboratories of universities and colleges, governmental research centers, privately supported research facilities and research hospitals, as well as the United States Government and Veterans Administration Hospitals.
“The principal product of the company is the Tri-Carb Liquid Scintillation Spectrometer. The instrument is used for detection and measurement of radioactive isotopes. A radioactive sample to be identified and counted is placed in a solution of liquid scintillator and placed between the instrument’s two photomultiplier tubes. The solution produces an extremely small burst of light or scintillation for each radioactive emanation or particle that occurs in the sample. The scintillations are converted to bursts of electrons within the photomultipliers and greatly amplified to produce electrical impulses. The impulses are further amplified electronically and measured and counted by means of high-speed type circuitry.
“The particular value of the TriCarb Spectrometer in research lies in the ability to measure automatically and accurately large numbers of radioactive samples. Radioactive isotopes are used in investigations and research into cancer, cardio-vaseular diseases, the etiology of mental diseases, in studies of arthritis, rheumatic fever and nutritional studies of many types. Pharmaceutical firms use the instruments to determine the effects of newly developed drugs on the human body. Industrial research laboratories in the chemical, petroleum, tobacco and food industries also use Tri-Carb Spectrometers.
“The company also produces other instruments for the measurement of radioactivity including an instrument for counting radioactivity in laboratory animals and humans. New products which had been introduced or were about to be introduced in 1963 included gas chromatography equipment and large volume scintillation detectors.”
From its incorporation in 1957 the sales of Packard Instrument regularly increased. In April 1961, the company made its first public offering of 100,000 common shares which were traded in the over-the-counter market. The prospectus issued in that offering, in describing the shares, said: “These are speculative securities.” In February 1963, a second public offering, the subject of the instant litigation, was made. The company offered 50,000 common shares and a like amount was offered by Mr. Packard. This proposed sale of 100,000 common shares to the public, at $21.50 per share, was through an underwriting group headed by Becker. In connection with this public offering a registration statement, including a prospectus, was filed with the Securities and Exchange Commission, effective February 19, 1963. The proceeds of the shares offered by the company were to be used for a 24,000 square foot addition to its Downers Grove plant, and the balance was to be added to working capital to finance increased inventories and accounts receivable. Pursuant to this public offering, Hohmann purchased 500 shares of stock and Burman Investments purchased 175 shares. Following this public offering Mr. Packard personally still owned 439,200 common shares, representing about 66 per cent of the shares outstanding. No part of the proceeds of the sale of Mr. Packard’s stock was to be used by the company. He was the dominant person in the control and operation of the company.
The record shows that on June 30, 1967, AMBAC Industries, Incorporated, acquired all assets of Packard Instrument and assumed its liabilities in this litigation. It was made an additional party defendant in both cases, with a subsequent stipulation that AMBAC would not be mentioned or referred to in the presence of the jury at the trial.
The essence of the consolidated actions is the claim against defendants for monetary damages for alleged violations of the anti-fraud provisions of the federal securities law. No equitable relief is sought. The thrust of the charges is the alleged omission of material facts required to be stated in the prospectus effective on February 19, 1963. In short, a recovery by plaintiffs in this civil action depends upon their proof of concealment by defendants of an existing fact or facts which would have caused or tended to cause plaintiffs, as reasonably prudent investors, to refrain from buying the stock publicly offered on February 19, 1963. A jury trial is appropriate in a damage action alleging such violations. Dasho v. Susquehanna Corp., 7 Cir., 461 F.2d 11, 24 (1972), cert. denied, 408 U.S. 925, 92 S.Ct. 2496, 33 L.Ed.2d 336.
The parties seem to agree that applicable federal securities law is clear and well settled and that this is, as they term it, a “factual” case. Since the case comes to us as an appeal from a judgment for defendants on a directed jury verdict at the close of plaintiffs’ evidence in the consolidated trial, the critical question to be answered is whether the trial court erred in holding that plaintiffs had not discharged their required burden of proof to take the case to the jury at that point.
The standards for ruling on a motion for a directed jury verdict have long been well settled in this circuit. These standards find their base in the following statements by the Supreme Court in Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720 (1930):
“When, on the trial of the issues of fact in an action at law before a Federal court and a jury, the evidence, with all the inferences that justifiably could be drawn from it, does not constitute a sufficient basis for a verdict for the plaintiff or the defendant, as the ease may be, so that such a verdict, if returned, would have to be set aside, the court may and should direct a verdict for the other party.” [Citation omitted.] Id. at 93, 50 S.Ct. at 233.
“A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The decisions establish a more reasonable rule ‘that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.’ ” [Citations omitted.] Id. at 94, 50 S.Ct. at 233.
A long line of decisions following Gunning have further enunciated these standards. They are the same as those applicable in ruling on a motion for judgment notwithstanding the verdict. The trial court must determine whether the evidence justifies submission of the case to the jury. The motion should be denied where the evidence, along with inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions. See, e. g., Lambie v. Tibbits, 7 Cir., 267 F.2d 902, 903 (1959); Hubert v. May, 7 Cir., 292 F.2d 239, 244 (1961); Woods v, Geifman Food Stores, Inc., 7 Cir., 311 F.2d 711, 713 (1963); Farmers State Bank v. Dravo Corp., 7 Cir., 321 F.2d 38, 39 (1963); and cases cited in these foregoing authorities.
In resolving whether plaintiffs have discharged their required burden of proof, the primary question for the trial court, in this securities case as in any other civil action, is whether under the facts before it there is sufficient evidence of liability to warrant submission of this case to the jury. As is indicated by the portion of the Supreme Court’s opinion in Gunning quoted above, the trial court is not to follow a “scintilla” rule, but is to evaluate the evidence to determine whether it is of sufficient probative value that members of the jury might fairly and impartially differ as to the inferences to be reasonably drawn therefrom.
The prospectus in issue was dated and became effective on February 19, 1963. It contained an adequate description of the company and the use of the net proceeds of $20.00 per share from the sale of the 50,000 common shares offered by the company. It was shown that prior to April 1961 all of the company’s outstanding stock had been owned by Mr. Packard. Bid prices on the stock were reported as ranging from a low of $16.-50 per share to a high of $29.00 in 1961; from $14.50 to $28.00 in 1962; and from $21.00 to $24.00 in 1963 through February 15; and on February 15, 1963, the reported bid and asked prices were $21.25 and $21.75, respectively. The consolidated statement of income for five years ending December 31, 1962, was set out.
In a statement concerning dividends the following representation was made: “The Company has not paid cash dividends and does not plan to do so in the near future. In the opinion of the management, earnings at this stage of development can be most advantageously employed by reinvestment in the business.”
Included in a statement of the history and business of the company it was shown that: “The most important product, accounting in 1962 for approximately two-thirds of sales, is the Tri-Carb® Liquid Scintillation Spectrometer, which is available in models ranging in price from $5,500 to $12,500.” The company’s backlog of orders totaled approximately $361,000 as of December 31, 1961, and approximately $634,000 as of December 31, 1962. A section described a strong research and development program employing about 50 persons in that area with total expenditures for such purposes of about 10 per cent of sales in 1962. It was stated that the engineering department devoted its efforts to the development of new products and improvement of existing models. Some anticipated new products were described, as well as the company’s competition in the nuclear instrument industry. The company was said to have been the first to produce liquid scintillation counting equipment, completing its first model in 1953 as a special project and starting regular production in 1954. The statement said the company believed it was the major producer of such equipment in this country and that it had about 265 employees.
We accept plaintiffs’ summary on brief that the complaint in the Hohmann case and the amended complaint in the Burman case charged:
“3. The prospectus omitted to state the following material facts: (i) PIC was planning to and would stop production of these Spectrometers (TriCarb instruments) which had accounted for two-thirds of its 1962 sales and was attempting to redesign its entire line of these instruments, (ii) the stoppage of production incident to the model changeover would cause a reduction in total sales for the first four months of 1963, (iii) PIC would announce shortly after February 19, 1963 the redesigned line of Tri-Carb instruments, would exhibit them and solicit and accept orders for their sale and delivery, even though designs and development work were not complete and costs of production of the new instruments were unknown and not soundly predictable, (iv) the redesign of the Tri-Carb instruments and the termination of production as aforesaid and the attempt to manufacture and produce a redesigned line would entail substantial increased engineering, production, tooling and market expense, the effect of which would be to substantially reduce PIC’s earnings as compared with those stated for previous periods in the prospectus.”
The trial court heard plaintiffs’ evidence. It also considered the probative value of certain evidence offered and rejected. It had before it the results of years of effort devoted to discovery in its many aspects by the parties. Throughout the pendency of this action a voluminous record of motions, briefs and oral arguments during the pre-trial stages was urged upon and considered by a patient trial judge. During the seven days of trial, plaintiffs relied chiefly on the testimony of defendants and their employees, as well as their corporate records. When plaintiffs rested their case, the parties argued at length on defendants’ motions for a directed verdict. At the conclusion, the trial court announced its ruling from the bench, granting defendants’ motions and rendering its judgment accordingly.
In its ruling, the trial court stated:
“The Court has listened to the evidence as presented by the plaintiffs for nearly seven court days. The Court finds no evidence was presented or offered to establish a prima facie ease in both cases, or to support or sustain the charges made in the complaints.
“The Court finds no evidence was offered or submitted or received by the Court that there was a material fact omission from the prospectus and that there was no evidence offered that if there was a fact, that it was in existence at the time of the effective date of the prospectus which was February 19, 1963.
“The Court finds that plaintiffs have failed to present any evidence that would in any way substantiate the establishment of a prima facie ease in both complaints; therefore, the motion of defendant Lyle Packard and Packard Instruments, and the consolidated cases No. 63 C 953, 63 C 981 are granted. The motions of defendants Joseph Levin and A. G. Becker & Co. for a directed verdict on the aforementioned consolidated cases are granted.”
Plaintiffs have detailed the evidence they claim required submission of the case to the jury and defendants have answered in kind. As previously stated, all parties consider this to be a “factual case” on appeal. We have treated it as such. We have carefully considered the evidence both received and rejected. We need not detail it here. It is sufficient to say that some things have become clear to us. The belabored prospectus of February 19, 1963, on its face, is not misleading. It certainly gave adequate information to advise any reasonably prudent investor that the stock being publicly offered for sale on that date was a growth stock without any early prospect of the payment of dividends. The issuing company was a relatively small corporation engaged in a highly competitive nuclear industry embracing a number of similar small companies. The company was engaged in an annual improvement program of its principal product such as would be expected of any successful business so engaged. The company proposed to devote the proceeds of the sale of its 50,000 shares to the expansion and development of fts physical plant and to needed additional working capital. The company never deviated from its purpose to make its improved 1963 model at its proposed cost. It first planned to present two new models for 1963, one designed as the 4000 model to be the basic model selling at $12,500 and one designed as the 3000 model to sell at a lower price. The process of planning for production of these models was a continuing one, beginning in 1962. Unanticipated costs and problems of design and production were encountered and changes were required after February 19, 1963, with a resulting change in plans in April 1963. As a result thereof a decision was then reached to add certain features to the 3000 model and sell it as the basic model for $12,500. The 4000 model was to be a higher priced one with additional features. These modified models were subsequently produced. The changes in plans caused lower shipments for the first six months of 1963 and resulted in a loss for that period. New orders for that period were 10 per cent higher and shipments were 10 per cent lower. Volume shipments of the new models began in July 1963, about three months behind schedule. After the new models were shown in April 1963, new orders received in May and June broke all previous records and subsequent orders and shipments were expected to be higher than for any prior period.
As above set out, a temporary loss was incurred in the first half of 1963, and the over-the-counter market for the stock declined to 14% by May 28, 1963. Plaintiffs charge that such losses resulted from the alleged failure to disclose matters in the prospectus of February 19, 1963, herein set out, although most of them occurred in April and May thereafter. We are not satisfied that this charge is reasonably supported by any probative evidence in the record.
Considering plaintiffs’ evidence in the light most favorable to them, we are unable to conclude that the district court erred in determining there was no evidence presented or offered upon which the jury could properly proceed to find a verdict for plaintiffs. The trial court properly discharged its duty in directing a verdict for defendants under these circumstances.
Assuming arguendo that the question of the- exclusion of certain evidence offered by plaintiffs is properly before us, we shall also consider it. A press release by defendants on May 10, 1963, was offered by plaintiffs and excluded. On appeal, plaintiffs claim this was “a voluntary confession of plaintiffs’ claims.” We have examined the three paragraph statement and find that it has no relevance to the prospectus of February 19, 1963. It is simply an announcement that production of liquid scintillation counting systems was stopped in March (1963) in preparation for the introduction of “model changeover” shipments later that month. It stated that because of this model changeover “total shipments were off slightly from the first four months of last year” and that such slowdown substantially increased engineering, production, tooling and marketing expense associated with the redesign of the company’s line and was expected to reduce earnings for the first half of 1963 substantially below the 40 cents per share shown in the first six months of 1962. It reported a “present order backlog” of “1.1 million dollars — some $475,000 above the 1962 year end figure.” It further reported the market response to the new instruments “to have been very encouraging” and that significant sales gains were expected in the second half year period. We find nothing here which would have tended to prove any omission of material fact from the prospectus in issue.
Other documentary excluded evidence consisted of isolated statements from five advertising brochures issued by the company in mid-1963 and 1964 relating to the 1963 instruments as produced. Such phrases as “two entirely new series of instruments,” “a new line,” “new, bold and dramatic,” “everything” new and “embodying more than a score of major design and operating improvements,” found in the brochures, along with the excluded press release, were offered by plaintiffs “to prove by Packard’s testimony that five months prior to February 19, 1963, PIC planned to replace its 1962 design with an entirely new series of instruments.” Further, plaintiffs offered to prove certain corroborative post-prospectus cost testimony through one of the company’s manufacturing officers. Again, we find nothing here which would tend to prove any omission of material fact from the prior prospectus under consideration. Indeed, we find the excluded evidence of no probative value whatever.
In our considered judgment, the rulings of the trial court on the excluded evidence were correct. Such excluded evidence was before the court in its final ruling and the court found that nothing was offered or submitted that “would in any way substantiate the establishment of a prima facie case in both complaints.” We agree.
Plaintiffs’ appeal from judgment in favor of defendants A. G. Becker & Co., Incorporated, and Joseph J. Levin does not require separate further consideration in light of the foregoing.
Plaintiffs have strenuously attempted to build a “factual case” on paper requiring submission to the jury. We believe they have failed to do so. The judgment of the district court is affirmed.
Affirmed.
. The record shows that both Hohmann and Burman Investments purchased then-respective shares at 21%. Hohmann subsequently sold 100 shares at 15%, 100 shares at 13% and 300 shares at 11%. Burman Investments subsequently sold its 175 shares at 11%.
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_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William WEISS, Plaintiff-Appellant, v. Mark WITTCOFF, Edward Wittcoff, and Wittcoff Paper Co., Inc., Defendants-Appellees.
No. 1506; Docket 92-7185.
United States Court of Appeals, Second Circuit.
Argued May 11, 1992.
Decided June 11, 1992.
Joseph F. Donley, New York City (Sher-eff, Friedman, Hoffman & Goodman, of counsel), for plaintiff-appellant William Weiss.
Evan L. Gordon, New York City (Bang-ser, Klein, Rocca & Blum, of counsel), for defendants-appellees Mark Wittcoff, Edward Wittcoff and Wittcoff Paper Co., Inc.
Before: FEINBERG, and CARDAMONE, Circuit Judges and LARIMER, District Judge.
. Honorable David G. Larimer, United States District Judge for the Western District of New York, sitting by designation.
PER CURIAM:
This case arises out of an alleged violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 783(b) (“the Act”). Plaintiff appeals from an Order of the United States District Court for the Southern District of New York, Conboy, J., which dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) “for failure to properly and sufficiently allege loss causation.” We reverse.
FACTS
The facts alleged in the complaint, which the court must accept as true for purposes of this appeal, are as follows. In 1988, plaintiff William Weiss (“Weiss”) negotiated with defendants Mark Wittcoff and Edward Wittcoff (“the Wittcoffs”) for the merger of Weiss’s family-owned packaging business with the Wittcoffs business; Witt-coff Paper Co.
Weiss was seeking an arrangement that would assure a long, stable future for his company, and the Wittcoffs assured him that they could provide such a future. In particular, they allegedly promised Weiss that if he relocated his business to their building on Coffey Street in New York City and gave Mark Wittcoff a fifty percent share of Weiss’s company, the Wittcoffs, through another company they owned named Mutual Paper, would provide Weiss’s business with the goods and services it needed for as long as Mark Wittcoff remained a shareholder in Weiss’s business.
Plaintiff alleges that in fact, however, the Wittcoffs had no intention of maintaining this arrangement for any length of time. The complaint alleges that the Witt-coffs were planning to sell Mutual in the near future, which would make it impossible for them to keep their end of the bargain.
In reliance on the Wittcoffs’ promises, Weiss incorporated his business as W. Weiss Packaging Co. (“WPC”) in September 1988. Weiss and Mark Wittcoff were each issued fifty percent of WPC’s common stock.
In August 1989, the Wittcoffs sold Mutual, which shut down its operations at Coffey Street. The complaint alleges that, in violation of their contract with Weiss, the Wittcoffs also began manipulating WPC’s financial affairs for their own benefit, which caused WPC to suffer losses. In addition, they started pressuring Weiss to resign, which he ultimately did on November 9, 1990. According to the complaint, the Wittcoffs have continued to run WPC, exploiting it for their own gain.
Weiss brought this suit in February 1991, alleging securities fraud in the issuance of WPC stock to Mark Witteoff. Specifically, Weiss alleges that in violation of § 10(b) of the Act, the Wittcoffs made certain misrepresentations to him, in reliance upon which Weiss issued fifty percent of WPC’s common stock to Mark Witt-eoff. As a further result of defendants’ fraudulent acts, Weiss claims, WPC has suffered severe losses, and the value of Weiss’s own holdings in WPC has been greatly reduced. Weiss also asserts pendent claims for fraud, breach of fiduciary duty and conversion.
The district court stayed discovery pending decision on defendants’ motion to dismiss. On December 30, 1991, the court issued a one-page order dismissing the complaint “for failure to properly and sufficiently allege loss causation.”
DISCUSSION
A claim under § 10(b) of the Act requires a showing of both “transaction causation” and “loss causation.” In other words, the plaintiff must show that the defendant’s misrepresentations not only caused the plaintiff to engage in the transaction in question, but also that they caused the harm suffered. Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988), vacated on other grounds and affd on reconsideration, Wilson v. Saintine Exploration and Drilling Corp., 872 F.2d 1124 (2d Cir.1989); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975).
While transaction causation requires only a “but for” allegation, see Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986), whether loss causation has been alleged turns upon a question of proximate cause: was the damage complained of a foreseeable result of the plaintiff's reliance on the fraudulent misrepresentation? Marburg Mgmt., Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.), cert. denied, Wood Walker & Co. v. Marburg Mgmt, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980).
The facts alleged in the complaint in the case at bar adequately allege loss causation. Weiss contends that he transferred stock in WPC to Richard Witteoff in reliance on the Wittcoffs’ misrepresentations concerning their future actions. The complaint alleges that “as a result of the ... misrepresentations and omissions of the Wittcoffs, after approximately August 1989 WPC was saddled with increased costs that eliminated profits.” Complaint 1132. Thus, Weiss’s loss — the devaluation of his own WPC stock — was clearly a proximate result of his reliance on defendants’ promises, since defendants’ failure to fulfill those promises foreseeably caused WPC’s financial condition to deteriorate.
Defendants’ argument that loss causation has not been alleged because the alleged misrepresentations related to future actions rather than to present conditions is not persuasive. Channel Master Corp. v. Aluminum Ltd. Sales, 2 A.D.2d 933, 156 N.Y.S.2d 585 (3d Dep’t 1956), on which defendants heavily rely, is clearly distinguishable. For one thing, Channel Master was not a securities fraud case, but dealt with a contract to supply goods. Furthermore, although the court in Channel Master held that certain statements by the defendant concerning anticipated shipments to the plaintiff were not fraudulent, the court characterized those statements as mere “predictions or expressions of future expectations.” Id. Channel Master therefore stands in sharp contrast to the instant case, which involves explicit promises to take specific future actions. In fact, the court in Channel Master observed that “statements of present intent [are] factual and, in proper cases, actionable.” Id. (emphasis added).
In support of its holding that loss causation had not been alleged, the court below relied upon Pross v. Katz, 784 F.2d 455 (2d Cir.1986). This reliance was misplaced. Pross dealt not with loss causation, but with whether the alleged fraud occurred “in connection with the purchase or sale of a security” as required by § 10(b). Pross is therefore inapposite to the issue of loss causation.
Moreover, even if the District Court based its decision on the actual holding of Pross, dismissal of the complaint would be error. Pross specifically recognized that a “promise to perform a particular act in the future while secretly intending not to perform may violate Section 10(b) ... if the promise is part of the consideration for a sale of securities.” Id. at 457. Cf. A.T. Brod & Co. v. Perlow, 375 F.2d 393, 395-97 (2d Cir.1967) (promise to purchase securities violated § 10(b) where customer’s secret intention was to pay only if price of securities appreciated).
Here, according to the complaint, the alleged misrepresentations were an important inducement in persuading Weiss to part with his WPC stock, and defendants’ scheme could not have been accomplished without the stock transfer. In addition, it was quite foreseeable that the consummation of defendants’ secret intention not to perform their promises would cause Weiss to suffer a loss.
Although it remains to be seen whether Weiss can prove his allegations, the court’s task on a Rule 12(b)(6) motion is not to rule on the merits of plaintiffs’ claims, but to decide whether, presuming all factual allegations of the complaint to be true, and drawing all reasonable inferences in the plaintiff’s favor, Frazier v. Coughlin, 850 F.2d 129 (2d Cir.1988), the plaintiff could prove any set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). Under this standard, the complaint sufficiently states a cause of action and therefore its dismissal was error.
CONCLUSION
The district court’s order dismissing the complaint is reversed, and the case is remanded with directions to reinstate the complaint and to conduct further proceedings consistent with this opinion.
. The court gave Weiss fifteen days to file an amended complaint. Weiss did not do so, and appealed the dismissal order instead.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_procedur | 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.
O. Merlene KOVACS, and William Kovacs, Plaintiffs-Appellants, v. SUN VALLEY CO., INC., an Idaho corporation, Defendant-Appellee.
No. 73-3079.
United States Court of Appeals, Ninth Circuit.
June 24, 1974.
John K. Carmack of Roberts, Carmack & Johnson, Los Angeles, Cal., George A. Greenfield of McClenahan & Greenfield, Boise, Idaho, for plaintiffs-appellants.
Carl P. Burke of Elam, Burke, Jeppesen, Evans & Boyd, Boise, Idaho, for defendant-appellee.
Before ELY, HUFSTEDLER and CHOY, Circuit Judges.
OPINION
PER CURIAM:
Mrs. 0. Merlene Kovacs slipped on a piece of ice and fell while descending an exterior stairway of a restaurant in Sun Valley, Idaho, owned by Sun Valley Co., Inc. She sued Sun Valley Co., Inc. in the district court for the District of Idaho for injuries she sustained from the fall, basing jurisdiction on diversity of citizenship.
She appeals from a judgment entered against her after a jury trial. We affirm.
Mrs. Kovacs alleges three errors requiring reversal. First, she contends the district court erred in refusing to allow her to introduce evidence that, subsequent to her accident, Sun Valley constructed handrails for the stairway in question. The district court correctly applied Idaho law in denying Mrs. Kovacs’ request for admission of this evidence. Generally, evidence of subsequent repairs is not admissible, reflecting a strong public policy against discouraging safety precautions. Carter Packing Co. v. Pioneer Irrigation District, 91 Idaho 701, 429 P.2d 433 (1967); Alsup v. Saratoga Hotel, 71 Idaho 229, 229 P.2d 985 (1951).
Idaho recognizés only one exception to this general rule: where the question of defendant’s duty to make the premises safe is at issue. Otts v. Grough, 90 Idaho 124, 409 P.2d 95 (1955); Zenier v. Spokane International Railroad Co., 78 Idaho 196, 300 P.2d 494 (1956) . Here, however, Sun Valley’s duty as an owner and occupier of land is not at issue.
Appellant urges this court to consider the law of states other than Idaho for the purpose of establishing an exception to the general exclusionary rule beyond the narrow exception recognized by the Idaho courts. This we refuse to do. Federal Rule of Civil Procedure 43(a) required that the district court apply the rules of evidence of the courts of general jurisdiction of the State of Idaho. It is not the province of a federal court to look beyond the designated state for the purpose of predicting changes which may or may not occur in that state’s law. Furthermore, it is entirely appropriate to defer to the judgment of the Idaho District Court judge who is familiar with the local law. Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345 (9th Cir. 1974); Hurst v. Dare to Be Great, Inc., 474 F.2d 483 (9th Cir. 1973).
Appellant’s second contention is that there was no basis in fact for the instruction on contributory negligence given by the trial court. We disagree. The record reveals sufficient facts upon which the trial court could properly base that instruction. Lord Baltimore Filling Stations v. Miller, 71 App.D.C. 376, 110 F.2d 698 (1940); Schultz & Lindsay Construction Co. v. Erickson, 352 F.2d 425, 430 (8th Cir. 1965); Fowler v. Uezzell, 94 Idaho 951, 500 P.2d 852 (1972).
Finally, appellant contends Instruction 20 in using the terms “hidden dangers” and “pitfalls” created the feeling that the duty owed to invitees by the proprietor of a business is very thin and almost nonexistent. Instruction 20 is a correct statement of the applicable Idaho law. Alsup v. Saratoga Hotel, 71 Idaho 229, 236, 229 P.2d 985, 989-990 (1951).
Affirmed.
. The proprietor of a business is liable only for the injuries to his business invitees which result from his negligence, or the negligence of his employees which occurs within the scope of their employment. He has a duty to exercise reasonable care to keep the premises in reasonably safe condition for customers and others invited expressly or impliedly to enter.
The duty of a proprietor to keep the premises safe for invitees applies to defects or conditions which are in the nature of hidden dangers; pitfalls and the like, and which are not known to the invitee and would not be observed by the exercise of ordinary care. The invitee with the usual and ordinary human senses is expected by the law to observe and act upon all normal, obvious and ordinary risks attendant from the use of the premises.
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_subevid | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Berniece SILVERTHORN, Appellant, v. William HENNIGAN, Jr., Appellee. Berniece SILVERTHORN, Appellee, v. William HENNIGAN, Jr., Appellant.
Nos. 20461, 20504.
United States Court of Appeals, Eighth Circuit.
March 17, 1971.
Dale L. Spencer, Des Moines, Iowa, made argument for Berniece Silverthorn.
L. R. Voigts, Des Moines, Iowa, made argument for William Hennigan, Jr.
Before MATTHES, Chief Judge, VAN OOSTERHOUT and GIBSON, Circuit Judges.
PER CURIAM.
In this diversity litigation the plaintiff sued to recover damages resulting from injuries to her person and property suffered in an automobile collision in Des Moines, Iowa. She has appealed from the final judgment against her entered on July 8, 1970. Defendant filed a cross-appeal from the denial of several of its motions.
At the first trial a verdict and judgment were rendered in favor of the plaintiff for $27,500 with interest as provided by law plus her costs. Thereupon the defendant filed a motion for judgment notwithstanding the verdict and motion for a new trial. The trial court denied the motion for a judgment n. o. v. but granted the motion for a new trial on the grounds that to allow the verdict to stand would constitute an injustice to the defendant and would represent a gross miscarriage of justice; that the evidence did not warrant the verdict rendered; and that the jury did not follow the court’s instructions.
The second trial resulted in a verdict and judgment for the defendant. The plaintiff contends on this appeal that the trial court abused its discretion in setting aside the verdict of the jury in her favor and granting a new trial.
The law is well established that the granting of a new trial is a matter within the sound discretion of the trial judge and unless that discretion patently has been abused, his ruling on the motion is not subject to review. Bates v. Hensley, 414 F.2d 1006 (8th Cir. 1969); Trice v. Commercial Union Assurance Co., 334 F.2d 673 (6th Cir. 1964); Minnesota Mut. Life Ins. Co. v. Wright, 312 F.2d 655 (8th Cir. 1963); Paine v. St. Paul Union Stockyards Co., 28 F.2d 463 (8th Cir. 1928).
We have carefully canvassed the record and are fully convinced that there is no rational basis for holding that the trial court acted arbitrarily or abused its discretion in granting a new trial.
In view of the disposition of plaintiff’s appeal, it is unnecessary to discuss the cross-appeal.
The judgment is affirmed.
Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_casetyp1_7-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Thomas A. DaBOUL, Petitioner and Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 24705.
United States Court of Appeals, Ninth Circuit.
July 6, 1970.
Thomas A. DaBoul, in pro per.
Johnnie M. Walters, Asst. Atty. Gen., Tax Division, Dept, of Justice, K. Martin Worthy, Chief Counsel, I. R. S., Lee A. Jackson, Elmer J. Kelsey, Richard Farber, Dept, of Justice, Washington, D. C., for appellee.
Before CHAMBERS and MERRILL, Circuit Judges, and BYRNE, District Judge.
PER CURIAM:
The appeal is dismissed as legally frivolous.
The issuance of a statutory notice of deficiency by the commissioner (which was never issued in this case) is necessary before the tax court has jurisdiction. See Corbett v. Frank, 9 Cir., 293 F.2d 501.
If DaBoul was entitled to any relief, he should have proceeded in some United States district court.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
songer_typeiss | C | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
GRAY et al. v. BLIGHT.
No. 2116.
Circuit Court of Appeals, Tenth Circuit.
June 10, 1940.
R~hearing Denied July 12, 1940.
T. R. Boone of Wichita Falls, Tex., (Earl W. Wilson, of Denver, Colo., on the brief), for appellants.
Cecil M. Draper, of Denver, Colo. (W. A. Alexander, of Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
IT. S. Gray and Margaret Gray, individually, and H. S. Gray, as next friend for John Herbert Gray and Peggy Gray, brought this action against Myrta Blight, administratrix of the estate of H. E. Blight, deceased, to recover damages for personal injuries and for damages to the automobile of H. S. Gray.
In their complaint, plaintiffs alleged that the damages resulted from a collision between the automobile of H. S. Gray and an automobile owned, driven, and operated by Blight; that the collision occurred near the town of Winnemucca, Nevada; that it was caused by the negligence of Blight in the management, operation, and control of his automobile; that plaintiffs are residents and citizens of Texas; that at the time of the collision Blight was a resident and citizen of Colorado; that Blight died on or about October 6, 1938; and that Myrta Blight is the duly appointed, qualified, and acting administratrix of the estate of Blight and is a resident and citizen of Colorado.
The administratrix filed a motion to dismiss the action on the ground that the complaint fails to state a claim against her upon which relief can be granted. The trial court sustained the motion, plaintiffs elected not to plead further, and judgment was entered dismissing the action. Plaintiffs have appealed.
The substantive rights of the parties to an action are governed by the lex loci, that is, the law of the place where the right was acquired or the liability was incurred" which constitutes the claim or cause of action. Under the laws of Nevada a cause of action for personal injuries, whether suit has been brought thereon or not, is not abated by reason of the death of the wrongdoer, but survives against his legal representatives. Nevada Comp. Laws, 1929, 1938 Pocket Part, Vol. 1, §§ 240.01, 240.02. It follows that the cause of action survived the death of Blight. On the other hand, the law of the jurisdiction in which relief is sought controls as to all matters pertaining to remedial, as distinguished from substantive rights. The principles are stated in the Restatement, Conflict of Laws, § 390, which in part reads as follows:
“Whether a claim for damages for a tort survives the death of the tort-feasor or of the injured person is determined by the law of the place of wrong. * * *
“(b) If a claim for damages for injury survives the death of the injured person or the wrongdoer, as the case may be, by the law of the place of wrong, recovery may be had upon it by or against the representative of the decedent, provided the law of the state of forum permits the representative of the decedent to sue or be sued on such a claim. Without such power created by the law of the state of suit, no recovery can be had.”
The Restatement finds support in the adjudicated cases.
Sec. 1, ch. 159, 1935 Colo.Stat.Ann., in part reads as follows: “The common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First * * *, and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.”
Sec. 247, ch. 176, 1935 Colo.Stat.Ann., reads as follows: “All actions in law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real estate, shall survive to and against executors, administrators and conservators.”
Chapter 176 was first adopted in 1868. See. Stat.Colo. 1868, ch. XC, § 154. It was re-enacted in 1903. See § 167, ch. 181, p. 533, 1903, Colo.Sess.Laws. In the reenactment the phrase “actions at law” was changed to read “actions in law” and the words “and conservators” were added at the end of the section. In Letson v. Brown, 11 Colo.App. 11, 52 P. 287, 288, the court said: “The suit was begun against Brown, who is the administrator of the decedent. The naked question, therefore, is whether the wrongdoer being dead, this suit may be maintained against his personal representative. It could not at the common law, for it was a well-settled principle thereunder that all personal actions, whether by the representatives of a deceased person or against those of one who was dead, died with the injured party; or, as it has been sometimes expressed in other cases as to the wrongdoer, the wrong and the wrongdoer w.ere burie.d in the grave together. We take it to be as well settled in the one case as in the other, and that it is equally true that, where the wrongdoer dies, his personal representative may not be sued for the negligent act, any more than could the representatives of the injured person, he being dead, maintain an action against the living wrongdoer. This principle has been often declared, and it will add nothing to the force of this opinion, nor will it embellish the law, to restate the reasons upon which the rule rests.”
The court then held that an action for wrongful death could not be maintained against the administrator of the estate of the wrongdoer. In Mumford v. Wright, 12 Colo.App. 214, 55 P. 744, 746, the court construed the phrase “trespass for injuries done to the person,” saying: “Torts may be divided into two general classes, — the first, designated as ‘property torts,’ embracing all injuries and damages to property, real or personal; the second, known as ‘personal torts,’ including all .injuries to the person, whether to reputation, feelings, or to the body. A tort which is not an injury to property is a personal tort. * * * It will be readily seen that the chief difficulty lies in determining the exact meaning of the words ‘trespass for injuries done to the person.’ In a recent case this court, in construing this section, held that these words, as there used, could not be construed to mean only trespass vi et armis, but that the exception embraced, also, torts for which trespass on the case must have been brought. Letson v. Brown, 11 Colo.App. 11, 52 P. 287. We now go further, and hold that the words were intended to embrace, and do embrace, all actions for personal torts.”
In Munal v. Brown, C.C., 70 F. 967, United States District Judge Hallett held that an action for damages for personal injuries does not survive to and against executors and administrators by virtue of § 154, ch. XC, Rev. Stat.Colo. 1868.
It is significant that § 247, supra, as first enacted, was embraced in a chapter on wills, executors, and administrators, that when reenacted in 1903, it was embraced in a chapter on wills-estates, and that it was carried forward into the 1935 Colo.Stat.Ann. in the chapter on wills and estates. We are of the opinion that it declares the public policy of Colorado to permit the prosecution of certain causes of action against the executor or administrator of the wrongdoer after his death, but to exclude therefrom causes of action for injuries to the person.
Foreign law will not be enforced in the courts of a state under the doctrine of comity where it is contrary to the pub-lie policy of such state.
A state may deny a remedy in its courts upon a tort arising in another jurisdiction.
In Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609, it was expressly held that § 247, supra, does not offend the provision of Art. 2, § 6, of the state Constitution which provides that “Courts of justice shall be open to every persdn, and a speedy remedy afforded for every injury to person, property or character.”
We conclude that the plaintiffs could not maintain actions m Colorado against the administratrix for personal injuries and that the motion as to those claims was properly sustained.
The plaintiff, H. S. Gray, however, asserted two claims, one for personal injuries in the sum of $3,000, and one for damages to his automobile in the sum of $1,050. The claims were properly joined. Rule 18, Rules of Civil Procedure, 28 U.S.C.A. following section 723c. An action for damages to the automobile could be prosecuted against the adminis-tratrix. See Mumford v. Wright, supra.
The jurisdictional amount is the sum of all the claims which are properly joined. The test of jurisdiction is the amount claimed in good faith and not the actual amount determined to be in controversy. There can be no doubt that both claims were asserted by H. S. Gray in £ood faith and that combined they exceed, exclus,lve °f “terest and costs,_ the sum or vaIue.of $3.’000- 0ther Jurisdictional Prerequisites being; present, it follows that *e. court e"ed “ dismissing the comPlamt as t0,the claim of H. S. Gray for damages to Ins automobile,
The judgment is affirmed as to the plaintiffs Margaret Gray and H. S. Gray, as next fr¡end of John Herbert Q and p G The jud t is reversed as tQ R s_ G and the cause ¡s remand. ed w¡th instructions t0 overrule tfle mo. tion as to the claim of H. S. Gray for damages to his automobile. Three-fourths of the costs will be assessed against the plaintiffs and one-fourth against the ad-ministratrix.
Hereinafter referred to as the plaintiffs.
Hereinafter referred to as the administratrix.
Ormsby v. Chase, 290 U.S. 387, 388, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499; Curtis v. Campbell, 3 Cir., 76 F.2d 84, 85; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418, 420; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82, 83; Baise v. Warren, 158 Va. 505, 164 S.E. 655; Jackson v. Anthony, 282 Mass. 540, 185 N.E. 389, 391.
Bourestom v. Bourestom, 231 Wis. 666, 285 N.W. 426, 428; Stix, Baer & Fuller Co. v. Woesthaus Motor Co., 284 Ill.App. 301, 1 N.E.2d 796, 797; Red-fern v. Redfern, 212 Iowa 454, 236 N.W. 399, 400; Peoria Engraving Co. v. Streator Cold Storage Door Co., 221 Iowa 690, 266 N.W. 548; Coral Gables v. Christopher, 108 Vt. 414, 189 A. 147, 149, 109 A.L.R. 474; Guardian Life Ins. Co. of America v. Rita Realty Co., 5 A. 2d 45, 48, 17 N.J.Misc. 87; Federal Surety Co. v. Minneapolis Steel & Machinery Co., 8 Cir., 17 F.2d 242, 245; Strawn Mercantile Co. v. First Nat. Bank of Strawn, Tex.Civ.App., 279 S.W. 473, 474; Chicago, Rock Island & Pacific Ry. Co. v. Sturm, 174 U.S. 710, 717. 19 S.Ct. 797, 43 L.Ed. 1144; Meyer v. Weimaster, 278 Mich. 370, 270 N.W. 715, 717; Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883, 885, 886.
Herzog v. Stern, 264 N.Y. 379, 191 N.E. 23, 24, 25, certiorari denied 293 U.S. 597, 55 S.Ct. 112, 79 L.Ed. 690; Woollen v. Lorenz, 68 App.D.C. 389, 98 F.2d 261; In re Killough’s Estate, 148 Misc. 73, 265 N.Y.S. 301.
In Herzog v. Stern, supra, action was brought in New York to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant’s testator in an automobile accident which occurred in Virginia. Both plaintiff and the testator were residents of New York at the time of the accident and when the action was brought the testator’s estate was being administered in New York. In the opinion the court said [264 N.Y. 379, 191 N.E. 24]:
“The question, however, is not whether the cause of action created by the laws of the state of Virginia survives the death of the wrongdoer, but whether the law of this state permits the representative of the deceased wrongdoer to be sued on such a claim. * * *
“This state has undoubted power to determine the devolution of the property of a deceased resident and how such property shall be administered. It determines upon what claims a suit may be brought against the representatives of the decedent, and payment be enforced out of the assets of the estate. A transitory cause of action may constitute a property right. It. may' even be regarded as a vested right against the wrongdoer. There can, however, he no vested right to enforce a claim for damages out of the property of a deceased resident of this state unless there is a law which permits the property of such a decedent to be applied upon the claim. At common law a claim for personal injury did not survive and could not be enforced out of the property or against the personal representatives of the deceased wrongdoer. The common law has in this regard not been changed by the Legislature. * * *
“Where neither common law nor a statute permits the bringing of an action against executors or administrators of a deceased resident, the courts of this state are without jurisdiction to pass upon such a cause of action. There is here no room for speculation as to whether the cause of action against the representatives of the deceased wrongdoer created by the laws of the state of Virginia offends our public policy. The rights and obligations of executors and administrators appointed by our courts are defined by our law, and our courts are without jurisdiction to grant a judgment binding on the executors or administrators appointed here unless our law makes provision for such actions against executors and administrators. Each state may define the rights and obligations of those who come within its territorial bounds, and comity will ordinarily cause the sister states to permit the enforcement of such rights and obligations against their residents by resort to their courts, but no state has any power to provide that such rights and obligations may be enforced out of the property of a deceased wrongdoer in the possession of executors
or administrators appointed by the courts of another state. Here comity does not determine the jurisdiction of the courts of the decedent’s domicile. The courts are without jurisdiction, because neither common law nor statutory law provides for the maintenance of any action for personal injury against the executors or administrators of a deceased wrongdoer.” Compare Chubbuck v. Holloway, 182 Minn. 225, 234 N.W. 314, 868; Kert-son v. Johnson, 185 Minn. 591, 242 N. W. 329, 85 A.L.R. 1.
See Munal v. Brown, C.C.Colo., 70 F. 967; Kelley v. Union Pac. Ry. Co., 16 Colo. 455, 27 P. 1058, 1060.
See, also, Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609; Clapp v. Williams, 90 Colo. 13, 5 P.2d 872.
Mosko v. Matthews, 87 Colo. 55, 284 P. 1021, 1023; Turnbull v. Cole, 70 Colo. 364, 201 P. 887, 888, 25 A.L.R. 1149; Dougherty v. American McKenna Process Co., 255 Ill. 369, 99 N.E. 619, 621, L.R.A.1915F, 955, Ann.Cas.1913D, 568.
In the case last cited the court said: “Each state, subject to restrictions of the federal Constitution, determines the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and how far its courts having jurisdiction of the parties shall hear and decide transitory actions where the cause of action has arisen outside of the state.” See, also, St. Louis & Iron Mountain Ry. v. Taylor, 210 U.S. 281, 285, 28 S.Ct. 616, 52 L.Ed. 1061; 11 Am. Jur. p. 495, § 183.
Dougherty v. American McKenna Process Co., supra, 99 N.E. page 621; 11 Am.Jur. p. 495, § 183.
Kimel v. Missouri State Life Ins. Co., 10 Cir., 71 F.2d 921, 924; Baltimore & Ohio Southwestern R. R. v. United States, 220 U.S. 94, 106, 31 S.Ct. 368, 55 L.Ed. 384; Simecek v. United States Nat. Bank of Omaha, 8 Cir., 91 F.2d 214, 217.
Kimel v. Insurance Company, supra, 71 F.2d page 924; Simecek v. Bank, supra, 91 F.2d page 217; St. Paul Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288, 289, 58 S.Ct. 586, 82 L.Ed. 845; Owen M. Bruner Co. v. O. R. Manefee Lumber Co., 9 Cir., 292 F. 985; Brown v. United Gas Public Service Co., 5 Cir., 96 F.2d 264.
Question: What is the 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 | F | What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Leo Raymond McGUIRE, and David E. Lee, Defendants-Appellants.
Nos. 83-5350, 83-5351.
United States Court of Appeals, Sixth Circuit.
Argued July 6, 1984.
Decided Sept. 21, 1984.
Rehearing and Rehearing En Banc Denied Nov. 9,1984.
Robert Houlihan, Jr., Lexington, Ky., Seymour Glanzer, John T. Kotelly, argued, Peter J. Kadzik, Dickstein, Shapiro & Morin, Lisa R. McGuire, Washington, D.C., for defendants-appellants in No. 83-5350.
James Shuffett, Shuffett, Mooney, McCoy, Campbell, Leathers & Newcomer, David Shattuck, argued, Lexington, Ky., for defendants-appellants in No. 83-5351.
Louis DeFalaise, U.S. Atty., Jane Graham, Robert E. Rawlins, argued, Asst. U.S. Attys., Lexington, Ky., for plaintiff-appellee.
Before KRUPANSKY and WELLFORD, Circuit Judges, WEICK, Senior Circuit Judge.
WELLFORD, Circuit Judge.
In April, 1979, the Kentucky Housing Corporation (KHC) instituted its “Loans to Lenders Program.” The program was designed to make it easier for low income people to purchase housing. KHC made approximately $54 million available to financial institutions at a rate of 6/a% interest, and the financial institutions, in turn, were then to loan this money to low income borrowers at %h%, a very advantageous rate of interest. First National Bank of Grayson (FNBG) participated in the program. Defendant McGuire was president and chief executive officer of FNBG, and defendant Lee was mortgage loan officer.
The government’s case was directed toward proving that FNBG was successful in obtaining these funds from KHC, but did not properly reloan them out to qualified borrowers. Instead, FNBG (in the prosecution’s case, under the direction of McGuire and Lee) invested the funds at a much higher rate of return (yielding 12.6% return) maturing in more than 10 years. At the end of nine months, unloaned funds were to be returned to KHC. FNBG requested and was granted a three month extension. In the final few days of that extension, FNBG made approximately 80 loans which the government contends were bogus and made solely to avoid repayment of the funds to KHC. The government contends that these actions left FNBG with $2.65 million of KHC funds which were being inappropriately used, and that FNBG was in effect illegally profiting from the procedures instituted by defendants.
The indictment, which was returned by a federal grand jury, charged defendants with conspiracy to make false entries, making false entries, and devising a scheme to defraud the KHC. Defendants were convicted after a jury trial and have appealed.
I
Defendants first issue raised on appeal is whether the trial court was required to give a separate instruction on the issue of good faith. In the instructions actually given by the judge are set out in the margin. The judge clearly stressed the importance of willfullness, intent, specific intent, and lack of mistake. At least one circuit, however, would apparently find this instruction insufficient. In United States v. Goss, 650 F.2d 1336, 1345 (5th Cir.1981), the court held that
Charging the jury that a finding of specific intent to defraud is required for conviction, while it may generally constitute the negative instruction, i.e., that, if the defendants acted in good faith, they could not have had the specific intent to defraud required for conviction, does not direct the jury’s attention to the defense of good faith with sufficient specificity to avoid reversible error.
(emphasis added).
The Fifth Circuit reaffirmed its Goss decision in United States v. Curry, 681 F.2d 406 (5th Cir.1982). The actual instructions given by the judge in that trial are not discussed. The court, however, reversed the conviction, finding:
Curry was entitled to a good faith jury instruction if there was any evidence at all to support the charge, “regardless of how weak, inconsistent or dubious the evidence of good faith may have been.” United States v. Goss, 650 F.2d 1345.
681 F.2d at 416.
While the Fifth Circuit may have treated it somewhat differently, we view the issue as essentially a “theory of the case” question. In this circuit, we have held that it is error to fail to instruct on the defendant’s theory of the case, however “[t]he trial judge [is] not required to adopt the language suggested by a defendant ____” United States v. Garner, 529 F.2d 962, 970 (6th Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 124 (1976); United States v. Giacalone, 574 F.2d 328 (6th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978). As the Eleventh Circuit recently held:
A criminal defendant has no right to select the particular wording of a proposed jury instruction. As long as the instruction actually given is a correct statement of the law, fairly presents the issues to the jury, and is substantially similar to the defendant’s proposed instruction, the district court has great latitude in phrasing it.
United States v. Gaines, 690 F.2d 849, 856-57 (11th Cir.1982) (regarding an instruction on willfulness).
While the trial judge should have given an instruction on the defendants’ “good faith” theory of the case, see Garner, supra; Giacalone, supra, a review of the instruction actually given, persuades us that this error on the part of the trial court was harmless beyond a reasonable doubt. The issue of good faith was clearly placed before the jury, even if those precise words were not used. “There is nothing so important about the words ‘good faith’ that their underlying meaning cannot otherwise be conveyed.” New England Enterprises, Inc. v. United States, 400 F.2d 58, 71 (1st Cir.1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969). The instructions with regard to specific intent adequately informed the jury of the defendants’ theory of the case, and properly placed the burden of proof of intent on the government.
Accordingly, we find that the failure of the trial judge to instruct the jury on the defendants’ theory was harmless error.
II
Defendants next argue that the trial court’s usage of an “and/or” instruction in connection with 18 U.S.C. § 1005 sanctioned a non-unanimous verdict.
18 U.S.C. § 1005 provides in pertinent part:
Whoever makes any false entry in any book, report, or statement of such bank with intent to injure or defraud ... any ... body politic ____, or to deceive ... the Comptroller of the Currency, ... or any agent or examiner appointed to examine the affairs of such bank ... [violates the statute].
The indictment in this case, however, replaced the word “or” with the word “and.” In its instructions to the jury, the trial court attempted to explain that the statute requires only an intent to injure or defraud any body politic or to deceive the Comptroller of the Currency in the following manner:
In the indictment, the word “and” is synonymous with the word “or.” That is to say that if the United States proved to your satisfaction beyond a reasonable doubt any of the acts connected by the word “and,” it has proven satisfactorily its case on that particular element.
The defendants claim that such a charge could have led the jury to convict defendants without having reached a unanimus decision. Specifically, six of the jurors might have found that defendants took their actions with intent to defraud or deceive the Comptroller, while the other six may have found an attempt to defraud or deceive a different victim (KHC). See United States v. Gipson, 553 F.2d 453, 458 n. 8 (5th Cir.1977).
It should be noted, however, that the trial court, in addition to making two general instructions on the unanimity requirement, also instructed the jury that, with regard to Section 1005:
There are two essential elements which must be proved beyond a reasonable doubt in order to establish the offense proscribed by this law:
First: That a defendant knowingly made a false entry concerning a material fact in a book or record or statement of a national bank, insured bank or member of the Federal Reserve System, to-wit, a false and non-bona fide loan file, as charged;
Second: That a defendant made such entry willfully, with knowledge of its falsity and with the intent of defrauding or deceiving the person/persons or entities named in the indictment.
Thus it is clear that the jury must have unanimously agreed that the defendants knowingly made false entries. The only possible lack of unanimity could stem from a disagreement as to which entity or entities a particular defendant was intending to deceive.
Defendants rely on United States v. Gipson, supra, which held that the jury must unanimously agree on “the actus reus element of the offense”, because the prohibited acts involved in that case were conceptually distinct. 553 F.2d at 458. Specifically, the acts of receipt, concealment and storage are conceptually distinct from the acts of bartering, selling and disposing. Id. Conversely, KHC and the Comptroller, as alternate victims, do not fall into “two conceptual groupings.” Several courts have refused to apply the Gipson rationale when the potentially devisive theories of liability are not “conceptually distinct.” See, e.g., Lampkins v. Gagnon, 710 F.2d 374 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984); United States v. Sutherland, 656 F.2d 1181, 1202 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982); United States v. Freeman, 619 F.2d 1112, 1118-19 (5th Cir.1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981).
Finally, in United States v. Zeidman, 540 F.2d 314 (7th Cir.1976), the court instructed the jury “that they must not return a guilty verdict unless they all agreed that the defendant had devised a scheme to defraud at least the creditor or the debtor.” 540 F.2d 317. The defendants made the same argument set forth by the defendants in the instant case. The court held that the defendants could not “claim prejudice because they are uncertain whether the jury convicted them of defrauding the creditor or debtor. As in the case of a statute which can be violated in different ways, it is sufficient to convict if the jury believes that at least one of the acts of fraud was committed.” Id. at 317. Accordingly, we find no ground for reversal on this issue.
Ill
Defendants third issue on appeal is that the charge to the jury impermissibly amended the indictment. Defendants’ argument is that they were indicted for having devised a scheme and artifice for obtaining money under false and fraudulent pretenses, but all of the proof in the government’s case went to establishing a scheme to defraud KHC by not returning money previously obtained. This, they claim, was a fatal variance from the indictment returned by the grand jury. As the government points out, however, Pattern instruction 23, which was given by the court, provides:
The words “scheme” and “artifice” include any plan or course of action intended to deceive others, and to obtain, by false or fraudulent pretenses, representations, or promises, money or property from persons so deceived.
The instant case is not similar to United States v. Jones, 647 F.2d 696 (6th Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981), upon which defendants rely. In that case the defendants were indicted for conspiracy to make and construct an explosive device. The charge to the jury, however, permitted conviction for mere possession. Indeed, the government “failed to present any proof that the defendants made or constructed a destructive device.” Id. at 699. The district court therefore gave a charge on conspiracy to possess. As the appellate court noted, the defendant must be informed of the crime with which he is charged, and the indictment must sufficiently apprise him of the elements, so that he will not be misled while preparing his case. Id. at 699 (citing Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed;2d 240 (1962)). It does not appear that any similar problems face the defendants in this case. Any change made by the district court in the instant ease would have nominal impact on their defense preparation. See also United States v. Beeler, 587 F.2d 340 (6th Cir. 1978) cert. denied 454 U.S. 860, 102 S.Ct. 315, 70 L.Ed.2d 158 (1981). (discussing the purposes underlying the rule against constructive amendments).
IV
During the presentation of their defense, defendants called W.H. Dysard, an attorney, to testify as to defendants’ good faith in retaining the KHC loan money beyond June 1, 1980. Dysard testified that he was informed about the bank’s participation in the KHC Loans to Lenders Program in May, 1980. He testified that he learned of the grand jury investigation, “I think in October 1980,” but had been aware of “some kind of investigation” before that time. The defense was never put on notice of the existence of any prior inconsistent statement, and after cross-examination, Dysard was excused from the trial and left Lexington to return to his practice in Gray-son. The government subsequently called FBI Agent Goode as a rebuttal witness. Agent Goode testified as to a conversation he had with Dysard on November 19, 1980. Goode testified that Dysard had stated that he had just become aware of “the situation,” and that “he didn’t know anything about it.” Defendants argue that the government failed to confront Dysard with this statement and therefore this case must be overruled under Federal Rule of Evidence 613(b).
While defendants have noted that several courts maintained the common law tradition which required that the witness be confronted with the inconsistent statement before extrinsic evidence as to its existence is admissible, it would seem that defendants’ main argument is focused on confrontation at any time. See 3. Weinstein’s Evidence ¶ 613[04] at 613-15 (1981) (suggesting that 613(b) allows such evidence to be admitted even if not presented to the witness to be impeached before it is introduced).
We do not approve of the government’s not informing the defendants of this evidence, which we view as a questionable trial tactic. We would note, however, that this issue relates to the credibility of a non-party witness on a collateral matter. Indeed, even the defense lawyer who cross-examined Agent Goode stated “It’s not entirely inconsistent if he said he only became aware of the situation ... in November of 1980, is it?” In any event, the prosecution should have confronted the witness with this statement. Defendants, however, were offered the opportunity to call surrebuttal witnesses. Had this point been of great importance, they would have made arrangements to return Dysard to the stand but they did not do so. We do not consider this to be a matter of serious magnitude, and do not deem it to be reversible error.
V
Seven character witnesses testified on behalf of defendant McGuire, both as to their personal opinion of him and his community reputation. On cross-examination, five of these witnesses were asked about their knowledge of a pending federal civil suit which charged that McGuire and others had conspired to engage in unfair trade practices. They were further asked whether, if the allegations were proved to be true, their opinion of McGuire would change. McGuire claims that this line of questioning led to reversible error. Once the defendant has “opened the door” by offering evidence as to his good character, the prosecution may rebut that evidence. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Fed.R.Evid. 405(a). Once a defendant’s reputation is in issue, the prosecution has wide latitude on cross-examination. Michelson, 335 U.S. at 479, 69 S.Ct. at 220. Control of the cross-examination is largely within the trial court’s discretion. Id. at 480, 69 S.Ct. at 220.
McGuire has apparently made two inconsistent arguments. At one point he argues that none of the character witnesses were asked on direct examination to give any opinion or reputation testimony regarding the character trait for fair dealing, thus implying that the cross-examination was not real rebuttal evidence at all. At the same time, he argues that “the instant case is identical to the situation where the character witness is asked to assume that the defendant committed the offense for which the defendant is on trial.” Neither argument is well founded.
It would be error to allow the prosecution to ask the character witness to assume defendant’s guilt of the offenses for which he is then on trial. United States v. Polsinelli, 649 F.2d 793, 795 (10th Cir.1981); United States v. Morgan, 554 F.2d 31 (2d Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977); United States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir.1977). This was simply not done in this case. A common concern in cases such as this is the asking of a purported character witness whether there are rumors circulating in the community which would affect the defendant’s reputation. Prosecutors may ask a witness “have you heard of this rumor or that conduct (relating to undesirable and fraudulent conduct of defendant)?” This court has suggested in such situations that a voir dire examination of the witnesses should first take place, in order to ascertain the existence of any such rumor. United States v. Reese, 568 F.2d 1246 (6th Cir.1977). If a rumor does exist, even if it is not based on fact, the prosecution is permitted to pursue this line of cross-examination.
The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. The prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors, whether or not well-grounded, were afloat — for it is not the man that he is, but the name that he has which is put in issue. Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one’s arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charge, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisants.
Michelson, supra, 335 U.S. at 479, 69 S.Ct. at 220 (emphasis added, footnote omitted). In the instant case, the civil charges against McGuire were a matter of public record. The case had been reported in the local newspaper, where at least some of the witnesses had seen it. Under these circumstances, we find no error in this line of questioning.
McGuire also complains that the prosecutor improperly informed the witnesses (and therefore the jury) of the amount sought in the civil ease, after an objection had been sustained. A review of the record, however, shows that the objection had been made with regard to continuing the questioning after the witness stated that he was unaware of the amount. The prosecutor, wisely, changed her questioning of later witnesses so as to ask whether they “had heard of the five million dollar lawsuit which charges ... ?” We do not find this action to be a basis for a claim of error.
Finally, character witness James C. McKenzie was asked about his son’s involvement with McGuire. This clearly went to a showing of bias, and was proper under Fed.R.Evid. 611(b).
VI
Defendants next suggest that the trial court abused its discretion by permitting the introduction of evidence relating to loan applications not named in the indictment. Defendant Lee bases this claim of error on Fed.R.Evid. 403, which allows the court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or waste of time. The evidence involves testimony of the large number of last-minute “May 31 borrowers” whose names were not specifically mentioned in the indictment. This evidence seems clearly relevant as it relates to the intent of the parties in their handling of the loan proceeds, and no unfair prejudice results merely from the nature of this relevant proof. We find no valid ground for reversal in respect to this assignment of error.
VII
Defendants requested instructions that KHC approval was not final approval of the loan, and that Kentucky law permits the execution of a mortgage before acquisition of title. This issue arose because many of the May 31 borrowers testified that they did not even own the property for which the loan had been granted by FNBG, and that they did not tell the defendants they owned the property. The handwriting on these loan applications was often demonstrated to be that of Lee or McGuire. In each case there was also an executed promissory note dated May 31, indicating that the security for the note was “a mortgage of even date.” No such mortgage was ever prepared, executed or filed. Further, after KHC approved certain of these loans, the applicants were never informed of that fact by the bank.
Defendants seem to be arguing that these applicants applied for the loan with plans to purchase property shortly thereafter. The evidence adduced at trial, however, clearly shows that most applicants had no such intention and the court’s instructions, when read as a whole, sufficiently presented the defendants' position to the jury.
VIII
Prior to trial the bank was dismissed as a defendant. Both sides agreed to the submission of the indictment to the jury, but the defendants did not want the reference to the bank as a defendant to be deleted. The court, however, did make that deletion. It appears that this move was designed to avoid confusing the jury. See United States v. Maselli, 534 F.2d 1197 (6th Cir.1976). In such a case “the trial court added nothing to the indictment and subtracted only surplusage.” United States v. Musgrave, 483 F.2d 327 (5th Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). Striking surplusage from an indictment does not impair its validity. Watson v. Jago, 558 F.2d 330, 333 (6th Cir.1977). No elements of the crime were changed, nor is actual prejudice apparent, unlike United States v. Pandilidis, 524 F.2d 644 (6th Cir.1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976). This not only does not constitute reversible error, it was a proper decision by the trial judge.
IX
In his instructions, the trial judge told the jury that documents in bank loan files constitute “bank statements” for purposes of 18 U.S.C. § 1005. During the trial, both sides had introduced expert opinion testimony on this issue. This instruction, however, may have foreclosed from jury consideration the issue of whether certain purported files, identified with defendants, were bank statements or records within the meaning of 18 U.S.C. § 1005. This was an inappropriate action. Schwachter v. United States, 237 F.2d 640, 644 (6th Cir.1956). We believe, however, that in light of the strong evidence of guilt on record, and inasmuch as this evidence was found where bank records are normally maintained and in view of this court’s decision in United States v. Foster, 566 F.2d 1045 (6th Cir.1977), cert. denied, 435 U.S. 917, 98 S.Ct. 1473, 55 L.Ed.2d 509 (1978), the error was harmless beyond a reasonable doubt.
X
Defendant Lee asserts that the evidence was insufficient to sustain his conviction. When viewed in a light most favorable to the government, it is clear that Lee knew or should have known that fraudulent loans were being made wholesale over the last weekend that the money was available. As of December 8, 1978, Lee was identified as the person through whom KHC should deal with respect to the Loans to Lenders Program. Lee received the KHC documents and attended the meetings concerning the program. He was active on the final weekend in which most of the fraudulent documents were prepared. He was also apparently aware that several of the loans, upon which his name appeared, were not in accord with KHC guidelines. Lee also was the one who oversaw the submission of the fraudulent loan applications to KHC. It seems clear that a jury question was presented, and the jury had ample evidence to find him guilty. The evidence of record is clearly sufficient to uphold his conviction.
XI
Defendants have raised other claims of error, including certain trial “ploys” of the prosecution. We believe that these issues warrant neither reversal nor prolonged discussion. In the overall context of the proceedings, the defendants were provided with a full and fair trial. The court actions deemed erroneous did not prevent defendants from fully presenting their positions and raising prepared defenses as to each charge made against them.
We AFFIRM the convictions of each of the defendants.
. The proposed instruction stated:
The defendant has offered evidence of his good faith in making representations alleged in the indictment. Good faith is a complete defense for the crime charged. In determining whether the defendant acted in good faith or with criminal intent, the jury should consider all the facts and circumstances of the case, including evidence of similar activity. If the jury finds that the defendant acted in good faith, he should be found not guilty.
. There are two essential elements which must be proved beyond a reasonable doubt in order to establish the offense proscribed by this law:
First. That a defendant knowingly made a false entry concerning a material fact in a book or record or statement of a national bank, insured bank or member of the Federal Reserve System, to-wit, a false and non-bona fide loan file, as charged;
Second: That a defendant made such entry willfully, with knowledge of its falsity and with the intent of defrauding or deceiving the person/persons or entities named in the indictment.
The essence of the offense is the willful making of a materially false entry with intent to defraud, and it is not necessary to prove that anyone was in fact deceived or defrauded.
To act “with intent to defraud" means to act willfully with intent to deceive or cheat, ordinarily for the purpose of causing financial loss to another or bringing about financial gain to one’s self.
Making false entries and conspiring to make false entries in the books and records of a bank are serious crimes which require proof of a specific intent to injure or defraud before a defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent, the government must prove that the defendant knowingly did an act which the law forbids purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.
An act is “knowingly” done if done voluntarily and intentionally, and not because of mistake or some other innocent reason.
In order to establish that a defendant is guilty of mail fraud, the government must prove beyond a reasonable doubt that:
1. The defendant willfully and knowingly devised a scheme or artifice to defraud, or for obtaining money or property by means of false pretenses, representations or promises, and
2. The defendant used the United States Postal Service by mailing, or by causing to be mailed, some matter or thing for the purpose of executing the scheme to defraud.
The words "scheme” and "artifice” include any plan or course of action intended to deceive others, and to obtain, by false or fraudulent pretenses, representations, or promises, money or property from persons so deceived.
A statement or representation is "false” or "fraudulent” within the meaning of this statute if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement of representation may also be “false” or “fraudulent” when it constitutes a half-truth, or effectively conceals a material fact, with intent to defraud. A "material fact” is a fact that would be important to a reasonable person in deciding whether to engage or not engage in a particular transaction.
To act with "intent to defraud" means to act knowingly and with the specific intent to deceive, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one’s self.
Mail fraud is a serious crime which requires proof of a specific intent to defraud before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent, the government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.
In each and all of these charged areas of criminal misconduct, it is necessary that the government prove beyond a reasonable doubt that the defendant concerned committed the offense with specific intent. General intent is not enough. You must find, beyond a reasonable doubt, that the concerned defendant acted with specific intent to violate the law; that is to say, he acted knowingly and voluntarily and intentionally to do an act which the law prohibits or failed to do an act the law requires.
There is no real dispute that the defendants caused many loan applications to be made, and that there were incorrect statements made in many of them. The defendants, however, presented evidence that they believed that they had a right to act as they did, and that they acted in the belief that they were within their legal rights in view of all of the circumstances as they viewed them.
Again, the matter returns to a determination by you of two main factors in your assessment of the evidence. The first, is, what was the specific intent of the defendants, McGuire and Lee, as they pursued their course of conduct.
. Similarly, the defendants argue that the trial judge actually modified the indictment by adding the words "to defraud.” Looking at the indictment as a whole, as well as the instructions, it is clear that this could have had no impact on the defendants’ cases.
. Fed.R.Evid. 613(b) provided in pertinent part: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.
A classic example in the books is a character witness in a trial for murder. She testified she grew up with defendant, knew his reputation for peace and quiet, and that it was good. On cross-examination she was asked if she had heard that the defendant had shot anybody and, if so, how many. She answered, "three or four,” and gave the names of two but could not recall the names of the others. She still insisted, however, that he was of "good character." The jury seems to have valued her information more highly than her judgment, and on appeal from conviction the cross-examination was held proper. People v. Laudiero, 192 N.Y. 304, 309, 85 N.E. 132. See also People v. Elliott, 163 N.Y. 11, 57 N.E. 103.
. 18 U.S.C. § 1005 prohibits the making of
"any false entry in any book, report, or statement of such bank with intent to injure or defraud ... any ... body politic .....or to deceive ... the Comptroller of the Currency, ... or any agent or examiner appointed to examine the affairs of such bank____
(emphasis added).
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Donald Hugh HALL, Defendant-Appellant.
No. 76-1140.
United States Court of Appeals, Ninth Circuit.
Feb. 25, 1977.
Rehearing Denied April 12, 1977.
Craig Mehrens, Phoenix, Ariz., argued, Mehrens & Pearce, Phoenix, Ariz., for defendant-appellant.
Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., Thomas N. Crowe, Asst. U. S. Atty., argued, Phoenix, Ariz., for plaintiffappellee.
Before WRIGHT and WALLACE, Circuit Judges, and BURNS, District Judge.
Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation.
WALLACE, Circuit Judge:
Hall was convicted of three counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and (b). Hall claims that the district judge improperly defined cocaine to the jury and refused to instruct the jury on his theory of the case. He also claims that the district judge erred in denying his motion for judgment of acquittal. We affirm.
I
Hall’s challenges to the guilty verdict are based upon one central contention: The substance which he sold to government agents was not properly proven to be cocaine. Under federal narcotics law, cocaine is defined as:
Coca leaves (9040) and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine (9041) or ecgonine (9180).
21 C.F.R. § 1308.12, Schedule 11(b)(4); see 21 U.S.C. § 812(a) and (c), Schedule 11(a)(4). Thus it was necessary for the government to prove that the substance which Hall sold was either “natural” cocaine, derived from coca leaves, or a chemical equivalent thereof.
The government’s expert witness, Medina, testified that he had performed various tests and concluded that “cocaine was detected in the exhibits submitted.” On cross-examination, Medina stated that cocaine, like most organic compounds, has many “isomers.” Isomers are two or more compounds which have the same molecular formula but different molecular structures. The variations in structure may give rise to different chemical characteristics. Medina testified that he had not tested the substance to determine whether it consisted of the “levo” isomer of cocaine (1-cocaine) or the “dextro” isomer (d-cocaine). L-cocaine is “natural” cocaine, a drug derived from the coca leaf, whereas d-cocaine is a chemically synthesized compound. Although use of a polarimeter would have distinguished between the two isomers, Medina did not employ the device, nor did he conduct any of the other tests which could have been used in order to make the distinction.
Having thus sought to cast doubt on the government’s proof that the substance was natural cocaine, Hall called his sole witness, Shapiro, to testify concerning the properties of the two isomers. Shapiro testified that d-cocaine is not the chemical equivalent to 1-cocaine and that d-cocaine would have a different physiological effect on the human body than 1-cocaine. Prior to this testimony, Medina had also discussed the properties of the two isomers, stating that they “would behave chemically equivalent [sic] except for the rotation of the polarized light ... in the polarimeter.” Thus, both witnesses indicated that there were some differences between the two isomers, although there was an apparent conflict as to whether there was a chemical equivalency.
II
Hall contends that the court erred in refusing to give a requested instruction concerning his theory of the case. While it is true that a defendant is entitled to an instruction on his theory of the case if it is supported by law and has some foundation in the evidence, United States v. Noah, 475 F.2d 688, 697 (9th Cir.), cert. denied, 414 U.S. 821, 1095, 94 S.Ct. 119, 38 L.Ed.2d 54 (1973); United States v. Shewfelt, 455 F.2d 836, 838 (9th Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972), the court is not required to accept a proposed instruction which is manifestly intended to influence the jury towards accepting the evidence of the defendant as against that of the prosecution. See United States v. Wayman, 510 F.2d 1020,1026-27 (5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975). Here the requested instruction was argumentative. There was a question of fact whether the two isomers were chemically equivalent within the congressional meaning of this term. Where the evidence raises a factual issue, an instruction dictating the result invades the ultimate fact-finding role of the jury. See Travelers Ins. Co. v. Ryan, 416 F.2d 362, 364 (5th Cir. 1969); Nunley v. Pettway Oil Co., 346 F.2d 95, 99 (6th Cir. 1965). Thus, the district judge committed no error in rejecting it.
Also, the district judge properly instructed the jury on this issue. After reading the indictment and enumerating the elements of the offense, he stated:
Now, cocaine is coca leaves, and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances.
So it’s a jury question in this case whether the substance is — you have to decide whether the substance is, one, either chemically equivalent to cocaine or whether the substance here is, in fact, the natural substance or derivative of the coca leaf.
Now, if you find the substance is chemically equivalent to cocaine or that it is, in fact, cocaine or a derivative thereof, then the substance here is violative of the law.
In this instruction, the district judge pointed out that a conviction must rest on a determination that the substance in question was cocaine which was “violative of the law.” His definition of cocaine closely tracked the statute. This was sufficient to charge the jury with the responsibility to decide whether the substance was indeed “illegal” cocaine. Thus the court’s instruction adequately covered the substance of the instruction requested by Hall.
Hall contends, however, that the either/or statement in the court’s instruction was erroneous in that it precluded a finding by the jury that the substance may have been something other than “illegal” cocaine. Viewing the instruction in its entirety, there was no error. The very next sentence after the either/or statement is couched as an if/then proposition — if the substance is natural cocaine derived from coca leaves or a chemical equivalent, then the substance is violative of the law. This makes it clear that the jury had a real choice in determining whether the substance was illegal.
Ill
Hall also alleges that because of the government’s failure of proof, the district judge should have granted his motion for judgment of acquittal at the close of the evidence. In reviewing a denial of a motion for acquittal, we must inquire whether the evidence, considered most favorably to the government, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). It is not necessary for the evidence to exclude “every hypothesis but that of guilt.” Id. at 1242-45.
In this case, while the evidence does not definitively exclude the possibility that the substance sold by Hall was not natural cocaine or its chemical equivalent, there was sufficient evidence for the question to go to the jury. Medina testified that his tests indicated that the substance was cocaine. In addition, while Medina’s tests could not distinguish between the isomers of cocaine, there was extensive circumstantial evidence showing that the substance was natural cocaine derived from coca leaves (1-cocaine) rather than d-cocaine. The government presented evidence that d-eocaine was difficult and expensive to make. More importantly, the experts had never actually found a specimen of d-cocaine. Finally, d-cocaine could be synthesized anywhere, according to the experts, yet instead of basing his operations in the interior United States, there was evidence that Hall was engaged in a smuggling operation to bring drugs into the United States from Mexico. This evidence, with reasonable inferences drawn therefrom, is more than adequate to permit a rational conclusion by the jury that the substance sold by Hall was, beyond a reasonable doubt, cocaine. The motion for judgment of acquittal was therefore properly denied.
AFFIRMED.
. Hall requested the following instruction:
Defendant’s Theory of the Case. The United States statute only prohibits cocaine or its chemical equivalent, which is derived from the coca leaf. Cocaine has many isomers. One isomer is known as 1-cocaine or (-)-cocaine. The 1-cocaine or (-)-cocaine is an isomer that is the natural product from the coca leaf.
Another isomer of cocaine is d-cocaine or ( + )-cocaine. It is not a natural product from the coca leaf nor is it a chemical equivalent.
The law does not prohibit distribution of isomers of cocaine which are not the natural product of the coca leaf or its equivalent. The Government must prove to you beyond reasonable doubt that Donald Hall distributed that cocaine which is specifically prohibited by law.
Defendant’s Requested Instruction No. Two.
. Because the issue was not raised at trial nor brought before us on appeal, we do not decide whether an instruction on the definition of “chemically equivalent” should have been given.
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_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.
PANDOLFO v. UNITED STATES.
No. 2345.
Circuit Court of Appeals, Tenth Circuit.
May 6, 1942.
Rehearing Denied June 16, 1942.
Dissenting Opinion June 24, 1942.
Caswell S. Neal, of Carlsbad, N. M. (Reed Holloman, of Santa Fe, N. M., on the brief), for appellant.
Everett M. Grantham and Donald B. Moses, both of Santa Fe, N. M. (A. Gilberto Espinosa, of Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
The defendant, appellant here, was tried on an indictment containing twelve counts,' the first eight of which charged a scheme to defraud by use of the mails in violation of 18 U.S.C.A. § 338, and four counts charging violations of the Securities Act, 15 U.S.C.A. 77q (a) (1). He was convicted on each of the eight counts charging a scheme to defraud; the four counts charging a violation of the Securities Act failed, either by verdict of not guilty or by ruling of the court. The defendant was sentenced to a term of five years and $100 fine on each of the eight counts, arranged to impose a total of ten years imprisonment, from which judgment the defendant has appealed.
The eight counts in the indictment on which the .defendant was tried, convicted, and sentenced, charge in substance that the defendant devised a scheme and artifice to defraud numerous persons named in the indictment by the sale of stock through false ‘and fraudulent representations and promises, and the use of the mails in exe-r cution thereof. Each count of the indictment charged that the defendant organized and incorporated the Old Line Insurance Shares Corporation, with a capital structure of 20,000 shares no par Class A common stock, and 5,000 shares of Class B preferred stock. According to the allegations in the indictment, the scheme as devised contemplated the sale of this stock to so-called investors who were induced by false and fraudulent representations to buy the stock of the company; that defendant represented to the prospective investors that there would be no commissions or cost for the sale of the stock, except the nominal cost of organization. He represented that there were large profits to be made in the consummation of small loans, and that it was his intention to build a strong finance company; that he otherwise represented that the proceeds from the sale of stock would be used for the purpose of reinvestment in the loan business, which would return a large profit to the stockholders of the Old Line Company, in the form of dividends and increased value of the stock of the company.
In the execution of this scheme, it is alleged that the defendant, by use of the United States mails, delivered to prospective investors, bulletins, reports, financial statements, and other advertising matter, designed to induce, persuade, and entice prospective investors to purchase the stock of the Old Line Company, and that the representations contained in the mail matter were false, fraudulent, and deceptive, in that they misrepresented the prospective earnings of the company, the financial condition of the company, and represented that the company was earning profits when in fact interest upon the investments was paid out of the assets of the company and not from earned profits. It is alleged that the defendant converted the proceeds of the sale of the stock to his own use by purchasing stock in other companies, having little or no market value, and by setting it up on the books of the company as assets at a high and fictitious value, thereby converting to his own use the difference between what he paid for the stock and what he charged the Old Line Company. It is also charged that he converted to his own use the assets of the company created by the sale of stock by taking assets of the company and substituting therefor his personal note, which he carried as part of the assets of the company, thus becoming indebted to the company in the sum of $30,000.
It is also alleged that he purchased, for and on behalf of the Old Line Company, certain property in Albuquerque, New Mexico, known as the War Mothers Memorial Hospital Association, paying $750 in cash and agreeing to pay $29,250 in installments. Immediately thereafter, he liquidated his personal indebtedness to the company in the amount of $30,000 by the expedient of setting up the War Mothers Memorial Hospital Association property on the books of the company at a value of $60,000, and withdrawing his personal note in the sum of $30,000. Other specific acts of misrepresentation and fraud were alleged.
The record supports the allegations contained in each count of the indictment on which the defendant was convicted, but on appeal, defendant complains of errors occurring in the trial of the case which may be summarized as follows: (1) The trial court abused its discretion by unduly restricting the right to cross examine certain government witnesses, and prejudicial remarks of the court made in connection with the ruling thereon; (2) error of the court in permitting a government witness to testify concerning the value of shares of stock in certain insurance companies, purchased by the defendant on behalf of the Old Line Company, and carried as assets of the said company; (3) error of the court in refusing to permit the defendant to testify concerning his knowledge of the history of a certain insurance company, the stock of which he had purchased on behalf of the Old Line Company, and which was carried as a part of the assets of the company at an alleged fictitious value, and (4) refusal of the court to permit the defendant to testify concerning the value of the property known as the War Mothers Memorial Hospital Association.
The first point involves the testimony of a government witness who was an accountant and an employee of the Securities Exchange Commission. This witness had examined the books of the Old Line Company, and had testified in detail concerning its assets and the nature of the transactions which the appellant had conducted on behalf of the company, alleged to be fraudulent.
Under the organizational agreement, it became the duty of the defendant to deliver to the company assets equivalent to the value of the stock when sold. The specific point involved a transaction in which the defendant had exchanged the stock of the Old Line Company, having a book value of $145, for stock in the National Mutual Savings and Loan Association, which he placed on the books of the Old Line Company as an asset worth $210. By this transaction, according to the theory of the government, the defendant unjustly enriched himself in the sum of $65, representing the difference between the Old Line Company stock and the value of the stock which he acquired as an asset of the Old Line Company. The government witness, Ballou, testified that in his opinion the Old Line Company should have received the benefit of the $65 profit shown by the book transaction and not the defendant. Specifically, the defendant complains that the right of cross examination was unduly restricted when the government witness was asked the following question on cross examination: “All right. Now, if Mr. Pandolfo under his contract was required to turn in assets of the value of the amount of stock he sold, and if he turned in assets in all of that value how was anybody in the company defrauded?” To which the government objected as repetition, whereupon the court stated: “The objection will be sustained. Your question, of course, cannot be answered. The proposition, he formed this corporation, defrauded everybody, they are showing this to the extent that he got back $65.00 and has never accounted for by the books.” Counsel for the defendant excepted to the ruling and the remarks of the court, and now contends that the right of cross examination was unduly restricted and the remarks of the court were prejudicial.
While detached from other testimony of this witness, and without considering the extent to which the witness was cross examined, and having the full background of the record, it appears that the court in sustaining the objection and making the remarks shown by the record, may have unduly curtailed the right of cross examination, and his remarks tended to unduly prejudice the defendant. But a full consideration of the whole record concerning the testimony of the government witness, Ballou, and the extent to which he was cross examined, clearly shows that substantially the same question had been previously asked by defendant counsel, and answered by the government witness. At the stage of the record where the objection was sustained, the -examination of the witness had resolved itself into nothing more than an argument between the government witness and defendant counsel. In addition to its repetitious character, the question by its very nature calls for a conclusion, the answer to which was peculiarly within the province of the jury, and the court committed no error in sustaining the objection.
While the remark of' the court in connection with his ruling on the objection may, when considered as an expression of the court’s- opinion, be susceptible of unwarranted inferences as to the effect of the testimony, yet, the record shows that immediately after the objection interposed by ‘ defendant’s counsel, the court stated quite plainly, “that is a question -for the jury when all this testimony is in.” In these circumstances, it cannot be presumed that the jury was unduly influenced by the remark of the court.
The same government witness had testified in detail concerning certain financial statements which had been mailed to the investors, and which tended to show that certain expenses incident to the sale of the stock had been charged to the Old Line Company, contrary to the representations made by the defendant to the effect that no such expenses would be charged. On cross examination, ■ the witness was asked in effect to state whether money actually paid by the defendant to stock salesmen for selling stock, and other related expenses, should not properly appear on a financial statement, to which the government objected and was by the court sustained. It appears from the record that all transactions relating to the sale of stock by installment contracts were reflected by a card index system which the defendant maintained separate and apart from the affairs of the. company. These transactions were not reflected on the books of the company, neither did the defendant consider himself accountable to the company until the purchase price had been paid, in accordance with the installment contracts, and the stock issued. Evidently, the purpose of this cross examination was to prove by the witness, as a principal of accounting, that money paid by the defendant to stock salesmen for the sale of stock and other related expenses, should be charged as an expense of the corporal tion, and so reflected in the financial statement. Again, the question called for an answer which clearly invaded the province of the jury, and' one which the jury should ultimately decide in the determination of the guilt of the defendant. The direct issue was whether the defendant had accounted to the corporation for monies he had received in conducting the affairs of the corporation. From the whole record, it appears that these facts were clearly and fairly presented to the jury and we are unable to say that the ruling of the court at this point constituted prejudicial error.
Next, the defendant complains of the admission of testimony of a government witness named Fisher, who operated a quotation service by which he circularized offers to buy and sell stock and securities which were not listed on any exchange. Th'e quotation service was patronized by approximately seventeen hundred subscribers who were interested in the purchase and sale of unlisted securities. It was not the purpose of the quotation service to consummate any sales, but merely to circularize the offers to buy and sell among its subscribers. The witness was permitted to testify concerning the quoted “bid” and “asked” price of certain shares of stock in different insurance companies which defendant had purchased for and on behalf of the Old Line Company, and which had been placed on the books of the company as an asset at a price much greater than the quoted price. The defendant complains that the offers to buy and sell this stock, without more, is entirely insufficient to establish value, and since there was no testimony by this witness that any of the offers to buy and sell actually resulted in a sale, the testimony is incompetent to show value.
Under the allegations of the indictment, the actual value of the stock became quite material because, it is contended by the government, that the defendant purchased stock at a much lower figure than that which he charged the company, and at which it was placed on the books as an asset. It may be conceded, as a general proposition, that a mere quotation of offers to buy or sell is not a proper criterion of value Unless it is also shown that a sale results therefrom, or unless the quotation results in a sale in the regular course of business. See Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211; Clarke et al. v. Hot Springs Electric Light & Power Company et al., 10 Cir., 55 F.2d 612; Wiget v. Becker, 8 Cir., 84 F.2d 706; Cf. Coplin v. United States, 9 Cir., 88 F.2d 652, 669; Com. of Virginia v. State of West Virginia, 238 U.S. 202, 35 S.Ct. 795, 59 L.Ed. 1272. It may be conceded that the isolated quotations of bids by brokers to buy or sell the stock of the insurance companies involved here are entirely too uncertain, shadowy, and speculative, to form any sound foundation for the determination of value.
If this were the only testimony tending to show the highly fictitious value of the assets of the company, as represented by the defendant in his financial report to the investors, we would be constrained to consider more seriously the question of its probative value, but in each instance there is direct evidence of purchases made by the defendant of the stock in question and the prices he paid therefor. His testimony shows that he was familiar with the stock and its value. This is of course irrefutable evidence, not only of the value of the stock, but the value which the defendant himself placed upon it. The record shows a wide and unexplained variance between the price defendant paid for the stock of the various insurance companies, and the price which he placed upon it when transferred to the books of the company as an asset.
These transactions, within themselves, amply support the allegations in the indictment concerning the false and fictitious value of the assets of the company as represented by the defendant. The testimony complained of, although of doubtful value, is not prejudicial when considered in connection with the defendant’s transactions involving the purchase and sale of the stock in question.
Similarly, the defendant contends that the court erroneously admitted the testimony of a government witness, C. E. Hyer, secretary of the Occidental Life Insurance Company, who testified concerning the sale of a block of stock of this company at a price much less than that which it was carried on the books of the Old Line Company as an asset. In connection with the admission of this evidence, it is urged that this block of stock was sold by the owner while under financial stress, and that a distress sale does not truly represent the value of stock. Again, it may be conceded that a distress sale of stock under the attendant circumstances is not a proper criterion of value, and insufficient standing alone to support the allegations of fraud as alleged. But again, the defendant is met by his own testimony concerning the value of the stock. He testified that he bought 1,000 shares of Occidental stock for $1.40 per share, or a total of $1,400, and that he placed this stock on the books of the company and represented it as a $4,000 asset. He also purchased other shares of stock in the same company at $1.67% per share and placed it on the books of the company at $4.00 per share. The record shows that the block of stock in question was finally sold at $1.85 per share, and in comparison does not indicate such a discrepancy as to justify prejudicial error by its admission.
The defendant also complains of the refusal of the court to permit the defendant, while a witness in his own behalf, to testify concerning the history of the Gibralter Colorado Life Insurance Company, the stock of which the appellant had purchased at $15 and $25 per share, and placed it on the books of the Old Line Company as an asset at $125 per share. It appears from the record that the defendant sought to justify the value he had placed on the stock by his experience in buying and selling the stock, and to support its financial stability by showing that the Gibralter Colorado Life Insurance Company had a blue-sky permit to sell its stock in approximately twenty states, and other facts which obviously had no direct relevancy to the question of value. It is significant to note that here, as in each case submitted, concerning the value of stock in insurance companies, the appellant purchased the stock at a price far less than the amount which he charged the company, and at which it was placed on the books of the company as an asset. In every case there is definite evidence of a purchase by him of the stock,' which is certainly a criterion of value, and a definite and fictitious write-up on the books which, within itself, definitely establishes a fictitious value wholly disproportionate to the actual value of the stock. The witness was permitted to testify in detail concerning his operations of the company, his good faith in the integrity of each transaction, and his honest belief in the veracity of each statement made in connection therewith. The court’s instructions in relation to his good faith and honest intentions were clear and fair.
Finally, the defendant complains that the trial court erred in refusing to permit the defendant as a witness to testify concerning his estimate of the value of the property designated as the War Mothers Memorial Hospital Association. The record shows that this property was originally purchased by the War Mothers Memorial Hospital Association for a hospital site. The venture did not mature and the defendant agreed to purchase the property from a state court receiver for $30,000; he paid $750 in cash and agreed to pay the balance in installments. Immediately thereafter, he placed the property on the books of the Old Line Company as a $60,-000 asset. Simultaneously he withdrew his personal note for $30,000 carried as an asset on the books of the company, and by this transaction sought to and did cancel his indebtedness to the company by the amount of his note. He testified that he had instructed two of his employees to appraise the property at a conservative figure, and that they had appraised it at $60,000. The record shows that the appellant was permitted to testify concerning the purchase price and his estimated value of the property. His employees who had appraised the property were permitted to testify in detail concerning their appraisement.
From the whole record, it' is manifest that the defendant organized the Old Line Company for the primary purpose of selling stock; he induced prominent citizens throughout the State of New Mexico to purchase stock in the company and to become advisory directors and officials of the company. But the defendant was the sole managing officer; the advisory directors and officials were but decoys for his plan of action. He represented that large profits were to be made by engaging in the small loan business, and from time to time he represented to the investors that the company could loan more money than available funds would permit, when in fact, he was the principal borrower in the loan department and his personal note in the sum of $30,000 was one of the principal assets of the company.
The trial was long and tedious, much testimony was adduced. When considered in their proper setting, and in the light of the whole record, the errors complained of do not affect the substantial rights of the defendant, or deny to him a fair and impartial trial. It must be remembered that law suits are not tried in accordance with mathematical or scientific formulas; they are often lacking in that degree of exactitude which characterizes the ideal. In the administration of justice, we can only hope to attain perfection.
We conclude that from the whole record, the court did not commit prejudicial error, either in the exclusion of testimony offered by the defendant, or the admission of testimony introduced by the government over the objection of the defendant, and that the judgment of the lower court is 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 | 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.
COMMISSIONER OF INTERNAL REVENUE v. RILEY STOKER CORPORATION.
No. 2825.
Circuit Court of Appeals, First Circuit.
Nov. 10, 1933.
Francis H. Horan, Sp. Asst, to Atty. Gen. (Pat Malloy, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for petitioner.
Frederick L. Pearce, of Washington, D. C. (KixMiller, Baar & Morris, of Washington, D. C., on the brief), for respondent.
Before WILSON and MORTON, Circuit Judges, and MeLELLAN, District Judge.
WILSON, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals involving the income tax of the respondent and certain affiliated corporations for the year 1923. During that year four other corporations were affiliated with the respondent, viz.: Murphy Iron Works, Inc., A. W. Cash Company, Underfeed Stoker Company of America, and the Craig Damper Regulator Company.
The respondent and the Murphy Iron Works, Inc., were affiliated from January 1, 1921; the Underfeed Stoker Company and the Craig Damper Regulator Company became affiliated with the respondent company and the Murphy Iron Works, Inc., on June 12) 1922, and the A. W. Cash Company became affiliated with the above group on August 31, 1922.
During the year 1921 and prior to June 12,1922, the Underfeed Stoker Company and the Craig Damper Regulator Company were affiliated with each other, but with no other company. The A. W. Cash Company was not affiliated with any other company in 1921, nor in 1922 until August 31.
During the calendar year of 1921, the Craig Damper Regulator Company sustained a net loss of $3,587.42, the Underfeed Stoker Company a net loss of $103,972.20, and the A. W. Cash Company a net loss of $38,739.-45.
It will be seen from the above facts that, under article 634 of Treasury Regulations 62, for three of the corporations the calendar year 1922 is divided into two parts; for the Underfeed Stoker Company and the Craig Damper Regulator Company from January 1 to June 12, and from June 12 to December 31, and for the A. W. Cash Company from January 1 to August 31, and from August 31 to December 31.
The issue decisive of this ease is whether the calendar year of 1922 is thereby divided into two “taxable years” in the case of the Underfeed Stoker Company, the Craig Damper Regulator Company, and the A. W. Cash Company, within the meaning of section 204 (b) of the Revenue Act of 1921 (42 Stat. 231), so that the losses suffered by these companies in 1921 cannot be carried over and deducted from their net income in making the consolidated return for 1923.
Section 200 of the Revenue Act of 1921 (42 Stat. 227) defines a taxable year as a calendar year or a fiscal year ending during such calendar year. It also provides that a fiscal year means an accounting period of twelve months ending on the last day of any month other than December, and that the first taxable year to be called the taxable year 1921 shall be the calendar year or any fiscal year ending during the calendar year 1921.
By section 204 (b) of the Revenue Act of 1921 it is provided:
“If for any taxable year beginning after December 31, 1920, it appears upon the production of evidence satisfactory to the Commissioner that any taxpayer has sustained a net loss, the amount thereof shall be deducted from the not income of the taxpayer for the succeeding taxable year; and if such net loss is in excess of the net income for such succeeding taxable year, the amount of such excess shall be allowed as a deduction in computing the net income for the next succeeding taxable year; the deduction in all cases to be made under regulations prescribed by the Commissioner with the approval of the Secretary.”
The Board of Tax Appeals sustained the taxpayer’s contention that a taxable year is a twelve months’ period; that under section 204 (b) the losses sustained by the Underfeed Stoker Company, the Craig Damper Regulator Company, and the A. W. Cash Company in the year 1921 were allowable against their net income, if any, in 1922; and any excess of net loss in 1921 over their 1922 incomes should be allowed against their net incomes in 1923 in making up a consolidated return. Woolford Realty Co., Inc., v. Rose, 286 U. S. 319, 52 S. Ct. 568, 76 L. Ed. 1128; Commissioner v. Ginsburg Co. (C. C. A.) 54 F.(2d) 238.
The government contends that the part of the year 1922 prior to affiliation and the part after affiliation constitute two taxable years, on the ground that sections 212 and 226 of the 1921 act (42 Stat. 237, 251) provide for the assessment of a tax for a part of a year when the taxable year is changed from a fiscal year to a calendar year, or vice versa.
The government fails, we think, to take into consideration not only the intent of Congress in enacting section 204 (b) of the Revenue Act of 1921, but also the language of section 226 of the 1921 act, which provides that in case of a change from a fiscal year to a calendar year, or vice versa, the separate return required is for the “period” between the dose of the old taxable year and the beginning of the new, and expressly refers to the fractional part of the year for which a separate return is required, not as a taxable year, but only as “a part of a taxable year.”
Congress, in providing in section 204 (b) of the Revenue Act of 1921 that the net loss in any year might be deducted from the net income of the two succeeding years, had in mind the economic conditions following the close of the war, and that a year in which great losses occurred might be followed by several years of prosperity, and, in view of the uncertain business conditions during the period of readjustment, that it was fair, and intended as a measure of relief to the taxpayers, to have their losses in a lean year spread over two succeeding years of prosperity.
To hold that, because a corporation which became affiliated on December 1, 1921, with another corporation that filed its tax return on a calendar basis, was obliged to file a separate return for the unaffiliated period from January 1 to December 1, during which period it suffered great losses, could not spread those losses over the succeeding two years of 1922 and 1923, because it was required to join in an affiliated return for the one month of December, 1921, would be, in a large measure, to deny to the taxpayer the very relief Congress intended to extend to him by section 204 (b) of the 1921 act.
The entire Revenue Act of 1921 and especially section 204 (b), and the Treasury Regulations under it, clearly treat a taxable year as a twelve months’ period.
Article 634, Treasury Regulations, provides :
“In either case the subsidiary or subordinate corporation whose status is changed during the taxable year should make a separate return for that part of the taxable year during which it was outside of the affiliated group. * * * ” (Italics supplied.)
The administrative officials in construing section 204 (b), both the Commissioner and the Board of Tax Appeals, have so construed the Act of 1921. Arthur Walker & Co., Inc., 4 B. T. A. 151; Turners Falls Power & Electric Co., 9 B. T. A. 435; Stevenson Consolidated Oil Co., 23 B. T. A. 610; Kinney Co., Inc., 26 B. T. A. 1091; Other instances might be cited.
The courts, where the issue here has been raised, have also held in construing section 204 (b) that a taxable year was a twelve months’ period, and the division of a year through a change from a fiscal to a calendar, or vice versa, or by reason of affiliation of corporations in the midst of a year, does not create two taxable years. United States v. Hoffman et al. (C. C. A.) 61 F.(2d) 294; Bankers’ Trust Co. et al. v. Bowers (C. C. A.) 295 P. 89, 31 A. L. R. 922; Corrugated Bar Co., Inc., v. Gage (D. C.) 58 F.(2d) 360, 363; Commissioner v. Death Valley Railroad Co. (C. C. A.) 62 F.(2d) 160.
We do not think eases like United States v. Carroll Chain Co. (D. C.) 8 F.(2d) 529, or Chess & Wymond Co. v. Lucas (D. C.) 33 F.(2d) 793, necessarily support the government’s contention in this case. In each of these cases, to have supported the government’s contention would have deprived the taxpayer of the relief to which he was clearly entitled under section 204 (b). In construing tax statutes, it is a well-established rule of construction that the act must be construed as an entirety, although the language used should not be extended except by a necessary implication beyond its ordinary import, and should, in case of doubt, be construed in favor of the taxpayer. United States v. Merriam, 263 U. S. 179, 187, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547, Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211.
The only other ground relied upon by the government is that, since to section 200 of the Revenue Act of 1921, after the words, “The term ‘fiscal year’ means an accounting period of twelve months ending on the last day of any month other than December,” section 200 of the Revenue Acts of 1924 and 1926 (26 US CA § 931), added the words, “The term ‘taxable year1 includes, in the case of a return made for a fractional part of a year under the provisions of this title or under regulations prescribed by the commissioner with the approval of the Secretary, the period for which such return is made * * * ” (italics supplied) it indicated a change in the law and that this provision was retroactive.
We do not think it was intended by Congress that this added definition of a taxable year in section 200 of the Revenue Acts of 1924 and 1926 was intended to be retroactive.
As the Supreme Court said in Shwab v. Doyle, 258 U. S. 529, 42 S. Ct. 391, 393, 66 L. Ed. 747, 26 A. L. R. 1454, “a statute should not be given a retrospective operation, unless its words make that imperative.” Brewster v. Gage, 280 U. S. 327, 337, 50 S. Ct. 115, 74 L. Ed. 457; United States v. Magnolia Petroleum Co., 276 U. S. 160, 162, 48 S. Ct. 236, 72 L. Ed. 509.
We think the additional provision in section 200, quoted above, was inserted to clear up a doubt that had existed in the courts as to whether a fractional part of a year could be considered a taxable period, in which a loss suffered was deductible under section 204 (b), even in the succeeding year, or could be deducted from a preceding year under the 1918 act (40 Stat. 1057). United States v. Carroll Chain Co., supra, decided July 16,1925; Pennsylvania Chocolate Co. v. Lewellyn (D. C.) 27 P.(2d) 762, decided June 20, 1928; Appeal of Siegel, Inc., 1 B. T. A. 1113; Appeal of Tacoma Grocery Co., 1 B. T. A. 1062.
The order of the Board of Tax Appeals is 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_usc2sect | 206 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Appellee, v. STATE OF IOWA, Appellant.
No. 73-1500.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 12, 1973.
Decided Feb. 26, 1974.
Gibson, Circuit Judge, filed a dissenting opinion.
Loma Lawhead Williams, Special Asst. Atty. Gen. of Iowa, Des Moines, Iowa, for appellant.
Jacob Karro, Atty., U. S. Dept, of Labor, Washington, D. C., for appellee.
Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Seftior District Judge.
The Honorable TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.
ROSS, Circuit Judge.
This action by the Secretary of Labor seeking enforcement of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (FLSA), was filed in the district court for the District of Iowa against the State of Iowa. Through its agency, the Department of Social Services, the State of Iowa owns and operates several institutions wherein persons are employed at less than the minimum and overtime wages prescribed by 29 U.S.C. §§ 206 and 207. Upon stipulated facts the district court held that the State of Iowa was subject to the provisions of the Act. This appeal followed.
The undisputed facts show that each of the nine institutions is either a hospital, an institution primarily engaged in the care of the sick, the aged, mentally ill or defective who reside on the premises, or a school for mentally or physically handicapped or gifted children. Each of the institutions purchases or or- ■ ders some of its goods and supplies directly from manufacturers, producers or suppliers located outside the state. Each institution has employees in the following categories regularly handling, selling, or otherwise working on, or with, merchandise and supplies received from out-of-state suppliers:
(1) professional, medical, psychiatric and nursing employees who, in the treatment of patients, administer medicines and drugs and use therapeutic equipment and other medical supplies and equipment, substantial amounts of which are manufactured or produced outside the state;
(2) nursing service employees, aides, attendants, and orderlies who, in providing patient care, handle cleaning supplies, medical supplies and equipment, bedding, linens, towels and hospital clothing, substantial amounts of which are manufactured or produced outside the state;
(3) food service and dietary service employees who prepare, serve and dispense food to patients, residents, employees and visitors, substantial amounts of which foods are grown, processed or produced outside the state;
(4) housekeeping, maintenance and custodial employees who, in the regular course of their duties, use cleaning supplies, equipment and appliances, substantial amounts of which are manufactured or produced outside the state;
(5) laundry employees who use and handle cleaning supplies, bedding, linens, towels and hospital clothing, substantial amounts of which are manufactured or produced outside the state;
(6) office and administrative employees who use office supplies and equipment, substantial amounts of which are manufactured or produced outside the state.
Section 6 and Section 7 of the Fair Labor Standards Act, 29 U.S.C. §§ 206 and 207, provide that every employer shall pay minimum and overtime wages to each of his employees who is engaged in commerce or in the production of goods for commerce or is employed in an enterprise engaged in commerce or in the production o.f goods for commerce. An “enterprise engaged in commerce or. in the production of goods for commerce” is defined to be:
[A]n enterprise which has employees engaged in commerce or in the production of goods for commerce, including • employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person, and which—
* •» * * * *
(4) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool, elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit).
29 U.S.C. § 203 (s).
The adoption of the “enterprise concept” in 1961 by Congress has been held to be clearly within the power of Congress under the Commerce Clause. Maryland v. Wirtz, 392 U.S. 183, 188-193, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968). Similarly, the amendment modifying the definition of “employer” to remove the exemption of the states with respect to the employees of certain hospitals, institutions, and schools was upheld. For the federal government, when acting within a delegated power, may override countervailing state interests. Maryland v. Wirtz, supra, 392 U.S. at 195, 88 S.Ct. 2017. See also Sanitary District v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925). Thus, if a state engages in economic activities that are validly regulated by the federal government when engaged in by private persons, the state too may be forced to conform its activities to federal regulation. Maryland v. Wirtz, supra, 392 U.S. at 197, 88 S.Ct. 2017. See also United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936). Yet a state may assert its sovereign immunity in suits brought by private individuals under 29 U.S.C. § 216(b) to enforce the Act. Employees of the Department of Public Health and Welfare of Missouri v. Department of Public Health and Welfare of Missouri, 411 U. S. 279, 285, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) [Employees v. Missouri Public Health Dept.]. The vehicle to enforce a state’s conformity to the Act is at issue in this case. Based upon reasons expressed hereafter, we find that the extension of FLSA coverage to state employees is not made totally meaningless by the availability of a sovereign immunity claim.
Section 216(c) and Section 217 give the Secretary of Labor the authority to bring suits for violations of the Act. Cf. Employees v. Missouri Public Health Dept., supra, 411 U.S. at 285-286, 93 S.Ct. 1614. Such suits by the Secretary of Labor in enforcing the FLSA, though brought in public interest, are suits by the United States. See Mitchell v. Robert DeMario Jewelry, 260 F.2d 929, 932 (5th Cir. 1958), rev’d on other grounds, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960) (and eases cited therein). Suits by the United States against a state are not barred by the eleventh amendment. United States v. Mississippi, 380 U.S. 128, 140-141, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965). Thus, this suit against the State of Iowa is not barred by a claim of sovereign immunity. The only remaining question here is whether the particular institutions are subject to the Act. This question must be answered in the affirmative if we can find that these institutions are enterprises engaged in commerce or in the production of goods for commerce, or, more simply put, if these institutions employ any employees who are engaged in commerce or in the production of goods for commerce. See 29 U.S.C. § 203(s).
Under both of the two criteria established by the Act, these institutions must be said to be enterprises within the purview of the Act. First, courts have repeatedly held on previous occasions that activities of the nature performed by some of the employees of the institutions are activities in interstate commerce. Specifically, the activities of employees in sending, preparing, and receiving purchase orders, shipment orders, invoices, bills, and checks; in receiving direct deliveries of goods transported interstate and in handling, storing and moving such goods after their delivery but before disposition to the ultimate consumer; in regularly transporting or accompanying patients or residents to points outside the state for treatment, diagnosis, and other purposes; and in placing interstate telephone calls as a part of a regular course of business must be held to be activities performed in interstate commerce. Due to the interstate nature of the employees’ activities, each of the institutions is an enterprise engaged in commerce. 29 U.S.C. § 203(s).
Secondly, as defined by 29 U.S.C. § 203 (s), an enterprise engaged in interstate commerce may be one where the employees simply handle, sell or otherwise work on goods that have moved in interstate commerce. According to the undisputed facts, many employees handle articles which have moved in interstate commerce. Those activities bring the particular institutions involved within the purview of the Act if the articles handled by the employees can be determined to be “goods” as defined by the Act. 29 U.S.C. § 203 (i). In other words, if the articles are wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, that have not reached their delivery into the actual physical possession of the ultimate consumer thereof, then they are goods within the definition of the Act and the mere handling of those goods by some institution employee prior to their delivery to the ultimate consumer renders the institution an enterprise engaged in commerce. Many cases have held that the institution itself is not the ultimate consumer of the articles set forth in the margin above. See, e. g., Brennan v. Dillion, 483 F,2d 1334 (10th Cir. 1973); Wirtz v. Melos Construction Corp., 408 F.2d 626 (2nd Cir. 1969). The constitutionality of 29 U.S.C. § 203(s) was upheld by the Court in Maryland v. Wirtz, supra. Thus, we conclude that each of the institutions are enterprises engaged in commerce.
Finally, we review the appropriateness of the relief granted by the district court. Section 17 of the Act provides:
The district courts . . . shall have jurisdiction, for cause shown, to restrain violations of section 215 of this title, including in the case of violations of section 215(a)(2) of this title the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this [Act] ....
29 U.S.C. § 217. The State of Iowa argued that a restitution award of the nature described above should not have been awarded by the district court.
Accordingly, first we note that the State of Iowa may not assert its sovereign immunity in a suit brought by the United States against the state. United States v. Mississippi, supra. Secondly, we have held that the financial hardship caused by the order is not a valid basis on which to deny the employees their remedy or to allow a wrong against the public to go uncorrected in a suit brought under the FLSA. Hodgson v. Taylor, 439 F.2d 288, 290 (8th Cir. 1971). Next, we find no merit in the argument that this action is, in substance, an action by the employees against the state to which the holding of the Second Circuit in Rothstein v. Wyman, 467 F.2d 226 (2nd Cir. 1972), cert, denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973) should be applicable. Rather:
[T]he purpose of the injunction is not to collect a debt owed by an employer to his employee but to correct a continuing offense against the public interest. It is true that as a result, money may pass from the employer into the pocket of the employee or, if he is not available, then into the coffers of the United States)/Treasury, but that enforced payment, which must be made even if the employee or his representatives or heirs ño longer exist to claim it, is simply a part of a reasonable and effective means which Congress, after trial and error, found it necessary to adopt to bring about general compliance with [the Act].
Wirtz v. Jones, 340 F.2d 901, 904-905 (5th Cir. 1965). Finally, we note that the parties to this suit have entered into a stipulation that “should the questions presented be resolved in favor of [the Secretary of Labor], the parties will attempt to compute and agree upon the amount of any unpaid minimum wages and overtime compensation due defendant’s employees.” Due to the foregoing considerations, we find that the.restitution order is appropriate.
For the reasons hereinbefore expressed, the judgment of the district court is affirmed.
. Wirtz v. First State Abstract & Ins. Co., 362 F.2d 83, 87 (8th Cir. 1966).
. Walling v. Jacksonville Paper Co., 317 U.S. 564, 567, 63 S.Ct. 332, 87 L.Ed. 460 (1943); Walling v. Mutual Wholesale Food & Supply Co., 141 F.2d 331 (8th Cir. 1944).
. Mitchell v. Kroger Co., 248 F.2d 935 (8th Cir. 1957).
. Durkin v. Joyce Agency, 110 F.Supp. 918 (N.D.Ill.1953), rev’d, 211 F.2d 241 (7th Cir. 1954), rev’d per curiam, 348 U.S. 945, 75 S. Ct. 436, 99 L.Ed. 740 (1955).
. For example, it was agreed that medical employees administer drugs that have moved interstate, that employees that provide patient care handle cleaning supplies that have moved interstate, that food service employees dispense food that has moved interstate, and that housekeeping and laundry employees handle supplies that have moved interstate.
. The profit-seeking nature of the enterprises at issue in the preceding authority does not distinguish them from the State of Iowa which in some instances does not impose any additional charge in the delivery of the goods to the patient or resident. The Act specifically rejects profitability as a criterion for inclusion under tlie enterprise concept. 29 U.S.C. § 203 (r) (1). Thus, the absence of profitability does not render the State of Iowa the ultimate consumer with respect to the goods.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer: |
songer_initiate | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Leonard N. BEBCHICK and Leonard S. Goodman, Appellants, v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA and D. C. Transit System, Inc., Appellees.
No. 15999.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 30, 1960.
Decided Jan. 12, 1961.
Messrs. Leonard N. Bebchick and Leonard S. Goodman, appellants pro se.
Mr. George F. Donnella, Counsel, Public Utilities Commission of the District of Columbia, with whom Messrs. Chester H. Gray, General Counsel, Public Utilities Commission of the District of Columbia, and Andrew G. Conlyn, Counsel, Public Utilities Commission of the District of Columbia, were on the brief, for appellee Public Utilities Commission of the District' of Columbia.
Mr. Owen J. Malone, Washington, D. C., for appellee D. C. Transit System, Inc. Mr. Harvey M. Spear, New York City, also entered án appearance for ap-pellee D. C. Transit System, Inc.
Before Washington, Danaher and Bastian, Circuit Judges.
WASHINGTON, Circuit Judge.
This case involves an appeal from a decision of the Public Utilities Commission of the District of Columbia, relative to rates of bus and streetcar fares charged by appellee D. C. Transit System, Inc. Section 43-705 of the D.C.Code provides that “Any * * * person * * * affected by any final order or decision of the Commission, other than an order fixing or determining the value of the property of a public utility in a proceeding solely for that purpose, may” appeal to the District Court and from that court to this. See Pollak v. Public Utilities Commission, 1951, 89 U.S.App.D.C. 94, 191 F.2d 450. Appellants’ petition of appeal, filed pursuant to this section, was dismissed by the District Court on the ground “that the record certified to the Court contains no evidence to support the plaintiffs’ allegation that they are riders of Transit vehicles or are persons affected by the Order of the Commission appealed from [and] that, accordingly, within the purview of the statute governing review of orders of the Commission, the plaintiffs are without standing to bring this appeal. * * * ” The present appeal followed.
Appellants contend that the record certified to the court demonstrates, at a minimum, that appellant Goodman is a “transit rider,” i. e., a user of Transit System vehicles; that from an affidavit properly before the court, although not a part of the certified record, it should have concluded that appellant Bebchick is also a “transit rider”; and that as such, both are “persons * * * affected” within the meaning of the statute.
Appellant Goodman filed a petition to intervene in the proceedings before the Commission in which he made the sworn statement that he is a regular commuter on Transit • System vehicles. In its order granting intervention the Commission expressly relied upon this allegation. We believe that upon this evidence, which was a part of the record certified by the Commission, the District Court should have found that appellant Goodman is a transit rider.
Although appellant Bebchick did not file a petition to intervene, he did join in the petition for reconsideration and alleged therein that he is a transit rider. Moreover, appellant Bebchick subsequently filed with the District Court an affidavit in which he stated that he is “an occasional and casual customer and rider of the buses and streetcars of D. C. Transit System, Inc.” We are of the opinion that this affidavit, although dehors the certified record, was proper for consideration below, the question being one of standing to bring the appeal, and that on the basis of all the evidence properly before it the trial court should have found that appellant Bebchick is also a transit rider.
On the facts here, we believe that appellants, as transit riders, qualify as persons entitled to appeal. In United States v. Public Utilities Commission, 1945, 80 U.S.App.D.C. 227, 231, 151 F.2d 609, 613, we held that the language of Section 43-705 of the D.C.Code and its companion sections-manifests “an intention that consumers [of electric power] shall have a right to challenge the Commission’s actions.” This right accrues with equal force to users of transit facilities. Poliak v. Public Utilities Commission, supra. The order appealed from raises the cash fare for a single trip from 20 cents to 25 cents, but does not increase the token fare of 5 for $1.00, or 20 cents each. Appellees argue that transit riders are not affected by the change in cash fare sinee they can continue to travel at the old rates if they use tokens. The vice of this argument is that it proves too much, since presumably it would bar appeal from an order raising cash fares to 40 cents or 50 cents or even a dollar, so long as token fares were not increased. Manifestly appellees expect the new fare schedule to affect Transit’s revenues in a favorable and meaningful way, or they would not have provided for it. It must therefore affect transit riders, from whose pockets the additional revenues are expected to come.
We hold that the complaint ought not have been dismissed for lack of standing, and order the ease remanded to the District Court for further proceedings.
Reversed and remanded.
. Reversed on other grounds, 1952, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068.
. See Seatrain Lines, Inc. v. United States, D.C.Del.1957, 152 F.Supp. 619, 622-623. This point is conceded by ap-pellee Transit System, although not by appellee Commission.
. Single tokens, however, are not offered: a lot of 5 is the smallest unit sold.
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_respond1_5_2 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
Jean FALLIS, et al., Plaintiffs-Appellants, v. Gordon M. AMBACH, et al., Defendants-Appellees.
No. 872, Docket 82-7877.
United States Court of Appeals, Second Circuit.
Argued Jan. 5, 1983.
Decided June 10, 1983.
Maurie G. Heins, Horn, Heins, Finkelstein & Pezzulo, Syracuse, N.Y., for plaintiffs-appellants.
Wayne L. Benjamin, Asst. Atty. Gen., State of N.Y., Albany, N.Y. (Robert Abrams, Atty. Gen., State of N.Y., William J. Kogan, Asst. Sol. Gen., Albany, N.Y., of counsel), for defendants-appellees.
Before TIMBERS, NEWMAN and PIERCE, Circuit Judges.
PIERCE, Circuit Judge:
I. BACKGROUND
Appellants are autistic children, their parents, and Jowonio: The Learning Place (Jowonio), which is the school the appellant children attend. Appellees are certain New York State departments and officials responsible for education and budget matters. The present dispute concerns the rate, set by the State, at which the local school districts reimburse Jowonio for providing appellant children with a free, appropriate, public education, pursuant to the Education for All Handicapped Children Act (EHA), 20 U.S.C. §§ 1401-1420 (1976 & Supp. V 1981).
Jowonio is a private school for both typical (non-handicapped) and non-typical (handicapped) children four to eight years of age. The school enrolls approximately 60 students, of whom about 20 non-typical children are integrated with the others. The tuition of the typical children is paid by their parents and ranges from $20.00 (scholarship rate) to $40.00 (full tuition) per week. Non-typical children’s tuition is paid by their local school districts upon placement at Jowonio by their local Committees on the Handicapped (COH). See generally EHA, 20 U.S.C. §§ 1411-1420.
The State Department of Education is charged with the responsibility of “us[ing] all means and measures necessary to adequately meet the physical and educational needs of” handicapped children in New York State. N.Y.Educ.Law § 4403(1) (McKinney 1981). With respect to handicapped children who are placed in private schools by their local COH, the Commissioner of Education (Commissioner) annually recommends to the Division of the Budget the allowable tuition rate at which the private schools will be reimbursed by the State for the cost of educating the handicapped children placed in such schools. See id. §§ 4401(5), 4405(3)(d). The rate is not effective until approved by the Director of the New York State Division of the Budget. Id. § 4405(3)(d)(ii).
Pursuant to these provisions, the tuition reimbursement rates at Jowonio for the academic years 1978-79 and 1979-80 were $2,847 and $6,083, respectively, based on budgetary information submitted to the State by the school. In August, 1980, Jo-wonio was notified by the office of the Assistant Commissioner for Education of Children with Handicapping Conditions (Assistant Commissioner) that the recommended rate for 1980-81 would be $7,788 per child, subject to adjustment after a field audit.
Prior to the 1980-81 academic year, the reimbursement rate was set based on unaudited budgetary information submitted by each school. For 1980-81, however, there was a change in the manner in which the rate was set. Rather than rely solely on budgetary information submitted by each school, the State Department of Education began calculating the rate based on certified financial statements submitted by the school at the end of the academic year. After a desk audit of Jowonio’s 1979-80 financial statement, Jowonio was informed by the office of the Assistant Commissioner, in a letter dated July 31, 1981, that the approved tuition rate for 1981-82 would be $2,260, subject to a field audit. Dr. Barnes, Director of Jowonio, filed a formal appeal with the Assistant Commissioner, requesting a tuition rate of $8,145 per child for 1981-82. In response to that appeal, the recommended rate was adjusted to $6,294 per child. Dr. Barnes requested a meeting to discuss the amended 1981-82 rate of $6,294. Before the meeting took place, however, Jowonio was notified by letter from the Assistant Commissioner’s office that several issues had to be resolved before the 1981-82 rate adjustment could be recommended to the State Division of the Budget. Among the items questioned were the low fees charged to parents of typical students; that Jowonio appeared to be operating as a private school for typical students with some non-typical students enrolled, indicating that a more equal sharing of costs should be in effect; and that the school was still billing school districts at the 1980-81 rate ($7,788) even though the then current certified tuition rate was $2,260. In addition, the letter questioned the school’s distinction, for budget purposes, between staff assigned to non-typical and typical students. Because the classes are intermingled, it was observed that a sharing of teacher services was the likely result. Therefore, the school’s suggested allocation for instructional staff was not considered justifiable unless a complete separation of classes took place.
The subsequent meeting between representatives of Jowonio and the State Department of Education resulted in the scheduling of a field audit by two representatives of the State Department of Education, covering the academic years 1979-80 and 1980-81. The July 1982 audit resulted in a draft report prepared by the visiting Education Department staff members who had conducted the audit. Their recommendations included the following: tuition reimbursement rates of $2,630 and $2,887 for the academic years 1980-81 and 1981-82, respectively, based on total allowable expenditures divided by total full-time enrollment; required reimbursement to the school districts and counties for overpayments in 1980-81 and 1981-82, totalling some $165,-000; and establishment of methods for allocation of costs between the typical and non-typical programs to assure proper accountability in the future. By letter dated August 31, 1982, the office of the Assistant Commissioner informed Dr. Barnes that it had adopted the staff recommendations, adding that the recommended tuition rate for 1982-83 would be $2,992. Shortly thereafter, by letter dated October 15,1982, Jowon-io was notified that the Division of the Budget had approved a rate of $2,628 for the 1982-83 academic year.
In response to this last notification, on October 27,1982, appellants filed this action in the United States District Court for the Northern District of New York. Appellants (parents and children) claimed, in short, that the tuition reimbursement rate set by the State was so low as to violate their right to a free and appropriate education under EHA and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1981). Moreover, they claimed that the recommended rate would result in the financial collapse of the school, effectively causing a transfer of the non-typical children out of Jowonio. Such a transfer, in their view, would constitute a change in placement, triggering the notice and hearing provisions of EHA, 20 U.S.C. § 1415. Finally, they claimed the appellees’ actions were in derogation of their federal constitutional due process and equal protection rights and the right of the children to be educated in the least restrictive environment. Appellant Jowonio argued that the State’s rate-setting methodology violates its due process and equal protection rights. Appellants sought a temporary restraining order and preliminary and permanent in-junctive relief enjoining appellees from (1) reducing the 1982-83 tuition rate below $7,788; (2) requiring reimbursement by Jo-wonio for alleged excess tuition rates received by the school for 1980-81 and 1981— 82; and (3) directing school districts to collect alleged excess rates for 1980-81 and 1981- 82 and to reimburse Jowonio at a rate lower than $7,788 for 1982-83. In addition, appellants requested that the injunction require the State to use a rate-setting methodology appropriate to the integrated (typical and non-typical) environment; that ap-pellees provide a full evidentiary hearing prior to reducing the 1980-81, 1981-82 and 1982- 83 rates; and that the $7,788 rate be maintained pending resolution of this case and/or administrative review of appellants’ need for program and placement. Finally, appellants requested the court to enjoin ap-pellees from failing to develop appropriate education alternatives for appellant children.
On October 29, 1982, the district court granted a temporary restraining order directing appellees not to reduce appellants’ tuition reimbursement rate for 1982-83 below $7,788 per handicapped child and restraining appellees from requiring Jowonio to reimburse school districts for the alleged excess tuition rates received by the school for the 1980-81 and 1981-82 school years. A hearing on appellants’ application for a preliminary injunction was held on November 1-2, 1982. The temporary restraining order was extended until November 18, 1982. On that date, the district judge denied appellants’ application for a preliminary injunction. Appellants unsuccessfully attempted to obtain an injunction pending appeal from the district court on November 19,1982. This court, on December 14,1982, granted an injunction pending determination on appeal.
In addressing appellants’ request for a preliminary injunction, the district judge found that appellants (parents and children) had demonstrated irreparable harm and a balance of hardships tipping decidedly in their favor. See Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). However, he determined that the court lacked subject matter jurisdiction over their rate-setting claim and that their constitutional and statutory due process claims were premature. Specifically, he concluded:
[T]he Court lacks jurisdiction to entertain the parents’ complaints about the rate of tuition reimbursement to be paid Jowonio and ... the claims that plaintiffs’ Constitutional and statutory due process rights have been violated are premature, as is their claim that their right to have these children educated in the least restrictive environment has been violated.
As to the school, the judge determined that none of the requirements for preliminary injunctive relief had been satisfied. He reasoned that Jowonio’s claim was one that can be remedied by damages at law, thus precluding a showing of irreparable harm; that the school failed to establish even a serious question going to the merits; and that there was no showing of denial of due process, either procedural or substantive. In addition, he determined that the school had not made out an equal protection claim since, even if a classification had been shown, there was a rational basis for the requirement that the school document its reimbursement requests as required by the State.
On appeal, the parents and children claim that the district judge erred in determining that the court lacked subject matter jurisdiction, and in concluding that their substantive and procedural claims under the EHA and the Fourteenth Amendment were premature. Appellant Jowonio contends that the court’s denial of a preliminary injunction as to it was based on a misapprehension of the preliminary injunction test, to wit, the school objects to the conclusion that Jowonio’s harm could be remedied by damages and that the due process and equal protection claims lacked sufficient merit for preliminary injunctive relief.
We are in agreement with the district court’s determination that, for purposes of preliminary injunctive relief, appellants’ constitutional and statutory claims are premature, since the children’s placement has been neither curtailed nor eliminated. For the same reason, we find premature, as did the district judge, the parents’ and children’s substantive claim, under 20 U.S.C. § 1412(5)(B), that the tuition rate reduction violates the children’s right to a free, appropriate, public education in the least restrictive environment.
As to Jowonio, the district judge concluded that the school had failed to demonstrate irreparable harm. We are not inclined to disagree with this determination, since, unlike the children, for whom money damages could not compensate for potential deprivation of a free, appropriate, public education pending litigation on the merits, the school arguably could be compensated in damages for any loss of tuition revenues should those funds later be found to have been improperly withheld. See Stanger v. Ambach, 501 F.Supp. 1237, 1242-43 (S.D.N.Y.1980). In any event, we find the school’s due process and equal protection claims too insubstantial for purposes of preliminary injunctive relief.
However, with respect to the court’s determination that it lacked subject matter jurisdiction over appellants’ (parents and children) claim under the EHA procedural safeguards provision, 20 U.S.C. § 1415, we disagree. We address below the question of jurisdiction and the parents’ and children’s claim under 20 U.S.C. § 1415.
II. DISCUSSION
A. Jurisdiction
The predicate showing in this Circuit for the issuance of a preliminary injunction requires that the movant demonstrate (a) irreparable harm and (b) either (1) likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Jackson Dairy, 596 F.2d at 72. The district judge determined that the appellants (parents and children) had made a showing of irreparable harm and had met the balance of hardships test. However, he “was troubled by the question of likelihood of success on the merits or of a showing of sufficiently serious questions going to the merits to make them a fair ground for litigation.” He concluded that the injunction should not issue because the court lacked subject matter jurisdiction. Although we too find that appellants did not make a sufficient showing as to the second prong of the test, we do not base that conclusion on lack of jurisdiction. Rather, finding that the district court had jurisdiction pursuant to 28 U.S.C. § 1331 (Supp. V 1981) and 20 U.S.C. § 1415, we conclude that appellants did not demonstrate either likelihood of success on the merits or sufficiently serious questions going to the merits of their section 1415 claim in that they failed to state a claim upon which relief can be granted.
B. Failure to State a Claim under 20 U.S.C. § 1415
According to appellants, appellees’ rate-making decisions with respect to Jowonio contravene the procedural safeguards provision of the EHA. Specifically, they assert violation of 20 U.S.C. § 1415, which reads, in pertinent part:
§ 1415. Procedural safeguards
(a) Any State educational agency .. . which receives assistance under this sub-chapter shall establish and maintain procedures in accordance with subsection (b) through subsection (e) of this section to assure that handicapped children and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education ....
(b)(1) The procedures required by this section shall include, but shall not be limited to—
* !}S S}S ifc 4(,
(E) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.
(2) Whenever a complaint has been received under paragraph (1) of this subsection, the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency
Central to appellants’ procedural challenge is whether the appellees’ decision to reduce tuition reimbursement rates constitutes “any matter relating to ... the provision of a free appropriate public education” within section 1415(b)(1)(E), thus triggering the notice and hearing requirements. For the reasons stated below, we find that appellants, at this stage, have failed to state a claim under this provision, and thus have not demonstrated likelihood of success on the merits or presented a serious question going to the merits for purposes of preliminary injunctive relief.
Appellants rely principally on two cases: Stanger v. Ambach, 501 F.Supp. 1237 (S.D.N.Y.1980) and Parks v. Pavkovic, 536 F.Supp. 296 (N.D.Ill.1982). Stanger involved a budget dispute between state defendants and a private school for autistic children. An issue in the case was the application by the New York State Department of Education and the New York State Division of the Budget of the “Standards for Activities Reimbursable for State Aid Purposes” (Standards). Specifically, plaintiffs had objected, in part, to the so-called “Conflict of Interest” Standard that automatically disallowed from the school’s budget the salary of the Executive Director of the school because he was a voting member of the school’s Board of Directors. The district judge granted a preliminary injunction which, inter alia, prohibited application of the Standards pending trial.
Although the district judge in Stanger permitted injunctive relief with respect to a dispute over a budget determination, we reject as too broad the language of the court that the setting of tuition reimbursement rates is a “matter relating to ... the provision of a free appropriate public education.” Stanger, 501 F.Supp. at 1239. Such a bald interpretation could lead to inordinate and protracted litigation over matters within the ambit of responsibility of the state agencies to which such budgetary decisions are entrusted. See Battle v. Commonwealth Pennsylvania, 629 F.2d 269, 278 (3d Cir.1980) (“[Tjhese hard decisions of resource allocation, like the determinations of educational policy are best left to the states, in the first instance.”), cert. denied, 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981); cf. Board of Education v. Rowley, ___ U.S. ___, 102 S.Ct. 3034, 3052, 73 L.Ed.2d 690 (1982) (“[Ojnce a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.”).
Nor does Parks v. Pavkovic, supra, advance appellants’ position. In Parks, a handicapped child and his parents moved for a preliminary injunction requiring that various state and local agencies pay plaintiff child’s outstanding bill at a residential treatment facility where he had been-placed, so he would not be discharged prior to trial on the merits of his claim that the agencies had violated the EHA by failing to pay the bill. The motion was granted. The court reasoned that, having placed Parks in the facility pursuant to the EHA, the agencies had an obligation to assume the full cost of that placement, under the EHA and section 504 of the Rehabilitation Act of 1973. Unlike Parks, here the State has not disallowed certain portions of the cost of education and billed the parents, contrary to the EHA, which requires that the education be provided free of charge. See 20 U.S.C. §§ 1401(18)(A), 1412(1). Nor does the instant case present a question of immediate discharge of an individual handicapped child (Parks had already received a discharge notice before applying in the district court for a preliminary injunction). Rather, the dispute herein concerns the overall tuition reimbursement rate allowable with respect to an entire school, given the results of desk and field audits.
Moreover, appellants’ reliance on Vander Malle v. Ambach, 673 F.2d 49 (2d Cir.1982), is similarly misplaced. In that case, the institution at which Bruce Vander Malle had been placed by his local COH was subsequently removed from the list of certified residential facilities. The Vander Malles sought a preliminary injunction to require the State to maintain their son in the decer-tified institution at which he had been placed, pending transfer to an approved facility. The district court granted the injunction, and this court affirmed that action. The narrow question addressed in Vander Malle was “whether the State defendants have an interim obligation to continue Bruce at the Institute until a lawful alternative placement is made.” Id. at 52. Unlike Vander Malle, the instant case does not concern the State’s obligation, under 20 U.S.C. § 1415(e)(3), to maintain an individual’s COH placement pending selection of an alternative placement. Rather, we are concerned here with the question of whether the State has an obligation to provide a certain funding level to an entire school to keep the school available as the placement for the appellant children. As discussed below, we conclude that Congress did not intend section 1415 to apply so broadly.
A review of the legislative history of section 1415 supports the view that the procedural safeguards were established in an effort to prevent misclassification of individual children, and not to provide a broad avenue for challenging state fiscal decisions. See S.Rep. No. 168, 94th Cong., 1st Sess. 26-30, reprinted in 1975 U.S.Code Cong. & Ad.News 1425, 1450-53. This interpretation was applied in Tilton v. Jefferson County Board of Education, 705 F.2d 800 (6th Cir.1983). In Tilton, plaintiffs were emotionally handicapped children who had received treatment and education at a state-operated facility, Jewel Manor. When the State closed Jewel Manor for budgetary reasons in 1981, plaintiffs sought preliminary injunctive relief to reopen the school or to provide a substantially similar program pending proceedings contesting the State’s action. They claimed that closing of the school constituted a change in placement under the EHA, see 20 U.S.C. § 1415(b)(1)(C), triggering the automatic status quo provision, section 1415(e)(3). While the court agreed that the closing of Jewel Manor constituted a change in placement under the EHA, it concluded that the district court did not err in refusing to grant the injunction. The court observed that the procedural safeguards provision was established out of a congressional concern for proper classification of children, noting that “nothing in the legislative history or the language of the Act implies a legislative intent to permit interested parties to utilize the automatic injunctive procedure of § 1415(e)(3) to frustrate the fiscal policy of participating states.” Tilton, 705 F.2d at 804.
We find this reasoning applicable to the instant case. Although the facts differ in various respects, appellants herein, as in Tilton, sought an injunction, in part, to compel the State to allocate fiscal resources which, in appellants’ view, would ensure the continued viability of a preferred program. In Tilton, plaintiffs wished to invoke the status quo provision of section 1415 to require the State to reopen a school already closed or to furnish a substantially similar program pending their appeal. Here, appellants sought to invoke section 1415 in response to a state budgetary decision which had not yet resulted in the closing of the school. We conclude, as did the Sixth Circuit in Tilton, that Congress did not intend section 1415 to authorize such wholesale challenges to state fiscal determinations. We therefore reject appellants’ contention that they have demonstrated likelihood of success on the merits with respect to their procedural claim under the EHA.
The denial of preliminary injunctive relief is affirmed. The mandate shall issue forthwith.
. Appellees are Gordan M. Ambach, Commissioner of Education of the State of New York; the New York State Department of Education; Louis Grumet, Assistant Commissioner for the Education of Children with Handicapping Conditions; C. Mark Lawton, (former) Director of the Division of the Budget of the State of New York; and the New York State Division of the Budget.
. The EHA provides for federal financial assistance to aid state and local agencies in educating handicapped children. This funding is conditioned on the States’ compliance with the EHA’s goals and procedures. New York State participates in this fiscal incentive program. See N.Y.Educ.Law §§ 4401-1409 (McKinney 1981 & West Supp.1982-83).
. Jowonio was first approved in 1979 by the Commissioner to provide private non-residential services or programs for children with handicapping conditions. See N.Y.Educ.Law § 4401.
. The differential is explained, in part, by the fact that in 1978-79, Jowonio was the recipient of federal grant funds.
. See note 7 infra.
. On appeal, Jowonio reasserts its position that appellees have denied it equal protection and due process by setting the school’s tuition reimbursement rate far lower than that set at segregated schools for non-typical children, and by failing to provide a rate sufficient to cover the true costs of educating the non-typical children.
. In addition to their Fourteenth Amendment due process and equal protection claims, appellants contended in the district court that appel-lees’ actions violated their substantive and procedural rights under the EHA, 20 U.S.C. §§ 1401-1420 (1976 & Supp. V 1981); section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1981); the Civil Rights Act of 1871, 42 U.S.C. § 1983 (Supp. V 1981); Article 89 of the New York State Education Law, N.Y. Educ.Law §§ 4401-4409 (McKinney 1981); and regulations promulgated under these federal and state statutes.
. 20 U.S.C. § 1415(b)(1)(C) reads:
(C) [the procedures require] written prior notice to the parents or guardian of the child whenever such agency or unit—
(i) proposes to initiate or change, or
(ii) refuses to initiate or change,
the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child;
. 20 U.S.C. § 1415(e)(3) reads:
(3) During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed.
. Cf. Concerned Parents & Citizens for The Continuing Education at Malcolm X (PS 79) v. New York City Board of Education, 629 F.2d 751 (2d Cir.1980) (transfer of students from one school to another with substantially similar program was not a change in placement sufficient to trigger EHA procedural safeguards), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981); Dima v. Macchiarola, 513 F.Supp. 565 (E.D.N.Y.1981) (transfer of handicapped students caused by the New York City Board of Education refusal to contract with private school did not constitute change in placement so as to trigger procedural safeguards provision); The Windward School v. The State of New York, No. 78-3474 (S.D.N.Y.Nov. 2, 1978) (State’s decertification of school did not trigger procedural safeguards provision).
. We intimate no views on plaintiffs’ remedies in the event that financial circumstances at Jowonio precipitate the school’s closing prior to the designation of an alternative placement for the handicapped children.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer: |
songer_casetyp1_1-3-1 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. Roy GREEN, Defendant-Appellant.
No. 90-2239.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 10, 1990.
Decided March 21, 1991.
Ruth M. Heitz, Office of the U.S. Atty., Madison, Wis., for plaintiff-appellee.
Daniel W. Hildebrand, Ross & Stevens, Madison, Wis., for defendant-appellant.
Before CUDAHY, FLAUM, and MANION, Circuit Judges.
FLAUM, Circuit Judge.
Defendant Roy Green was convicted of two counts of assaulting a federal officer in violation of 18 U.S.C. § 111. He appeals, challenging the district court’s jury instruction concerning the duties ' of the federal officers who were the victims of the assaults, the district court’s failure to instruct the jury that the assault must be willful, and its instruction that the government does not have to prove that the assaults caused injury. We affirm the convictions but remand the case for resentenc-ing.
I. FACTS AND PRIOR PROCEEDINGS
Roy Green is a prisoner who on December 4, 1989 was serving his sentence at the Federal Correctional Institution in Oxford, Wisconsin. On the morning of December 4, the food administrator at Oxford, Thomas Buchberger, complained to Randall White, a cook-foreman at the prison, about the cleanliness of a hallway outside the prison dining hall. White supervised a group of inmates who were responsible for sanitation in the dining hall area. The inmate responsible for maintaining the hallway that attracted Buchberger’s attention was Martin Fitzgerald, whom White ordered to clean it. Fitzgerald refused to comply with this request, and White and Fitzgerald began to argue. A crowd of inmates gathered at the scene, including the defendant in this case, Roy Green.
White sought to disperse the group of prisoners, and was for the most part successful. Green, however, was one of several inmates who refused to leave the scene. When White attempted to use his walkie-talkie to call for guards to break up the remaining inmates, Green punched him in the jaw, knocking him to the floor. Another cook-foreman, Rick Gruen, came to White’s assistance and restrained Green. While he was being restrained, Green hit Gruen as well.
A grand jury returned an indictment against Green, charging him with two counts of violating 18 U.S.C. § 111, the first relating to the blow to White’s jaw, the second to the fight with Gruen. Following a one-day jury trial, Green was found guilty under both counts. He was sentenced to thirty-seven month concurrent sentences on each count, to be served after he completed the remainder of the sentence he was serving when the assaults occurred.
II. THE DUTIES OF A FEDERAL CORRECTIONS OFFICER
Section 111(a)(1) makes it a crime to forcibly assault a federal employee who falls within a large number of protected categories while that employee is “engaged in or on account of the performance of official duties.” The protected categories include officers and employees “of any United States penal or correctional institution.” 18 U.S.C. § 1114. The duties of a federal employee are a question of federal law, United States v. Kelley, 850 F.2d 212, 213 (5th Cir.), cert. denied, 488 U.S. 911, 109 S.Ct. 267, 102 L.Ed.2d 255 (1988), but whether an assaulted federal employee is “engaged in” official duties when he is assaulted, or whether the assault takes place “on account of” these duties, are questions of fact. United States v. Hoffer, 869 F.2d 123, 126 (2d Cir.), cert. denied, 490 U.S. 1094, 109 S.Ct. 2440, 104 L.Ed.2d 996 (1989); United States v. Lopez, 710 F.2d 1071, 1074 (5th Cir.1983). Proof beyond a reasonable doubt that at the time of the assault the victim was engaged in the performance of his official duties or was attacked on account of these duties is an essential element of a violation of § 111. United States v. Hohman, 825 F.2d 1363, 1365 (9th Cir.1987); United States v. Boone, 738 F.2d 763, 765 (6th Cir.), cert. denied, 469 U.S. 1042, 105 S.Ct. 528, 83 L.Ed.2d 416 (1984).
Green alleges that the district court improperly removed the factual question of whether the government had satisfied this element of the offense from the jury by instructing it that
The duties of a federal correctional employee include providing for the safekeeping, protection, and discipline of all persons housed within federal correctional institutions.
You may find that the victims were engaged in the performance of official duties if you find that at the time of the alleged assault they were acting within the scope of what they were employed to do.
Record Entry (“R.”) 40. The district court derived this instruction from 18 U.S.C. § 4042, which lists the duties of the Bureau of Prisons. Green argues that the duties of the Bureau of Prisons are broader than the duties of the individual prison employees he assaulted and that the district court’s instruction ignored this distinction. He contends that this error prevented the jury from reaching the factual question of whether in seeking to discipline Fitzgerald and disperse the gathered group of prisoners White and Gruen went beyond the performance of their official duties.
We agree that not every employee of the Bureau of Prisons performs the full range of the Bureau’s duties as set out in § 4042. The resolution of the issue Green raises on appeal depends, however, not on the abstract possibility that the duties of a Bureau employee would not extend to discipline and maintaining order but on the question of whether the district court’s instruction accurately represented the duties of White and Gruen and left it for the jury to determine whether they were fulfilling these duties when Green assaulted them. We conclude that it did both.
Green points to the fact that both White and Gruen were prison food service workers rather than guards to argue that when White disciplined Fitzgerald and attempted to disperse the group of inmates, and when Gruen came to White’s aid, they went beyond the scope of their duties. Cases interpreting the phrase “engaged in or on account of the performance of official duties” in § 111, however, do not support this kind of occupational pigeonholing, opting instead for an interpretation of this phrase that is broad enough to fulfill Congresses goals of protecting federal officers and facilitating the accomplishment of federal functions. See, e.g., United States v. Reid, 517 F.2d 953, 964 (2d Cir.1975) (Friendly, J.); Hoffer, 869 F.2d at 125-26; Boone, 738 F.2d at 765; Lopez, 710 F.2d at 1074. Given the sweep of the phrase “official duties,” the district court did not err in instructing the jury that the duties of a federal prison employee, even a food service worker, extend to “safekeeping, protection and discipline.” Having been accurately apprised as to the scope of a prison employee’s duties, the jury was instructed to determine whether White and Gruen remained within the admittedly broad roles federal law assigns prison employees when Green used force against them.
III. WILLFULNESS INSTRUCTION
The second ground Green raises on appeal is the district court’s refusal to instruct the jury that in order to convict it had to conclude that his assaults were willful and to define willful as knowing, intentional, and voluntary. Green argues that the alleged assault on Gruen was not willful because it occurred inadvertently when Gruen, having come to White’s assistance, had Green in a bear-hug. He also observes that other circuits which, unlike this one, have jury instructions for violations of § 111, include a willfulness instruction. The government responds that Gruen testified that the blows he received were from actual punches and not incidental contact. It also points out that the statute does not contain a willfulness requirement and this Circuit’s pattern jury instructions discourage instructions defining willfulness when it is not an element of the offense.
Green’s argument is not wholly without merit. Assaults are specific intent crimes, requiring proof that the defendant intended to frighten or inflict harm upon his victim. It is true that in dicta in United States v. Streich, 759 F.2d 579 (7th Cir.), cert. denied, 474 U.S. 860, 106 S.Ct. 172, 88 L.Ed.2d 142 (1985), we expressed the view that willfulness is not an element of an offense under § 111. Id. at 585. However, in that case a willfulness instruction was given, and the issue on appeal was the district court's refusal to give an instruction defining the word “willfully,” a practice we have criticized as unnecessary where the word does not appear in the statute. 1 Federal Criminal Instructions of the Seventh Circuit § 6.03 (1980); United States v. Valencia, 907 F.2d 671, 683 (7th Cir.1990).
However, we are not convinced by defendant’s argument that the failure to give a willfulness instruction left the jury in the dark about the mental state they had to find Green possessed in order to convict him of assault. In defining the term “forcible assault” used in § 111, the district court told the jury that the term meant “any intentional display of force such as would give the victim reason to fear or to expect immediate bodily harm.” R. 40 (emphasis supplied). Thus, viewing the instructions as a whole, see, e.g., United States v. McNeese, 901 F.2d 585, 607 (7th Cir.1990), the jury was told that to find that Green committed a forcible assault on Gruen it had to find that Green acted intentionally, a mental state akin to willfulness. Furthermore, the evidence that Green acted willfully was overwhelming. All three witnesses to the attack on Gruen—the victim himself, White, and Buchberger—testi-fied that though Gruen sought to restrain Green, Green’s arms remained free and he used them to punch Gruen repeatedly in the ribs. This uncontradicted evidence negates any inference that Green’s contact with Gruen was inadvertent.
IV. INJURY INSTRUCTION
The last argument Green raises in this appeal also concerns a jury instruction. In defining the term “forcible assault” the district court instructed the jury that the government did not have to prove that the “defendant injured or intended to injure” his victims. Green argues that this instruction was error because it unduly emphasized the possibility of non-injurious assault, drawing the jury’s attention away from those elements of “forcible assault” the government did have to prove. As defendant concedes, however, the instruction that § 111 imposes no requirement of injury or intended injury is a correct statement of the law. Indeed, numerous cases have affirmed convictions under § 111 where all the defendant has done is to brandish a weapon or otherwise threaten the federal officer or employee. See, e.g., United States v. Walker, 835 F.2d 983, 987 (2d Cir.1987) (force element of § 111 “may be satisfied by proof that there was such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death”); Streich, 759 F.2d at 582 (affirming conviction where defendant held gun in presence of IRS agents). “ ‘As long as the instructions treat the issues fairly and adequately, they will not be interfered with on appeal.’ ” McNeese, 901 F.2d at 607 (quoting United States v. Fournier, 861 F.2d 148, 150 (7th Cir.1988)). The district court’s instruction that the government need not prove injury was a fair and adequate statement of the law.
V. SENTENCE
The district court sentenced Green to 37 months on each count of violating § 111, with the two sentences to be served concurrently. However, the maximum sentence allowed under the statute for each violation of § 111 is three years. 18 U.S.C. § 111(a). We therefore remand this case to the district court for resentencing.
VI. CONCLUSION
For the foregoing reasons, defendant’s convictions are affirmed, but the case is remanded to the district court for the entry of a new sentence.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer: |
songer_usc2 | 26 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
ESTATE of Mary Redding SHEDD, First National Bank of Arizona, Trustee, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 18001.
United States Court of Appeals Ninth. Circuit.
July 15, 1963.
Louis McCIennen, Phoenix, Ariz. (Fen-nemore, Craig, Allen & McCIennen, Phoenix, Ariz., of counsel), for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz, Carolyn R. Just, Art Strout, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before MERRILL and BROWNING, Circuit Judges, and TAYLOR, District Judge.
BROWNING, Circuit Judge.
Harrison Shedd died on November 1, 1949. His estate filed a federal estate tax return claiming a marital deduction under the provisions of Section 812(e) (1) (F) of the Internal Revenue Code of 1939 with respect to property left by Harrison to his wife, Mary. The Commissioner disallowed the deduction and assessed a deficiency. This determination was sustained by the Tax Court (Estate of Shedd v. Commissioner, 23 T.C. 41 (1954)) and, ultimately, by this Court. Estate of Shedd v. Commissioner, 237 F.2d 345 (1956).
Meanwhile, on January 7, 1955, Mary died. Her estate filed a return in which a credit was taken for the estate tax paid by Harrison’s Estate as “Federal estate tax paid with respect to the transfer of property * * * to the decedent by or from a person * * * who died within 10 years before * * * the decedent’s death.” Int.Rev.Code of 1954, § 2013.
On September 2, 1958, Congress amended Section 812(e) (1) (F) of the Internal Revenue Code of 1939 to permit a marital deduction in the circumstances present in Harrison’s Estate. The amendment was expressly made applicable “to estates of decedents dying after April 1, 1948, and before August 17, 1954,” and allowed estates otherwise barred by limitations a period of one year from September 2, 1958, to apply for a refund. Section 93(b), Act of September 2, 1958, 72 Stat. 1668.
On March 31, 1959, the Commissioner issued a deficiency notice against Mary’s Estate disallowing the credit previously taken for the tax paid by Harrison’s Estate. Mary’s Estate filed the present proceeding in the Tax Court challenging the Commissioner’s action. The Tax Court sustained the Commissioner’s determination [Estate of Shedd v. Commissioner, 37 T.C. 394 (1961)], and Mary’s Estate took this appeal. While this proceeding was pending before the Tax Court, the estate tax attributable to the property made eligible for the marital deduction by the Act of September 2, 1958, was refunded to Harrison’s Estate.
The only question raised by Mary’s Estate on this appeal is whether the tax initially paid by Harrison’s Estate on the property subject to the marital deduction, though refunded, may still serve as the basis for a credit under Section 2013 against the estate tax liability of Mary’s Estate.
Mary’s Estate argues that “[t]he estate so far as may be is settled as of the date of the testator’s death” [Ithaca Trust Co. v. United States, 279 U.S. 151, 155, 49 S.Ct. 291, 73 L.Ed. 647 (1929)] ; that “[d]eath freezes the estate’s tax obligation into immutability” [Estate of Shedd v. Commissioner, 237 F.2d 345, 352 (9th Cir. 1956)]; and, therefore, that the Section 2013 credit to which Mary’s Estate was entitled as of the date of her death should be allowed without regard to subsequent events.
The judicial expressions upon which Mary’s Estate relies are not formulations of immutable principle, but simply statements of the understanding of the courts that the general intention of Congress is that the federal estate tax shall be computed on the basis of the estate’s value at the moment the taxable event (the transfer at death) occurs. But Congress did not intend to make events at the date of death invariably determinative in computing the federal estate tax obligation. See, e. g., Internal Revenue Code of 1954, §§ 2032, 2053(a) (1) & (2), and 2054. And when it appears that the intent of Congress will be served by considering events subsequent to death for this purpose the courts have not hesitated to do so. See, e. g., Helver-ing v. Safe Deposit & Trust Co., 316 U.S. 56, 65, 62 S.Ct. 925, 86 L.Ed. 1266 (1942); Commissioner of Internal Revenue v. Estate of Shively, 276 F.2d 372 (2d Cir. 1960); Commissioner of Internal Revenue v. State Street Trust Co., 128 F.2d 618, 142 A.L.R. 943 (1st Cir. 1942); Buck v. Helvering, 73 F.2d 760 (9th Cir. 1934); Jacobs v. Commissioner, 34 F.2d 233 (8th Cir. 1929); 1961 Duke L.J. 474, 476-77; 15 Sw.L.J. 628, 632 (1961).
It seems reasonably clear that Congress intended to fix the tax credit available under Section 2013(a) of the Internal Revenue Code of 1954 in accordance with the facts as to prior taxation of the transferred property, even though ♦those facts occurred after the transferee’s death (subject, of course, to the usual statute of limitations on assessment or refund. Int.Rev.Code of 1954, §§ 6501, 6511).
Section 2013(b) provides that the credit shall be computed in part on the basis of the tax paid by the estate of the trans-feror. Until the tax due from the trans-feror estate is determined, the credit due the transferee estate cannot be computed. Thus the statute necessarily contemplates the consideration of events subsequent to the death of the transferee at least in every instance in which that event precedes the final determination of the tax due from the transferor estate — a not infrequent occurrence.
Moreover, the credit under Section 2013(a) is extended not only where the transferor predeceases the transferee, but also where the transferor dies within two years after the death of the transferee. See 99 Trusts & Estates 416, 490 (1960). In such cases, again, an event occurring after the death of the transferee is an essential prerequisite to the availability of the credit.
Congress intended to impose a tax “on the transfer of the taxable estate * * of every decedent” (Int.Rev.Code of 1954, § 2001), but at the same time, by the provisions of Section 2013, sought to avoid “subjecting the same property to tax twice within a relatively short period of time.” H.R.Rep. No. 1337, 83d Cong., 2d Sess. 1954, 1954 U.S.Cong. & Admin.News at p. 4452. See 99 Trusts & Estates 416 (1960); 4 Mertens, Federal Gift & Estate Taxation § 31.13 (1959).
If Section 2013 were construed to require computation of the credit due the transferee estate as of the time of the transferee’s death, the transferee estate might secure a credit although no prior tax was ultimately paid, as in the present case, thus defeating Congress’s purpose to collect a tax upon the taxable estate of every decedent except where the result would be double taxation in a relatively short period. On the other hand, if the transferor estate paid the ta& initially only after the transferee’s death, the transferee would be denied a credit although a prior tax had in fact been paid, thus defeating Congress’s purpose to avoid double taxation. We are not persuaded that the language of Section 2013, or the pertinent decisions, require us to read Section 2013 in a way which would so clearly frustrate its intended purpose.
Nor are we convinced by the arguments which Mary’s Estate bases upon the language and asserted purposes of the Act of September 2, 1958. Mary’s Estate argues that the 1958 Act cannot affect it (1) because the 1958 Act applies only “to decedents dying before August 17, 1954” and Mary died in 1955; (2) because the tax liability of Mary’s Estate is determined by the Internal Revenue Code of 1954, and the 1958 Act by its terms is an amendment of the Internal Revenue Code of 1939; and (3) because retroactive measures, particularly those increasing taxes, are to be strictly construed, and although Congress clearly intended to give relief to estates in the position of Harrison’s Estate, it did not indicate that it intended to burden estates in the position of Mary’s Estate.
The answers seem clear. (1) The date referred to in the 1958 Act is the date of the death of the decedent claiming the marital deduction; in this case, Harrison, who died in 1949. (2) The tax liability of Harrison’s Estate was determined by the Internal Revenue Code of 1939, and the Act of 1958 clearly applied to that Code and altered Harrison’s Estate’s liability. The increased liability of Mary’s Estate was only consequential, and was based entirely upon the unamended provisions of the Internal Revenue Code of 1954. (3) There is no question here as to the reach of the 1958 Act; Section 812(e) (1) (F) of the Internal Revenue Code of 1939, as amended by the 1958 Act, clearly applied to Harrison’s Estate and decreased that estate’s liability. The only question is the proper interpretation of Section 2013 of the Internal Revenue Code of 1954; we have stated our reasons for concluding that this statute should not be interpreted as fixing the available credit irrevocably as of the date of the transferee’s death.
Finally, Mary’s Estate points to the fact that the refund to Harrison’s Estate under the 1958 Act was made after the date of the notice of deficiency to Mary’s Estate, and suggests that the notice of deficiency was therefore invalid and did not toll the running of the period of limitations under Section 6503 (a) of the Internal Revenue Code of 1954. The issue was not properly before the Tax Court under its rules because not raised by the pleadings, and the Tax Court did not consider it. In these circumstances, neither do we. Rice v. Commissioner, 295 F.2d 239 (5th Cir. 1961); Given v. Commissioner, 238 F.2d 579, 583 (8th Cir. 1956); Helvering v. Tetzlaff, 141 F.2d 8, 11 (8th Cir. 1944); Second Carey Trust v. Helvering, 75 U.S.App.D.C. 263, 126 F.2d 526, 529 (1942); Commissioner of Internal Revenue v. Sussman, 102 F.2d 919, 922 (2d Cir. 1939). See also May Broadcasting Co. v. Commissioner, 299 F.2d 84, 86 (8th Cir. 1962).
Affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_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.
UNITED STATES of America, Appellant, v. Cheryl L. McPECK, a/k/a Cheri Bell d/b/a Gold Studio, Appellee.
No. 89-5502.
United States Court of Appeals, Eighth Circuit.
Submitted June 14, 1990.
Decided Aug. 6, 1990.
John A. Dudeck, Jr., Washington, D.C., for appellant.
Ian Traquair Ball, Minneapolis, Minn., for appellee.
Before LAY, Chief Judge, HEANEY and TIMBERS, Senior Circuit Judges.
The HONORABLE WILLIAM H. TIMBERS, Senior Circuit Judge for the United States Court of Appeals for the Second Circuit, sitting by designation.
LAY, Chief Judge.
The United States of America appeals from an order of the district court affirming the bankruptcy court’s award of compensatory damages, punitive damages, and attorneys’ fees to Cheryl L. McPeck. The bankruptcy court assessed the award against the Internal Revenue Service (IRS) under 11 U.S.C. § 362(h) (1988) because of its willful violation of the automatic stay established by McPeck’s chapter 13 bankruptcy petition. We remand with instructions.
BACKGROUND
The facts underlying the bankruptcy court’s finding that the IRS violated the automatic stay are set forth in detail in its opinion. See In re McPeck, Bky. No. 4-88-437, slip op. at 2-14 (Bankr.D.Minn. Oct. 12, 1988). A summary will suffice here.
McPeck owned a dance and exercise studio in Maple Grove, Minnesota, which she incorporated as “Gold Studio, Inc.” sometime prior to 1988. McPeck became delinquent in paying various federal taxes, including personal income taxes, employee wage withholding taxes, federal unemployment (FUTA) taxes, and social security (FICA) taxes. The IRS made several collection attempts, none of which were successful. On February 4, 1988, McPeck filed a chapter 13 bankruptcy petition. She did not file a bankruptcy petition on behalf of Gold Studio, Inc. That same day, McPeck called the IRS to inform it of her petition. She also personally delivered a copy of the petition to the IRS along with a letter from her attorney advising the IRS that the automatic stay had gone into effect.
Despite this notice, the IRS continued its collection efforts without seeking relief from the stay. On February 16, 1988, McPeck met with a revenue officer to provide information about corporate assets. The revenue officer asked McPeck about her personal financial situation and had her fill out a form entitled “Collection Information Statement for Individuals.” This' form asked McPeck about her personal assets and personal finances. On February 25, 1988, the IRS secured a court order authorizing it to seize the assets of Gold Studio, Inc. The IRS conducted the seizure the next day. Apparently using this seizure as a training exercise, the IRS secured police protection, hired a trucking company, and sent five revenue officers to seize the corporate property. The IRS gave McPeck an opportunity to segregate her personal property, and made an effort to seize only corporate property. Nonetheless, some of McPeck’s personal items were mistakenly loaded onto the truck and hauled away to an auction house along with the corporate property.
The IRS eventually realized that the corporate assets had no value to the IRS because they were fully encumbered by liens. The IRS also learned that it had seized some of McPeck’s personal assets. Nevertheless, the IRS advised McPeck that it would not release any of the assets until she agreed to pay freight and storage charges and signed a “receipt” absolving the IRS of all liability for damages caused by the seizure. McPeck refused to sign the “receipt,” and the property thereafter remained in storage at the auction house.
McPeck filed a motion under 11 U.S.C. § 362(h) alleging that the IRS had willfully violated the automatic stay. The bankruptcy court found three separate violations: (1) taking the “Collection Information” statement, (2) seizing McPeck’s personal property, and (3) requiring McPeck to sign the “receipt” releasing the IRS from liability as a condition for the return of her property. Finding the first and third violations to be willful, the bankruptcy court awarded McPeck $1489.05 in actual damages, $2500 in punitive damages, and $2,825.25 in attorneys’ fees.
The United States does not challenge the findings that the IRS willfully violated the stay. Nor does it assert that any of the damages or attorneys’ fees are inappropriate. The United States’ sole argument is that Congress has not waived the IRS’s immunity from money judgments in bankruptcy cases. McPeck counters that 11 U.S.C. § 106 (1988) provides the necessary waiver of sovereign immunity in this case. DISCUSSION
There is no doubt that the IRS is bound by the automatic stay. Section 362(a) of the Bankruptcy Code imposes the stay on all “entities.” Section 101(14) defines “entity” to include a “governmental unit.” Section 101(26) defines “governmental unit” to include a “department, agency, or instrumentality of the United States.” This does not end the inquiry, however. Nothing in § 362 serves as a waiver of the federal government’s sovereign immunity from the damages and attorneys’ fees authorized by § 362(h). See Small Business Admin. v. Rinehart, 887 F.2d 165, 169 (8th Cir.1989). For such a waiver, we must look to 11 U.S.C. § 106, which provides:
Waiver of sovereign immunity
(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose.
(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate.
(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity—
(1) a provision of this title that contains “creditor”, “entity”, or “governmental unit” applies to governmental units; and
(2) a determination by the court of an issue arising under such a provision binds governmental units.
11 U.S.C. § 106 (1988).
We held in Rinehart that subsection (c) does not constitute a waiver of the federal government’s immunity from monetary sanctions for violation of the automatic stay. 887 F.2d at 170 (relying on plurality opinion in Hoffman v. Connecticut Dept. of Income Maintenance, — U.S.-, 109 S.Ct. 2818, 106 L.Ed.2d 76 (1989)). Recognizing this obstacle, McPeck asserts that subsection (a) is applicable. Subsection (a) authorizes monetary recovery from a governmental unit if (1) the governmental unit has a claim against the estate, (2) the debt- or’s claim against the governmental unit is property of the estate, and (3) the two claims arose from the same “transaction or occurrence.”
The United States does not deny that the first two requirements of subsection (a) have been satisfied. However, it argues that McPeck’s claim for damages did not “arise from the same transaction or occurrence” as the IRS’s claim upon the tax debt. This is a question that has resulted in a split of authority among the few bankruptcy courts that have addressed it. Compare In re Price, 103 B.R. 989, 995-96 (Bankr.N.D.Ill.1989) and In re Lile, 96 B.R. 81, 85 (Bankr.S.D.Tex.1989) with In re Academy Answering Service, Inc., 100 B.R. 327, 330 (N.D.Ohio 1989).
We need not pass on this issue, however, because we think that the proper provision to be applied in this case is subsection (b). Subsection (b) does not require that the two claims “arise from the same transaction or occurrence.” See H.R.Rep. No. 595, 95th Cong., 1st Sess. 317, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6274. Unlike subsection (a), however, subsection (b) limits the waiver of sovereign immunity to an offset of the governmental unit’s claim against the estate. Both parties minimally address subsection (b) in their briefs, apparently because the bankruptcy court did not specifically authorize an offset in this case. We find, however, that offset was the proper procedure to follow in this case.
Section 106(b) states that any claim against a governmental unit that is property of the estate “shall be offset” against an allowed claim or interest of the governmental unit. This mandatory language comports with the established principle that an award to a plaintiff on a claim is ordinarily offset against an award to the defendant on a counterclaim; a single judgment is entered for the excess, if any. See, e.g., In re Applied Logic Corp., 576 F.2d 952, 957-58 (2d Cir.1978); 80 C.J.S. Set-Off & Counterclaim § 6, at 16 (1953). Thus, the tax claim established by the IRS must initially be offset by the counterclaim of the estate. A contrary rule would not only violate the language of § 106(b), but would contravene general principles of equity by requiring the governmental unit to pay the award to the debtor while being forced to attempt to recover its own claim through bankruptcy.
In our view, therefore, subsections (a) and (b) of § 106 must be read together. Section 106(a) is applicable only where the debtor’s claim exceeds the claim of the governmental unit, and then, affirmative recovery is allowed only to the extent of such excess. Here, the IRS’s claim for taxes far exceeds the total amount that McPeck was awarded on her § 362(h) motion. Thus, the proper procedure would have been to offset McPeck's recovery against the IRS’s tax claim. To find a waiver of sovereign immunity for such an offset, we need only to look to § 106(b). Accordingly, we remand with instructions to offset McPeck’s award against the IRS’s tax claim.
In our view, § 106(b) requires that McPeck’s entire award, including the award of attorneys’ fees, be offset. When a statute awards attorneys’ fees to a party, the award belongs to the party, not to the attorney representing the party. See Evans v. Jeff D., 475 U.S. 717, 731-32, 106 S.Ct. 1531, 1539-40, 89 L.Ed.2d 747 (1986); Smith v. South Side Loan Co., 567 F.2d 306, 307 (5th Cir.1978) (per curiam). Here, McPeck’s entire § 362(h) claim, including her claim for attorneys’ fees, became property of the estate by virtue of 11 U.S.C. § 1306 (and as required by § 106(b)). The Bankruptcy Code contains specific provisions for the compensation of attorneys who prosecute claims on behalf of the estate. See 11 U.S.C. § 503(b) (1988). An attorney's claim under these provisions is given the highest priority. See 11 U.S.C. § 507(a) (1988). We recognize that collecting fees under these bankruptcy procedures may impose somewhat of a burden on McPeck’s counsel. Nonetheless, we are dealing here with principles narrowly limiting recovery against a sovereign.
McPeck suggests, however, that a provision of the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(b) (1988), authorizes an affirmative award of attorneys’ fees against the IRS in this case. The United States counters that 28 U.S.C. § 2412(e) (1988) renders the EAJA inapplicable to this case because this case is one “to which section 7430 of the Internal Revenue Code of 1954 applies.” Id. We agree with the IRS that I.R.C. § 7430 is applicable here because that section applies to “any administrative or court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty” under the Internal Revenue Code. I.R.C. § 7430(a) (1990) (emphasis added). As the United States argues, to receive attorneys’ fees under I.R.C. § 7430
[McPeck] would have to comply with the substantive and procedural requirements of Section 7430. For example, she would have to prove that the position of the United States was “not substantially justified,” and that she “substantially prevailed” with respect to the amount in controversy or the most significant issue or set of issues presented, a burden she would not bear under Section 362(h).
Reply Brief for the Appellant at 18.
This issue was neither addressed by the bankruptcy court nor fully briefed by the parties. It appears from the bankruptcy court’s order that it intended to award attorneys’ fees solely under § 362(h). However, on remand the bankruptcy court may determine whether attorneys’ fees can be awarded under the procedural standards set forth in I.R.C. § 7430. If so, the award of attorneys’ fees should be assessed affirmatively against the IRS, and not as an offset against its tax claim.
The case is remanded to the district court with instructions to remand to the bankruptcy court for further proceedings in accordance with this opinion.
. The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
. The Honorable Nancy C. Dreher, United States Bankruptcy Judge for the District of Minnesota.
. As of the hearing on the § 362(h) motion the IRS had still not released any of the property even though McPeck had made several requests to the IRS and to the Department of Justice for a return of her personal property. McPeck eventually regained her personal property by agreeing to a sale of the corporate assets and applying the proceeds toward freight and storage charges.
. 11 U.S.C. § 362(h) provides:
An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.
. The bankruptcy court found that the IRS’s seizure of McPeck’s personal property, although technically a violation, was not willful because the IRS attempted to seize only corporate property.
. For example, the United States does not argue that these are not “appropriate circumstances” for an award of punitive damages. See In re Ketelsen, 880 F.2d 990 (8th Cir.1989).
. The IRS filed a proof of claim in the bankruptcy court in the amount of $19,329.40 for personal income, FICA, FUTA, and wage withholding taxes incurred by McPeck while operating her studio as a sole proprietorship. The IRS later amended its claim to include an additional $4,671.30 in wage withholding and FICA taxes.
In this chapter 13 case, McPeck’s claim for damages became property of her bankruptcy estate since, under 11 U.S.C. § 1306(a)(1) (1988), it was "property * * * the debtor ac-quirefd] after the commencement of the case but before the case [was] closed, dismissed, or converted.”
. The court in In re Applied Logic stated:
The rule allowing setoff, both before and after bankruptcy, is not one that courts are free to ignore when they think application would be "unjust." It is a rule that has been embodied in every bankruptcy act the nation has had, and creditors, particularly banks, have long acted in reliance upon it.
576 F.2d at 957-58 (footnote and citation omitted).
. 28 U.S.C. § 2412(b) provides:
Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_casetyp1_7-3-2 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
Johnnie FULLILOVE, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY and The Pennsylvania Railroad Company, Defendants-Appellees.
No. 13050.
United States Court of Appeals Seventh Circuit.
Jan. 27, 1961.
Rehearing March 13, 1961.
Edward Levett, Chicago, Ill., Arthur F. Penway, of Chicago, Ill., of counsel, for appellant.
Donald J. O’Brien, O. L. Houts, Max E. Wildman, for Chicago, R. I. & P. Ry. Co.
Robert H. Bierma, A. L. Foster, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., for defendant-appellee, Pennsylvania R. Co., Frederick W. Temple, Chicago, Ill., of counsel.
Before SCHNACKENBERG, ENOCH and CASTLE, Circuit Judges.
ENOCH, Circuit Judge,
Plaintiff sued to recover damages for personal injuries, charging common law negligence. Both defendants moved for a directed verdict of not guilty at the conclusion of the plaintiff’s case on the issue of liability only. The Trial Court instructed the jury to find for the defendants. Plaintiff appealed from judgment entered on that finding.
Plaintiff’s employer, Continental Grain Company, hereinafter called “Continental”, ordered 30 box cars from defendant Chicago, Rock Island & Pacific Railroad Company, hereinafter called “Rock Island”, the only railroad that had tracks leading into Continental’s yards, with instructions to place the order with defendant Pennsylvania Railroad Company, hereinafter called “Pennsylvania”, each railroad to be paid a fee for its services in moving the cars. Pennsylvania delivered the cars to Rock Island, which received them on July 1, 1956. William H. Davies, an assistant agent for Rock Island, testified that the cars were inspected and no defects recorded. Nothing was done to the cars until July 3, 1956, when Rock Island pulled them into Continental’s yards, where the Western Weighing and Inspection Bureau coopered them for grain loading by nailing wooden grain doors on the inside to prevent the grain, with which they would be loaded, from pouring out of the car.
Continental’s foreman, Ray Fox, testified that about 3:30 P.M. on July 3, 1956, his attention was drawn to the fact that the door next to the loading platform on car No. 22976, which had been coopered, would not open. The door on the other side was open, but loading had to be done from the platform side. The loader had tried to open the closed door with a special prying bar. Mr. Fox testified that he looked for an obstruction at the locked portion of the door. Finding none there, he looked at the back. Two rails, a bottom and a top rail, held the door in place when closed. Each rail extended approximately a door’s width to the right in order to accommodate the opening of the door and to hold it in place when opened. The weight of the door rested largely on the lower rail, and the upper rail served the purpose of keeping the door in place and of aiding-its opening movement. Mr. Fox, facing the closed door, saw a dip or a bend in the bottom rail on which the door was set. The dip or bend began about two-inches to the right of the closed door on the lower rail. It was about 1 to 1% inches deep and extended along the lower-rail for about twelve to fourteen inches.
Mr. Fox then testified about his efforts to open the door. First he endeavored to do so by hand. That failing, he-tried to open the door with a six-sided bar, 40 to 44 inches long, about l-l^ inches thick, flattened out on one end, and pointed on the other, something like-a crowbar without a hook but with a slight bend. Facing the door, he tried to push it to the right. Then he tried to-put the sharp end of the bar through on the left side of the door, alongside the-lock, to open a crack into the grain door to get leverage. He put pressure on the-bar by pulling to the left, hoping to push the door to the right. This attempt to-open the door also failed. He testified that the door is constructed so that a top 1 or 1% inch flange on the door fits-up into the top rail. Next he used the-bar at the right side of the door to pry the door up from the bottom rail on-, which it rested, putting the bar near the place of the bend in the rail. He was-able to raise the door slightly and he-saw no obstruction. Then he tried the-bar at the left side of the door again.. This procedure brought about no results.
He testified further that after these-efforts failed, he used a car puller to open the door. This car puller, which is about one foot high and which is operated, by a motor, is used to pull loaded box cars weighing about 42,000 to 50,000-pounds. Mr. Fox then examined the-bottom rail and found a metal piece about % of an inch high, % to 1 inch wide, and 4 to 6 inches long, welded to the rail, at the right side of the bend, which helped, to hold the door to the side of the car. When the door was open, the front part of the door was setting on the edge of the dip. There was rust on the weld.Weather reports showed that there had. been little moisture in the air during the period from June 23, to July 3, 1956. When the door was forced open, it traveled behind the weld. At this time Mr. Fox also noticed that only about % or 3Ae inch of the top flange of the door was fitting inside the top rail, to hold the door to the car at the top. He testified that the door condition appeared to him to be dangerous. He stated that he had mentioned this to someone, whom he couldn’t name, but not to plaintiff nor to the men who would have to close the door. The door at this point was standing open. It remained in this position while the car was being loaded and moved. The danger would arise in closing the door.
After the car had been loaded and had been moved to another part of the yard, some twenty to twenty-five minutes later, plaintiff came along and performed his duties as a grain sampler. He had got out of the car and was standing alongside the car, marking the car number on a ticket and putting the ticket in his sampling bag. Other employees began to push the door shut. Mr. Fox saw them doing this as he walked toward the car. He saw the door fall off the car and strike plaintiff.
Plaintiff contends that defendants were negligent in delivering a defective car; that the jammed door and the defect in the bent rail were the proximate causes of the accident; that the forcible means used to open the door constituted a foreseeable intervening cause which did not break the causal connection between defendants’ alleged negligence and plaintiff’s injuries; and that, in any case, the question of proximate cause was a matter to be decided by the jury.
The Trial Judge found that the sole, efficient cause of the injury was the action of the foreman who created the dangerous situation by applying the great force of the car mover and then going off and leaving this known dangerous situation without warning to plaintiff or to the employees who would have to close the door.
Viewing the evidence in the light most favorable to the plaintiff [Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720] we can only conclude that the negligence charged to defendants did no more than furnish a condition whereby injury was made possible through the subsequent, independent act of the foreman in applying the tremendous force of the car puller which pulled the door downward as well as sideways. This action was an efficient unforeseeable intervening cause which did break any causal connection which might have existed between the negligence which plaintiff imputes to the defendants and the injury, making any such negligence a remote and not a proximate cause of the injury. Merlo v. Public Service Co., 1943, 381 Ill. 300, 316, 45 N.E.2d 665, 675, and cases cited therein.
There was no evidence to show that the car door was built to withstand the force of the powerful car puller. We have weighed all other arguments advanced by plaintiff and find them without merit.
The judgment of the Trial Court is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer: |
songer_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.
Joe Rodger NEWELL, Jr., individually and as natural parent and guardian of minor Joe Rodger Newell, III., Plaintiff-Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
No. 89-8634.
United States Court of Appeals, Eleventh Circuit.
June 28, 1990.
James Lee Ford, Ford & Haley, Atlanta, Ga., for plaintiff-appellant.
Ben Kingree, III., Carter & Ansley, Atlanta, Ga., for defendant-appellee.
Before FAY and COX, Circuit Judges, and TUTTLE, Senior Circuit Judge.
FAY, Circuit Judge:
This appeal addresses the issue of the fiduciary obligations of an ERISA trustee that is also an insurance company. Plaintiff-appellant Newell and his family had health insurance coverage under his employer’s group contract with defendant-appellant The Prudential Insurance Company of America (Prudential). When Newell’s son suffered a medical problem requiring extended hospitalization, however, Prudential denied the greater part of the claim, declaring that its review of the medical records revealed that Newell’s claim contained charges excludable under the policy. After unsuccessfully appealing Prudential’s decision, Newell sued Prudential in Georgia state court. Prudential removed the case to federal court on the dual bases of diversity and federal question jurisdiction, the latter basis derived from the fact that Newell’s claims were governed entirely by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., which preempted Newell’s state causes of action. The district court ruled in favor of Prudential, holding that Prudential did not violate ERISA as a matter of law in authorizing a Prudential employee to make the determination of whether or not charges were excludable, that Prudential did not arbitrarily or capriciously deny the majority of Newell’s claim for benefits, and that Prudential provided sufficient notice to Newell of its denial of his claims. We AFFIRM the district court on the first two issues; we REVERSE and REMAND for further findings on the matter of notice.
I.
At all times relevant to this case, Joe Rodger Newell was an employee of Massey Fair Ingredient Sales, Inc. He and his family participated in Massey Fair’s group insurance policy No. GSP-86888M with Prudential, under which they received term life, accidental death or dismemberment, and major medical insurance. The health insurance policy contains several limitations on eligible charges; most pertinent to this case is the following paragraph in the section entitled “Generally Excluded Charges”:
■The term “Generally Excluded Charges” is used only in a health care expense Coverage. When it is used, it includes all of the following....
(3) Charge for Unnecessary Services or Supplies: A charge for services or supplies, including tests and check-up exams, that are not needed for medical care of a diagnosed Sickness or Injury. To be considered “needed”, a service or supply must meet all of these tests:
(a) It is ordered by a Doctor.
(b) It is commonly and customarily recognized throughout the Doctor’s profession as appropriate in the treatment of the Sickness or Injury.
(c) It is neither educational nor experimental in nature.
(d) It is not furnished mainly for the purpose of medical or other research. Also, in the case of a Hospital stay, the length of the stay and Hospital services and supplies will be considered “needed” only to the extent Prudential determines them to be:
(a) related to the treatment of the Sickness or Injury; and
(b) not allocable to the scholastic education or vocational training of the patient.
Plaintiffs Exh. 1 at 6 [GCS 1011-(CR 011C>-1].
The policy also carries a Pre-Admission and Concurrent Review Service (PACRS) rider. As described by the district court in its factual findings,
[t]he rider provides that the general policy includes the tests for determination of need. However, pursuant to the rider, claimants must request that Prudential make a “determination of need.” A determination of need is “a determination by Prudential, under the terms of the Coverage, that approves or disapproves a day or days of Inpatient Hospital Stay ... as needed for medical care of a diagnosed Sickness or Injury.” [Plaintiff’s Exh. 1 at] 45. The determination of need is to be made prior to admission. If Prudential finds “medical necessity” for admission, it will inform the doctor and the hospital, by phone, of the number of days of inpatient hospital stay that Prudential approves. The Policy provides that written notice will be sent to the claimant, the doctor and the hospital, indicating the number o[f] pre-authorized days.
The Policy also provides that it may be possible to extend the number of days of inpatient hospital stay that Prudential approves as needed for the medical care of the patient’s condition; upon request being made, Prudential will make a new determination of need upon information received [from] the doctor.
Newell v. Prudential Ins. Co. of America, 725 F.Supp. 1233, 1235-36 (N.D.Ga.1989).
During the fall of 1986, it became apparent that Newell’s son, Joe III, nicknamed “Bear,” had a substance abuse problem and suffered from related depression. At first Bear underwent outpatient therapy, but after two months, his attending physician, Dr. Schmits, determined that Bear would be best served by intensive inpatient treatment. Bear was admitted on December 2, 1986, to Greenleaf Center Inc. (Greenleaf), a hospital that provides health care for people with psychiatric or substance abuse problems and has a specialized inpatient program for adolescents with such disorders.
On the day of Bear’s admission, Cindy Sedman, the admissions and discharge coordinator for Greenleaf, contacted Prudential to find out about Bear’s coverage. She learned that Bear was in fact covered under the policy, but that PACRS would have to make a determination of need for the inpatient hospital stay. Sedman then called PACRS and orally informed them of the estimated length of hospitalization, the diagnosis, and the treatment plan. On December 4, 1986, PACRS sent a form letter to Dr. Schmits confirming Bear’s admission and requesting the admission notes and the estimated length of stay. Sedman mailed the requested information to PACRS on the same day.
PACRS approved seven days of hospital stay on December 5, 1986, and relayed that information to Sedman on December 9, 1986. On that same date PACRS apprised Greenleaf and Dr. Schmits of the procedure to obtain extensions of approved days. A PACRS internal memorandum dated December 17, 1986, reflects that 21 additional days were certified and that Sedman was so notified by telephone. When Dr. Schmits contacted PACRS two days later to request a further extension, PACRS advised him that the policy allotted a maximum of 30 days for psychiatric treatment and that the limit had been reached. Dr. Schmits clarified to PACRS that the diagnosis comprised not merely depression, a purely psychiatric malady, but substance abuse as well. PACRS responded with a request for additional records to substantiate this “change” in diagnosis.
Upon receiving the entire chart, on December 24, 1986, PACRS pre-certified coverage through January 13, 1987, a total of 42 days. PACRS notified Sedman of this extension on December 29, 1986. PACRS internal records indicate that after January 13, 1987, the case was to be put on “retro review”; that is, no further days would be pre-authorized, but rather the entire chart would be reviewed upon Bear’s discharge and the days, services and supplies deemed necessary at that time would be approved for payment. The record is very unclear, however, about whom, if anyone, PACRS informed of the impending retro review status until long after the decision was made.
Meanwhile, Newell, having heard nothing from either Prudential or PACRS, contacted Gloria Buxton, a regional claims officer for Prudential, on December 29, 1986, to ascertain the situation regarding coverage for Bear’s hospitalization. Buxton agreed to look into the case for Newell. The record shows several Prudential internal notes indicating that Buxton’s office and Newell communicated by telephone throughout the following months, but the district court only found that Newell again heard from Buxton in a letter dated May 13, 1987.
On January 13, 1987, a Prudential employee called Sedman to notify her that the benefits for substance abuse were unlimited, subject to certification of need by Prudential. Greenleaf on the same day again was advised that Bear’s stay had been approved through January 13, 1987. After January 13, 1987, the only communication between PACRS and Greenleaf or Sedman or Dr. Schmits for the next one and a half months consisted of requests for and the submission of hospital records. No information ever went to Newell. Finally, on March 5, 1987, PACRS conducted a full review of all the records received. Dr. Jed Goldart, the staff psychiatrist at PACRS, determined that no medical necessity existed for Bear’s hospitalization after January 25,1987. PACRS sent letters to Greenleaf, Dr. Schmits and Newell on March 9, 1987, informing them of PACRS’ decision to deny benefits subsequent to January 25, 1987. The letter further advised that they could forward additional information to PACRS for supplemental review.
After the March 9, 1987, letter, there was a flurry of communication between Greenleaf and PACRS, Drs. Schmits and Goldart, Buxton and Newell, and the Prudential claims office and PACRS. Bear was discharged on April 3, 1987, at which time PACRS requested the entire record. After some difficulties with PACRS receiving the documents, PACRS finally secured the full record on April 29, 1987. On May 13, 1987, based on information obtained from Dr. Goldart, Buxton wrote Newell, essentially restating Prudential’s position that benefits would not be forthcoming for Bear’s hospitalization after January 25, 1987, because of lack of medical necessity.
On June 1, 1987, Newell’s counsel wrote a letter to Prudential demanding immediate payment for the entirety of Bear’s treatment at Greenleaf. In response, on July 7, 1987, Dr. Goldart submitted Bear’s hospital records to the American Psychiatric Association (APA) for independent review. Two psychiatrists with the APA’s Peer Review System evaluated Bear’s hospital charts and determined that inpatient treatment was not medically necessary after January 25, 1987. Prudential communicated this finding to Newell on August 30, 1987.
Newell brought suit against Prudential in state court seeking payment for the full medical treatment under Georgia law, as well as a punitive award penalizing Prudential for its alleged bad faith refusal to pay, reasonable expenses, costs and attorney’s fees, and any other appropriate relief. Prudential removed the case to federal court, asserting federal diversity jurisdiction and recognizing that Newell’s state cause of action had been preempted by ERISA and should have been instituted in federal court under ERISA. After a two-day bench trial and the submission of post-trial briefs, the district court held that Prudential had not violated its fiduciary duty nor acted arbitrarily or capriciously in denying Bear benefits after January 25, 1987. Nor did the court find insufficient Prudential’s notice to Newell of its decisions to deny benefits. The trial court also denied Newell’s motions for consideration for class certification and for leave to amend, stating that Prudential would be significantly prejudiced if the court granted these motions initiated after the case had been tried.
Subsequently, Newell made another motion to amend and also moved for judgment to be entered in his favor. In response, Prudential brought to the court’s attention Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), a Supreme Court case that modified the standard of review applicable to ERISA cases involving the denial of benefits. The court directed the parties to “file briefs addressing the impact that the change in the applicable standard of review has on this action.” Rl-29-2. After reviewing the parties’ submissions, the district court issued a second order essentially affirming its first judgment, finding that Firestone did not affect its earlier decision and that it had examined the facts under the proper standard of review. The district court additionally found that Prudential did not operate under a conflict of interest by having its employee, Dr. Goldart, decide — and later review his own decision — what services and supplies were medically necessary; therefore no heightened scrutiny was required under Firestone. Newell appeals the district court’s orders.
II.
We review the district court’s factual findings for clear error. Fed.R.Civ.P. 52(a); Pullman-Standard, v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir.1989) (per curiam). We subject the district court’s legal conclusions to de novo review. Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1370 (11th Cir.1989); McDonald v. Hillsborough County School Bd., 821 F.2d 1563, 1564 (11th Cir.1987).
III.
A.
We cannot disagree with the district court’s conclusion that “Prudential did not violate ERISA as a matter of law by allowing a Prudential employee to make decisions concerning medical necessity of inpatient care.” Newell, 725 F.Supp. at 1240. Newell argues that Prudential’s procedure of having its own employee, Dr. Goldart, determine what services and supplies will be deemed medically necessary and thus eligible for payment of benefits creates an impermissible conflict of interest in violation of ERISA. ERISA particularly provides, however, that “[njothing in section 1106 of this title [which delineates prohibited transactions involving impermissible conflicts of interest] shall be construed to prohibit any fiduciary from ... serving as a fiduciary in addition to being an officer, employee, agent, or other representative of a party in interest.” 29 U.S.C.A. § 1108(c)(3) (West Supp.1990).
ERISA defines a fiduciary as one who “exercises any discretionary authority or discretionary control respecting management of [the] plan or exercises any authority or control respecting management or disposition of its assets ... or [who] has any discretionary authority or discretionary responsibility in the administration of [the] plan.” Id. at § 1002(21)(A)(i), (iii). Thus both Dr. Goldart and Prudential are fiduciaries of the group plan under which Newell was insured. “The term ‘party in interest’ means, as to an employee benefit plan[,] any fiduciary ... of such employee benefit plan_” Id. at § 1002(14)(A). Prudential falls within the definition of a party in interest. ERISA clearly excludes from the realm of the impermissible a person occupying the dual role of fiduciary and employee of a party in interest, such as Dr. Goldart. This court has ruled accordingly in cases presenting similar facts that no violation of ERISA occurred. See, e.g., Local Union 2134, U.M.W. of America v. Powhatan Fuel, Inc., 828 F.2d 710, 713 (11th Cir.1987) (no inherent conflict of interest where officer of corporation also fiduciary of corporation’s health plan); Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572, 580 (11th Cir.1987) (trustees breached no ERISA duties solely by having fiduciary duties to both the Union or the employer and the plan beneficiaries), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988); Evans v. Bexley, 750 F.2d 1498, 1499 (11th Cir.1985) (as fiduciary may also serve as an officer, employee or other representative of a union or employer, logic demands that the fiduciary may “fulfill the concomitant responsibilities”); see also Ashenbaugh v. Crucible Inc., 1975 Salaried Retirement Plan, 854 F.2d 1516, 1531-32 (3d Cir.1988) (plan fiduciaries’ reliance on in-house counsel to aid them in interpreting and administering the plan, rather than hiring independent counsel, not a violation of ERISA), cert. denied, — U.S. —, 109 S.Ct. 3155, 104 L.Ed.2d 1019 (1989). We therefore affirm the district court’s holding that the Prudential procedure of having its own employee make determinations of medical need does not violate ERISA as a matter of law. In rejecting this theory of liability against Prudential, we also dispose of Newell’s request for remand for consideration of class certification based on this misperceived violation of ERISA.
B.
While we are in accord with the district court in its judgment that “Prudential did not arbitrarily and capriciously deny plaintiff’s claims for benefits after January [25], 1987,” Newell, 725 F.Supp. at 1240, we must reevaluate that conclusion applying the heightened scrutiny for arbitrariness and caprice appropriate in cases involving a conflict of interest rather than the simple arbitrary and capricious standard used by the district court. The Supreme Court in Firestone clarified the standard for reviewing denials of benefits in ERISA plans, holding that
a denial of benefits challenged under § 1132(a)(1)(B)[] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “factor[ ] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959).
Firestone, 489 U.S. at -, 109 S.Ct. at 956-57. The district court correctly concluded that because the Prudential plan in question gives Prudential some degree of discretion in determining whether charges would be deemed necessary and eligible, Firestone would sanction the continued application of the arbitrary and capricious standard to the instant case. See also Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1558 & n. 1 (11th Cir.1990); Jett v. Blue Cross & Blue Shield, 890 F.2d 1137, 1138 (11th Cir.1989); Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37, 38 (11th Cir.1989). The district court further found that Prudential did not operate under a conflict of interest by having its employee, Dr. Goldart, render claims decisions; thus the district court saw no need to temper the arbitrary and capricious test to consider a conflict that the court believed did not exist. In this conclusion we differ.
This court declared in a most recent decision that
[o]ur task is to develop a coherent method for integrating factors such as self-interest into the legal standard for reviewing benefits determinations. This task reaches the height of difficulty in a case such as the one before us, where an insurance company serves as the deci-sionmaking fiduciary for benefits that are paid out of the insurance company’s assets....
... Because an insurance company pays out to beneficiaries from its own assets rather than the assets of a trust, its fiduciary role lies in perpetual conflict with its profit-making role as a business _ We conclude ... that a “strong conflict of interest [exists] when the fiduciary making a discretionary decision is also the insurance company responsible for paying the claims.... ” Jader v. Principal Mutual Life Ins. Co., 723 F.Supp. 1338, 1343 (D.Minn.1989).
The inherent conflict between the fiduciary role and the profit-making objective of an insurance company makes a highly deferential standard of review inappropriate.
Brown, at 1561-62. Prudential stands in a position identical to that of Blue Cross in Brown. The district court erred in holding that this case did not warrant increased examination for abuse of discretion.
This court crafted a new, more stringent standard of review when a conflict of interest has been shown to exist on the part of the fiduciary rendering benefits decisions, placing the burden on the fiduciary to “prove that its interpretation of plan provisions committed to its discretion was not tainted by self-interest” and to show that it operated “exclusively in the interests of the plan participants and beneficiaries.” Id. at 1566, 1568. This court held that “a wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries.” Id. at 1566-67 (footnote omitted). In practice, this standard requires us first to determine the legally correct plan interpretation, and then, if Prudential’s interpretation differs, whether Prudential was arbitrary and capricious in employing a different interpretation. Id. at 1570.
The provisions of the PACRS rider require Prudential to make a determination of need for hospitalization upon request. According to the body of the policy, the charges associated with the hospitalization will be considered “needed” by Prudential only insofar as they are services or supplies ordered by a doctor, related to the treatment of the diagnosed ailment, commonly and customarily recognized throughout the doctor’s profession as appropriate in treating the diagnosed ailment, neither educational or experimental in nature, not furnished primarily to further any type of research, and not allocable to the scholastic education or vocational training of the patient. Upon reaching a determination of how many days should be approved as needed for the medical care of the patient’s condition, Prudential must tell the doctor and the hospital of the number of days, if any, approved and confirm this information by written notice to the employee, the doctor and the hospital. No benefits are payable for days of inpatient hospital stay not approved as needed by Prudential; such unpaid days may comprise the entire hospital stay if no days are approved.
Newell alleges that Prudential arbitrarily and capriciously failed to abide by its own policy guidelines, first in subjecting Bear’s claim to retro review, and then by denying benefits based on factors Newell maintains are extraneous to the terms of the policy. For his first assertion, Newell relies on language in the insurance booklet provided to Massey employees which states that “[t]he purpose of PACRS is to make sure that, before incurring expenses you understand the length of inpatient hospital stay that will be considered reasonably necessary under the coverages.” Plaintiff’s Exh. 2 at 10 [ (BR 010) ]. Newell interprets this language to mean that Prudential has an obligation to make any decision concerning eligibility for benefits before the hospital care is provided. We disagree.
The employee insurance booklet refers the reader to the full PACRS rider for details of the program. The PACRS rider obligates Prudential only to notify the interested parties of how many days it has approved as necessary and warns the reader that any days not so approved are not payable. In the case of Bear’s hospitalization, Prudential approved inpatient care through January 13, 1987, on December 24, 1986, and telephoned Greenleaf and Dr. Schmits with that information on December 30, 1986, well before the pre-authorized days had expired. If in fact Prudential advised the interested parties of the upcoming retro review status and that no further approved days were forthcoming until Bear’s discharge (an issue we address below), it appears to us that Newell had to be aware that any additional days of hospital stay might be considered unnecessary and unpayable. It would seem that the 42 days approved served as some indication of the period that Prudential considered “reasonably necessary under the coverages.” Id. That Prudential eventually approved only 12 of the additional 80 days Bear spent in hospital was a gamble that Newell took, not an abuse of discretion or an arbitrary interpretation of the plan by Prudential.
Newell also asserts that Dr. Goldart utilized subjective criteria outside of the tests contained in the policy to determine that much of Bear’s hospital stay was medically unnecessary. We find this charge unsupported by the record, as did the district court. Dr. Goldart in reviewing Bear’s charts from the outset personally questioned the necessity for Bear to undergo inpatient rather than outpatient treatment, as, in his experience, the information in the admissions sheets reflected no problems sufficient to warrant acute inpatient care. Nonetheless, giving the benefit of the doubt to Dr. Schmits, Dr. Goldart approved an initial seven days of hospitalization. The charts accompanying the requests for extension of approved days revealed to Dr. Goldart no need for structured inpatient supervision: Bear was under no restrictions nor was he taking any medications for his depression; his medical evaluations showed no inability to cope, no problems with cooperating with therapy or participating in the activities at Greenleaf, no inability to function normally. Instead the hospital records indicated that Bear was “responding well to treatment, was eating and sleeping well, was participating in group activities and had accepted his alcohol dependency.” Newell, 725 F.Supp. at 1239. His personal professional opinion notwithstanding, Dr. Goldart granted extensions of approved days in the end total-ling 54 days, 12 days longer than the protocol or average length of stay for people diagnosed with Bear’s condition. Dr. Gol-dart determined that any additional days of hospital stay could not be approved as needed since more than 50 days of inpatient treatment for adolescent substance abuse was not “commonly and customarily recognized throughout the Doctor’s profession as appropriate in the treatment of [substance abuse].” Plaintiff’s Exh. 1 at 6. Similarly, Dr. Goldart could not substantiate that Bear’s continued hospitalization was sufficiently related to the treatment of his substance abuse as to be considered needed under the policy. The subsequent APA review of Bear’s case confirmed the correctness of Dr. Goldart’s determination. We conclude that Dr. Goldart did apply the appropriate policy tests of need in making his determination of need and that he did not abuse his discretion in denying benefits after January 25, 1987.
C.
Finally, we cannot let stand the district court’s finding that Prudential’s failure to follow its own notification procedures did not constitute arbitrary and capricious conduct. First, the court used the more lenient abuse of discretion standard rather than the heightened inquiry befitting the conflict of interest present in this case. Second, we question the facts as found by the district court in reaching its conclusion on this issue.
As we previously noted, the PACRS rider to the Prudential policy is described in the group insurance booklet as a means of ensuring that the insured would know before incurring medical expenses how much of a contemplated hospital stay would be covered by insurance benefits. Upon receiving a properly submitted request for a determination of need, Prudential is obliged to make its determination within a reasonably prompt period of time and inform the doctor and the hospital of how many days it has approved as needed. Additionally, Prudential is to confirm this information by written notice to the hospital, the doctor and the insured. The PACRS policy mentions nothing about retro review.
The district court found that “[Prudential] did notify the Newells and Greenleaf of the pre-authorization for Joe Newell, Ill’s initial 7 days of hospitalization. However, subsequent written or oral notifications of additional days of certification were not forthcoming. Only on March 9, 1987 did [Prudential] finally meet its standard of affording proper written notification.” Newell, 725 F.Supp. at 1239. Our review of the records discloses that Newell never received any written notice of any of the approved days until he received the March 9, 1987, letter. It also appears that much telephonic dialogue took place before March 9, 1987, between Greenleaf, Schmits or Newell and various Prudential personnel regarding extensions and benefits, although the testimony varies widely about what and when information was given or received. What is certain is that the March 9, 1987, letter was the first proper notice from Prudential to Newell that Newell would be responsible for all the hospital expenses incurred after January 25, 1987.
We believe that the undue delay in notifying Newell of what length of hospital stay had been approved or disapproved and the delay in or failure to notify Newell of placing the case in retro review status constitutes arbitrary and capricious conduct on the part of Prudential. The purpose of the PACRS procedure is to allow an insured to forecast what his or her expenditures may be and to calculate what treatment he or she can afford. Had Prudential given Newell timely notice that it could not authorize any days of hospitalization past January 25, 1987, as medically necessary, he could have consulted with Dr. Schmits and Greenleaf to arrive at an alternate form of treatment that would have served Bear’s needs and at the same time would have been eligible for benefits. At the very least Newell could have decided whether or not he could afford to keep Bear in the hospital. Instead, Prudential left Newell hanging, not knowing how many days had been approved or that the type of review had changed from concurrent to retro review. The only means by which Newell could have avoided unwittingly incurring great personal debt would have been to dispute Dr. Schmits’ judgment that it was in Bear’s best interest to be hospitalized and take Bear out of Greenleaf until Prudential got around to informing him of what length of hospital stay it would approve. This court in Brown described an analogous situation of not following a doctor’s instructions to the possible detriment of one’s health in order to wait for an insurance company to authorize benefits as “dangerous if not wholly absurd,” and we agree. Brown, 898 F.2d at 1572. We hold that Prudential abused its discretion in ignoring the policy standards for providing notice to Newell and that Prudential is liable to Newell for the hospital expenses incurred between January 25, 1987, and when Prudential first informed Newell either that it had placed Bear’s case on retro review or that no benefits would be available for hospitalization after January 25, 1987. We are unable to ascertain from the conflicting testimony and documentary evidence in the record what the last day of Prudential’s liability would be; we remand to the district court for factual findings on this point.
In accordance with the foregoing, we AFFIRM the district court’s holdings that Prudential did not violate ERISA either in allowing Dr. Goldart to determine the medical necessity of inpatient care or in denying Newell’s claims for benefits after January 25, 1987. We REVERSE the district court’s holding that Prudential provided sufficient notice to Newell, rather holding Prudential liable to Newell for its arbitrary and capricious failure to provide Newell with notice within a reasonable period of time. We REMAND to the district court for factual findings regarding the period of Prudential’s liability and for other proceedings not inconsistent with this opinion.
. Elsewhere in the policy, hospital room, board, and all the daily services and supplies furnished by the hospital are encompassed in the definition of services and supplies. Plaintiffs Exh. 1 at 39 [MM R2 1007-(CR '505, BR 505)-!].
. “A civil action may be brought by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C.A. § 1132(a)(1)(B) (West 1985).
. In actual practice PACRS makes the determinations of need and communicates the number of approved days to the doctor, hospital and insured. PACRS also transmits this information to the appropriate Prudential claims office that will actually pay out the benefits. For simplicity, we will not differentiate between PACRS and Prudential but will refer to Prudential throughout.
. The PACRS rider requires for non-emergency admissions that written requests be sent to Prudential at least a week before the hospital stay starts; telephoned requests can be made one weekday before the beginning of the hospital stay. Emergency admission requests must be made by the second weekday after the patient is admitted to hospital. Extensions of approved days can be requested by phoning Prudential sometime before the already pre-approved days end. From these provisions we conclude that Prudential generally must expect to make a determination of need within 24 to 48 hours of receiving the request in order to inform the hospital and doctor of whether the hospital stay has been approved before the hospital care has been provided.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_respond1_4_3 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy in charge of regulation". Your task is to determine which specific substate government agency best describes this litigant.
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), a case in which the Court considered abstention to be unnecessary:
In the bulk of abstention cases in this Court, * * * the unsettled issue of state law principally concerned the applicability of the challenged statute to a certain person or a defined course of conduct, whose resolution in a particular manner would eliminate the constitutional issue and terminate the litigation.
This statement reflects the judicial policy of avoiding the adjudication of federal constitutional questions unless they are ripe and are squarely presented by the record.
“The basic question involved in [federal preemption] cases, however, is never one of interpretation of the Federal Constitution but inevitably one of comparing two statutes.” Swift & Co. v. Wickham, 382 U.S. 111, 120, 86 S.Ct. 258, 264, 15 L.Ed.2d 194 (1965). Thus we do not have a situation where a state law interpretation by a state court may eliminate a federal constitutional question. Cf. Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). There is no contention by Becker, Jones, or Christensen that California law is unclear or ambiguous or that the construction of California law in the state courts will obviate a. decision on Rath’s federal preemption claim. The California statutes and regulations apply to Rath without question. We think this case is akin to Harman v. Forssenius, supra, in which the Court said: “If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal * * * question, it is the duty of the federal court to exercise its properly invoked jurisdiction. Baggett v. Bullitt, 377 U.S. 360, 375-379 [84 S.Ct. 1316, 1324-1326, 12 L.Ed.2d 377].” We hold that the district
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy in charge of regulation". Which specific substate government agency best describes this litigant?
A. Environment
B. Market Practices
C. Transportation
D. Professions (licensing)
E. Labor-Management
F. Communications
G. Zoning/Land Use
H. Building and Housing
I. Other Regulating Activity
J. not ascertained
Answer: |
songer_direct1 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Plaintiff-Appellee, v. Frank Cardenas GUAJARDO, Defendant-Appellant.
No. 91-5508.
United States Court of Appeals, Fifth Circuit.
Dec. 19, 1991.
John R. Carter, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.
LeRoy Morgan Jahn, San Antonio, Tex. Glenn W. MacTaggart, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., for plaintiff-appellee.
Before DUHÉ, WILLIAMS and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant Frank Cardenas Guajardo (“Guajardo”) pled guilty to a charge of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Since the offense occurred on August 6, 1990, the district court applied the federal sentencing guidelines in effect on that date. See United States Sentencing Commission, Guidelines Manual (1989 ed.) (“U.S.S.G.”). Guajardo appeals, alleging that the district court violated his equal protection and due process rights by application of career offender provisions, and that the district court improperly declined to grant a downward departure in his sentence. We reject Guajardo’s contentions and affirm the district court's sentence.
I.
BACKGROUND
On August 6, 1990, the San Antonio Police Department obtained a state search warrant to seize narcotics at Guajardo’s residence. During the execution of that search warrant, the police officers found heroin and drug paraphernalia. Guajardo was subsequently arrested for possession of heroin.
Later that month, a federal grand jury sitting in the San Antonio Division of the Western District of Texas returned a two-count indictment charging Guajardo with: (1) conspiracy to possess heroin with intent to distribute heroin in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) (Count One); and (2) possession of heroin with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (Count Two). Guajardo pled guilty to Count Two in exchange for dismissal of Count One.
A probation officer prepared a Presen-tence Report. The Presentence Report recommended a finding that Guajardo was a career offender. In addition to other adjustments, this finding raised his offense level from 22 to 30. The probation officer recommended the finding that defendant was a career offender because of two prior offenses: Guajardo was convicted of assault with intent to murder on May 28, 1966, and he pled guilty to burglary of habitation on May 20, 1982. The 1965 conviction resulted in a life sentence, but Gua-jardo was released on parole on June 29, 1976.
Because Guajardo was classified as a career offender, Guajardo’s range of imprisonment under the sentencing guidelines was 168 to 210 months. The district court sentenced Guajardo to 168 months imprisonment. Had Guajardo not been classified as a career offender, he asserts that his sentencing range under the sentencing guidelines would have been 77 to 96 months. Guajardo also sought a downward departure, based on his age and physical condition, pursuant to Sections 5H1.1 and 5H1.4, which the district court denied. The crux of Guajardo’s appeal is that he should not have been classified as a career offender and that a downward departure was appropriate in his case.
II.
ANALYSIS
A. Guajardo’s Classification as a Career Offender
Guajardo argues that the district court’s use of his 1965 conviction to classify him as a career offender violates his rights to due process and equal protection of laws guaranteed by the Fifth Amendment. This court’s standard of review is de novo. See United States v. Lara-Velasquez, 919 F.2d 946, 953-54 (5th Cir.1990) (citation omitted) (de novo standard applies to a defendant’s challenge to the district court’s interpretation of the requirements of the sentencing guidelines); United States v. Litteral, 910 F.2d 547, 551 (9th Cir.1990) (citation omitted) (court reviews de novo the constitutionality of a statute).
Guajardo contests the use of Section 4A1.2(e)(l), which was used to classify him as a career offender. Section 4A1.2(e)(l), dealing with the computation of criminal history, provides in pertinent part:
Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.
U.S.S.G. § 4Al.2(e)(1) (1989). Guajardo committed this offense on August 6, 1990. Guajardo’s earlier conviction was in 1965 for an April 24,1964 charge of assault with intent to murder. He was released on parole June 29, 1976. Because the sentence for the 1965 conviction “resulted in the defendant being incarcerated during ... part of [the] fifteen-year period” prior to the August 6, 1990 offense, the district court properly used the 1965 conviction to classify Guajardo as a career offender. Id.
i. Due Process
Guajardo contends that the district court’s use of the 1965 conviction to classify him as a career offender violates his right to due process guaranteed by the Fifth Amendment. His discussion of this issue, however, centers on his equal protection argument. Guajardo does not squarely set forth a due process argument.
Guajardo appears to allege that Section 4A1.2(e)(l) violates due process because it prevents the consideration of individual mitigating factors in sentencing. We disagree. The sentencing guidelines do not violate due process because they prevent individualized sentencing by establishing mandatory sentences for offenses. See, e.g., United States v. White, 869 F.2d 822, 825 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989), cert. denied, 493 U.S. 1001, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989) (citation omitted) (noting that the Constitution does not require individualized sentences); United States v. Brady, 895 F.2d 538, 539-44 (9th Cir.1990) (holding that sentencing guidelines do not violate substantive or procedural due process by limiting the sentencing discretion of the district court); United States v. Green, 902 F.2d 1311, 1313 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990) (citation omitted) (noting that the Constitution does not guarantee individualized sentencing, except in capital cases; due process not denied by use of career offender provision); United States v. John, 936 F.2d 764, 766-67 n. 2 (3d Cir.1991) (citation omitted) (noting that defendant does not have a substantive due process right to individualized treatment at sentencing). Because the Constitution does not require individualized sentences, the district court was correct to apply Section 4A1.2(e)(l) in determining Guajardo’s sentence.
[2] Guajardo also argues that the use of the lengths of prior sentences to help determine his criminal history category violates due process. This argument has also been rejected. In United States v. Litteral, 910 F.2d 547, 552-53 (9th Cir.1990), the court stated that because the defendant did not show that the use of the lengths of prior sentences was necessarily unreliable, such use was not a violation of due process. The court also noted that the sentencing guidelines allow consideration of information other than the lengths of past sentences to minimize the likelihood of any due process violations. Id., citing United States v. White, 869 F.2d 822, 828 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172,104 L.Ed.2d 1033 (1989), cert. denied, 493 U.S. 1001, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). We agree with this reasoning and reject Guajardo's arguments to the contrary.
ii. Equal Protection
Guajardo also argues that the application of Section 4A1.2(e)(l) violates his equal protection rights because the sentencing guidelines bear no rational relationship to policies underlying the Sentencing Reform Act. He contends that the use of convictions within this fifteen-year period to classify him as a career offender, while excluding those convictions outside this fifteen-year period, bears no rational relationship to considerations underlying the Sentencing Reform Act.
More specifically, Guajardo argues that Section 4A1.2(e)(l) violates equal protection because the fifteen-year cut-off point is arbitrary and does not truly aid in administrative convenience. By limiting offenses to those that have occurred within fifteen years of the current offense, Guajardo argues that courts employ a categorical federal standard which is arbitrary. Guajardo also contends that Section 4A1.2(e)(l) subverts the sentencing guidelines’ goals of honesty, uniformity, and proportionality because Section 4A1.2(e)(l) applies regardless of the sentence actually imposed or the length of time actually served.
The Government, citing United States v. Colon, 905 F.2d 580, 586 (2d Cir.1990), contends that any system such as the sentencing guidelines requires line-drawing and that the system will fail if those lines are not observed. The Government argues that Section 4A1.2(e)(l) serves a legitimate purpose of having more dangerous criminals serve longer sentences. See United States v. Litteral, 910 F.2d 547, 552 (9th Cir.1990). Implicit in the Government’s argument is the contention that the career offender provisions bear a rational relationship to a legitimate governmental purpose because the provisions help prevent repeat offenders from continuing to victimize society. Guajardo has not shown otherwise.
The sentencing guidelines support the Government’s position. In the sentencing guidelines, the Sentencing Commission states that a defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment. See U.S.S.G. Ch. 4, Pt. A, intro, comment., at 4.1. The Sentencing Commission notes that general deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will be punished more severely. Id. In addition, to protect the public from further crimes of a defendant, the likelihood of recidivism and future criminal behavior must be considered. Id. Repeated criminal behavior is an indicator that rehabilitation may not be successful. Id. We find that a district court’s consideration of past offenses is related to the goal of having dangerous criminals serve longer sentences; using these prior offenses to calculate another sentence is rationally related to achieving that goal and promotes respect for the law, provides deterrence, and protects the public from further crimes.
B. The District Court’s Refusal to Grant a Downward Departure
This court upholds a sentence unless it is imposed in violation of law, is imposed as a result of an incorrect application of the sentencing guidelines, or is a departure from the applicable sentencing guidelines range and is unreasonable. See United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.1989) (citation omitted). This court will not review a district court’s refusal to depart from the sentencing guidelines unless the refusal was in violation of the law. See United States v. Hatchett, 923 F.2d 369, 372 (5th Cir.1991) (citations omitted).
Guajardo argues that the district court should have departed downward from the sentencing guideline range because of his advanced age and poor health. He argues that these factors are of a kind and to a degree not adequately considered by the Sentencing Commission in promulgating the sentencing guidelines, and that a downward departure is warranted. See U.S.S.G. § 5K2.0 (1989). The Government notes that Section 5H1.1 states that age “is not ordinarily relevant in determining whether a sentence should be outside the guidelines,” and that in this case there is nothing about Guajardo’s health or age that warrants such a departure. U.S.S.G. § 5H1.1 (1989) (emphasis added). The Government also cites Section 5H1.4 to argue that physical condition “is not ordinarily relevant in determining whether a sentence should be outside the guidelines,” or where in the sentencing guidelines the sentence should fall. U.S.S.G. § 5H1.4 (1989) (emphasis added). The underscored language implies that there may be extraordinary circumstances where age and health may be relevant to the sentencing decision. Here, however, there is nothing about Guajardo’s age (approximately 55 at the time of sentencing) or health (cancer in remission, high blood pressure, a fused right ankle, an amputated left leg, and drug dependency) that justifies such a downward departure. See U.S.S.G. §§ 5H1.1 and 5H1.4 (1989).
Guajardo argues that the district court considered inappropriate factors in imposing the sentence. Guajardo questions comments the district court made during his sentencing. More specifically, the district court stated that “[i]t seems that the only way we’re going to take care of this man’s [Guajardo’s] health problems is to keep him locked up because his self cure is not very good.” Guajardo argues that this statement shows that the district court imposed a sentence upon him in violation of the law. Guajardo’s argument, however, reflects a twisted view of the district court’s reasoning. We find nothing in the record or in the district court’s reasoning to suggest that he refused to make a downward departure because Guajardo has health problems. Rather, the district court merely noted Guajardo's history of health problems and stated that one result of his confinement might be an improvement in these health problems — this consideration was clearly not a motivating reason for the sentence. In examining Guajardo’s sentence in light of the considerations the Sentencing Reform Act deems relevant in imposing a sentence, we must remember that Congress envisioned that the sentencing guidelines would leave considerable discretion in the hands of the sentencing judge. Cf. United States v. White, 893 F.2d 276, 278-79 (10th Cir.1990) (citations omitted). Thus, the issue is not whether we would have departed as such, but whether the district judge’s statements reflect a reasoned, persuasive view of statutory and sentencing guidelines considerations.
The district judge’s statements reflect such a reasoned view of the statutory considerations. On the one hand, the district court weighed Guajardo’s arguments regarding his age, health and reasons against a lengthy incarceration. The district court also weighed the seriousness of the offense, the need to protect the public, the need for just punishment, and the goal of deterrence. The result of this process was the imposition of the most lenient sentence possible under the applicable sentencing guidelines range. We are not convinced, therefore, that the district court’s refusal to depart downward constitutes a violation of the law.
III.
Accordingly, we AFFIRM.
. Approximately 64 grams of heroin, various balloons containing a powdery substance believed to be heroin and $1,507 in United States currency were found. Drug paraphernalia, including a blender, measuring spoons and packaging materials, were also seized. The substances suspected of being heroin that were seized did test positive for heroin.
. The career offender provision states:
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. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table shall apply. A career offender’s criminal history category in every case shall be Category VI.
U.S.S.G. § 4B1.1 (1989).
. More specifically, because Guajardo was considered an organizer of the criminal activity and thus had an aggravating role in the crime, his base offense level was increased by 2 levels. See U.S.S.G. § 3B1.1(C) (1989). For his acceptance of responsibility, his offense level was reduced 2 levels for a total offense level of 22. See U.S.S.G. § 3El.l(a) (1989). Because he was a career offender within the meaning of § 4B1.1, however, the offense level was determined under § 4B 1.1(C) and was 32; by taking into account the 2 level reduction for acceptance of responsibility, Guajardo had a total offense level of 30.
In addition, the total of Guajardo’s criminal history points was 12. According to U.S.S.G. Sentencing Table, set forth at Ch. 5, Pt. A, 10 to 12 criminal history points establish a criminal history category of V. However, because Gua-jardo was a career offender as defined in U.S.S.G. § 4B1.1, his criminal history category was VI. See U.S.S.G. § 4B1.1 (1989).
. Guajardo was also ordered to pay a special assessment of $50.00, and upon his release from imprisonment, he was to serve a supervised release term of three years.
. See U.S.S.G. Ch. 5, Pt. A, sentencing table (1989).
. Guajardo alleges that his ill health and advancing age justify the imposition of a sentence other than incarceration. See U.S.S.G. §§ 5H1.1 and 5H1.4 (1989).
. Guajardo does not argue that he is a member of a suspect class or that fundamental rights are involved which would require strict scrutiny. Thus, the standard of review for his constitutional claim is the rational basis test. See Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 704, 38 L.Ed.2d 618 (1974) (citations omitted).
. See infra note 9.
. Furthermore, the Sentencing Commission notes that Section 3553(a)(2) of Title 18 sets forth considerations involved in sentencing which include: reflecting the seriousness of the offense, promoting respect for the law and providing just punishment for the offense; affording adequate deterrence to criminal conduct; protecting the public from further crimes of the defendant; and providing the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. See U.S.S.G. Ch. 4, Pt. A, intro, comment., at 4.1; see also infra note 10.
.Guajardo cites Section 994(k) of Title 28 which states:
The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.
28 U.S.C.A. § 994(k) (1968 & Supp.1991); see also supra note 9.
. See supra note 9, noting that the court, in determining the particular sentence to be imposed, "shall consider ... the need for the sentence imposed ... to provide the defendant with needed ... medical care_”
. See supra note 9.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_state | 06 | 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".
Kenneth Christopher CURNOW, a minor, by and through his guardian ad litem, Sandra CURNOW; Ken Curnow; Sheila Efflandt; Sandra Curnow, as administratrix of the estate of Steven Murray Curnow, deceased; Cris Curnow; and Sandra Curnow, as an individual, Plaintiffs-Appellees, v. The RIDGECREST POLICE, a municipal law enforcement agency; the City of Ridgecrest, a municipal corporation; the State of California, a sovereign state; the County of Kern, a municipal corporation; Edward John Luarca, a/k/a E.J. Luarca; Stephen Compton; Randy Gene Bias; Jeffrey Krueger; Kurt Fowler; Jerry Linenkugel; Garry Davis; Chris Davis; Bob Pratt; and Edward R. Jagels, Defendants-Appellants.
No. 90-15314.
United States Court of Appeals, Ninth Circuit.
Submitted May 16, 1991 .
Decided Dec. 26, 1991.
Dorothy Crisp, Wayne K. Lemieux, Westlake Village, Cal., for defendants-appellants.
Carl K. Osborne, Los Angeles, Cal., and Elliott L. Aheroni, Encino, Cal., for plaintiffs-appellees.
Before ALARCON and RYMER, Circuit Judges, and McDONALD , District Judge.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
The Honorable Alan A. McDonald, United States Judge for the Eastern District of Washington, sitting by designation.
McDONALD, District Judge:
Defendants appeal the district court’s denial of their motion for summary judgment based upon qualified immunity. We affirm.
Plaintiffs-appellees, the estate of Steven Curnow, his parents, and his children, filed this action in the United States District Court for the Eastern District of California against the defendants-appellants, City of Ridgecrest police officers. The claims which are the subject of this appeal are brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1985.
After plaintiffs-appellees filed their third amended complaint, defendants-appellants moved for summary judgment on the basis of qualified immunity. The district court denied defendants-appellants’ motion on the basis that genuine issues of material facts precluded issuance of summary judgment.
According to defendants-appellants, on April 5, 1986, at approximately 10:00 p.m. the decedent, Steven Curnow, and Mercedes Taylor were standing in the kitchen of Cumow’s home when a window was shattered by an object from outside the home. Curnow and Taylor both believed that someone had shot at them and therefore, called the police department. As plaintiffs-appellees admit, Curnow then retrieved an HK-91, a semi-automatic rifle, from the closet.
Upon arrival at the scene, the police questioned the occupants of a house next to Curnow’s before proceeding to Cumow’s residence.
After examining the broken window and determining that no shots were fired, the police were allowed to enter the house and continue the investigation. Curnow showed Officer Randy Bias the HK-91 and asked Bias if it was legal to have such a weapon. Bias informed Curnow that it was.
During the investigation Bias learned that Taylor had been threatened by her ex-husband. After the officers left the scene, Officer Edward Luarca went to Taylor’s ex-husband’s residence to question him. Taylor’s ex-husband denied any involvement with the breaking of the window.
Upon writing his report of the incident, Officer Bias was ordered by his supervisor to contact the neighbors at 421 Florence to determine if they saw anything or knew anything about the window-breaking incident.
On the following evening, April 6, 1991, Officer Bias interviewed the neighbors regarding any noise they might have heard or any other disturbances of the night before. When Bias left the neighbor’s home he heard shouting coming from Curnow’s home. He walked across the common driveway, looked into Cumow’s window and allegedly saw Curnow bent over Mercedes Taylor slapping and shaking Taylor and pleading with her to wake up. Bias then returned to the patrol car and called for backup. Officer Luarca arrived at the scene, went to the same window that Officer Bias had looked through and saw the same thing that Bias had seen.
Bias and Luarca both decided they needed a supervisor and additional backup. Bias radioed for a supervisor and backup. Soon thereafter, Officer Krueger and Sergeant Compton arrived at the scene. Compton, the commanding officer, viewed the scene and allegedly observed the HK-91 laying at the side of the decedent. Purportedly there was great concern among the officers because of the nature of the HK-91 weapon.
Compton then devised a plan of entry into Curnow’s home. The plan involved stationing Luarca at the window and having him aim his weapon at Curnow. In the event Curnow picked up the rifle in a threatening manner, Luarca was to take appropriate action. The other three officers were to enter through the front door by breaking down the door and attempt to rescue Taylor and prevent Curnow from using the HK-91.
The plan allegedly went awry in that the first attempt to break down the door failed. When Curnow heard persons attempting to break down the front door, he allegedly reached for the HK-91. The police then made a second attempt to break down the door which succeeded. Because Curnow had already picked up the weapon, Luarca, who was stationed at the window with his weapon trained on Curnow, yelled “freeze, police”. At that moment, Compton and Krueger came in through the front door. Curnow raised his weapon and Luarca fired in defense of the other officers.
As a result of the first shot, Curnow was seriously wounded. While carrying his rifle, Curnow ran into the kitchen, opened the kitchen door and exited the house. Upon exiting the house, he was in possession of the HK-91. As Curnow exited the house he turned and pointed the weapon at Officer Luarca. Officer Luarca then fired a second shot which hit and killed Curnow.
The “statement” of Mercedes Taylor in opposition to the motion for summary judgment contradicts the affidavits submitted by the police officers. According to Taylor’s statement, Curnow was not hitting her but was simply holding her in his lap. She said that Curnow did not reach for his gun before the police shot him, and that it appeared Curnow had been shot in the back by the first shot. She further stated that the gun was unloaded and that he grabbed it by the muzzle as he attempted to flee the residence.
I.
This court has jurisdiction over an appeal from a denial of a motion for summary judgment based upon qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We review de novo the district court’s denial of summary judgment. White by White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986).
II.
Defendants object to the district court’s consideration of Mercedes Taylor’s statement submitted by the plaintiff in opposition to the defendant’s motion for summary judgment. Kristin Coil, a shorthand reporter, took Taylor’s statement on May 6, 1986. Taylor was duly sworn to tell the truth by Coil. Defense counsel were not present when plaintiff’s counsel questioned Taylor. Coil transcribed the questions and Taylor’s responses. The transcript was signed by Coil but not by Taylor.
In opposing a summary judgment motion, the nonmoving party need not produce evidence in a form that would be admissible at trial. Celotex Corp. v. Ca- trett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). A summary judgment motion may be opposed by any of the evidentiary materials listed in Rule 56(c) of the Federal Rules of Civil Procedure, although the mere pleadings themselves are not sufficient. Id. Rule 56(c) provides that the court may consider pleadings, depositions, answers to interrogatories, admissions and affidavits in deciding a summary judgment motion. Fed.R.Civ.P. 56(c).
In Hoover v. Switlik Parachute Co., 663 F.2d 964 (1981), we admitted depositions for the purpose of a summary judgment motion against a party who had not been joined at the time the depositions were taken. Id. at 966. In that case, the plaintiff joined Switlik as a co-defendant after depositions had already been taken by a prior defendant. Id. The court prohibited Switlik from deposing any witnesses whose depositions had already been taken by the prior defendant. Id. at 965-66.
We ruled that the documents could not be admitted as Rule 56(c) depositions because Switlik had no opportunity to cross-examine the deponents. Id. at 966. Nevertheless, we held that the documents met the requirements for Rule 56(c) affidavits since they were made on personal knowledge and set forth facts in evidence. Id. Although the documents were inadmissible as depositions, we ruled that the district court did not err in considering the deposition testimony as the substantial equivalent of an affidavit under Rule 56(c). Id. at 967.
In re Sunset Bay Associates, 944 F.2d 1503 (9th Cir.1991), we concluded that a witness’s statements taken in question and answer form, which had neither been subject to cross-examination nor signed, were admissible under Rule 56(c). Id. at 1510. It is unclear from the facts set forth in In re Sunset Bay Associates whether the party objecting to the admission of the statement had been notified of the deposition or was present at the time it was taken. We explained our holding in In re Sunset Bay Associates as follows:
[T]he logic of Hoover implies that an unsigned deposition should be admissible where, as here, the deponent was sworn. The approach of Hoover is pragmatic, looking to see if the deposition testimony is at least as reliable as an admissible affidavit. Because there is no reason to believe that the sworn answers to questions are less reliable than an affidavit, to the extent that the content of the deposition testimony is otherwise admissible, that testimony should be admissible on summary judgment.
Id. at 1510.
The district court properly considered Taylor’s statement pursuant to Rule 56(c) because her answers to the questions were given under oath. Notwithstanding the fact that the statement was unsigned, it was at least as reliable as an affidavit.
III.
Defendants-appellants moved for summary judgment on the basis of qualified immunity. “[Gjovernment officials performing discretionary functions, generally are shielded from liability for civil damages [in a section 1983 action] insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
This “clearly established law” test requires more than an alleged “violation of extremely abstract rights.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Rather, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 640, 107 S.Ct. at 3039. In other words, “in the light of preexisting law the unlawfulness must be apparent.” Id.
There is no question that the apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). The nature and the quality of the intrusion on the individual’s Fourth Amendment interests must be balanced against countervailing governmental interests. Id. at 8, 105 S.Ct. at 1699; United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). The court’s inquiry is therefore whether the totality of the circumstances (taking into consideration the facts and circumstances of the particular case; including the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; and whether he is actively resisting arrest or attempting to evade arrest by flight) justified the particular type of seizure. Tennessee v. Garner, 471 U.S. at 8-9, 105 S.Ct. at 1700; Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene....” Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872.
At the time Steven Curnow was shot, it was recognized that an officer could use deadly force to effect the arrest of a fleeing felon if, under the circumstances, he reasonably believed such force was necessary to protect himself or others from death or serious physical harm. Tennessee v. Garner, 471 U.S. at 11, 105 S.Ct. at 1701; Ting v. United States, 927 F.2d 1504 (9th Cir.1991). Under Taylor’s version of the shooting, the police officers could not reasonably have believed the use of deadly force was lawful because Curnow did not point the gun at the officers and apparently was not facing them when they shot him the first time. Thus, viewing the evidence in the light most favorable to the nonmoving party, the defendants-appellants are not entitled to qualified immunity.
IV.
Defendants-appellants finally claim the district court erred in not dismissing claims made by Curnow’s parents and children. Defendants-appellants argue that the recent Supreme Court case of Graham v. Connor, supra, mandates that excessive force claims be brought under the Fourth Amendment. There is no mistaking the holding of Graham v. Connor:
Today we make explicit what was implicit in Gamer’s analysis, and hold that all law enforcement officers have used excessive force — deadly or not — in the course of the arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provided an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims, [footnote omitted]
Id. 490 U.S. at 395, 109 S.Ct. at 1871.
While the person who claims excessive force was directed at him or her can only raise a fourth amendment claim, a parent who claims loss of the companionship and society of his or her child, or vice versa, raises a different constitutional claim. The Ninth Circuit recognizes that a parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child, see Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir.1986); Kelson v. City of Springfield, 767 F.2d 651, 653-55 (9th Cir.1985), and that a “child’s interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest,” Smith v. City of Fontana, 818 F.2d 1411, 1419 (9th Cir.), cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987). Thus, Graham v. Con-nor does not bar the parents’ and children’s due process claims. The district court recognized these authorities and properly denied defendants-appellants’ motion for summary judgment based thereon.
The order of the district court is AFFIRMED.
While Ting was decided in 1991, the shooting which gave rise to the excessive force claim therein occurred on May 12, 1984. Accordingly, Ting's recognition of clearly established law regarding the use of deadly force to effect an arrest is relevant to the instant shooting which occurred in 1986.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_usc1 | 47 | 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.
WEISS v. LOS ANGELES BROADCASTING CO., Inc., et al.
No. 11373.
Circuit Court of Appeals, Ninth Circuit.
Aug. 6, 1947.
Rehearing Denied Sept. 6, 1947.
A. L. Wirin and Fred Okrand, both of Los Angeles, Cal., for appellant.
Edward D. Neuhoff, of Los Angeles, Cal., for appellee.
Before MATHEWS, STEPHENS, and ORR, Circuit Judges.
MATHEWS, Circuit Judge.
This appeal is from a judgment which, on motion of appellees (Los Angeles Broadcasting Company, Calvin Smith and Lucille Blake), dismissed an action brought by appellant (Myra Tanner Weiss) against ap-pellees. Grounds of the motion were that the court did not have jurisdiction over the subject matter of the action, and that the amended complaint, hereafter called the complaint, did not state a claim upon which relief could be granted.
The action was one of a civil nature, at law. The matter in controversy exceeded, exclusive of interest and costs, the sum or value of $3,000. The matter in controversy and the action itself arose under a law of the United States, namely, the Federal Communications Act of 1934, 47 U.S.C.A. §§ 151-609. The Court, therefore, had jurisdiction over the subject matter of the action.
The Federal Communications Act of 1934 is a law regulating commerce. Therefore the Court would have had jurisdiction over the subject matter of the action even if the matter in controversy had not exceeded, exclusive of interest and costs, the sum or value of $3,000.
The second question presented by this appeal — whether the complaint stated a claim upon which relief could be granted —is not disposed of by our holding that the court had jurisdiction over the subject matter of the action; for a court may have jurisdiction over the subject matter of an action though the complaint therein does not state a claim upon which relief can be granted. Whether the complaint in this action stated such a claim must therefore be decided.
The complaint stated, in substance and effect, that on May 14, 1945, appellee Los Angeles Broadcasting Company held a license granted by the Federal Communications Commission to own and operate a radio broadcasting station, known as KFAC, at Los Angeles, California; that ap-pellee Smith was the Company’s agent and manager; that appellee Blake was its agent and employee; that during the period from February 20, 1945, to April 3, 1945, appellant was a legally qualified candidate for the office of mayor of the City of Los An-geles; that four other persons (Fletcher Bowron, Clifford Clinton, Ira McDonald and Anthony Entenza) were candidates for that office; that in March, 1945, appellant made an oral contract with appellees whereby, to further her candidacy, she purchased from the Company radio time for broadcasting, by means of station KFAC, four speeches of 15 minutes each on March 11, 1945, March 18, 1945, March 25, 1945, and April 1, 1945, respectively; that, for the time so purchased, she paid the Company $108; that the first three speeches were broadcast as scheduled; that on March 31,. 1945, appellees censored the speech scheduled for April 1, 1945, deleted therefrom certain portions thereof, refused to permit appellant to broadcast the deleted portions and prevented her from doing so; and that appellees thereby violated § 315 of the Federal Communications Act of 1934, 47 U.S.C.A. § 315, and damaged appellant in the sum of $4,000. Judgment was prayed for $4,000 as actual damages and $1,000 as punitive or exemplary damages.
The statement that appellees violated § 315 was a mere statement of a conclusion. To determine whether the stated facts warranted the conclusion, we examine § 315. It reads as follows:
“If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station, and the Commission shall make rules and regulations to carry this provision into effect: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate.”
Appellant contends that appellees, if they did the acts which the complaint said they did on March 31, 1945, violated two provisions of § 315 — the provision that “If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station,” and the provision that “such licensee shall have no power of censorship over the material broadcast under the provisions of this section.”
These provisions are aimed at licensees only and can be violated only by licensees. It appeared from the complaint that the Company was a licensee on May 14, 1945, but it did not appear that the Company was a licensee on March 31, 1945, when the acts complained of were said to have been done, or at any time prior to May 14, 1945. It did not appear that Smith or Blake was ever a licensee.
These provisions are applicable when, and only when, there are two or more legally qualified candidates for the same public office, and a licensee has permitted one such candidate for that office to use a broadcasting station, and another such candidate for that office seeks equal opportunities in the use of such station. It appeared from the complaint that during the period from February 20, 1945, to April 3, 1945, appellant was a legally qualified candidate for the office of mayor of the City of Los Angeles, but it did not appear that there was any other legally qualified candidate for that office. It appeared that Bowron, Clinton, McDonald and Entenza were candidates for that office, but it did not appear that any of them was a legally qualified candidate.
It appeared from the complaint that the Company permitted appellant to use a broadcasting station, namely, station KFA C, but it did not appear that the Company permitted Bowron, Clinton, McDonald or Entenza to use the station. It appeared that the Company permitted Bowron, Clinton and McDonald or their “sponsors” to use the “facilities” of the station, but § 315 says nothing about “sponsors” or “facilities.”
It appeared from the complaint that opportunities in the use of station KFAC were afforded to appellant, but it did not appear that any opportunity in the use of the station was afforded to Bowron, Clinton, McDonald or Entenza. It therefore did not and could not appear that appellant sought, or was denied, opportunities in the use of the station equal to those afforded to Bowron, Clinton, McDonald or Entenza.
The provision of § 315 relating to censorship applies only to “material broadcast under the provisions of this section.” It appeared from the complaint that, after being censored on March 31, 1945, the speech scheduled for April 1, 1945, was broadcast as scheduled, deleted portions being omitted, but it did not appear that the speech was broadcast under the provisions of § 315.
For all these reasons, we hold that the complaint did not state facts warranting the conclusion that § 315 was violated by ap-pellees or any of them, and did not state a claim upon which relief could be granted.
Other reasons for so holding have been suggested — that one of the deleted portions of the censored speech was libelous, and that the others related, not to the candidacy of appellant or any other person for the office of mayor of the City of Los Angeles, but to the candidacy of Charlotta Bass for another office. In view of the conclusions reached by us, these matters need not be considered.
The court below correctly held that the complaint did not state a claim upon which relief could be granted. It incorrectly held, and stated in the judgment, that “it affirmatively appears from the face of [the complaint] that this court does not have any jurisdiction over the subject matter.”
The judgment is modified by striking out this statement and, as thus modified, is affirmed.
See § 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1).
See §§ 1, 2 and 301 of the Act, 47 U.S.C.A. §§ 151, 152, 301; National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344; Regents of New Mexico College of Agriculture & Mechanic Arts v. Albuquerque Broadcasting Co., 10 Cir., 158 F.2d 900.
See § 24(8) of the Judicial Code, 28 U.S.C.A. § 41(8), and the last sentence of § 24(1) of the Judicial Code, 28 U.S. C.A. § 41(1).
Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84; Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005; Binderup v. Pathe Exchange, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308; Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939.
The date of the original complaint. See Rule 15(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
A copy of this speech was attached to and made part of the complaint. The deleted portions were set out separately in the complaint.
For definitions of “licensee,” “person,” “broadcasting” and “station,” see § 3 of the Act, 47 U.S.C.A. § 153.
Rules made under § 315 are found in 47 CFR, Cum.Supp., §§ 3.421 to 3.424. They shed no light on the question we ■are considering.
The complaint stated that appellees “permitted the use of the facilities of said radio station KFAC to other candidates for political offices in said City of Los Angeles or sponsors of said candidates as follows: For Mayor: Mayor Fletcher Bowron, Clifford Clinton, Ira McDonald.”
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_direct1 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
MARTIN MARIETTA CORPORATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
No. 15618.
United States Court of Appeals Seventh Circuit.
April 11, 1967.
Rehearing Denied May 8, 1967, en banc.
Schnackenberg, Circuit Judge, dissented.
Harold F. Baker, Terrence C. Sheehy, Washington, D. C., for petitioner, How-rey, Simon, Baker & Murchison, Washington, D. C., Clarence W. Miles, Clark C. Vogel, Edwin V. Petz, New York City, of counsel.
J. B. Truly, Asst. Gen. Counsel, and Charles C. Moore, Jr., Atty., F. T. C., James Mcl. Henderson, Gen. Counsel, Washington, D. C., for the Federal Trade Commission.
Before HASTINGS, Chief Judge, and SCHNACKENBERG, and SWYGERT, Circuit Judges.
SWYGERT, Circuit Judge.
Martin Marietta Corporation petitions for review of an order of the Federal Trade Commission granting in part and denying in part a motion for modification of an order of divestiture previously entered by consent. The question presented concerns the reviewability of the Commission’s order.
The Commission issued a complaint against the petitioner in January 1961 charging that the petitioner’s acquisition of various concrete pipe, cement, lime, and construction aggregates properties was in violation of section 7 of the Clayton Act, 15 U.S.C. § 18, and section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. Negotiations between the petitioner and the Commission staff resulted in the execution of a consent agreement on February 5, 1963, which was effectuated by order of the Commission on March 12, 1963. The consent order, in part, required the petitioner to divest itself of sixty-one concrete pipe plants, thirteen construction-aggregates quarries or quarry sites, and two lime plants within a period of twenty-four months.
In September 1964 the petitioner requested the Commission to modify the consent order by deleting eight of the thirteen quarries from the divestiture provisions because of changed conditions of fact. The Commission’s Bureau of Restraint of Trade responded to the petitioner’s application, challenging the allegations contained in it. Subsequently, in March 1965, the petitioner filed a reply alleging additional information and submitted a request that the Commission permit oral argument “prior to any negative action” on the motion to modify. In December 1965, at the Commission’s request, the reply was supplemented by the petitioner’s current data, at which time the petitioner renewed its request to be heard orally prior to any unfavorable action.
On January 12, 1966, the Commission, without hearing argument, entered the order challenged in this proceeding. The order modified the earlier consent order by striking one quarry from the list of those required to be divested, but denied the petitioner’s motion as to the remaining quarries, stating that “there has been no showing made that changed conditions of fact or law or the public interest warrant modification.”
The petitioner contends that the Commission’s order must be set aside on review because, in denying the petitioner’s motion to make additional modifications in the consent order, the Commission did not afford the petitioner an evidentiary hearing with respect to the seven quarries not deleted and did not comply with its own rules regarding the procedure for modifying existing orders. The Commission, on the other hand, contends that insofar as its order denies the petitioner’s motion to modify the consent order it is not subject to review by this court. We agree with the Commission.
The pertinent statutory provisions relating to modification of the Commission’s orders after the time for review has elapsed are section 5(b) of the Federal Trade Commission Act, 15 U.S.C. § 45(b), and section 11(b) of the Clayton Act, 15 U.S.C. § 21(b), whose terms are identical in all important respects. Section 5(b) of the Federal Trade Commission Act provides in part:
After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require: Provided, however, That the said person, partnership, or corporation may, within sixty days after service upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of the United States, in the manner provided in subsection (c) of this section.
The “review” which may be obtained under this section is a review of the “order entered after * * * reopening,” not a review of the original order. The review must therefore confine itself to the modifying order, more specifically, to that portion of the order which effects changes in the original order.
The portion of an “order entered after * * * reopening” which refuses any further modification of the original order is not reviewable. Any other interpretation of the statute is logically inconsistent with the finality of the original order. Further, a different construction would place the Commission in a position which we think Congress did not intend. Neither the Federal Trade Commission Act nor the Clayton Act provides for review by courts of appeals of any action of the Commission denying a motion to reopen or modify a final order. If the Commission had summarily denied the petitioner’s motion, its action would not be subject to review. If, on the other hand, by modifying in one particular an order previously entered the Commission thereby opens its previous order to a second review in all particulars challenged, the Commission is faced with a dilemma; it is likely to be discouraged from granting relief which it is not obliged to extend but which it might otherwise grant, at least in part, at the request of persons bound by orders which have become final.
We think the statute was intended to provide judicial review of action taken by the Commission which is unfavorable to or is resisted by a person subject to an existing order. It is for this reason that the statute requires the Commission to provide “notice and opportunity for hearing” prior to modifying such an order. In the instant case, the only modification occurred as a result of the petitioner’s request, and the petitioner does not object that a portion of its request was granted. The petitioner’s objection is that its request was not granted in its entirety. It seeks a review of the Commission’s refusal to make further modifications in the consent order, or at least a review of the Commission’s refusal to grant the petitioner a hearing with respect to the additional modifications the petitioner requested. The petitioner has no right to such review.
There is another reason, aside from the lack of statutory authority, why the Commission’s order is not reviewable. The order which the petitioner sought to modify is a consent order. The agreement reached by the petitioner and the Commission prior to the entry of the consent order states in part:
Upon entry of this consent order, [petitioner] waives any further procedural steps before the hearing examiner and the Commission, a statement of findings of fact and conclusions of law, and all of the rights it may have to challenge or contest the validity of the order to divest and to cease and desist entered in accordance with this agreement.
The order entered pursuant to this agreement is therefore basically similar to a consent decree entered by a court. The scope of review of consent decrees is extremely narrow. Stewart v. Lincoln-Douglas Hotel Corp., 208 F.2d 379 (7th Cir. 1953). “Ordinarily a party to a consent decree cannot question its validity on appeal, if the court had jurisdiction to enter the decree, unless there are facts which nullify the consent.” In re 4145 Broadway Hotel Co., 100 F.2d 7, 8 (7th Cir. 1938). In Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587 (1928), the Supreme Court affirmed an order of the Supreme Court of the District of Columbia overruling motions to vacate a consent decree entered four years earlier. The Court stated:
The decree sought to be vacated was entered with the defendants’ consent. * * * “[A] decree, which appears by the record to have been rendered by consent is always affirmed, without considering the merits of the cause.” * * * Where, as here, the attack is not by appeal or by bill or review, but by a motion to vacate, filed more than four years after the entry of the decree, the scope of en-quiry may be even narrower. Id. at 323-324, 48 S.Ct. at 314.
The petitioner did not seek review of the consent order when it was entered and does not now challenge the Commission’s jurisdiction over the subject matter or allege lack of consent. The petitioner asks us to review the Commission’s refusal to vacate a portion of the order. By its consent to the order, however, the petitioner waived its objections to the terms of the order. The petitioner may not challenge the Commission’s refusal to modify those terms.
The petition for review is dismissed.
. The complaint was issued against American-Marietta Company, Chicago, Illinois. The petitioner was formed by a statutory consolidation of American-Marietta and the Martin Company, Baltimore, Maryland, in October 1961.
. Crushed stone, sand, and gravel.
. The petitioner divested itself of the concrete pipe plants and the lime plants, which had a combined book value of approximately $40,700,000.
. The total book value of the quarries was approximately $3,600,000. The book value of the eight quarries not divested is approximately $3,000,000.
. The petitioner’s subsequent motion for reconsideration and for an evidentiary hearing “to resolve * * * factual disputes” was also denied by the Commission, with the statement that “even if the facts set forth by [petitioner] in its application to modify the consent order are taken as true, there has been no showing made that changed conditions of fact or law or the public interest warrant modification. * * * ”
. The agreement also provides that the consent order “is agreed to be dispositive of all the issues in this case,” and adds that “it may be altered, modified or set aside in the same manner and within the same period provided by statute for other orders.”
. The difficulty of reviewing the denial of the petitioner’s motion to modify the consent order should also be noted. Because the matter was not contested, and as stated in the consent agreement, “the record on which the decision of the Commission * * * shall be based shall consist solely of the complaint and this agreement.” The facts upon which the Commission relied in issuing its complaint and which prompted the petitioner to enter the consent agreement are therefore not available to us in determining whether the Commission erred or otherwise abused its discretion in refusing to modify the consent order on the basis of “changed conditions of fact.” This is another indication why the Commission’s order is not reviewable. Cf., Swift & Co. v. United States, 276 U.S. 311, 327, 329, 48 S.Ct. 311 (1928).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_constit | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Lee J. CALLOWAY et al., Appellants, v. CENTRAL CHARGE SERVICE et al.
No. 23622.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 26, 1971.
Decided Feb. 24, 1971.
Mr. King David, Washington, D. C., for appellants.
Mr. John F. Mahoney, Jr., Washington, D. C., with whom Messrs. Charles E. Pledger, Jr., and Robert M. Price, Washington, D. C., were on the brief, for appellees.
Before McGOWAN and LEVENTHAL, Circuit Judges, and VAN PELT, Senior United States District Judge for the District of Nebraska.
Sitting by designation pursuant to Title 28, U.S.Code Section 294(d).
PER CURIAM:
Appellants brought an action for damages resulting from a defamatory statement. Appellees denied liability, and filed a counterclaim in the amount of $1,387.75 for breach of contract. At the conclusion of appellants’ case on the issue of slander, the trial court directed a verdict for appellees. Appellees’ counterclaim was, however, submitted to the jury, which awarded appellees the sum of $1,387.75.
Appellants had an account with appellee Central Charge, and possessed a charge plate bearing the account number, 20-2453-536. On September 25, 1965, appellants requested a second charge plate with this number, but on October 27, 1965, Central Charge mistakenly sent a plate bearing the number 20-2453-036. Invoices for merchandise purchased under both account numbers were subsequently sent to appellants. Several months later, Central Charge notified appellants of the mistake, requesting that plates not bearing their original number be destroyed. Appellants acknowledged the fact that they received such a notice, but denied ever receiving any invoices based on the “036” plate or ever purchasing any merchandise with that plate.
In July, 1966, a service manager for Central Charge called appellants to discuss an outstanding balance of $1,200. About one week after the call, Mrs. Calloway, one of the appellants, went to a Central Charge office and was informed by the service and credit managers that the outstanding balance had exceeded $1,900 by this time. She was confronted with receipts evidencing purchases made under both the original and mistaken account numbers, and bearing signatures of her name. Mrs. Calloway denied ever having signed any invoice with the “036” number, and claimed that this group of receipts was forged. A heated discussion ensued, during which the service manager called Mrs. Calloway a “damned liar.”
Once calm was restored, the two men suggested that Mrs. Calloway report the alleged fraud to the police. Mrs. Calloway agreed and met the service manager two days later at the police station, where she lodged her complaint. In the course of normal police procedures in matters such as this, a sample of Mrs. Calloway’s handwriting was taken. Eventually, it was determined by a handwriting expert that Mrs. Calloway had, in fact, signed the receipts in question. Appellants and Central Charge were informed by the police of this finding, and Central Charge continued to mail regular statements to appellants. Appellants made further payments on the balance of the “536” account, and on November 1, 1966, they sent a check to Central Charge, for $490.25 — the exact amount due on the “536” account. In addition, appellants wrote the original account number, 20-2453-536, on the face of the check, as well as noting that this was to be the “final payment in full.”
Appellants raise three arguments on appeal. First, they claim that all evidence concerning Mrs. Calloway’s handwriting sample should have been excluded by the trial court since it was tantamount to a “coerced confession” taken without counsel and therefore in contravention of the Fifth and Sixth Amendments. If Mrs. Calloway’s rights had been violated, such evidence resulting therefrom certainly could be excluded in a civil as well as in a criminal proceeding. See, e. g., Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1923). However, Mrs. Calloway’s constitutional rights were in no way infringed upon. She voluntarily came to the police station in order to complain about criminal wrongdoing, and willingly gave a sample of her handwriting, as is ordinarily required by the police in claims of forgery. Moreover, assuming arguendo that the police had, in fact, coerced her into giving the sample, such evidence has been held to be real, rather than communicative, and therefore not protected by the Fifth Amendment. See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Lewis v. United States, 127 U.S.App.D.C. 269, 382 F.2d 817, cert. denied, 389 U.S. 962, 88 S.Ct. 350, 19 L.Ed.2d 377 (1967). Furthermore, as long as the exemplar is not taken at a critical stage of a criminal proceeding, the accused is not entitled to the assistance of counsel. See Gilbert v. California, supra; Lewis v. United States, supra. Since Mrs. Calloway was, in effect, a complainant at the time the exemplar was taken, it can hardly be said that this was a critical stage.
Appellants’ second contention is that the trial court erred in granting appellees’ motion for a directed verdict on the issue of slander. Such a motion can only be granted if a reasonable man, viewing the matter in the light most favorable to the adverse party, would be unable to reach a verdict for that party; conversely, if a reasonable man could have reached different conclusions on the basis of the evidence presented, the motion must be denied. See McCoy v. Moore, 78 U.S.App.D.C. 346, 140 F.2d 699 (1944). Our examination of the record reveals that appellants failed to prove an element of their claim. A common insult, such as referring to someone as a “damned liar,” is not actionable unless special damages are proved, which normally entails a showing that actual pecuniary or material loss resulted from the conduct of the defamer. See Restatement of Torts § 575, Comment c; 1 Harper and James, The Law of Torts § 5.14. In the present matter, appellants have made no such showing. Hence, as a matter of law a verdict could not have been reached for them, and therefore the trial court was correct in granting appellees’ motion.
Finally, appellants claim that the trial court erred in denying their motions for a directed verdict and judgment notwithstanding the verdict with regard to the counterclaim. They contend, in effect, that the evidence which they introduced concerning the payment of the $490.25 to Central Charge demonstrated an accord and satisfaction, i. e., the sum tendered to Central Charge was less than the claim in dispute; appellants’ notation that the check was to be the “final and full payment” was a clear expression of their intention to have the payment operate as a satisfaction of the entire amount in dispute; and Central Charge accepted the payment as evidenced by its cashing the check. See Fire Insurance Ass’n v. Wickham, 141 U.S. 564, 12 S.Ct. 84, 35 L.Ed. 860 (1891). Once this evidence was introduced, appellants point out that it was incumbent upon appellees to demonstrate that there had not, in fact, been an accord and satisfaction. Appellants argue that appellees failed to do as much and therefore the question should not have been submitted to the jury.
However, our examination of the record shows that there was evidence from which a reasonable man could have found that there was no accord and satisfaction. Since appellants wrote their original account number, 20-2453-536, on the face of the check, and since the payment was the exact amount due under this account, it would not have been a faulty exercise of logic to conclude that Central Charge believed that the check was only a “final and full payment” of the “536” account. Therefore, it was within the province of the jury to decide whether Central Charge was fully aware that the check was to serve as a satisfaction of the disputed amount, and there is substantial evidence to support their conclusion that Central Charge'was not so informed.
Affirmed.
. At trial, appellees introduced evidence demonstrating that several of the disputed receipts bore the number of Mrs. Calloway’s driver’s license which was used for the purpose of identification. In addition, it was demonstrated that three of the receipts were for medical prescriptions filled out by Mrs. Calloway’s doctor.
. The propriety of granting or denying a motion for a directed verdict is tested both in the trial court and on appeal by the same rule. See Seganish v. District of Columbia Safeway Stores, 132 U.S.App.D.C. 117, 406 F.2d 653 (1968). Moreover, this rule is also utilized to ascertain the propriety of a motion for a judgment notwithstanding the verdict. See, e. g., MacKay v. Costigan, 179 F.2d 125 (7th Cir. 1950).
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_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.
UNITED STATES of America, Appellee, v. William S. ALESSIO, Defendant, Appellant.
No. 7774.
United States Court of Appeals, First Circuit.
March 11, 1971.
Gordon C. Mulligan, Warwick, R. I., by appointment of the Court, for defendant-appellant.
Joseph C. Johnston, Jr., Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
Defendant’s appeal raises three questions, two of which are so lacking in merit as to require no mention. The third is more troublesome. The defendant was indicted for larceny of government property. 18 U.S.C. § 641. One of the items he was charged with taking was certain U. S. currency, allegedly belonging to the petty cash fund of a government installation. In the course of the trial at which defendant was convicted, it was sought to show on cross-examination of two government witnesses that this money belonged to a government employee who was merely indebted to the government therefor, as distinguished from being directly owned by the government. This would have been fatal to that aspect of the government’s case. At one stage of the interrogation the court sustained a government objection, stating that indisputably the money in the fund constituted government property.
The relevant portions of the testimony include the following. On cross-examination a Mr. Clark, a government witness, testified as follows.
A. I think I said personally responsible.
Q. Personally responsible for. And that money becomes your money, and you owe the money to the United States by accounting for how it is spent?
A. That is correct.
Later, when co-defendant’s counsel referred to this testimony, the following colloquy occurred.
The COURT. I think not, Mr. Berk. The money didn’t belong to Mr. Clark. It wasn’t usable for Mr. Clark’s purposes; it was merely a trust fund of money belonging to the Government. I don’t find any merit in that contention.
Mr. BERK. Does the Court make that finding?
The COURT. I do. It was the property of the United States Government.
Defendant noted his objection.
The court could properly make a ruling of law with respect to title, predicated upon findings of fact which it left to the jury. However, it is clear that the court did more. It left nothing to the jury. It made a “finding” that the money belonged to the government, which was not only an essential element in the government’s case, but depended upon an acceptance of the testimony of the government witnesses. The court cannot make a finding accepting the government’s testimony, no matter how clear it may be; the burden still remained on the government to prove the money in the fund belonged to it. Testimony, though unchallenged, may still be disbelieved. As we said in DeCecco v. United States, 1 Cir., 1964, 338 F.2d 797, at 798, “No matter how persuasive the government’s evidence may seem to the court, there is no burden on a defendant to dispute it.” We held it to be error in DeCecco for the court to inform the jury that it did not have to make a finding as to a certain element in the government’s case because the defendant did not dispute it. It was even greater error for the court here to make such a statement when counsel had, although possibly ineffectively, sought to make an issue of the matter.
Reversed, new trial ordered.
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_direct2 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
HAROLD J. WARREN, INC., d/b/a Professional Realty Co., Defendant, Appellant, v. FEDERAL MUTUAL INSURANCE COMPANY, Plaintiff, Appellee.
No. 6958.
United States Court of Appeals First Circuit.
Heard Oct. 3, 1967.
Decided Dec. 8, 1967.
Thomas J. Carens, Boston, Mass., with whom Roche & Leen, Boston, Mass., was on brief, for appellant.
John E. Lecomte, Boston, Mass., with whom Princi & Lecomte, Boston, Mass., was on brief, for appellee.
Before ALDRICH Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
This is an appeal from a declaratory judgment that a certain fire insurance policy issued by plaintiff on defendant’s, building is null and void. The basis for this judgment is the district court’s finding that in making claim against the plaintiff insurer under the policy for a fire loss in its building, defendant wil-fully misrepresented and overstated the amount of the loss, thereby attempting to defraud or gain an advantage in negotiating with the plaintiff.
The principal question raised is whether the evidence adduced supports this finding. The insured building is a four story structure of Class A construction consisting of brick walls with reinforced steel and poured concrete structural ceilings and floors. It is located on Massachusetts Avenue in Boston and contains stores and offices. Among other things, the policy provided coverage for physical damage and loss of rents. It also contained the following Massachusetts statutory “Fraud and Concealment Clause”:
“This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.” Mass.Gen. Laws ch. 175, § 99.
Following the fire, which occurred in April 1965, the defendant corporation, through one Warren, its president, and Winnick, its treasurer, hired an experienced public adjuster named Milton to represent it in adjusting its fire loss. The company through Warren also engaged an architect named Larkin to draw plans and specifications for work to be done on the building. These plans encompassed both fire and nonfire damage repairs and alterations. Plaintiff insurance company retained one Stratton as its adjuster. Milton who had full authority to act for the defendant, submitted a claim to Stratton for some $40,680 which was later revised to $67,-698.46. Stratton testified that there was also a rental loss claim for an additional $12,000.
Because of failure to agree on amount, the parties went to reference under the Massachusets statute. The referees awarded the defendant some $42,967 for damages to the building, plus $3,000 for rental loss. Before this award was returned, plaintiff notified defendant it was -denying all liability under the policy and commenced this diversity action to have the policy declared null and void.
Defendant contends that the referees' award may not be collaterally attacked unless there was evidence of fraud before the district court that was not before the referees. It claims there was no such evidence here. We do not agree.
From our reading of the record it seems clear that new evidence of fraud was presented at the trial but even if this were not the fact, defendant’s conclusion does not follow. Under the reference statute, the sole function of the referees is to determine the amount of loss — not the ultimate liability Of course, the issue of fraud presents a question of ultimate liability. Gechijian v. Richmond Ins. Co., 298 Mass. 487, 11 N.E.2d 478 (1937) and Gechijian v. Richmond Ins. Co., 305 Mass. 132, 25 N.E.2d 191 (1940).
These cases clearly voice the strong Massachusetts policy against insurance fraud. The parties may not consider themselves free to bargain over terms with disregard of the actual amount of loss. In Gechijian 1 the court stated at 488-489, at 479 of 11 N.E.2d:
“In our opinion a design on the part of the insured to gain a position of advantage in the settlement of the loss through false representations is a fraudulent design and the making of such representations knowingly for that purpose is an ‘attempt to defraud’ within the meaning of those words as used in the policy, even though the insured may not have expected or intended ultimately to obtain more than compensation for the actual loss. * * * The policy does not contemplate that after a loss the insured and insurer shall occupy the positions of vendor and vendee, free to haggle over the price of the property destroyed without regard to its true value.”
An analysis of the evidence in the light of these principles shows that the district court’s finding of fraud was clearly justified. The first item in the revised claim was a contract for $44,100 with New England Partition & Fixture Company, based on plans and specifications drawn by defendant’s architect. Stratton requested a breakdown of this sum from Milton but was unable to get it prior to reference.
At an early stage in the reference proceedings defendant conceded that $7,320 of the $44,100 represented non-fire damage and should not have been included. Moreover, the architect testified and Warren himself admitted that New England’s bid was for both fire and nonfire work. In any event, because of Warren’s testimony that the plans had been drawn at his direction and that he had brought the architect through the building pointing out certain things to him, there can be no doubt of his awareness that the specifications were for both fire and nonfire damage.
Another pertinent item in the revised claim is $8,750 for third floor ventilating and air-conditioning. There was evidence from which the district court could reasonably conclude that this amount represented the cost of replacing all the air-conditioning on the third floor and that the repairs for fire damage actually amounted to little more than $3,000. Indeed, Milton had previously received a fire damage estimate of approximately $3,000, an estimate that was supported by an expert produced by plaintiff. In fact the company that submitted the $8,750 bid indicated that only one of the air-conditioning units appeared to be damaged and that it had bid on replacing all the air-conditioning on the third floor, not merely the fire damage.
Defendant also claimed a fee of $3,678 for the architect who had drawn the plans but there is a question whether any new plans were needed in order to repair the fire damage. As pointed out in the district court’s opinion, a 1960 plan showing the building as it existed before the fire was available. In addition, no explanation was given as to why any plans were needed for the fourth floor since the evidence is clear there was no significant fire damage on that floor.
Still another indication of fraud is the claim for rental loss. Despite the original claim for $12,000, a breakdown of which Stratton was unable to get, Winnick testified at the' trial that the actual rent loss was $6,025 and that all but $750 of this amount had been paid subject to refund.
We are concerned here, of course, not merely with the question of whether excessive figures were submitted but also whether this was done wilfully. “Intent to defraud is not to be presumed and the trier of fact should make all reasonable allowance for lack of knowledge or sound judgment or for honest mistake on the part of the insured as well as for the tendency to believe that which is to one’s own interest * * Gechijian, supra, 298 Mass. at 489, 11 N.E.2d 479. Milton, Winnick and Warren, however, were well apprised of the damage done to the building, the repairs required and the time it would take to make them. It is only reasonable, for example, that the district court would find that Winnick, the treasurer and also the building manager, was well aware of the amount of rental loss and that Warren and Milton, who inspected the building after the fire, would be aware that the amount of fire damage on the fourth floor was negligible. It should be noted that defendant’s excessive claim of fourth floor damage is not explained by its admission that $7,320 had been improperly included. Quite apart from the question of whether fraud may have already been committed at that time, the subsequent breakdown of New England’s $44,100 bid reveals that $17,200 was allocated to the fourth floor.
Nor can defendant derive any comfort from the fact that these misrepresentations were made by Milton. It is well settled in Massachusetts that an agent’s attempt to defraud is attributable to his principal, if the agent is acting within the scope of his authority. As stated in Bockser v. Dorchester Mut. Fire Ins. Co., 327 Mass. 473, 478-479 99 N.E.2d 640, 642, 24 A.L.R.2d 1215 (1951):
“Any other result would tend to circumvent the public policy which calls for the enforcement of the clause in the Massachusetts standard policy now before us. * * * All that would be necessary is a complete delegation by the insured of the responsibility for the adjustment of the loss to a third party whose acts might be disavowed * *
There is no doubt that Milton was acting within the scope of his authority all through the negotiations and proceedings here.
Finally, since it is clear that the findings of the district court on the question of fraud in no way interfered with the proper function of the referees, Rule 52(a) Fed.R.Civ.P. applies. From our examination of the record certainly the findings of the district court upon which the judgment is based cannot be said to be “clearly erroneous.”
Affirmed.
. Mass.Gen.Laws ch. 175, § 99 et seq.
. “A company which in compliance with section one hundred or one hundred and one D joins in reference proceedings shall not thereby be held to have waived any legal defence to the claim in respect to which the reference proceedings are held and such proceedings shall fix only the amount of the loss sustained by the insured * * Mass.Gen.Laws ch. 175, § 101 E.
. The record of the proceedings before the referees was introduced in evidence without objection.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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.
Harold Heath HILL; Harold C. Hill; Fred C. Hill, Appellees, v. BASF WYANDOTTE CORPORATION, Appellant.
No. 85-1162.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 5, 1985.
Decided Feb. 13, 1986.
Charles E. Carpenter, Jr. (R. Davis Howser, Richardson, Plowden, Grier & Howser on brief), for appellant.
William P. Donelan, Jr. (Donelan & Donelan on brief), for appellees.
Before SPROUSE and ERVIN, Circuit Judges, and MOTZ, United States District Judge for the District of Maryland, sitting by designation.
MOTZ, District Judge:
This case has a long history. It involves damage to the 1977 soybean crop of Harold Heath Hill, Harold C. Hill and Fred C. Hill caused by the use of Basalin, a herbicide manufactured by BASF Wyandotte Corporation (“BWC”). The first trial resulted in the declaration of a mistrial when the jury was unable to reach a verdict. A second trial resulted in a judgment in favor of the Hills in the amount of $207,725. On appeal, this Court reversed that judgment, holding that the district court erred (a) in ruling that an oral representation made by a sales agent of BWC constituted an express warranty, and (b) in not giving effect to a disclaimer of consequential damages made by BWC. Hill v. BASF Wyandotte Corp., 696 F.2d 287 (4th Cir.1982). We left open the question of how damages were to be measured. Id. at 292, n. 6.
Upon remand the district court certified the question of the proper measure of damages to the South Carolina Supreme Court. The Supreme Court ruled that the measure of damages in a case such as this is “the value ... [plaintiff s] crop would have had if the product [manufactured by defendant] had conformed to the warranty less the value of the crop actually produced, less the expense of preparing for market the portion of the probable crop prevented from maturing.” Hill v. BASF Wyandotte Corp., 280 S.C. 174, 311 S.E.2d 734, 736 (1984). The case was then retried, and the jury returned a verdict in the amount of $148,625 in favor of the Hills. This appeal followed. On this occasion we affirm.
BWC first argues that the evidence was insufficient to sustain the jury’s finding that the Basalin used by the Hills was defective. The standards governing sufficiency of the evidence questions have recently been recited by this court. See Whalen v. Roanoke County Board of Supervisors, 769 F.2d 221 (4th Cir.1985). “[W]hen a jury is called upon to determine causation, the inferences it draws to reach its verdict must be reasonably probable; mere speculation is insufficient.” Id. at 224 (citing Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241-42 (4th Cir.1982)). However, the court may not pass on the credibility of witnesses or substitute its judgment of the facts for that of the jury. Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.1957). The party whose evidence is challenged must be given the benefit of all reasonable inferences from the evidence. Id.; see also Abasiekong v. City of Shelby, 744 F.2d 1055, 1059 (4th Cir.1984); 9 Wright and Miller, Federal Practice and Procedure, Section 2524 at 543-45 (1971).
In this case the evidence that the Basalin was defective was circumstantial. It was, however, sufficiently probative. The Hills demonstrated, by way of testimony, documentary evidence and aerial photographs, that they had different yields from different soybean fields on their farm even though the fields were both planted, cultivated and harvested in the same manner. One portion of the fields was treated with Basalin, the other with Treflan, another herbicide. The varieties of the beans planted in the fields were the same and weather conditions were comparable. Further, the Basalin was shown to have been applied correctly and the farming methods used on the different fields were the same. The Hills’ evidence also demonstrated why they were unable to produce at trial a sample of the Basalin in order to prove that its chemical properties might not have been as warranted by BWC. The can containing the Basalin had been buried underground after it was applied in accordance with BWC’s own instructions on the label.
BWC next argues that the evidence was insufficient to support an award of damages. This argument is equally unavailing. Harold Heath Hill testified as to the number of bushels of soybeans which he estimated were lost because of the use of the Basalin. John W. Riser, the County Extension Agent for Richland County, confirmed that an experienced farmer such as H.H. Hill could reasonably estimate the probable yield of his crops by surveying them. H.H. Hill also testified to the price which the Hills would have received from the sale of the soybeans destroyed by the Basalin and to the difference in price which the Hills received from soybeans grown in the Basalin fields which were harvested but were of a lesser quality than the beans harvested from the Treflan fields. Finally, he testified as to the cost which the Hills would have had to incur to prepare for market the soybeans destroyed by the use of the Basalin. In sum, H.H. Hill’s testimony addressed each of the elements of the measure of damages enunciated by the South Carolina Supreme Court in response to the question certified to it by the district court. He was subjected to close cross-examination on all of the matters as to which he testified, and the verdict — which was in a precise dollar amount substantially less than the Hills requested — demonstrated that the jury independently and carefully evaluated the evidence.
BWC finally contends that the district court erred in permitting Harold C. Hill and Fred Hill to be joined as plaintiffs after the evidence was closed. The reason for their joinder was that they owned part of the acreage on the Hill farm. From the outset of this protracted litigation it has been known that the farming of the Hills’ land was a family operation, managed by Harold Heath Hill. He was the one responsible for actually running the farm, and he had all of the contacts with the representatives of BWC. When he instituted this suit, he obviously did so on behalf of his father and his brother as well as himself. There can be no question from the evidence that they were fully aware of his actions and that they ratified them.
No unfair prejudice resulted to BWC from the joinder. BWC was aware long before trial of the precise ownership interests of each of the Hills in the fields in question. The addition of H.C. Hill and Fred Hill as plaintiffs simply conformed the pleadings to the evidence in accord with the spirit and the letter of Rules 15 and 17 of the Federal Rules of Civil Procedure. See, e.g., Hess v. Eddy, 689 F.2d 977 (11th Cir.1982); 6 Wright and Miller, Federal Practice and Procedure, Section 1541 at 637 (1971);. cf. Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1309 (D.C.Cir. 1982); Campus Sweater & Sportswear v. M.B. Kahn Construction Co., 515 F.Supp. 64 (D.C.S.C.1979), aff'd 644 F.2d 877 (4th Cir.1981). The joinder was therefore proper:
AFFIRMED.
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_appel1_1_4 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
626 F.2d 1022
In re FTC LINE OF BUSINESS REPORT LITIGATION. Appeal of AMERICAN CYANAMID CO. et al. In re FTC CORPORATE PATTERNS LITIGATION.
Nos. 77-2099, 77-2100.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 4, 1978.
Decided May 1, 1980.
William Simon, Washington, D. C., with whom Stuart H. Harris, Harold F. Baker and John DeQ. Briggs, Washington, D. C., were on the brief, for appellants.
John M. Wood, Washington, D. C., for appellee.
Before ROBINSON and MacKINNON, Circuit Judges, and PRATT, United States District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Two law firms dispute the amount that one is owed as reimbursement in its role as liaison counsel in complex litigation over the Federal Trade Commission’s Line of Business Report (LB) and Corporate Patterns Report (CPR) programs. The District Court, without a hearing, ordered one, Howrey & Simon, to pay the other, Reed Smith Shaw & McClay (Reed Smith), sums in excess of $42,000, and Howrey & Simon appeals. We find the court’s disposition informationally inadequate for full appellate review, and accordingly remand the record for additional explanation.
I. BACKGROUND
The series of events giving rise to the instant contest began in 1975 when a number of corporations filed civil actions in the District Courts for the Southern District of New York and the District of Delaware challenging the LB and CPR programs. Responsively to recommendations set forth in the Manual for Complex Litigation, the Delaware District Court elected the expedient of liaison counsel to avoid needless duplication of effort in the cases pending before it. So, in 1976, the court entered an order appointing Reed Smith, the plaintiffs’ nominee, in that capacity on terms negotiated by them.
The order authorized Reed Smith to receive and distribute to counsel for other plaintiffs documents from the court and from defendants, to coordinate appearances of counsel at hearings and court conferences, to call meetings among plaintiffs’ counsel for various purposes, and to perform other administrative functions “expressly authorized by further Order of the Court.” The order also included this further provision:
For the foregoing administrative duties and functions, as liaison counsel shall perform pursuant to Order of the Court, liaison counsel shall be reimbursed periodically, not less often than quarterly, by plaintiffs, per capita, for the expense and time involved in preparation, duplication and distribution of court orders, notices, and other papers designated for distribution by liaison counsel to plaintiffs and for other administrative services rendered, pursuant to paragraphs 1 through 4 above or other Order or direction of the Court.
Reed Smith issued its first statement under this provision about two months later, covering February-April, 1976, and Howrey & Simon promptly paid its $7,110 share without apparent objection. On August 30,1976, Reed Smith sent Howrey & Simon a second statement, this time showing $11,-791.70 due, and the latter immediately requested an itemized breakdown. After-wards, as relations between them began to deteriorate, Howrey & Simon refused to pay anything unless and until Reed Smith deleted reimbursement for items that, in the opinion of Howrey & Simon, were not within the scope of the Delaware court’s order. This Reed Smith would not do, and the two firms, lawyerly negotiating skills notwithstanding, found themselves at an impasse.
Meanwhile, the amount in dispute continued to grow. By April of 1976, all of the LB and CPR litigation in Delaware and the Southern District of New York had been transferred to the District Court for the District of Columbia. Like its predecessor in Delaware, the District of Columbia court felt a need for liaison counsel, and it too asked the. plaintiffs to draft a proposed order. Ultimately, the court entered orders appointing Reed Smith as coordinating counsel in both cases and, over Howrey & Simon’s objection, incorporating the identical reimbursement provision that had appeared in the Delaware order. As might have been predicted, wrangling over billings continued after the new order, and neither correspondence nor face-to-face discussions succeeded in resolving the conflict.
Finally, in July, 1977, Reed Smith moved the District Court for an order directing Howrey & Simon to pay all amounts allegedly due. Both parties filed lengthy memoranda and voluminous documentation in support of their respective positions. Howrey & Simon requested a hearing on Reed Smith’s motion and raised essentially three objections: that the District Court should have allocated reimbursement on a per-firm rather than a per-client basis, that a substantial portion of the reimbursement sought was for activities beyond the compass of the court’s order, and that much of what was authorized by the order had been billed at disproportionately high rates. In particular, Howrey & Simon urged that amounts billed at Reed Smith’s usual commercial rates were actually attorney’s fees, and as such were not properly awardable.
The District Court reached its decision without a hearing. In a memorandum opinion, the court held that it was empowered to require reimbursement, and in the proportions previously set, and that it was “readily apparent that [Reed Smith’s] services and disbursements were well within the scope of the authority granted by [its earlier] order.” The court also noted that Howrey & Simon was the only firm that had not paid its allocated share of liaison counsel’s claimed expenses. Resultantly, Howrey & Simon was directed to pay most of Reed Smith’s charges, which aggregated more than $42,000.
II. THE OBJECTIONS
Howrey & Simon presses here essentially the same arguments it previously advanced in the District Court. We turn now to address each in turn, and that, we find, we can do with relative brevity.
A. The District Court's Power
We have no doubt as to the District Court’s authority to order reimbursement of liaison counsel on appropriate items or to allocate the responsibility for reimbursement in any reasonable manner. Courts are inherently empowered to control their dockets, and to that end to appoint liaison counsel and to assure that counsel will be reimbursed for his financial outlay. To the extent that objection is registered to raw judicial power in these areas, we find it wholly unavailing.
B. The Manner of Reimbursement
The District Court’s decision to require reimbursement on a per-client rather than a per-firm basis was also well within its authority. Howrey & Simon contends that because liaison counsel’s services were rendered directly to law firms, this method of allocation is unfair. True it is that because Howrey & Simon has more clients than any other firm involved in the litigation, the combined assessments against its group of clients are greater than the aggregate levy on clients of any other firm. But every client pays the same amount, and the District Court’s paramount concern— surely immune to condemnation — was fairness to the litigants. Since the economic burden of reimbursement is the client’s and not the attorney’s, no apparent harm to Howrey & Simon flows from the court’s scheme. We do not say that the court could not have adopted a different plan. We do say, however, that the method of allocation chosen by the court was reasonable and within the ambit of its discretion.
C. The Amounts Charged
This leaves only the question whether Reed Smith’s reimbursement items emanated from activities within the scope of the appointment orders and, if so, the further question whether the amounts requested were reasonable. The District Court expressly held that the bulk of the charges were both authorized and fair. The court did not, however, make factual findings or articulate reasons with sufficient particularity to enable suitable review of its holding.
The problem thus confronting us is similar to another which we addressed in the recent past. In Evans v. Sheraton Park Hotel, discussing an award of attorney’s fees by the District Court, we said:
We believe that a meaningful review requires a record that elucidates the factors that contributed to the fee decision and upon which it was based. Certainly it is not conducive to appropriate appellate review where, as here, the reviewing tribunal is completely in the dark as to what the trial judge found concerning the time and labor involved, the rate of compensation, and the aspects he may have deemed of significance.
In the case before us, the District Court’s brief discussion of Howrey & Simon’s claims of ultra vires and unreasonableness leaves us in much the same difficulty. The court’s opinion quoted a recent Third Circuit decision for the proposition that courts should not “ ‘become enmeshed in a meticulous analysis of every detailed facet of the professional representation.’ ” The District Court then proclaimed that “in fact, because it is concerned only with administrative matters and not professional representation, the court’s review will be even more limited.” Concluding at this point, the court merely stated that Reed Smith had sufficiently itemized its expenses, and ordered Howrey & Simon to pay its allotted share.
This exposition explains neither the analysis nor the synthesis underlying the court’s ruling. It thus does not afford an adequate foundation for appellate review on whether the activities for which reimbursement is claimed were within the scope of the appointment orders and, if so, the reasonableness of the amounts claimed. We therefore remand the record for more explicit findings of fact and conclusions on these two issues.
So ordered.
. We explain our use of “reimbursement” in note 14 infra.
. Section 1.90 of the Manual for Complex Litigation (West ed. 1977) provides in pertinent part:
When there are several parties on one or both sides of the case represented by different counsel, the court is confronted with a problem in communicating with counsel and in securing responses from counsel on procedural questions. If these circumstances appear at the preliminary pretrial conference, the court should consider requesting counsel for the parties on each side to select one or more of their number as liaison counsel.
. The Commission’s LB and CPR surveys, undertaken pursuant to 15 U.S.C. § 46(b) (1970), extended from 1972 through 1976. They were an ambitious endeavor to assemble statistical information on the internal workings of several hundred large American corporations. The surveys met with persistent opposition, and the result has been a steady stream of litigation. Our opinion in Appeal of FTC Line of Business Report Litigation, 193 U.S.App.D.C. 300, 595 F.2d 685, cert. denied, 439 U.S. 958, 99 S.Ct. 362, 58 L.Ed.2d 351 (1978), and the Third Circuit’s in A. O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir. 1976), delineate the background and procedural history of the struggle.
. FTC Corporate Patterns Report Litigation, Misc. No. 76-126 (D.D.C. Oct. 20, 1977) (memorandum and order), Joint Appendix (J. App.) 68 [hereinafter cited as Memorandum and Order].
. See note 2 supra.
. Affidavit of Lee A. Rau ¶¶ 8-10, J. App. 182-183. Rau, an attorney with Reed Smith, was the individual who actually served as coordinator under both the Delaware and District of Columbia orders hereinafter described.
. A. O. Smith Corp. v. FTC, C.A. No. 75-15 (D.Del. Mar. 3, 1976) (order appointing liaison counsel), J. App. 187. See Affidavit of Lee A. Rau [Í 8, J. App. 182. The order also appointed as local liaison counsel the firm of Potter, Anderson & Corroon, which is not involved in the instant controversy.
. A. O. Smith Corp. v. FTC, supra note 7 (order appointing liaison counsel). The text of the order is almost a verbatim copy of the form recommended in the Manual for Complex Litigation, supra note 2, at 178. Such differences in duties of liaison counsel as there are between the form and the order are not germane to this appeal.
. Id. This paragraph likewise was a near-verbatim reproduction of the Manual model, with the notable omission of additional language there suggested:
Liaison counsel shall report to the Court periodically, not less often than_, his time and expenses expended in performing the duties imposed on him by Order of the Court, and, upon approval by the Court, he shall report his accounts to all with notice to each plaintiff of its pro rata share of the cost.
Manual for Complex Litigation, supra note 2, at 178. The order entered made no provision whatsoever for judicial approval of liaison counsel’s charges prior to billing, and had it done so the imbroglio before us might never have occurred. We heartily recommend consideration of inclusion in further liaison-counsel appointment orders of such a provision, for the extra burden thus imposed might well be far outweighed by avoidance of litigation over reasonableness of the charges.
. Letter, Edward T. Tait to Stuart H. Harris, May 28, 1976, J. App. 190, and enclosure, J. App. 191.
. Letter, Stuart H. Harris to Edward T. Tait, June 3, 1976, J. App. 192. Cf. Letter, Stuart H. Harris to Richard F. Corroon, June 28, 1976, J. App. 193 (making payment, similarly without objection, to local liaison counsel).
. Statement of August 30, 1976, J. App. 196.
. Letter, Harold F. Baker to Edward T. Tait, Sept. 9, 1976, J. App. 197.
. We recognize that the word “reimburse” in its usual sense contemplates a repayment of costs incurred — actual out-of-pocket expenses — and ordinarily does not include any element of profit. One of Howrey & Simon’s contentions is that in some items Reed Smith sought compensation — more than simply costs — instead of reimbursement. Since we do not reach that issue at this time, see note 28 infra and accompanying text, throughout this opinion we speak in terms of reimbursement, but that is not to be taken as necessarily an accurate characterization or as a judicial endorsement of any of Reed Smith’s claims, and most certainly not as the intimation of a view on the propriety of compensation to liaison counsel.
. See, e. g., Letter, Harold F. Baker to Lee A. Rau, Oct. 5, 1976, J. App. 198-199 (“I suggest that you make the appropriate adjustments . . . and send us a new statement”); Letter, John DeQ. Briggs to Lee A. Rau, Nov. 22, 1976, J. App. 200-201 (summary of Howrey & Simon’s position).
. Letter, Lee A. Rau to John DeQ. Briggs, Nov. 24, 1976, J. App. 202-204 (“[i]n sum, we continue to believe that the final Delaware liaison bill as finally stated is proper”). That letter also warned that unless the parties resolved the matter by the end of November, 1976, Reed Smith would likely seek judicial enforcement of its demand for payment. Id. at 3, J. App. at 204.
. See Civil Docket, In re FTC Corporate Patterns Report Litigation, Misc. No. 76-0126, at cover page, J. App. 1; Civil Docket, In re FTC Line of Business Report Litigation, Misc. No. 76-0127, at cover page, J. App. 36.
. FTC v. Air Prods. & Chem., Inc., Misc. No. 76-64 (D.D.C. July 14, 1976) (memorandum order), J. App. 281.
. In re FTC Line of Business Report Litigation, Civ. No. 76-835 (D.D.C. July 30; 1976) (pretrial order), at ¶ 14, J. App. 236-238; In re FTC Corporate Patterns Report Litigation, Civ. No. 76-842 (D.D.C. July 30, 1976) (pretrial order), at ¶ 14, J. App. 239-241. See text supra at note 9. The cited paragraphs of the two orders are identical.
Howrey & Simon had two basic objections to the orders:
First, we submit the proposed formula for reimbursement is inequitable. There can be no justification for requiring . . that a law firm representing six corporate parties bear six times the expense of a firm representing one corporate party, although each firm would receive but one copy of the same communication.
Secondly, [the order language] is imprecise to the extent it might require coordinating counsel to seek reimbursement for duties other than those ministerial duties described in paragraph A. For example, paragraph B provides for reimbursement for “time” spent by coordinating counsel in “preparation” and distribution of “other papers designated by coordinating counsel” and “for other administrative services rendered.”
Letter, Howrey & Simon by J. Wallace Adair to Hon. Thomas A. Flannery, July 27, 1976, at 2, J. App. 206 (footnotes omitted). This letter was sent before any dispute arose between Howrey & Simon and Reed Smith over amounts charged under these orders, but it was undeniably a precursor of future disagreements.
. On December 21, 1976, Reed Smith’s bill to Howrey & Simon exceeded $10,000 for the LB litigation and $7,000 for the CPR litigation. Exhibits T & U, J. App. 218, 219. On March 4, 1977, Reed Smith billed an additional $7,848 for the LB litigation and $5,468 for the CPR litigation. Exhibits V & W, J. App. 220, 221. Howrey & Simon declined to pay for the same reasons advanced for nonpayment of the final billing in the Delaware litigation. See, e. g.. Letter, Harold F. Baker to Lee A. Rau, Mar. 29, 1977, at 2, J. App. 223 (“[w]e simply cannot believe that the Court envisioned fees in the order of magnitude which you want to levy on our clients”); Letter, Lee A. Rau to Harold F. Baker, May 6, 1977, at 3, J. App. 227 (“such an inference [that Reed Smith had overcharged] is both unwarranted and erroneous”); Letter, Harold F. Baker to Lee A. Rau, May 23, 1977, at 1, J. App. 233 (“[w]e have received your letter of May 6 and regret that nothing stated therein serves to change our views”).
. See Civil Docket, In re FTC Corporate Patterns Report Litigation, supra note 17, at 25, J. App. 28; Civil Docket, In re FTC Line of Business Report Litigation, supra note 17, at 21, J. App. 60.
. Reed Smith suggests that Howrey & Simon “failed to comply with the procedural requirements for requesting ... a hearing.” Brief for Appellees at 29-30. We disagree. Rule l-9(f) of the District Court in pertinent part provides that “a party may in his motion or opposition, specifically request an oral hearing. . . .” In its opposition to Reed Smith’s motion to enforce payment, Howrey & Simon declared at the outset that “[u]nder the law prevailing in this Circuit and elsewhere, a reasonably specific accounting is required, as is an evidentiary hearing and the opportunity for cross-examination, if necessary.” Opposition to Motion to Enforce Order Appointing Liaison Counsel and Orders Appointing Coordinating Counsel, Aug. 15, 1977, at 2, J. App. 101. In the argument section of its memorandum, Howrey & Simon reiterated, “[i]n no event can Reed Smith’s motion be granted on this record, and until an opportunity for an evidentiary hearing has been accorded.” Id. at 14, J. App. 113. And finally, in the conclusion of the memorandum, Howrey & Simon stated that “a hearing may be required upon the completion of discovery, which should be completed within the next month unless such discovery is resisted by movant.” Id. at 28, J. App. 127. Although a more explicit demand for a hearing might be preferable, these requests satisfied the requirements of Local Rule l-9(f).
. Id.
. Id. at 19-26, I. App. 118-125.
. Memorandum and Order, supra note 4, at 4, J. App. 71.
. Id. at 2, J. App. 69.
. Id at 4-5, J. App. 71-72.
. Howrey & Simon points to several decisions on attorney’s fee awards and argues that they limit judicial power to order reimbursement of liaison counsel. Brief for Appellants at 12-19. These cases are relevant only if the District Court has approved charges properly classifiable as compensation rather than expense items, something we cannot ascertain on the present record, see Part 11(C) infra. It is argued that reimbursement items are attorney’s fees, and as such are impermissible, when they represent services performed by an attorney and are billed at the same hourly rate that any legal work done for a paying client would be. But Howrey & Simon offers no authority to support this position, and it certainly seems logical that the nature of the work performed, and not the amount demanded for it, determines whether a given charge is properly to be denominated an attorney’s fee. We need not explore the concept of attorney’s fees now, see Part 11(C) infra, but we note that the cases Howrey & Simon cites involved no more than adjudications over amounts due for professional representation or legal advice — in short, for peculiarly legal services. We leave it to the District Court on remand to explain whether its order encompasses payment for legal as well as administrative activities. If, as appears from the order under review, the tasks assigned Reed Smith under the liaison counsel order were wholly administrative in nature, see text infra at note 39, it follows that to the extent that Howrey & Simon complains that Reed Smith has billed for legal rather than administrative services, the only proper objection is that the activity billed was outside of the scope of the District Court’s appointment order. See notes 33-39 infra and accompanying text.
. As the Supreme Court observed in Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 166, 81 L.Ed. 153, 158 (1936), there is “power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” See Dellinger v. Mitchell, 143 U.S.App.D.C. 60, 64, 442 F.2d 782, 786 (1971).
. Indeed, the commonly stated judicial rationale for the appointment of liaison counsel is the necessity for proper and efficient management of the court’s docket. See, e. g., Vincent v. Hughes Air West, Inc., 557 F.2d 759, 774-775 (9th Cir. 1977); MacAlister v. Guterma, 263 F.2d 65, 67-69 (2d Cir. 1958).
. Brief for Appellants at 42-44.
. In its brief, Howrey & Simon states that it represents 35 and 39 corporate clients in the LB and CPR proceedings, respectively. Brief for Appellants at 7. According to a letter accompanying Reed Smith’s initial reimbursement statement, Howrey & Simon represented 40 of the 88 corporations in the LB and CPR litigation. Letter from Edward T. Tait to Stuart H. Harris, supra note 10. In any event, it is clear that Howrey & Simon’s group of complaining corporations was larger than that of any other law firm involved.
Reed Smith’s practice of combined billing for the LB and CPR proceedings was another subject of the bickering. See, e. g., Brief for Appellants at 41-42. Since we will remand for additional findings and reasons, we have no cause to examine the contentions that this sort of billing was improper.
. Memorandum and Order, supra note 4, at 2, 4, J. App. 69, 71.
. “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).” Fed.R.Civ.P. 52(a). Nevertheless, a statement of the factual findings on which the court based its decision often is helpful to appellate review. See, e. g., Tygrett v. Washington, 177 U.S.App.D.C. 355, 359 n.17, 543 F.2d 840, 844 n.17 (1974). Moreover, “regardless of what the rule in terms requires, whenever decision of a matter requires the court to resolve conflicting versions of the facts, findings are desirable and ought to be made.” 9 C. Wright & A. Miller, Federal Practice § 2575, at 649 (1971). See Von der Heydt v. Rogers, 102 U.S.App.D.C. 114, 115, 251 F.2d 17, 18 (1958) (“[a]bsent specific findings to be reviewed in light of the evidence, we cannot make an adequate assessment of [the] issue”). Though findings are not normally required, then, we may properly remand for further elucidation when review would be substantially hindered without them. See text infra at note 36. Indeed, that has long been standard practice in this circuit.
. 164 U.S.App.D.C. 86, 503 F.2d 177 (1974).
. Id. at 97, 503 F.2d at 198.
. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976). This case is usually referred to as Lindy II. Lindy I, an earlier decision on attorney’s fees in the same multidistrict proceeding, is reported at 487 F.2d 161 (3d Cir. 1973).
. Memorandum and Order, supra note 4, at 4, J. App. 71 (quoting Lindy II, supra note 37, at 116). It is important to evaluate the quoted passage in its full context:
We find it necessary also to observe that we did not [in Lindy I] and do not intend that a district court, in setting an attorneys’ fee, become enmeshed in a meticulous analysis of every detailed facet of the professional representation. . . . Once the district court determines the reasonable hourly rates to be applied, for example, it need not conduct a minute evaluation of each phase or category of counsel’s work.
Lindy II, supra note 37, at 116 (emphasis added). It thus becomes evident that the Third Circuit was not advocating a total hands-off attitude in evaluating the reasonableness of fees charged by counsel. Moreover, taken as a whole, the Lindy decision attests to the judicial feeling that a court conducting a review of fees should put considerable effort into determining the accuracy of the billing and even the quality of the attorney’s work. See, e. g., id. at 117 (“the court should appraise the manner in which counsel discharged his or her professional responsibilities”); id. at 118 (“[i]f . . the court is persuaded that an increase or decrease ... is warranted, it should identify those factors supporting its conclusions, state the specific amount by which the basic fee should be altered . . . , and give a brief statement of the reasons therefor”).
. Memorandum and Order, supra note 4, at 4, J. App. 71. The problem with this approach is that the most serious question raised by Howrey & Simon was whether the billing was for administrative activities and thus was within the purview of the order appointing liaison counsel, or rather was for legal services and thus was beyond its contemplation. Only after stating that judicial review would be limited was it “readily apparent” to the District Court that the charges were for activities authorized by the appointment order. That conclusion cannot acceptably be based on the premise stated, for the premise incorporates the conclusion.
. The District Court will, of course, retain full authority to convene a hearing as a possible aid to achieving the objectives of our remand. That we leave to its decision in the first instance. Manifestly, no useful purpose can be served by considering at this stage the hearing issue, see note 22 supra and accompanying text, raised by Howrey & Simon.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer: |
songer_source | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Rachelle WILLIAMS, Appellant, v. GIANT EAGLE MARKETS, INC., a corporation. Rachelle WILLIAMS v. GIANT EAGLE MARKETS, INC., a corporation. Appeal of Rachelle WILLIAMS, Plaintiff, and her counsel, Conrad A. Johnson, Esquire and the Law Firm, Law Office of Byrd R. Brown.
Nos. 88-3792, 89-3394.
United States Court of Appeals, Third Circuit.
No. 88-3792 Argued April 11, 1989.
No. 89-3394 Submitted June 14, 1989.
Decided Aug. 28, 1989.
Rehearing Denied Sept. 26, 1989.
Conrad A. Johnson (argued), Law Offices of Byrd R. Brown, Pittsburgh, Pa., for appellant.
Lori E. Wilson (argued), Bernard D. Marcus, Marcus & Shapira, Pittsburgh, Pa., for appellee.
Before HIGGINBOTHAM, STAPLETON and ROSENN, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
This is an appeal from the final judgment of the district court finding against Appellant’s claims of racial and sexual discrimination. This is also an appeal from an order of the district court granting the Defendant’s motion for the imposition of attorneys’ fees as a sanction against the Appellant and her counsel. We will affirm the district court’s judgment on the merits of the case. We will reverse, however, the court’s order awarding attorneys’ fees.
I.
The following facts are based on the district court’s findings and are not seriously in contention. The Appellant, Rachelle Williams (“Williams”), a black woman, was employed by Giant Eagle Markets, Inc. (“Giant Eagle”) from June 19, 1978 until the effective date of her discharge on May 6, 1984. Williams began at Giant Eagle as a bagger, but was later promoted by seniority to the position of cashier on December 17, 1978. As a cashier, Williams performed her job in a capable and competent manner.
On May 6, 1984, Williams was on duty at Giant Eagle when an argument arose between a white customer and another cashier, Laura Hendrix (“Hendrix”). During the dispute, the customer began shouting racial epithets at Hendrix, at which point she called for the assistance of William Lichius (“Lichius”), Giant Eagle’s store manager. Lichius came out of his office and, in an effort to defuse the situation, placed his hand over Hendrix’s mouth to muffle her remarks to the customer.
After the customer had left Giant Eagle, Williams made the comment that cashiers did not have to take such abuse from either customers or Lichius, to which he responded that if Williams did not approve of Giant Eagle’s policy or his actions, “she knew where the door was.” This exchange led to a heated and boisterous argument between Williams and Lichius. When Lichius requested that they talk privately, Williams refused to discuss the matter without a representative of her union being present.
After repeatedly refusing to talk to Li-chius, Williams was told to punch out on her time card and leave the store, but she ignored these directions. Thereafter, Williams received a telephone call from Raymond Huber, a Vice-President of Giant Eagle, telling her to follow Lichius’s orders. When Williams also ignored Huber’s directive, Lichius marked the time as 3:30 PM on her card and removed her from the work schedule. At this point, Williams left the store but remained outside until 4:59 when she came back in and punched out.
Subsequently, Williams filed a grievance pursuant to her union’s established procedure. After exhausting all avenues of the grievance procedure available to her, Williams then proceeded to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that she was discharged from employment on the basis of her race and sex. She also alleged in her charge that Giant Eagle’s justification for her discharge was pretextual because white and male employees who had engaged in similar acts of insubordination had not been terminated.
Following the EEOC’s issuance of a right to sue letter on June 13, 1985, Williams commenced this action on September 6, 1985, in the United States District Court for the Western District of Pennsylvania, claiming that she was unlawfully terminated from her employment with Giant Eagle on the basis of her race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982) (“Title YU”), and the Civil Rights Act of 1870, 42 U.S.C. § 1981 (1982) (“§ 1981”).
A non-jury trial was held before the Honorable Robert E. DeMascio, on August 1, 1988. On the following day, August 2, the district court issued its findings of fact and concluded that Williams was not discharged as a result of any racial or sexual discrimination, but was properly terminated for insubordination. Thereafter, on September 27, 1988, the district court granted Giant Eagle’s motion for attorney fees pursuant to 28 U.S.C. § 1927 (“§ 1927”), finding that Williams and her counsel, Conrad A. Johnson (“Johnson”), had pursued her claim in bad faith since they knew or should have known that insubordination caused her discharge. On October 26, Williams filed appeal No. 88-3716 from that judgment. After the district court issued its final order on October 31, 1988, directing that judgment be entered with prejudice in favor of Giant Eagle, Williams filed appeal No. 88-3792 on November 29, 1988.
We remanded appeal No. 88-3716 since the district court had failed to set forth its judgment on a separate document, as mandated by Fed.R.Civ.P. 58. The court accordingly entered a proper judgment order on June 6, 1989, awarding Giant Eagle $4,118.75 in attorneys’ fees, to be paid by Williams and Johnson, jointly and severally, pursuant to § 1927. On June 12, 1989, Williams and Johnson filed appeal No. 89-3394 from that judgment. We have consolidated appeal No. 88-3792, which was held curia advisari vult, with appeal No. 89-3394 for disposition. Our jurisdictional predicate is 28 U.S.C. § 1291 (1982).
II.
With respect to the appeal from the district court’s judgment on the merits, Williams argues that the district court committed trial errors that substantially prejudiced her case. Her first contention is that the district court improperly used the findings of fact in another case in its determination of the merits of her claim. Her second contention is that the district court impermissibly limited the scope of Johnson’s cross-examination of Giant Eagle’s witnesses. We review the district court’s evidentiary rulings for abuse of discretion. Stich v. United States, 730 F.2d 115, 117 (3d Cir.), cert. denied, 469 U.S. 917, 105 S.Ct. 294, 83 L.Ed.2d 229 (1984).
A.
As to Williams’ first contention, she claims that the district court abused its discretion by improperly relying upon the findings of fact in a separate case, Robinson v. Giant Eagle Markets, Inc., No. 85-1082, slip op. (W.D.Pa. May 19, 1988), aff'd, 866 F.2d 1412 (3d Cir.1988). In that case, Williams had been a witness on behalf of the plaintiff, Barbara Robinson, at a trial conducted by the Honorable William Standish. Judge Standish had found that Williams had been removed from her work schedule on May 6, 1984 for refusing to follow a directive of her supervisor. Williams contends that the district court used the findings of the Robinson case in reaching its conclusion that her termination resulted from her insubordination. Our review of the record in this case, however, indicates that the district court was not influenced by the findings of the Robinson case.
At the start of trial, Johnson objected to the filing of Giant Eagle’s motion for attorneys’ fees out of concern that Judge Standish’s findings in Robinson, as discussed in Giant Eagle’s brief in support of the motion, might prejudice the court against his client. The court specifically addressed Johnson’s concern:
THE COURT: I assure you that the motion for Attorneys’ Fees does not influence the Court one way or another. I do not intend to look at it or read it until the conclusion of this case and then in that event, I will decide whether costs are warranted.
MR. JOHNSON: Thank You, Your Hon- or.
Trial Transcript at 6, reprinted in Appel-lee’s Supplemental Appendix at 33. We find nothing in the record before us to suggest that the district court reneged on its promise not to consider the Robinson findings in deciding the merits of this case. Indeed, Williams concedes in her brief that the district court’s only consideration of the Robinson findings is found in its discussion of attorneys’ fees. See Brief for Appellant at 15.
B.
Williams’ second contention is equally without merit. She first argues that the district court improperly limited the scope of Johnson’s cross-examination of Hendrix, who was ironically a critical witness for Giant Eagle, by denying Johnson the right to impeach Hendrix’s credibility. The following cross-examination occurred at trial:
Q. Were you ultimately fired from Giant Eagle?
A. No, I resigned to collect unemployment and get work reference from Giant Eagle.
Q. So in 1986, you resigned and you collected your unemployment?
A. Yes, I collected my unemployment and used Giant Eagle as a job reference.
Q. Well, had you any disciplinary incident before that time that led you to resign?
A. Yes, I had an incident.
Q. What was the incident?
A. They tried to accuse me of taking $20.
Q. You were taken off the schedule and then you were given the option to resign?
A. Or be terminated.
Q. So you just resigned and then you were allowed — Giant Eagle did not contest your right to unemployment?
A. No.
Q. When you reported to unemployment, what was the reason you gave to unemployment why you were not working?
MR. MARCUS: [Objection on the basis of relevance[.]
MR. JOHNSON: It goes to bias, Your Honor.
THE COURT: You objected a little too soon. What is the question?
BY MR. JOHNSON
Q. When you went to the Unemployment Compensation Board, what was the reason you gave as to why you separated from your employment with Giant Eagle?
THE COURT: Objection sustained.
Trial Transcript at 163-65, reprinted in Appellant’s Appendix (“App.”) at 188-90.
Williams contends that because the Pennsylvania Unemployment Compensation Act does not permit an employee who voluntarily resigns from collecting benefits, the district court’s sustaining of Giant Eagle’s objection “prevented [Johnson] from challenging Ms. Hendrix’s credibility to determine whether or not the witness testified on behalf of [Giant Eagle] to secure unemployment compensation or employment references, or to determine whether there was an agreement between her and [Giant Eagle] concerning receipt of unemployment benefits and/or favorable employment references.” Brief for Appellant at 17-18.
We see no basis for this contention since Johnson’s cross examination clearly brought forth sufficient evidence to raise in the mind of the trier of fact the question of whether Hendrix possessed a motive or bias for testifying. This evidence consisted of Hendrix’s testimony that Giant Eagle was aware that Hendrix was collecting unemployment benefits although she had voluntarily resigned from her position at Giant Eagle. Therefore, the district court was within its discretion to exclude additional testimony on this same point that would merely have been cumulative. See United States v. Lehr, 562 F.Supp. 366, 375 (E.D.Pa.1983) (district court’s exclusion of evidence relevant to bias or motive to testify does not require reversal when the jury possesses sufficient information to make a discriminating appraisal of the witness’ possible motives for testifying falsely in favor of the government), aff'd, 727 F.2d 1100 (3d Cir.1984).
Williams next argues that the district court abused its discretion by limiting Johnson’s cross-examination of John Soboeinski (“Sobocinski”), a white male employee of Giant Eagle, about his acts of insubordination. Williams contends that this alleged trial error merits reversal since proof that Giant Eagle disciplined its white employees less severely for insubordination than it did its black employees was critical to her case. The district court’s conduct with respect to limiting Johnson’s cross-examination is governed by Fed.R.Evid. 611(b), which prescribes that
[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
In this case, Sobocinski was called to testify by Giant Eagle as to the authenticity of his signed statement taken May 6, 1984, concerning the argument he had witnessed between Williams and Lichius. Upon cross-examination, Johnson sought to expand the scope of the direct examination by questioning Sobocinski as to whether Giant Eagle had ever charged him with insubordination. Based upon our understanding of Rule 611(b), the district court did not act improperly in sustaining Giant Eagle’s counsel’s objection to such questioning on grounds of relevance. This ease is at the opposite end of the spectrum from Lis v. Robert Packer Hospital, 579 F.2d 819, 822-23 (3d Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 346 (1978), where a district court abused its discretion by permitting cross-examination to go beyond the scope of the direct examination in every instance. Here, the trial judge rigidly confined cross-examination to the precise issues covered on direct examination.
While we agree with Williams that evidence of a white male employee being treated less severely than she for acts of insubordination would demonstrate that Giant Eagle’s asserted justification for her dismissal was pretextual, the district court’s action did not preclude her from calling Sobocinski to testify in her case-in-chief. We were careful in Lis “to distinguish between cross examination beyond the scope of direct examination and the act of summoning a witness for one side to become a witness for the other.” 579 F.2d at 823. Williams could have sought to call Sobocinski as a witness and to question him directly about his insubordinate conduct. She chose, however, not to exercise this option.
The instant case exemplifies the broad discretion given to the trial judge. While another judge may have been less stringent in limiting counsel’s cross-examination, we do not find that the trial judge’s rulings in this case rise to the level of reversible error. Since the district court did not abuse its discretion with respect to its evi-dentiary rulings, we will affirm the district court’s judgment on the merits.
III.
Williams and Johnson jointly appeal from the district court’s order awarding attorneys fees to Giant Eagle pursuant to § 1927. They raise two critical issues for our consideration. First, we must determine whether the district court erred in its interpretation of § 1927 by applying that statute against Williams. We have plenary review over this issue. See Chrysler Credit Corp. v. First Nat’l Bank and Trust Co., 746 F.2d 200, 202 (3d Cir.1984). Second, we must decide whether the district court erred in imposing fees against Johnson on the basis that he “knew or should have known” that Williams’ acts of insubordination precluded her prevailing on the merits of her claim. We review the district court’s factual finding of bad faith on the part of Johnson under the clearly erroneous standard. See Baker Industries, Inc. v. Cerberus, Ltd., 764 F.2d 204, 209-10 (3d Cir.1985); Perichak v. Int’l Union of Electrical Radio & Machine Workers, Local 610, 715 F.2d 78, 79 (3d Cir.1983).
A.
We find that the district court’s imposition of attorneys’ fees against Williams under § 1927 constitutes error as a matter of law. That statute explicitly provides that
[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1927 (1982) (emphasis added). Therefore, Williams, as a litigant in this action, was not subject to suit under § 1927. As we have previously noted, “by its terms [§ 1927] is not directed to parties.” Gaiardo v. Ethyl Corp., 835 F.2d 479, 484 (3d Cir.1987).
The district court rested its decision to impose attorneys’ fees against Williams and her counsel solely upon § 1927. Giant Eagle contends that the court had the inherent power to hold Williams liable. In Alyeska Pipeline Svc. Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Supreme Court acknowledged the “inherent power” of the courts to “assess attorneys’ fees ... when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons_’” Id. at 258-59, 95 S.Ct. at 1622 (quoting F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974)). In this ease, however, the court chose not to exercise its inherent authority, but instead relied exclusively upon § 1927. Since that statute does not grant a district court the authority to impose liability against the litigant, we conclude that the court’s imposition of sanctions against Williams was improper.
B.
We now address whether the district court properly imposed attorneys’ fees against Johnson pursuant to § 1927. While that statute grants authority to the courts to impose sanctions for misconduct by attorneys, it is a power which the “courts should exercise only in instances of a serious and studied disregard for the orderly process of justice.” Overnite Transp. Co. v. Chicago Industrial Tire Co., 697 F.2d 789, 795 (7th Cir.1983) (citation omitted). Therefore, before a court can order the imposition of attorneys’ fees under § 1927, it must find willful bad faith on the part of the offending attorney. Baker v. Cerberus, Ltd., 764 F.2d at 208-209.
In its first finding of bad faith on the part of Johnson, the district court determined that “[Johnson] knew or should have known that plaintiff’s insubordinate conduct caused her discharge and not her race. Most importantly, ... [Johnson] knew or should have known ... that he could not prove a prima facie case under Title VII or § 1981.” Memorandum Opinion at 4-5, reprinted in Appellant’s App. at 66-67.
With respect to Williams’ claim of racial and sexual discrimination brought under § 1981, we note that the Supreme Court has curtailed the availability of that statute to victims of discrimination at the workplace. In Patterson v. McLean Credit Union, — U.S. —, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Court rationalized that “[s]ection 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.” Id. 109 S.Ct. at 2372. For instances of racial discrimination occurring after parties enter into a contract, the Court held that such conduct “is actionable under Title VII’s prohibition against discrimination in the ‘terms, conditions, or privileges of employment.’ ” Id. at 2374. Since Williams brought her suit under both Title VII and § 1981, we will examine the legitimacy of her claims pursuant to the former statute, and avoid the difficult task of ascertaining whether any aspects of her claim fall within Patterson’s narrow class of actionable conduct under § 1981.
In a Title VII disparate treatment action, a plaintiff must first establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S, 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); see also Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981) (refining McDonnell Douglas). In the context of the present action, Williams had only to establish a prima facie case by showing (1) that she was a member of the protected class; (2) that she satisfied the normal requirements of the job she held; and (3) that she was discharged from her position of employment. The Supreme Court has recently repeated that “the burden [of establishing a prima facie case] is not onerous.” Patterson, 109 S.Ct. at 2378; see also Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
Nevertheless, the district court held that Williams had not set forth a prima facie case on account of her insubordinate conduct. The court’s reasoning was that Williams had failed to satisfy the normal requirements of her job because “[ejmploy-ees who object to management’s orders must obey these orders first and then pursue a union grievance_” Memorandum Opinion at 5, reprinted in Appellant’s App. at 67. We find this reasoning untenable since disproving insubordination is not part of a plaintiff’s prima facie case. See Johnson v. Bunny Bread Co., 646 F.2d 1250, 1253-54 (8th Cir.1981). Since Williams’ acts of insubordination did not result in her failure to establish a prima facie case of employment discrimination, we conclude that the district court erred in finding that Johnson brought this suit in bad faith on that basis.
The second ground advanced by the district court for imposing sanctions against Johnson was that, “even with a prima facie case assumed, counsel knew or should have known that [the] plaintiff could not establish that her insubordination was merely a pretext for plaintiffs alleged discriminatory discharge.” Memorandum Opinion at 7, reprinted in Appellant’s App. at 69.
What the district court overlooks in its analysis is the fact that, while Johnson may have known that Williams’ acts of insubordination constituted legitimate grounds for Giant Eagle’s decision to terminate her employment, he also knew that such a defense was challengeable. Under the McDonnell Douglas/Burdine framework,
[f]irst, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s [discharge].” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093 (citations omitted).
The opportunity, and thus the ultimate burden, either to prove that a discriminatory reason more likely than not motivated the employer’s conduct, or to show that the employer’s proffered explanation is unworthy of credence, lies with the plaintiff. While the Supreme Court’s jurisprudence in the Title VII area has experienced change, no shadow has been cast on the McDonnell Douglas/Burdine allocation of burdens. See Price Waterhouse v. Hopkins, — U.S. —, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268 (1989) (where there is evidence that an employer used both legitimate and illegitimate criteria in a suit alleging disparate-treatment, “the plaintiff retains the burden of persuasion on the issue whether gender played a part in the employment decision”); see also Wards Cove Packing Co., Inc. v. Atonio, — U.S. —, 109 S.Ct. 2115, 2126, 104 L.Ed.2d 733 (1989) (where an employer meets the burden of producing evidence of a business justification in a disparate-impact case, the burden of persuasion remains with the plaintiff to disprove the purported rationale).
In this case, Williams had testified that insubordinate white employees were not subjected to the treatment she received. Specifically, she had testified that Judy Allen, Donna Vescio, John Sobocinski and Patty Novak had at times refused to comply with Lichius’ orders, but were never reprimanded. Trial Transcript at 105-08, reprinted in Appellant’s App. at 160-63. Based on such probative testimony from Williams, it would not have been in our view reversible error if another fact finder had found that the Giant Eagle’s purported justification for discharging Williams was merely pretextual, and that her race was the actual motivating factor behind Giant Eagle’s decision. Certainly, Johnson, who chose not to evaluate the evidence as the trial judge did in this case, had reasonable grounds for believing that Giant Eagle’s purported justification for his client’s dismissal was challengeable.
Moreover, even if Johnson had known that Giant Eagle had an unchallengeable defense at the time he commenced this suit, that fact would not have been sufficient to support a finding of bad faith. In Ford v. Temple Hospital, 790 F.2d 342 (3d Cir.1986), counsel filed an employment discrimination suit after the statute of limitations period had expired. Although the statute of limitations was an affirmative defense, see Fed.R.Civ.P. 8(c), we held that counsel’s knowledge of that fact at the time that he initiated the lawsuit could not be the basis for a finding of bad faith. We reasoned that
[i]n the real world of litigation, counsel are not expected to be omniscient. No one knows for certain whether a potential affirmative defense will be in fact pled.... [Counsel] was not bound to assume that his potential adversaries would plead the defense or that by their conduct they might not in some way waive the defense.
790 F.2d at 348-49.
Likewise, even if we were to assume, as the district court suggests, that insubordination was an air-tight defense, Johnson’s knowledge of that defense could not have been a proper basis for the district court’s conclusion that he should have never brought this lawsuit. Williams would have won on her prima facie case alone if Giant Eagle had not rebutted the presumption of discrimination by coming forth with evidence that persuaded the trial judge that there was a legitimate nondiscriminatory reason for its conduct. See Burdine, 450 U.S. at 254, 101 S.Ct. at 1094.
We believe that the trial judge fell into error in his understanding of the prerequisites for imposing liability against Johnson under § 1927. The imposition of attorneys’ fees, under the facts of this case, would deprive a lawyer of his ethical obligation to represent his client zealously. The late Judge Weinfeld wisely admonished us that
[t]he power to assess the fees against an attorney should be exercised with restraint lest the prospect thereof chill the order of proper and forceful advocacy on behalf of his client.
Colucci v. New York Times Co., 533 F.Supp. 1011, 1014 (S.D.N.Y.1982). Moreover, the Supreme Court’s warning in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), bears repeating:
[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success.... Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
Id. at 421-22, 98 S.Ct. at 700-01.
We conclude that the district court’s finding that Johnson brought this suit on behalf of his client in bad faith was clearly erroneous. Consequently, the court improperly imposed attorneys’ fees against Johnson under § 1927.
IV.
For the foregoing reasons, we will affirm the judgment of the district court on the merits of this case, but will reverse the district court’s order awarding attorneys’ fees.
. The Appellant was married after the commencement of this litigation and now uses the name Rachelle Williams Morris.
. The district court found that Williams had moved through all four procedural stages available to her. With respect to the fifth and final step, which would have been labor arbitration, the court found no evidence that the union, or anyone on behalf of the union, had sought to exercise this option.
. Senior United States District Judge for the Eastern District of Michigan, sitting by designation.
. The court awarded Giant Eagle $4,118.75 in attorneys' fees, of which $2,100 was awarded for time spent at trial and $2,018.75 was awarded for trial preparation time.
. With respect to appeal No. 88-3716, we note that Williams’ counsel, Conrad A. Johnson, was not named in the notice of appeal, and ordinarily would have been adjudged as having failed to file a timely appeal. See Torres v. Oakland Scavenger Co., — U.S. —, 108 S.Ct. 2405, 2407-09, 101 L.Ed.2d 285 (1988). However, because the district court had failed to set forth its judgment on a separate document pursuant to Fed.R.Civ.P. 58, the 30-day time period for filing a notice of appeal was never technically commenced. Accordingly, Johnson could not be time-barred from appealing. See United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 1564-65, 36 L.Ed.2d 202 (1973) (separate document provision of Rule 58 is applied "mechanically" in determining whether an appeal is timely).
.We recognize that the appeal in 89-3394 has not been briefed, but, except for the form of the judgment below, it appears to cover the same issues which were briefed in the earlier appeals. If, after reviewing this opinion, any counsel desires to brief separately the issues in 89-3394, we will set up a briefing schedule upon request. However, at some point there should be a realistic appraisal by all counsel as to who benefits from further litigation of this matter. In view of the fact that in this appeal appellants Williams and Johnson receive a favorable judgment on the attorneys’ fees issue, we assume that any subsequent appeals by them concerning this issue are moot. To the extent that Williams does not get a reversal of the judgment below as to the merits of her claim, we can not imagine any factual or legal situation that would change the result by further briefing.
. Hendrix testified that she had not been offended by Lichius covering her mouth during the confrontation she had with the customer. She further testified that Lichius treated equally all employees, regardless of their race or sex. The district court found that “Hendrix was not only a credible witness but also completely refuted the testimony of the two witnesses presented by the plaintiff." Findings of Fact at 17, reprinted in Appellant’s Appendix at 42.
. 43 Pa.Stat. Ann. § 802(b)(1) (Purdon 1988) states in relevant part that an employee is ineligible for unemployment compensation if "his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature...."
. We do not decide whether there is sufficient evidence of record to support the district court’s finding that Williams was dismissed for insubordination, since Williams does not raise this contention in her appeal from the district court's judgment on the merits.
. In contrast, the district court in Campana v. Muir, 615 F.Supp. 871, 873-74 (M.D.Pa.1985), aff’d, 786 F.2d 188 (3d Cir.1986), utilized both § 1927 and its inherent authority in its assessment of attorneys' fees against Campana and his counsel.
. We recognize that Green v. Armstrong Rubber Co., 612 F.2d 967 (5th Cir.), cert. denied, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980), suggests a contrary view. In that case, which involved a black employee's discharge for violation of work rules, the court of appeals held that in order for the plaintiff to establish a prima facie case of discrimination, he had to "demonstrate by a preponderance of the evidence either that he did not violate the rule or that, if he did, white employees who engaged in similar acts were not punished similarly." Id. at 968. However, we decline to follow this approach since a plaintiffs disproving of a legitimate nondiscriminatory reason for his or her discharge addresses the third phase of the allocation of burdens under McDonnell Douglas and Burdine, discussed infra.
. Counsel had commenced the Title VII action 104 days after issuance of the EEOC’s right-to-sue letter, instead of within the 90 day period specified by 42 U.S.C. § 2000e-5(f)(l) (1982).
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer: |
songer_usc2 | 18 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Plaintiff-Appellee, v. Doyle E. CAMPBELL, Doyle E. Campbell, M.D., Inc., an Ohio corporation, Defendants-Appellants.
No. 87-3466.
United States Court of Appeals, Sixth Circuit.
Decided April 12, 1988.
Thomas M. Tyack, argued, Thomas M. Tyack & Assoc. Co., Columbus, Ohio, for defendants-appellants.
Ann Marie Tracey, argued, Asst. U.S. Atty., Cincinnati, Ohio, for plaintiff-appel-lee.
Before MARTIN, GUY, and BOGGS, Circuit Judges.
RALPH B. GUY, Jr., Circuit Judge.
On November 20, 1986, Dr. Doyle E. Campbell and his corporate alter-ego, Dr. Doyle E. Campbell, M.D., Inc., were charged in a multi-count indictment alleging that Dr. Campbell had billed for treatments he either did not perform or were unnecessary. Counts 1 through 45 charged each defendant with mail fraud, in violation of 18 U.S.C. § 1341, based on checks received by Dr. Campbell from Nationwide Insurance Company. Counts 46 through 72 charged each defendant with filing false claims against the United States government, in violation of 18 U.S.C. § 287, based on claims submitted by Dr. Campbell. The indictment also alleged that the defendants had aided and abetted each other with respect to each individual count, in violation of 18 U.S.C. § 2. The defendants pled not guilty and were tried before a jury in federal court. The 72 counts of aiding and abetting were dismissed by the trial judge at the close of the government’s case. Of the remaining 72 counts which went to the jury, the defendants were each found guilty of 34 mail fraud counts and 18 counts of false claims. In each case where the defendants were found guilty of submitting a false claim with respect to a particular patient, they were also convicted of the related count of mail fraud. Likewise, with respect to the 9 counts in which the defendants were found not guilty of filing false claims, they were also acquitted of the corresponding charge of mail fraud. Thus, of the 36 patients referred to in the indictment, the jury found defendants guilty of a total of 52 counts involving 25 patients and not guilty on 20 counts involving 11 patients.
On May 6, 1987, Dr. Campbell was sentenced to 14 months imprisonment on each count to run concurrent with each other and was fined $75,400. The corporate defendant received the same fine, with payment by either defendant to be credited against the other. For the following reasons, the defendants’ convictions are affirmed.
I.
Dr. Doyle E. Campbell, an ophthalmologist, established his practice in southern Ohio in 1971. Many of Dr. Campbell’s patients are elderly people who qualify for federal medicare benefits and state medicaid benefits. The Health Care Financing Administration (HCFA), a division of the Department of Health and Human Services, has contracted with Nationwide Insurance Company to administer the medicare claims in Ohio. Under the existing financing system, a doctor who treats a medicare patient is required to submit a “Medicare Health Insurance Claim Form” (HCFA form 1500) to Nationwide which, on behalf of HCFA, pays for a portion of the claim. The doctor is required to certify that “the services shown on this form were medically indicated and necessary for the health of the patient and were personally rendered by me or were rendered incident to my professional service by my employees.” (App.1357). This case arose as a result of claims filed by Dr. Campbell seeking reimbursement for laser treatments which he performed on several of his medicare patients. The claims ranged from $900 to $950 of which $530 to $680 were covered by the medicare program. The government alleged that Dr. Campbell billed medicare for several treatments which were either not performed or were not necessary.
Dr. Campbell purchased an Argon laser in 1983 to treat patients who suffer from glaucoma. Glaucoma is a medical condition generally defined as increased internal pressure within the eye which causes nerve damage and leads to gradual loss of sight. (App. 467-68). One of the government’s expert witnesses, Dr. Zalta, testified that nerve damage and corresponding reduction in vision must be present in order to establish the existence of glaucoma. Dr. Zalta also stated that high internal eye pressure, or ocular hypertension, will not necessarily lead to nerve damage because the tolerance for internal ocular pressure varies among individuals. The expert for the defense, Dr. Andrew, agreed with Dr. Zalta’s general description; however, he also noted that some doctors define glaucoma in a broad sense to encompass all cases of elevated internal eye pressure. (App. 1045).
The laser can be used to treat glaucoma by placing small burns upon the trabecular meshwork which is the “drain” in the eye that permits fluids to leave the eye. This treatment is referred to as Argon Laser Trabeculoplasty (ALT). Initially, when the ALT procedure first became widely available, doctors were advised to administer 100 burns over a 360-degree radius of the eye at a maximum power setting of 1,000 milliwatts. Subsequent studies showed that effective results could be achieved with 40 to 100 burns at 600 to 1,000 milli-watts. All the expert witnesses, including the defense witness, Dr. Andrew, testified that these ranges represented the current standards of medical treatment. The doctors also agreed that glaucoma patients should be treated first with medications and eyedrops and that laser treatment should only be used if the maximum tolerated medicinal therapy proved ineffective. Defendant, however, cited a recent experimental study in which laser treatments are being used as an initial form of treatment. Dr. Weber, who appeared as an expert witness for the government, is currently participating in this study which will not be completed until 1989 at the earliest.
Dr. Campbell testified that he generally made 15 to 25 burns using a power setting of 300 milliwatts. His assistants testified that in most cases, Dr. Campbell only made 5 to 10 burns. Many of the patients testified that they received 5 or less “shots” based on the number of flashes and the distinctive “clicking” noise made by the machine when the laser was activated. Moreover, several of the patients testified that Dr. Campbell did not place a “gonio-scopic lens” over their eye before the treatment. All the experts agreed that the use of such a lens was essential to effective laser treatment.
Defendant raises the following issues on appeal. First, defendant contends that the district court erred by allowing the government to present videotaped deposition testimony where the government had failed to establish that these witnesses were unavailable at the time of trial and that the depositions had been authenticated by the deponents. Second, defendant argues that the government should not have been allowed to call on two witnesses who were not mentioned in the indictment. The third argument relates to the admission of certain physical evidence including a check stub showing the cost of the ALT machine and a chart summarizing the patients’ individual records. Finally, Dr. Campbell argues that he cannot be convicted of mail fraud and making false claims where he administered a recognized form of treatment for a patient’s medical condition. We address these issues seriatim.
II.
Dr. Campbell objects to the admission of the videotaped deposition testimony on several grounds.
A. Unavailability
Defendant argues that the court erred in failing to require the government to show that the witnesses were unavailable to testify at the time of trial. On February 4, 1987, the government filed a motion to take the depositions of several elderly witnesses whose health-related problems prevented them from traveling to Cincinnati. The defendant did not object to the motion. In granting the government’s motion, the district court stated:
Federal Rule of Criminal Procedure 15 provides that upon a showing of “exceptional circumstances” and “in the interest of justice,” the Court may order the taking of testimony of prospective witnesses by deposition. This Court concludes that such exceptional circumstances have been shown in this case. It has been shown that the witnesses in question are all Medicare beneficiaries upon whom the defendant is alleged to have performed the Argon laser trabeculo-plasty; also, it has been shown that these witnesses have severe difficulties which may prevent their testimony at the trial of this matter.
(App.24).
On February 20, 1987, the United States moved pursuant to Rule 15 of the Federal Rules of Criminal Procedure to use the depositions of several witnesses at trial based on the witnesses’ unavailability under Rule 804(a) of the Federal Rules of Evidence. Defense counsel objected to the use of the depositions at trial, and after lengthy argument, the objection was overruled. (App.852-870).
Rule 15(a) and (e) of the Federal Rules of Criminal Procedure provides in part:
(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties, order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place....
(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence....
Fed.R.Crim.P. 15(a) and (e).
Federal Rule of Evidence 804(a) provides in part:
(a) Definition of Unavailability — “Unavailability as a witness” includes situations in which the declarant—
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. ...
Fed.R.Evid. 804(a)(4).
It is well established that the infirmity of an elderly witness which prevents him or her from traveling is an “exceptional circumstance” which justifies the use of deposition testimony at trial. United States v. Keithan, 751 F.2d 9 (1st Cir.1984). The determination of admissibility of deposition testimony based on the unavailability of the witness is a matter left to the discretion of the trial judge. United States v. Acosta, 769 F.2d 721 (11th Cir.1985).
In the instant case, the judge made a specific determination that the witnesses were unable to travel to Cincinnati at the time he granted the government’s motion to take the depositions on February 10, 1987. The trial commenced less than two weeks later. By admitting the depositions at trial, the district judge implicitly found that the exceptional circumstances which initially justified the taking of the depositions were still present since it was highly unlikely that an elderly invalid would undergo a miraculous rejuvenation during the two-week interval. Thus, we find that the district court did not abuse its discretion by admitting the deposition testimony without first conducting a special hearing to determine whether the witnesses were physically unable to appear in person at trial.
B. Authentication of Stenographic Depositions
Defendant also claims as error the court’s admission into evidence of depositions that were not authenticated by the witnesses. Federal Rule of Criminal Procedure 15(d) states that “depositions shall be taken and filed in the manner provided in Civil Actions.” Therefore, Rule 15 of the Federal Rules of Criminal Procedure incorporates Rule 30(e) of the Federal Rules of Civil Procedure which provides:
(e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign.
Fed.R.Civ.P. 30(e).
In the instant case, it is undisputed that the deponents did not review and sign the transcripts of their testimony. Prior to the taking of the first deposition, defense counsel stated for the record that “the defendant on this deposition or any other does not waive any of the requirements of the form with regard to the formality or authentication.” (App.859). Thereafter, defense counsel never again raised the issue until the trial when he objected to the admission of the deposition into evidence. The assistant United States attorney admitted to the judge that she had been unaware of the signing requirement and she moved for a delay of trial to enable the government to retake the depositions. (App.862). The district court expressed its concern with the government’s failure to comply with the proper authentication procedures (App. 868-69); nevertheless, the court overruled defendant’s objection and allowed the deposition into evidence under Rule 2 of the Federal Rules of Criminal Procedure which provides:
Rule 2. Purpose and Construction
These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.
Fed.R.Crim.P. 2.
On appeal, the government contends that the defendant waived any objection based on a lack of authentication because defendant failed to file a motion to suppress under Rule 32(d)(4) which provides:
(4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
Fed.R.Civ.P. 32(d)(4).
In support of its argument, the government cites to the Ninth Circuit decision in United States v. Garcia, 527 F.2d 473 (9th Cir.1975), wherein the court held that defendant had waived his objection because he had not filed a motion to suppress as required by Rule 32(d)(4).
Regardless of whether or not defendant waived his objection in this case, we find that the admission of the unsigned depositions at most constitutes harmless error under Rule 52(a) of the Federal Rules of Criminal Procedure which states: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
First, we note that defendant has not cited any specific examples of possible inaccuracies in the deposition testimony. Nor has defendant demonstrated any prejudice which might have resulted from the failure of the deponents to review and sign the transcripts of their testimony. We note that defense counsel was present when the depositions were taken and therefore had an opportunity to point out any perceived irregularities or mistakes. Moreover, the depositions were videotaped and these tapes were shown to the jury at trial. The use of the videotapes is discussed in greater detail infra, but for purposes of the present issue, we note that the use of videotapes eliminates the risk of error resulting from typographical mistakes which occasionally occur during the course of stenographic transcription. Finally, we note that the jury may have relied on the evidence presented in the tapes and, therefore, the deponents’ failure to sign the stenographic transcripts would be only remotely relevant to the accuracy of the taped testimony. Thus, we conclude that the lack of authentication of the transcripts amounts to no more than harmless error and does not provide a basis for reversal. See McVay v. Cincinnati Union Terminal Co., 416 F.2d 853 (6th Cir.1969).
C. Use of Videotaped Depositions
Defendant claims that the district court erred by allowing the presentation of the deposition testimony to the jury in a videotape format. Defendant bases his argument on Fed.R.Civ.P. 30(b)(4) which is incorporated by reference into Fed.R.Crim.P. 15(d). Rule 30(b)(4) provides in part:
(4) The parties may stipulate in writing or the court may upon Motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at the party’s own expense.
Fed.R.Civ.P. 30(b)(4).
Defendant argues that the court order granting the government’s request to take deposition testimony did not expressly allow the government to videotape those depositions. The defendant also notes that he never stipulated to the videorecording of the depositions. Moreover, defendant once again relies on the general statement of the defense counsel made at the outset of the depositions in which he states that defendant does not waive “any of the requirements of form with regard to formality and authentication.” The assistant United States attorney was apparently caught off guard when defense counsel raised this objection at trial. The court declined her motion to have the videotaped format approved nunc pro tunc; nevertheless, the court overruled defendant’s objection and allowed the tapes to be played before the jury-
We find that the government’s failure to obtain special permission from the court to videotape the depositions constitutes no more than harmless error under Fed.R.Crim.P. 52(a). Once again, defendant has failed to demonstrate any prejudice resulting from the presentation of the deposition testimony in the videotape format as opposed to the traditional stenographic record. We also note that defense counsel was present at all the depositions and never objected to the recording by means of videotape. It appears that defense counsel was “sandbagging” on this argument, waiting to spring it on the government at trial. Moreover, the district court allowed the use of the tapes even though it had not expressly authorized the taping of the depositions in its previous order. A review of the transcript shows that defense counsel did not raise any legitimate objections to the presentation of the videotaped testimony other than that the government had failed to get prior approval from the court. Defendant raises the same argument on appeal and relies solely on the alleged violation of Fed.R.Civ.P. 30(b)(4).
Under these circumstances, we find that the government’s alleged failure to comply with the technical requirements of Rule 30(b)(4) in obtaining the videotaped testimony of the deposition witnesses prior to trial and the district court’s subsequent ruling allowing the government to show the tapes at trial amounts to no more than harmless error.
III.
Defendant contends that the trial court erred in admitting into evidence the testimony of two former patients of the defendant. Mary Newton testified that she was billed for a laser treatment which was never performed. According to Mrs. Newton, the bill was reduced by 50 percent after she complained to Dr. Campbell. The second witness was Jessie Marie Gammon, a former licensed practical nurse, who testified that defendant had told her that she had received laser treatment even though she saw no flashes. Neither Mrs. Newton nor Mrs. Gammon was mentioned in the indictment and defendant contends that their testimony was inadmissible under Federal Rule of Evidence 404(b), which provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Fed.R.Evid. 404(b).
In United States v. Vincent, 681 F.2d 462 (6th Cir.1982), this court set forth the analysis to be used when reviewing the admissibility of evidence under Rule 404(b):
In reviewing the admission of evidence challenged under Rule 404(b), we must make two determinations. First, we must decide whether [the evidence] was admissible for any proper purpose, as distinct from the improper purpose of showing “character” or “propensity.” If we conclude that there was a proper basis for admission, we must then consider whether the probative value of the evidence outweighed its potential prejudicial effects. In the second instance, the standard of review on appeal is whether the trial judge abused his discretion in admitting the evidence.
Id. at 465 (emphasis in original) (citations omitted) (quoted in United States v. Dabish, 708 F.2d 240, 242 (6th Cir.1983)).
Applying this two-step test, we find that the evidence was admissible for the purpose of showing “intent.” The acts alleged were substantially similar and approximately concurrent with the offenses charged in the indictment. See United States v. Largent, 545 F.2d 1039 (6th Cir.1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1117, 51 L.Ed.2d 546 (1977). Moreover, the question of intent was clearly at issue since Dr. Campbell’s primary defense was that he had acted in good faith, and both knowledge and intent are elements of those offenses under 18 U.S.C. §§ 287 and 1341. See generally Dabish, 708 F.2d 240 (similar acts are admissible to prove criminal intent).
We also find that the district court did not abuse its discretion in deciding that the probative value of the evidence outweighed its prejudicial effect. This evidence did not involve allegations of unrelated “bad acts” which might impugn the character of the defendant. Bather, the testimony of Mrs. Newton and Mrs. Gammon paralleled that of many of the victims who were referenced in the indictment and was directly relevant to the issue of whether the defendant had knowingly engaged in a scheme to defraud his patients and their insurers by charging for unnecessary treatments.
IV.
The defendant’s claims of error with respect to the introduction of some of the physical evidence merits only brief discussion. Defendant claims that he was unduly prejudiced by the admission of two can-celled checks which showed that he paid over $50,000 for the laser machine. The government argues that this evidence is admissible to show motive since, under the government’s theory of the case, defendant performed unnecessary and useless procedures in order to recoup the cost of the machine. We find that the trial judge did not abuse his discretion in determining that the probative value outweighed the prejudicial effect.
Defendant also claims that the court erred by allowing the government to introduce a summary chart based on defendant’s medical files. The chart was prepared by one of the government’s expert witnesses, Dr. Zalta, who summarized the information which appeared in the files of the patients who were named in the indictment. Defendant first contends that the chart was misleading and inaccurate. This contention is without merit.
Defendant also argues that the chart was unnecessary and, therefore, inadmissible because the jury could have examined the individual files themselves.
Federal Rule of Evidence 1006 provides in part:
[Cjontents of voluminous writings, recordings or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.
The Sixth Circuit, in United States v. Scales, 594 F.2d 558 (6th Cir.), cert. denied, 441 U.S. 946, 99 S.Ct. 2168, 60 L.Ed.2d 1049 (1979), recognized that summary charts are admissible not only under Rule 1006, but by the “established tradition” in the Sixth Circuit, and others, permitting introduction of summary evidence with a proper limiting instruction. Id. at 563. The records consisted of the patient files of 36 patients, containing a maximum of approximately 30 pages of information per patient. Without the chart, the jury would have been forced to review hundreds of pages of technical information which may not have been readily understandable to the lay reader. Moreover, the individual files were admitted into evidence and were available for examination by the jury if they so desired.
“The admission of summaries under Rule 1006 is committed to the sound discretion of the trial court.” Gomez v. Great Lakes Steel Division National Steel Corp., 803 F.2d 250, 257 (6th Cir.1986); United States v. Collins, 596 F.2d 166, 169 (6th Cir.1979). We find that the district court did not abuse its discretion in admitting the summary chart.
V.
Defendant contends that the acts alleged in the indictment do not constitute crimes under the false claim statute, 18 U.S.C. § 287, or the mail fraud statute, 18 U.S.C. § 1341. We disagree.
Title 18 U.S.C. § 287 provides:
Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.
18 U.S.C. § 287 (Supp.1987).
In the instant case, defendant was charged with performing medical treatments that were unnecessary and inappropriate and then billing the government for the procedures. The medicare claim forms expressly required the doctor to certify that “the services shown on this form were medically indicated and necessary for the health of the patient.” Thus, where a physician submits a medicare claim to the government through an insurer, and the physician knows that the treatments performed were unnecessary or non-therapeutic, he or she is criminally liable under section 287. See United States v. Catena, 500 F.2d 1319 (3d Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 621, 42 L.Ed.2d 1641 (1974).
The mail fraud statute is contained in 18 U.S.C. § 1341 which provides in part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ... for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, ... any such matter or thing, [shall be punished according to law]....
In United States v. Talbott, 590 F.2d 192, 195 (6th Cir.1978), this court described the offense of mail fraud under section 1341:
The elements of the offense of mail fraud under 18 U.S.C. (Supp.V) § 1341 are (1) a scheme to defraud, and (2) a mailing for the purpose of executing same. “It is not necessary that the scheme contemplate the use of the mails as an essential element.” Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954). See also United States v. Schilling, 561 F.2d 659 (6th Cir.1977). Nor is it required that the false representations themselves were transmitted by mail. “It is sufficient that the use of the mails was caused by the defendant in furtherance of the fraudulent scheme.” United States v. Hopkins, 357 F.2d 14, 17 (6th Cir.) cert. den. 385 U.S. 858, 87 S.Ct. 107, 17 L.Ed. 2d 84 (1966).
“Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used.” Pereira v. United States, supra, 347 U.S. at 8-9, 74 S.Ct. at 363. See also United States v. Street, 529 F.2d 226 (6th Cir.1976). “That the confirmation letters and mailed check could have been hand-delivered or delivered otherwise than through the mails, is immaterial.” United States v. Stull, 521 F.2d 687, 689 (6th Cir.1975) cert. den. 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976).
In Talbott, this court upheld the mail fraud convictions of two dentists who were charged with having billed a joint state and Federal Medicaid Program for dental examinations, services and treatments that were medically unnecessary or, if not, were performed unprofessionally and without regard for the patients’ well being. Like Dr. Campbell, the defendants in Talbott argued that their conduct was at worst tortious malpractice and could not support a criminal conviction. This court rejected that argument and held that the defendants could lawfully be prosecuted for “wilfully devising a scheme or artifice to defraud [the government] through knowing misrepresentation of the type and nature of the treatments involved and the carrying out of such scheme by use of the mails in delivering the false billings.” 590 F.2d at 195.
Dr. Campbell seeks support for his position from the Supreme Court’s recent decision in McNally v. United States, 483 U.S. —, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). In McNally, the Court limited the scope of the mail fraud statute by overturning the conviction of a defendant who was accused of barring deprived citizens through a fraudulent scheme involving the mails of their right to “good government.” Unlike the “intangible rights” involved in McNally, Dr. Campbell’s conviction is based on a fraudulent scheme to obtain money from his patients and the government. This type of conduct is clearly within the traditional parameters of the offense described in section 1341.
VI.
Finally, we consider the issue of whether there was sufficient evidence to support the defendant’s convictions under sections 287 and 1341. The determinative issue is whether the defendant acted with fraudulent intent which is a common element to both offenses. Our standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original).
In the instant case, the government’s expert witness, Dr. Zalta, testified that the commonly accepted definition of glaucoma involves actual nerve damage and partial loss of vision resulting from increased internal eye pressure. Dr. Zalta stated that increased eye pressure or ocular hypertension leads to vision loss in a relatively small percentage of cases. Therefore, according to Dr. Zalta, the current standard of medical practice calls for doctors to refrain from administering the available glaucoma treatment until the patient has suffered some loss of vision.
Once the patient has been diagnosed as having glaucoma, Dr. Zalta testified that a three-step process is used to treat the ailment. First, the patient is treated with eye drops or medication which is effective in 90 to 95 per cent of the cases, although it may also result in some minor side effects. If the medications fail to reduce the internal pressure, the next step would be to administer laser treatment. Finally, if all other forms of treatment proved ineffective, the doctor might attempt to reduce the internal eye pressure through conventional surgery. Dr. Zalta reviewed the records of the patients named in the indictment and testified that 27 of the 36 patients were not suffering from glaucoma at the time defendant administered the laser treatment. In addition, Dr. Zalta testified that 18 of the patients had not received any medications prior to the laser treatment, and none of the remaining patients were on maximum tolerated medical therapy. In other words, the potential for successful treatment with medications had not been exhausted prior to the laser treatment.
The government also introduced evidence showing that the treatments administered by the defendant could not have been effective. All the expert witnesses testified that the current standard called for 40 to 100 burns at between 600 and 1,000 milli-watts. Defendant testified that he only performed 15 to 25 burns at 300 milliwatts. Defendant’s assistants and patients testified that he only made 5 to 10 bums. Moreover, several patients testified that the defendant did not fit them with a gonio-scopic lens which all the experts agreed was essential to the proper administration of the laser treatment. Based on this evidence, the jury could have inferred that the defendant intentionally used a small number of shots at a lower power setting because he knew the treatments were unnecessary and he did not want to risk the chance of permanent injury which is an inherent risk in the laser treatments.
When the evidence presented at trial is viewed most favorably to the government, we find that a rational trier of fact could have concluded that the doctor was not merely performing an experimental procedure, but .rather knowingly administering unnecessary and ineffective treatments for which he then billed the government.
For the foregoing reasons, the defendant’s conviction is AFFIRMED.
. Both defendants are hereinafter referred to in the singular.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_treat | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. 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 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_appel1_7_2 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Edgar T. WEEKES et al., Appellants, v. ATLANTIC NATIONAL INS. CO., Appellee. CALIFORNIA STATE AUTO ASSOCIATION et al., Appellants, v. ATLANTIC NATIONAL INS. CO., Appellee. ATLANTIC NATIONAL INS. CO., Appellant, v. CALIFORNIA STATE AUTO ASSOCIATION et al., Appellees.
No. 20245.
United States Court of Appeals Ninth Circuit.
Dec. 20, 1966.
Robert G. Begam, of Langerman, Begam & Lewis, Phoenix, Ariz., for appellant and appellee Weekes.
John J. O’Connor, III, of Fennemore, Craig, Allen & McClennen, Phoenix, Ariz., for appellants and appellees California State Auto Ass’n Inter-Ins. Bureau and Samuel Rotanzi.
Mark Wilmer, of Snell & Wilmer, Phoenix, Ariz., for appellee and appellant Atlantic Nat. Ins. Co.
Before MERRILL, KOELSCH and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge:
In this action for declaratory relief, in which jurisdiction is based upon diversity of citizenship, there are three appeals. The action was begun by Atlantic National Insurance Co. (Atlantic). The defendants are California State Automobile Association Inter-Insurance Bureau (California), Samuel Rotanzi (Rotanzi) and Edgar T. Weekes and Catherine H. Weekes, husband and wife, (the Weekes). The facts are not disputed, and the court entered a summary judgment, from various parts of which the Weekes, California and Rotanzi, and Atlantic appeal.
The action arose out of an automobile accident occurring in Arizona. Rotanzi rented a car from Hertz Corporation. There was a collision between that car, driven by Rotanzi, and a car owned by the Weekes. For the purposes of this case, it is stipulated that at the time, Rotanzi was under the influence of intoxicating liquor. The accident occurred on April 20, 1961. On June 26, 1961, the Weekes filed an action in the federal district court claiming personal injury damages exceeding $160,000. In February, 1963, the parties agreed to hold that action in abeyance, to await the outcome of a declaratory judgment action to be filed thereafter. On March 22, 1963, Edgar Weekes filed suit in Arizona Superior Court against Rotanzi, claiming damage to his car; the present suit which is the declaratory judgment action that had been agreed upon, was filed by Atlantic about October 1, 1963, issue finally being joined upon the second amended complaint filed November 20, 1964. The car damage action was settled in October, 1963, and a stipulation was filed in that action on October 22, 1963. Pursuant to that stipulation, the car damage action was dismissed with prejudice upon payment to Weekes of $1,101.52, the exact amount prayed for in the complaint. The purpose of the present suit was to determine questions of insurance coverage. It was on file but. had not come to issue when the property damage action was settled.
Atlantic had issued a policy of insurance to Hertz Corporation, affording liability insurance to persons leasing Hertz; cars. In this action, in its second amended complaint, Atlantic claimed:
1. that the disposition of the car damage action makes it a bar to the personal' injury action;
2. that the coverage issued by California to Rotanzi is primary and Atlantic’s coverage, if any, is secondary, and
3. that coverage was not afforded te Rotanzi because the policy excludes coverage if the accident occurs “while [the car is] being operated * * * by any" person under the influence of intoxicants * * or, alternatively, that this exclusionary clause should at least reduce Atlantic’s liability to a maximum of $10,-000 per person and $20,000 per accident. The policy limits are $100,000 and $300,-000.
California had issued a policy of liability insurance to Rotanzi. Both California and Rotanzi asserted:' (1) that the disposition of the car damage action makes it a bar to the personal injury action; (2) that Atlantic’s coverage is primary, or, alternatively, that the two insurers should participate in proportion to the respective limits of their policies; and (3) that Atlantic’s liability is neither excluded nor limited by its exclusionary clause.
The Weekes asserted that the disposition of the car damage case does not make it a bar to the personal injury action, that Atlantic’s liability is neither excluded nor limited, that California is also liable for Rotanzi’s conduct, and that both Atlantic and California should be required to pay the full amount, up to their full policy limits, of the Weekes’ personal injury claims.
All parties moved for summary judgment. The court’s judgment on these motions is to the following effect (the numbering follows the numbering in the judgment):
1. The disposition of the car damage action does not make it a bar to the personal injury action.
2. A. Coverage of Rotanzi by Atlantic’s policy is not excluded.
B. The limits of Atlantic’s coverage of Rotanzi are $10,000 for one injury, $20,000 for one accident.
C. Atlantic’s coverage is primary.
D. California’s coverage is excess.
The Weekes appeal from paragraph 2B: Atlantic appeals from paragraphs 1, 2A, 2C, and 2D; California and Rotanzi appeal from paragraphs 1 and 2B. We consider these appeals according to their subject matter.
1. The effect of the settlement of the car damage case.
An affidavit submitted in behalf of the Weekes, in support of their motion for summary judgment, shows that in February, 1963, about two years after the personal injury action was filed, the parties agreed that it be “held in abatement” pending disposition of a declaratory judgment action to be filed. In March, 1963, without the knowledge of the attorney who represented the Weekes in the personal injury action, Mr. Weekes, through another attorney, filed the car damage action. Counsel for Mr. Weekes in the car damage case was retained by Allstate Insurance Company. This was a “subrogation” action. Allstate, however, was not named as a plaintiff. The terms of its subrogation rights, if any, are not stated. It does not appear that Allstate paid for the damage to the car, or that Weekes assigned his car damage claim to Allstate, or whether the Allstate policy required that he do so. That policy is not in the record.
The present declaratory judgment action was filed October 1, 1963. Atlantic is represented by different counsel from counsel who were acting for it as Rotanzi’s counsel in both the car damage and personal injury actions. During October, 1963, counsel for both sides in the car damage action agreed to settle and stipulated to its dismissal, with prejudice. An order to that effect was entered October 22, 1963. Not until October 26 did the attorney representing Weekes in the personal injury action learn of this stipulation and dismissal. He learned of it when Weekes brought him a settlement draft containing a full release. The attorney advised Weekes not to sign. After some correspondence with Atlantic’s attorney and the attorney chosen by Allstate to represent Weekes in the ear damage case, a new draft, not containing the release, was issued and Weekes’ counsel in the personal injury case advised Weekes to accept it, which he did. Certain correspondence between Weekes’ attorney in the car damage case, and Atlantic’s attorney in that case and the personal injury case, is set out in the margin.
Atlantic, California and Kotanzi all urge that the stipulated dismissal in the car damage case is res judicata here. Their argument is in substance as follows: Arizona adheres to the single cause of action rule. In negligence cases the cause of action lies in defendant’s breach of duty, and where, as here, that breach causes both personal injury and property damage, there is still but one cause of action. The result of the rule is that if the injured party brings separate actions for personal injury and for property damage, and judgment is for the defendant in either of them, that judgment is res judicata as to the other action, and a bar to its further prosecution. The Arizona court has said that where two cases based on the same cause of action are filed, this result follows, regardless of which action was first commenced.
Dismissal with prejudice is an adjudication on the merits, in favor of the defendant. Here, the property damage case was dismissed with prejudice by stipulation of the parties. This, say appellants, was an adjudication on the merits against Edgar Weekes, and is therefore res judicata in the personal injury case, which must be dismissed. This is particularly true here, they say, because the settlement was completed with full knowledge of the facts. The attorney for Atlantic, representing Rotanzi in both the car damage and the personal injury cases, expressly reserved whatever rights the dismissal might confer; the attorney for the Weekes in the personal injury case knew this and took his chances, based upon his own view of the law. He —and therefore his clients — are bound by the legal result of what he permitted them to do. No fraud was perpetrated.
So far as appears from this record, none of the foregoing applies to Mrs. Weekes. She was not a party to the property damage case. The only case in which any cause of action of hers is asserted is the personal injury case. Her rights in the personal injury case, therefore, have not been adjudicated.
As to Mr. Weekes, the result demanded by the appellants hardly squares with any conceivable notion of justice. The car damage case was brought by an attorney chosen by Allstate, using Weekes’ name. His personal injury attorney did not even know that it had been filed, much less that it had been settled and dismissed, until after it was dismissed. At that point the matter was brought to his attention, and he objected to the release that Weekes was asked to sign. The release was then withdrawn by the attorney who represented both Rotanzi and Atlantic in both cases.
It is quite true that if Arizona law compels the result sought by appellants we must follow it, leaving Mr. Weekes to whatever remedies he may have against those who led him, or allowed him to proceed, down the road to disaster. Counsel suggest that there are two routes whereby Weekes can escape — the so-called “subrogation case” route, and the “consent” route. The subrogation exception to the rule against the splitting of a single cause of action has been recognized where the property element of the damages alleged in an accident case is covered by insurance. The insurer, under the terms of the insurance contract or upon paying off its obligation to the insured and taking an assignment, is seen, in effect, as the holder of a separate cause of action for the property damage. Hence the insurer’s suit for reimbursement from the defendant does not bar the injured party’s action for personal injury damages. The consent exception merely recognizes that the rule against splitting is for the benefit of the defendant and that he must timely object to the splitting. Appellants assert that the Arizona court has not opened the gate to either route. This is true, but it is also true that it has never considered whether it ought to. Other courts, confronted with similar arguments, have opened the gate to one or the other of them.
On the record before us, we cannot support taking the “subrogation case” route. The affidavit of the Weekes’ attorney in support of their motion for summary judgment is totally insufficient. It merely alleges two things: (1) that the attorney for Mr. Weekes in the car damage case was retained by Allstate, Weekes being the nominal plaintiff, and (2) that the action was a “subrogation action.” Item (2) is nothing but a legal conclusion. Rule 56(e) requires “such facts as would be admissible in evidence.” No such facts are alleged, as to the subrogation issue. There is no allegation that Allstate had insured anything, much less any proof of the terms of any Allstate policy. We cannot indulge in any presumptions as to its existence or its terms. Nor can we presume that Allstate had become subrogated to Mr. Weekes’ rights under common law or equity principles when the car damage action was filed. There is no evidence that at that time Allstate had paid anything. See 46 C.J.S. Insurance § 1209, pp. 152-160. Indeed, there is no evidence that Allstate ever paid anything. All that was shown was that the settlement check was payable to and endorsed by Weekes and his attorney, and was also endorsed by Allstate. A counter affidavit establishes that the car damage case was filed in Weekes’ name alone, and that the complaint contained no allegations whatever about any rights of Allstate to recover anything.
No case has been cited to us that opens the gate to the subrogation ease route under such circumstances. Every case having comparable facts refuses to open the gate. In every case in which the gate has been opened, the insurance company-subrogee was the party to the car damage case and its rights were the rights litigated in that case. In every such case, the insurance company had paid off, and was an assignee of the car damage claim, either by operation of law or by express assignment. In every such case, the car owner was not a party to the car damage case. And these were the facts held to be controlling.
We turn then, to the gate to the “consent” route. We are convinced that the Arizona courts would open that gate, but the problem is whether it leads to a culde-sac. The one cause of action rule, and its result, the rule against splitting causes of action, are for the benefit of the defendant — to prevent his being harassed by multiple lawsuits. It would seem to follow that, if the defendant does not object, in either case, to the splitting of the cause of action, he will be held to have waived the point.
The rule against splitting and the reasons for it, and the consent exception, are well stated in Restatement, Judgments, § 62:
Ҥ 62. SPLITTING CAUSE OF ACTION-JUDGMENT FOR PLAINTIFF OR DEFENDANT.
“Where a judgment is rendered, whether in favor of the plaintiff or of the defendant, which precludes the plaintiff from thereafter maintaining an action upon the original cause of action, he cannot maintain an action upon any part of the original cause of action, although that part of the cause of action was not litigated in the original action, except * * *.
“(c) where the defendant consented to the splitting of the plaintiff's cause of action.
“Comment:
a. Rationale. The rule stated in this Section is based on the idea that where a person has a single cause of action, in the interests of convenience and economy to the public and to the defendant he should be entitled to but one right of action and hence should be required to unite in one proceeding all matters which are part of it.
“Comment on Clause (c):
m. Consent of defendant. The purpose of the rule stated in this Section is to protect the defendant from being harassed by several actions based upon a single cause of action. It is not applicable where the defendant consents, in express words or otherwise, to the splitting of the cause of action.
“Where the plaintiff brings separate actions based upon different items included in his claim, and in none of the actions does the defendant make the objection that another action is pending based upon the same claim, a judgment for the plaintiff in one of the actions does not preclude him from obtaining judgment in the other actions. In such a case the failure of the defendant to object to the splitting of the plaintiff’s claim is effective as a consent to the splitting of the claim.”
We agree, and we think that the Arizona courts would agree. Why, then, can it be said that the “consent” gate leads to a cul-de-sac? Because here, even though the defendant did not object to splitting the cause of action, there was a judgment, on the merits and in favor of the defendant, in the car damage case. It will be noted that the comment on clause (c), quoted above, is limited to the case in which the plaintiff obtains a judgment in one of the cases. The first Comment in the Restatement, dealing with the rationale, which is also quoted above, indicates that the reference to the plaintiff in the above Comment is deliberate. The last paragraph of the first Comment reads:
“The rule stated in this Section is applicable whether the judgment is for the plaintiff or for the defendant, irrespective of the issues raised in the case, provided only that where the judgment is for the defendant it is upon the merits as stated in § 48, and hence is one which would bar the plaintiff from maintaining another action upon the original cause of action.”
It is argued from this that if defendant gets judgment in one of the cases, on the merits, his waiver or consent to the splitting of the cause of action does not extend to a waiver of the res judicata effect of his judgment. This is said to be made clear by Section 48 of the Restatement, to which the foregoing Comment refers. It says:
“§ 48. JUDGMENT FOR DEFENDANT ON THE MERITS— BAR.
Where a valid and final personal judgment is rendered on the merits in favor of the defendant, the plaintiff cannot thereafter maintain an action on the original cause of action.”
And, as the cases cited in note 6, supra, show, the dismissal with prejudice of the car damage case was an adjudication on the merits in favor of Rotanzi. Hence it is urged that it cannot be said that Rotanzi or Atlantic waived the possible res judicata effect of the dismissal with prejudice of the car damage case, that, on the contrary, they expressly asserted their rights, and offered Weekes an alternative, which his attorney elected not to accept.
The Weekes urge that the dismissal was in favor of Rotanzi as a matter of form only, that in substance it was a judgment in favor of Mr. Weekes, who received the full amount prayed for in his complaint. The same, however, can be said of any ease in which the defendant settles and the action is dismissed with prejudice, as occurred in several of the cases cited in note 6, supra. It can be said that Weekes is here attempting a collateral attack upon the car damage judgment, and that this he cannot do.
We need not, and do not, decide this question, however. We assume that the dismissal is res judicata. In presenting their argument, both sides have failed to consider the effect of the Arizona Rules of Civil Procedure, 16 A.R.S., and of the Federal Rules of Civil Procedure. Arizona Rule 8(d) requires that all matters constituting an avoidance or affirmative defense be pleaded. The plea of another action pending is clearly within the rule. No such pleading was filed in the car damage case, although the personal injury case had been pending for more than two years. Under Rule 12 (i), it was waived. This, we think, is “consent” within the meaning of the consent rule. Thus there was consent to the splitting of the single cause of action.
When the car damage case was settled, the personal injury case had been pending in the Federal court for over 2 years. Under F.R.Civ.P. 8(c), res judicata must be pleaded; if not so pleaded, it is waived, Rule 12(h). Here, it can only be raised by supplemental answer under Rule 15(d), since the settlement occurred long after the personal injury suit was filed. Such a pleading can be filed only on motion, and the court “may” permit it, “upon such terms as are just.” So far as appears, no motion for leave to file a supplemental answer has ever been filed in the personal injury case. We think that the attempt to raise the defense in this case should be treated as if it were a motion for leave to file a supplemental answer in the personal injury case. In substance, the court denied a motion for leave to file a supplemental answer in the personal injury case. We think that it did not abuse its discretion in so doing.
A motion for permission to serve and file a supplemental pleading is addressed to the sound discretion of the court The fact is that in the car damage case Weekes recovered, by settlement, exactly what he prayed for in his complaint. The dismissal with prejudice was a substitute for a judgment in Weekes’ favor and a satisfaction of that judgment. The latter would have the same legal effect as a release of the car damage claim, but would not, under the consent exception, bar the personal injury action. The only purpose that the dismissal with prejudice should be given is the same, to release the car damage claim by its dismissal. There is nothing in the record to support a conclusion that any party to the stipulation believed that the personal injury claim was in fact being settled. The correspondence quoted above makes this clear. Before the settlement was completed, the appealing parties eliminated from the settlement check language that would have released the personal injury claim. The check was accepted only after that language was removed. Thus the paying parties paid when they knew that the receiving party intended to settle only the car damage claim. To uphold the contention that the dismissal is res judicata would certainly work an injustice. We hold, as we think that the Arizona courts would hold, that to permit the raising of the defense would work an injustice, and that the court did not abuse its discretion in refusing to permit it. The Arizona Supreme Court has gone out of its way to avoid applying the doctrine of res judicata “so rigidly as to defeat the ends of justice.” We think that that is what it would do here. Paragraph 1 of the judgment is correct.
2. The Effect of the “Intoxicants” Exclusion.
It is not seriously contended that the exclusion of liability in the Atlantic policy is effective to permit Atlantic to escape all liability. The State of Arizona has a Financial Responsibility law that appears to invalidate the exclusion. In the light of the decision in Jenkins v. Mayflower Ins. Exch., 1963, 93 Ariz. 287, 380 P.2d 145, we think that the Arizona courts would strike down the exclusion. Paragraph 2-A of the judgment is correct.
3. The limits of Atlantic’s liability.
The Atlantic policy limits are $100,000/$300,000. The Financial Responsibility law provides, in pertinent part: A.R.S. § 28-1170, subsec. B:
“The owner’s policy of liability insurance must comply with the following requirements:
“2. It shall insure the person named therein or any other person, as insured, using the motor vehicle * * * with the express or implied permission of the named insured * * * subject to limits exclusive of interest and costs, with respect to each motor vehicle as follows:
“(a) Ten thousand dollars because of bodily injury to or death of one person in any one accident.
“(b) Subject to the limit for one person, twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident.
A.R.S. § 28-1170, subsec. F:
“1. The liability of the insurance carrier with respect to the insurance required by this chapter shall become absolute when injury or damage covered by the motor vehicle liability policy occurs. * * * [A]nd no violation of the policy shall defeat or void the policy.”
It is section 1170, subsec. F which nullifies the “intoxicants” exclusion.
The law also provides:
A.R.S. § 28-1170, subsec. G:
“A policy which grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and the excess or additional coverage shall not be subject to the provisions of this chapter. With respect to a policy which grants the excess or additional coverage the term ‘motor vehicle liability policy’ shall apply only to that part of the coverage which is required by this section.”
The appealing parties find some conflict between the provisions of sections 1170, subsec. B and 1170, subsec. G and the provisions of section 1170, subsec. F. We think that there is no conflict, and that section 1170, subsec. F nullifies the exclusion only to the extent of the limits specified in section 1170, subsec. B. To us, section 1170, subsec. G shows that this was the intent of the Arizona legislature. And there is nothing to the contrary in Atlantic’s policy. It provides, with reference to State Financial Responsibility laws as follows:
“When this policy is certified as proof of Financial Responsibility for the future under the provisions of the Motor Vehicle Financial Responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits' of liability stated in this policy.”
To us, this shows an intent, first, to afford the coverage required by the law, and second, to limit the amount of liability to that required by the law. The policy is thus wholly consistent with the law.
The cases on which appellants rely are not in point. None decides the precise question here presented.
Paragraph 2B of the judgment is correct.
4. The primary-excess question.
The contest here is between Atlantic and California. The policy limits of each, as applicable here, are the same —$10,000/$20,000. Atlantic’s policy provides :
“The insurance under this policy shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or otherwise.”
California’s policy provides:
“If the insured has other insurance against the loss covered by part I of this policy the Bureau shall not be liable for a greater portion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limits of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance.”
The court held that Atlantic’s coverage is primary, California’s excess. Atlantic attacks this conclusion by arguing that California’s “excess” clause, the proviso in the language quoted above, is not here applicable. It says that the whole paragraph is ambiguous, and should be construed against California so as to bring into effect only California’s pro rata clause. Other courts have not found such clauses ambiguous, nor do we. It follows that we do not have here, as Atlantic asserts, a conflict between Atlantic’s “excess” clause and California’s “pro rata” clause. Rather, here is a conflict between two excess clauses. We find no applicable Arizona decisions, but the normal rule in such cases is that the two policies are to be applied pro rata.
California, however, argues that the judgment is correct because the primary purpose of its policy is to insure Rotanzi while driving his own car, and the coverage given while he is driving another’s car is incidental and intended to operate only as excess to the insurance of the owner of that car, here Hertz, while Atlantic’s policy is primary because it insures Hertz, the owner. In part, California relies on the contention that the excess clause in Atlantic’s policy makes its coverage excess only over “other valid and collectible insurance available,” while California’s excess clause is not so worded. Hence, it says, California’s insurance is not “valid and collectible” unless the damages exceed the limits of Atlantic’s policy. But California’s policy also refers to other “valid and collectible” insurance in the pro rata portion of the paragraph containing the excess proviso, and, the excess language being a proviso to the pro rata provision, it also refers to other “valid and collectible” insurance. We hold that the two excess clauses offset each other, and that each insurer must bear its portion of the loss, in proportion to the limits of its policy. Paragraphs 2C and D of the judgment are erroneous.
Paragraphs 2C and D are reversed; in all other respects, the judgment is affirmed. The matter is remanded with directions to modify paragraphs 2C and D in accordance with this opinion.
The problem as to the effect of the dismissal of the car damage ease should never have arisen if the Weekes’ personal injury counsel had properly protected his clients’ interests. His briefing of the question has been of little assistance to us on this appeal. The Weekes, therefore, although successful here as against the appeals of Atlantic, California and Rotanzi from paragraph 1 of the judgment, shall recover no costs on appeal. Atlantic shall recover one-half of its costs on appeal from the Weekes and one-half of its costs on appeal from California. Otherwise, each party shall bear its own costs on appeal.
. Atlantic's attorney to Weekes’ ear damage attorney:
“Now, in delivering these funds to you, Bill, I want it clearly understood that we are not in any manner waiving, relinquishing or altering what legal effect, if any, the dismissal of the above captioned matter may have on your client’s action that is pending in Federal Court wherein he is represented by Bob Begam. “If the foregoing is not satisfactory to you and your client, please return the enclosed check to me. We will put the above captioned cause back on the trial list and try the lawsuit at the earliest opportunity available.”
A copy was sent to the Weekes’ personal injury attorney. He then wrote to Atlantic’s attorney:
“It was my understanding that Bill was representing Mr. Weekes’ insurance company on their subrogation claim. I can’t imagine why you refer to Mr. Weekes as being Bill’s client. Nor do I understand how the property damage settlement can conceivably have any effect on the pending Federal Court actions.
“Clearly, you can’t be asking Mr. Weekes to sign a general release in order to enable his insurance company to receive compensation for their subrogation claim. I am confident that you and Bill can work this problem out without prejudicing the interest that Mr. Weekes has in processing his personal injury claim.” Atlantic’s attorney replied:
“There is no mention of subrogation in the Complaint in the above captioned matter. Mr. Weekes is named as a party plaintiff and Bill Andrews indicates in the Complaint that he is his attorney as far as the lawsuit is concerned. This is why I refer to Mr. Weekes as being Bill’s client in this suit.
“I am not asking Mr. Weekes to sign anything. There has already been signed by Bill Andrews, as Mr. Weekes’ counsel, a stipulation for dismissal of this cause with prejudice. My last letter to Bill was simply to point out that in paying these moneys to Bill and his client, we are fully reserving any effect that the conclusion of this litigation may have on the suits pending in Federal Court. So you see, Bob, I really have nothing to work out with Bill Andrews — either a) he accepts the money and the Stipulation and order of dismissal with prejudice stands, or b) he returns the money and we try the State action.”
Weekes’ personal injury attorney then wrote to Weekes’ car damage attorney and to Atlantic’s attorney:
“In any event, I want my position, and the position of Mr. Weekes, to be perfectly clear. I am not going to permit Mr. Weekes to sign any document, or endorse any draft, which might be construed as anything other than a special release of the Allstate subrogation claim. While I believe that it would be incredible for Jack or his company to take the position that something more than that has to be signed in order to resolve Allstate’s claim, and while I am convinced that Allstate’s property damage claim is a perfectly valid one, I am afraid that you and Jack will have to work the matter out the best way you can without imposing on Mr. Weekes and his Federal Court action. Mr. Weekes will, as he has in the past, cooperate with Allstate in every way short of prejudicing his far more substantial personal injury claim.”
A few days later he authorized Weekes to endorse and cash the draft. It was payable to Weekes and his attorney in the car damage case.
. Jenkins v. Skelton, 1920, 21 Ariz. 663, 192 P. 249. See also Daniel v. City of Tucson, 1938, 52 Ariz. 142, 79 P.2d 516, 117 A.L.R. 1211; State v. Airesearch Mfg. Co., Inc., 1949, 68 Ariz. 342, 206 P.2d 562; Malta v. Phoenix Title & Trust Co., 1953, 76 Ariz. 116, 259 P.2d 554.
. Jenkins v. Skelton, supra, n. 2; see generally Annot. 62 A.L.R.2d 977.
. See Suttle v. Seely, 1963, 94 Ariz. 161, 382 P.2d 570; Day v. Estate of Wiswall, 1963, 93 Ariz. 400, 381 P.2d 217. These are not accident cases, but they do apply the principle. See also Annot. 62 A.L.R.2d 988.
. Day v. Estate of Wiswall, supra, n. 4.
. Suttle v. Seely, supra, n. 4; Cochise Hotels, Inc. v. Douglas Hotel Operating Co., 1957, 83 Ariz. 40, 316 P.2d 290; DeGraff v. Smith, 1945, 62 Ariz. 261, 157 P.2d 342; Roden v. Roden, 1926, 29 Ariz. 549, 243 P. 413.
. A consent judgment is as much an adjudication on the merits as one following a trial. Suttle v. Seely, supra, n. 4, Wall v. Superior Court, 1939, 53 Ariz. 344, 89 P.2d 624.
. In form, this is correct. In substance, it is not; the dismissal in the car damage case was given in consideration of payment by the defendant to the plaintiff of the full amount prayed for in the complaint.
. Day v. Estate of Wiswall, supra, n. 4; DeGraff v. Smith, supra, n. 6; Suttle v. Seely, supra, n. 4; Cochise Hotels, Inc. v. Douglas Hotel Operating Co., supra, n. 6.
. It is asserted that Weekes had an interest in the car damage case to the extent of $100, the amount of the “deductible” under the Allstate policy. In plain English, appellants assert that Weekes bargained away a substantial cause of action for personal injuries for this dollop of pottage.
. See, as to the “subrogation case route”, Annot., 62 A.L.R.2d 977, 989 ff, as to the “consent route” Restatement, Judgments, § 62.
. Levitt v. Simco Sales Service of Pa., 1957, Del.Super.Ct., 11 Terry 552, 135 A.2d 910; Mims v. Reid, 1957, Fla., 98 So.2d 498; Sibson v. Robert’s Express, Inc., 1962, 104 N.H. 192, 182 A.2d 449; Farmers Ins. Exch. v. Arlt, 1953, N.D., 61 N.W.2d 429; Aubill v. Rowles, 1961, Ohio Com.Pl., 180 N.E.2d 643, 87 Ohio Law Abst. 353; Saber v. Supplee-Wills-Jones Milk Co., 1956, 181 Pa.Super. 167, 124 A.2d 620; Sprague v. Adams, 1926, 139 Wash. 510, 247 P. 960, 47 A.L.R. 529; cf. Kidd v. Hillman, 1936, 14 Cal.App.2d 507, 58 P.2d 662; Coniglio v. Wyoming Valley Fire Ins. Co., 1953, 337 Mich. 38, 59 N.W.2d 74;
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_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).
Gordon M. MATHER, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 10243.
Circuit Court of Appeals, Sixth Circuit.
Oct. 17, 1946.
Donald F. Melhom and- George F. Med-ill, both of Toledo, Ohio, for petitioner.
Douglas W. McGregor, of Washington, D. C., for respondent.
Before HICKS, ALLEN, and MILLER, Circuit Judges.
PER CURIAM.
This case came on to be heard upon the record and briefs and oral argument of counsel.
On consideration whereof, it is ordered that the decision of the Tax Court of the United States be, and it hereby is affirmed upon the grounds and for the reasons stated in its opinion promulgated October 30, 1945. 5 T.C. 1001.
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_genstand | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
The PROCTER & GAMBLE COMPANY, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
Nos. 91-1515, 91-1557.
United States Court of Appeals, Sixth Circuit.
Argued March 17, 1992.
Decided April 20, 1992.
Padric K. O’Brien, William Sanford Corey (Briefed), Sutherland, Asbill & Brennan, Washington, D.C., Burgess L. Doan (Briefed), Cohen, Todd, Kite & Stanford, Newport, Ky., J.D. Fleming, Jr. (Argued), Sutherland, Asbill & Brennan, Atlanta, Ga., for petitioner-appellee.
Abraham N.M. Shashy, Jr., Chief Counsel, John T. Lyons, I.R.S., Office of Chief Counsel, Gary R. Allen, Acting Chief (Briefed), Jonathan S. Cohen, Teresa McLaughlin (Argued), U.S. Dept, of Justice, Appellate Section Tax Div., Howard A. Berger, I.R.S., Washington, D.C., for respondent-appellant.
Before: KENNEDY and BATCHELDER, Circuit Judges; and TAYLOR, District Judge.
The Honorable Anna Diggs Taylor, United States District Judge for the Eastern District of Michigan, sitting by designation.
KENNEDY, Circuit Judge.
The Commissioner of Internal Revenue appeals the decision of the Tax Court holding that allocation of income to Procter & Gamble (P & G) from a wholly-owned subsidiary under Internal Revenue Code § 482 was unwarranted. For the reasons to follow, we AFFIRM the Tax Court.
I.
P & G is an Ohio corporation engaged in the business of manufacturing and marketing consumer and industrial products. P & G operates through domestic and foreign subsidiaries and affiliates.
P & G owned all the stock of Procter & Gamble A.G. (AG), a Swiss corporation. AG was engaged in marketing P & G’s products, generally in countries in which P & G did not have a marketing subsidiary or affiliate.
P & G and AG were parties to a License and Service Agreement, known as a package fee agreement, under which AG paid royalties to P & G for the nonexclusive use by AG and its subsidiaries of P & G’s patents, trademarks, tradenames, knowledge, research and assistance in manufacturing, general administration, finance, buying, marketing and distribution. The royalties payable to P & G were based primarily on the net sales of P & G’s products by AG and its subsidiaries. AG entered into agreements similar to package fee agreements with its subsidiaries.
In 1967, P & G made preparations to organize a wholly-owned subsidiary in Spain to manufacture and sell its products in that country. Spanish laws in effect at that time closely regulated foreign investment in Spanish companies. The Spanish Law of Monetary Crimes of November 24, 1938, in effect through 1979, regulated payments from Spanish entities to residents of foreign countries. This law required governmental authorization prior to payment of pesetas to residents of foreign countries. Making such payments without governmental authorization constituted a crime. Decree 16/1959 provided that if investment of foreign capital in a Spanish company was deemed economically preferential to Spain, a Spanish company could transfer in pesetas “the benefits obtained by the foreign capital.”
P & G requested authorization to organize P & G España S.A. (España) and to own, either directly or through a wholly-owned subsidiary, 100 percent of the capital stock of España. P & G stated that its 100 percent ownership of España would allow España immediate access to additional foreign investment, and that P & G was in the best position to bear the risk associated with the mass production of consumer products. P & G also indicated that 100 percent ownership would allow P & G to preserve the confidentiality of its technology. As part of its application, P & G estimated annual requirements for pesetas for the first five years of España’s existence. Among the items listed was an annual amount of 7,425,000 pesetas for royalty and technical assistance payments. Under Spanish regulations, prior authorization of the Spanish Council of Ministers was required in. order for foreign ownership of the capital of a Spanish corporation to exceed fifty percent.
The Spanish government approved P & G’s application for 100 percent ownership in España by a letter dated January 27, 1968. The letter expressly stated that Es-paña could not, however, pay any amounts for royalties or technical assistance. For reasons that are unclear in the record, it was determined that AG, rather than P & G, would hold 100 percent interest in Espa-ña.
From 1969 through 1979, España filed several applications with the Spanish government seeking to increase its capital from the amount originally approved. The first such application was approved in 1970. The letter granting the increase in capital again stated that España “will not pay any amount whatsoever in the concept of fees, patents, royalties and/or technical assistance to the investing firm or to any of its affiliates, unless with the approval of the Administration.” All future applications for capital increases that were approved contained the same prohibition.
In 1973, the Spanish government issued Decree 2343/1973, which governed technology agreements between Spanish entities and foreign entities. In order to obtain permission to transfer currency abroad under a technology agreement, the agreement had to be recorded with the Spanish Ministry of Industry. Under the rules for recording technology agreements, when a foreign entity assigning the technology held more than 50 percent of the Spanish entity’s capital, a request for registration of a technology agreement was to be looked upon unfavorably. In cases where foreign investment in the Spanish entity was less than 50 percent, authorization for payment of royalties could be obtained.
In 1976, the Spanish government issued Decree 3099/1976, which was designed to promote foreign investment. Foreign investment greater than 50 percent of capital in Spánish entities was generally permitted, but was conditioned upon the Spanish company making no payments to the foreign investor, its subsidiaries or its affiliates for the transfer of technology.
España did not pay a package fee for royalties or technology to AG during the years at issue. España received permission on three occasions to pay P & G for specific engineering services contracts. The Spanish Foreign Investments Office clarified that payment for these contracts was not within the general prohibition against royalties and technical assistance payments. España never sought formal relief from the Spanish government from the prohibition against package fees.
In 1985, consistent with its membership in the European Economic Community, in Decree 1042/1985 Spain liberalized its system of authorization of foreign investment. In light of these changes, España filed an application for removal of the prohibition against royalty payments. This application was approved, as was España’s application to pay package fees retroactive to July 1, 1987. España first paid a dividend to AG during the fiscal year ended June 30, 1987.
The Commissioner determined that a royalty of two percent of España’s net sales should be allocated to AG as royalty payments under section 482 for 1978 and 1979 in order to reflect AG’s income. The Commissioner increased AG’s income by $1,232,653 in 1978 and by $1,795,005 in 1979 and issued P & G a notice of deficiency. P & G filed a petition in the Tax Court seeking review of the deficiencies.
The Tax Court held that the Commissioner’s allocation of income was unwarranted and that there was no deficiency. The court concluded that allocation of income under section 482 was not proper in this case because Spanish law, and not any control exercised by P & G, prohibited España from making royalty payments.
II.
This Court applies a de novo standard of review to legal conclusions made by the Tax Court. Smith v. Commissioner, 987 F.2d 1089, 1096 (6th Cir.1991).
III.
P & G argues that the Tax Court correctly determined that the Commissioner was not authorized to allocate royalty income to it under section 482. At all times relevant to this action, section 482 provided:
In any case of two or more organizations, trades, or businesses ... owned or controlled directly or indirectly by the same interests, the Secretary may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any such organizations, trades, or businesses.
The purpose of section 482 is “to place a controlled taxpayer on a tax parity with an uncontrolled taxpayer.” Treas.Reg. § 1.482 — 1(b)(1).
It is P & G’s position that section 482 requires that any distortion of income of a controlled party result from the existence and exercise of control. P & G argues that where governing law, and not the controlling party or interests, causes a distortion of income, section 482 is unavailable to allocate income. P & G argues that the regulations promulgated under section 482 and the Supreme Court’s decision in Commissioner v. First Security Bank, 405 U.S. 394, 92 S.Ct. 1085, 31 L.Ed.2d 318 (1972), support this position.
The term “controlled” is defined in Treas.Reg. § 1.482-l(a)(3) to include:
any kind of control, direct or indirect.... It is the reality of the control which is decisive, not its form or the mode of its exercise.
Treas.Reg. § 1.482-l(b)(l) states the level of control that is presumed to justify making a section 482 allocation:
The interests controlling a group of controlled taxpayers are assumed to have complete power to cause each controlled taxpayer so to conduct its affairs that its transactions and accounting records truly reflect the taxable income from the property and business of each of the controlled taxpayers.
Further, Treas.Reg. § 1.482-l(c) states:
Transactions between one controlled taxpayer and another will be subjected to special scrutiny to ascertain whether the common control is being used to reduce, avoid, or escape taxes.
The foregoing regulations recognize that in order for the Commissioner to have authority to make a section 482 allocation, a distortion in a controlled taxpayer’s income must be caused by the exercise of such control. In the present case there is no evidence that P & G or AG used its control over España to manipulate or shift income. Indeed, the Tax Court held that the failure of España to make royalty payments was a result of the prohibition against royalty payments under Spanish law and was not due to the exercise of control by P & G. The Spanish prohibition is expressly found in the letter approving España’s organization and in the letters permitting capital increases for España. In addition, Decrees 2343/1973 and 3099/1976 made it clear that payments for transfers of technology from Spanish entities to controlling foreign entities would be restricted.
The Supreme Court held in First Security that the Commissioner is authorized to allocate income under section 482 only where a controlling interest has complete power to shift income among its subsidiaries and has exercised that power. In First Security, two related banks offered credit life insurance to their customers. The banks were prohibited by federal law from acting as insurance agents and receiving premiums, and they referred customers to an unrelated insurance company to purchase this insurance. The insurance company retained 15 percent of the premiums for actuarial and accounting services, and transferred 85 percent of the premiums through a reinsurance agreement to an insurance company affiliated with the banks. The insurance affiliate reported the entire amount it received as reinsurance premiums as its income. The Commissioner determined that 40 percent of the affiliate’s income was allocable to the banks as compensation for originating and processing the insurance. The Supreme Court set aside the Commissioner’s allocation. The Court found that the holding company that controlled the banks and the insurance affiliate did not have the power to shift income among its subsidiaries unless it operated in violation of federal banking law. The Court stated that the “complete power” referred to in Treas.Reg. § 1.482-1(b)(1) does not include the power to force a subsidiary to violate the law. So here, P & G did not have the power to shift income between España and its other interests unless it violated Spanish law. The payment or non-payment of royalties in no way depended on P & G’s control of the various entities. The same result — no royalties— would exist in the case of unrelated entities.
The Commissioner argues that First Security is not controlling in this case because the Supreme Court’s analysis is limited to instances in which allocation under section 482 is contrary to federal law. We are not persuaded. The Supreme Court focused on whether the controlling interests utilized their control to distort income. We see no reason to alter this analysis because foreign law, as opposed to federal law, prevented payment of royalties. The purpose of section 482 is to prevent artificial shifting of income between related taxpayers. Because Spanish law prohibited royalty payments, P & G could not exercise the control that section 482 contemplates, and allocation under section 482 is inappropriate. That foreign law is involved may require a heightened scrutiny to be sure the taxpayer is not responsible for the restriction on payment. But that is not suggested in the case of the Spanish law here which was in effect long before España was created.
The Commissioner argues that P & G could have paid, under Decree 16/1959, an annual “dividend.” The Commissioner argues that P & G has not shown that a dividend would have been forbidden under Spanish law, and asserts that the Commissioner would have treated such a dividend as a royalty for United States tax purposes. Assuming that España had profits from which it could pay a dividend under Spanish law, we find that P & G had no such obligation. A taxpayer need not arrange its affairs so as to maximize taxes as long as a transaction has a legitimate business purpose. Salyersville National Bank v. United States, 613 F.2d 650, 653 (6th Cir.1980). We firmly disagree with the Commissioner’s suggestion that P & G should purposely evade Spanish law by making royalty payments under the guise of calling the payments something else. Furthermore, the record reflects that Espa-ña did not have distributable earnings from which to pay dividends. P & G’s federal income tax returns indicate that España had accumulated deficits during the years at issue and would be unable to distribute dividends.
The Commissioner argues that the Tax Court erred by refusing to apply Treas.Reg. § 1.482-l(b)(6), the “blocked income” regulation. Treas.Reg. § 1.482-1(b)(6) provides in pertinent part:
If payment or reimbursement for the sale, exchange, or use of property, the rendition of services, or the advance of other consideration among members of a group of controlled entities was prevented, or would have been prevented, at the time of the transaction because of currency or other restrictions imposed under the laws of any foreign country, any distributions, apportionments, or allocations which may be made under section 482 with respect to such transactions may be treated as deferrable income.
This regulation recognizes the problem posed by restrictions placed on payments in a foreign currency. Income allocated under section 482 may be deferred if payments have been blocked by currency or other restrictions under the laws of a foreign country. The Tax Court determined that because section 482 did not apply to the present case, the regulations promulgated under section 482 likewise did not apply.
The Commissioner argues that this regulation is designed to remedy the situation presented in this case. We disagree. Treas.Reg. § 1.482-l(b)(6) contemplates the situation where a temporary restriction under foreign law prevents payments, and defers the allocation of income until such time as the payments are no longer restricted. This case does not present a situation in which payments to P & G were temporarily restricted; rather, Spanish law prohibited payment of royalties altogether. This prohibition cannot be viewed as temporary because it was ultimately repealed in 1987. At the time in question, there was no reason for P & G to believe that the Spanish government would lift this ban; therefore, the payments that España was prohibited by law from making cannot be viewed as temporarily blocked payments.
The Commissioner also argues that the prohibition on royalty payments was temporary and that P & G could have deferred royalty payments under this regulation and then at some future time P & G could have liquidated España and taken its capital out of Spain. Upon liquidation, the Commissioner argues, the temporary prohibition on payment of pesetas would end. We find this argument to be meritless because P & G need not organize its subsidiaries in such a way as to maximize its tax liabilities. There is no question that P & G may legally structure its affairs in its own best interest. Salyersville, 613 F.2d at 653. We agree with the Tax Court that Treas.Reg. § 1.482-l(b)(6) does not apply to this case.
IV.
Accordingly, the decision of the Tax Court that allocation of income under section 482 is inappropriate is AFFIRMED.
. These allocations to AG resulted in increases in P & G’s taxable Subpart F income under I.R.C. § 951(a)(1)(A).
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_respond2_1_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 second 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.
Kevin P. MADDEN, Charles J. Oswald, and Richard W. Kurre, Appellants, v. Jeffrey M. GLUCK, Debra McAlear Gluck, and Landmark St. Louis Bank, Appellees.
No. 86-1917.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 14, 1987.
Decided Feb. 11, 1987.
William M. Howard, St. Louis, Mo., for appellants.
Jerry J. Murphy and Leo V. Garvin, Jr., St. Louis, Mo., for appellees, Gluck, et al.
David W. Harlan, Clayton, Mo., for ap-pellees, Landmark Bank.
Before LAY, Chief Judge, and HEANEY and ARNOLD, Circuit Judges.
PER CURIAM.
Appellants, representatives of an uncerti-fied class of employees and creditors of the defunct St. Louis Globe Democrat, Inc., challenge the district court’s dismissal of an action they brought against Jeffrey M. Gluck, Debra McAlear Gluck, and Landmark St. Louis Bank (collectively referred to as appellees) alleging violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (RICO). We affirm.
Since the district court dismissed the appellants’ claim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action, we must view the facts alleged in their complaint in the light most favorable to them. See Bennett v. Berg, 685 F.2d 1053, 1057 (8th Cir.1982), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). So viewed, the complaint alleges that from February of 1984, to the time the complaint was filed, the Glucks dominated and controlled the activities of the Globe with the sole purpose of prolonging its life by creating an illusion that the company was solvent and able to pay its debts. The complaint further alleges that the Glucks engaged in such activities in order to divert the Globe’s assets to their own use and later sell their Globe stock for the highest price obtainable.
In furtherance of this scheme, the complaint alleges that the appellees engaged in a vast array of fraudulent activities by use of the mail and wire in violation of 18 U.S.C. § 1341 (mail fraud) and 18 U.S.C. § 1343 (wire fraud). The alleged acts include: (1) a check kiting scheme whereby, during the first eight months of 1985, the Glucks drew 5,643 checks totaling $4,264,-038.66 on Landmark St. Louis Bank (Landmark) which were returned because the Globe’s accounts contained insufficient funds and on which Landmark received a total of $93,708.92 in bad check fees; (2) diversion of the Globe’s corporate assets including funds totaling $775,000 withheld from or owing to Globe employees for taxes, union dues, health insurance premiums, savings bond purchases, earned vacation pay, and United Way contributions; and (3) defrauding of creditors by preparing and distributing false financial statements and by failing to comply with the terms of a financing agreement with Citicorp Industrial Credit Corporation.
On June 25, 1986, 636 F.Supp. 463, the district court granted the appellees’ motion to dismiss for failure to state a claim upon which relief may be granted finding that the complaint failed to adequately allege a “pattern of racketeering activity” as the term has been construed by the United States Supreme Court and this Court. The court, applying our recent decision in Superior Oil Co. v. Fulmer, 785 F.2d 252 (8th Cir.1986), found that although the alleged acts were sufficiently related to form a pattern, they constituted mere subdivisions of only one fraudulent scheme. Thus, the court found that the alleged acts lacked sufficient continuity to form a “pattern of racketeering activity.”
Review of the district court’s memorandum opinion reveals that it is fully consistent with our decision in Superior Oil, which we subsequently reaffirmed in Holmberg v. Morrissette, 800 F.2d 205 (8th Cir.1986). In those cases we held that a “pattern of racketeering activity” requires more than one fraudulent scheme. In this case, appellants allege only a scheme to keep the Globe afloat in order to loot it. Without more, the “pattern of racketeering” element of a RICO violation has not been alleged. Accordingly, we affirm.
. We are aware of the recent Second Circuit decision criticizing our holding in Superior Oil, and holding that two predicate acts committed with the common purpose of furthering a continuing criminal enterprise provide the continuity and relatedness apparently required by footnote 14 of Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346, 358-59 n. 14 (1985). See United States v. Ianniello, 808 F.2d 184 (2d Cir.1986). Nonetheless, we adhere to our position in Superi- or Oil.
Question: This question concerns the second 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_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".
STANDARD SANITARY MFG. CO. v. MOMSEN-DUNNEGAN-RYAN CO. et al.
No. 6416.
Circuit Court of Appeals, Ninth Circuit.
July 29, 1931.
Rehearing Denied Sept. 14, 1931.
Armstrong, Kramer, Morrison & Roche, of Phoenix, Ariz., for appellant.
■ Alice M. Birdsall and Thomas W. ISTealon, both of Phoenix, Ariz., for appellees.
Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
WILBUR, Circuit Judge.
This is a motion to dismiss the appeal. A petition for involuntary bankruptcy was filed by Momsen-Dunnegan-Ryan Company, Pratt-Gilbert Hardware Company, and Union Oil Company of Arizona, as petitioning creditors, against Phoenix Plumbing & Heating Company, a copartnership composed of Leo Francis, Lyon Francis, and D. L. Francis, co-partners, all of the parties above named other than appellant being named as appellees on this appeal.
The petition, filed on August 17, 1929, alleged a number of acts of bankruptcy, including preferential payments to each of three .creditors of the alleged bankrupts, it being averred as to one such preference that said alleged bankrupts, at a date subsequent to June 1, 1929, and while insolvent, transferred to the appellant, Standard Sanitary Manufacturing Company, a creditor, a portion of the property of such bankrupts, to wit, money in the sum of $13,000, with intent to prefer said creditor over their other creditors. Appellant filed its answer to said petition, in which answer it denied such preference. An answer to said petition was also filed by Crane Company, a corporation (one of the appellees herein), which was one of the creditors to whom, the petition alleged, a preferential payment had been made, constituting one of the several acts of bankruptcy eharg-ed in the petition.
Thereafter an order was made by the District Judge that the issues in said proceeding be referred to the special master, with direction to ascertain and report the facts with his conclusions thereon. Thereupon hearings were had and evidence taken before the master, who later filed his report. In said report it was among other things found that said Phoenix Plumbing & Heating Company, - a copartnership, and the previously named persons composing it, as partners and as individuals, were, and each of them was, at the date of filing said petition (August 17, 1929), and at the date of filing said report, and had been for more than four months next preceding the date of filing said petition, insolvent; in addition to other acts of bankruptcy found in said report, consisting of preferential payments made by said alleged bankrupts to creditors other than appellant, it was found in substance that on or about June 10, 1929, said alleged bankrupts did, while insolvent, 'transfer and pay over to Standard Sanitary Manufacturing Company, a corporation, creditor, the sum of $13,000, with intent to prefer said creditor over their other creditors; which said payment was, in the conclusions of law, characterized as a “further act of bankruptcy” on the part of said alleged bankrupts. Said sum of $13,-000 so paid to appellant was paid from moneys received by said partnership which were due it from the Lincoln Mortgage Company.
To said findings of fact and conclusions of law, with reference to the preferential payment of $13,000, appellant filed its exceptions. The court overruled these exceptions and ordered that said report be approved and confirmed, and “that the Phoenix Plumbing and Heating Company, a copartnership composed of Leo Francis, Lyon Francis and D. L. Francis, co-partners, and D. L. Francis, Leo Francis and Lyon Francis, as individuals, be and they hereby are declared and adjudged bankrupts.”
The petition for appeal herein was presented to, and allowed by, the District Judge. In said petition it was averred that petitioner felt itself “aggrieved by the overruling of the said objections and the adjudication” of bankruptcy, “and particularly that portion of said decree declaring that the payment of money to the petitioner by the Lincoln Mortgage Company an act of Bankruptcy.” The prayer of petitioner was that an appeal be granted in its behalf to this court “for the correction of the errors complained of and herewith assigned.” Error is assigned, in each instance, to the overruling of the above objections of appellant to findings and conclusions of law in the reply of the special master. In the brief of appellant it is stated that its appeal is confined “to the finding of fact and conclusion of law covering the so-called Lincoln Mortgage Company transaction, and the question • of insolvency prior to the 20th day of July, 1929”; said brief further stating that appellant “did not at any time in the proceedings raise any question whatsoever as to the adjudication on the 17th of August, 1929, nor to the findings of fact and conclusions of law on other acts of bankruptcy save the Lincoln Mortgage Company transaction.” It is thus apparent that the appellant does not complain of the adjudication of bankruptcy. The appellees’ motion to dismiss is upon the ground that this court is without jurisdiction to hear and determine this appeal, for the reason that it was not taken in conformity with any of the provisions of either section 24 or section 25 of the Bankruptcy Act (11 USCA §§ 47, 48) governing the taking and prosecution of appeals in bankruptcy matters. The appeal is apparently taken by reason of appellant’s fear that the order of adjudication in bankruptcy will be conclusive in a subsequent action brought by the trustee to determine the question of preference. The order does not have that effect. In re Sears, Humbert & Co. (C. C. A. 2) 128 F. 275.
In view of the foregoing facts, we are compelled to grant the motion of appellee to dismiss the appeal, for it appears therefrom that the matter sought to be presented here is not appealable under section 25. Section 24, as amended by Act May 27, 1926, c. 406, § 9, 44 Stat. 664 (11 USCA § 48), provides that the allowance of all appeals other than those mentioned in section 25 is discretionary with this court. The petition for the allowance of the appeal was not addressed to, nor was it acted upon by, this court.
Appeal dismissed.
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_applfrom | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Frank ILLINGWORTH, Appellant, v. INDUSTRIAL MOLASSES CORPORATION et al., Appellees.
No. 16150.
United States Court of Appeals Eighth Circuit.
Dec. 24, 1959.
Rehearing Denied Jan. 18, 1960.
John C. Stevens, of Randall & Stevens, Cedar Rapids, Iowa, presented oral argument on behalf of appellant.
Ernest F. Pence, of Sargent, Spangler, Hines & Pence, Cedar Rapids, Iowa, made argument for appellee.
Before GARDNER, VOGEL, and MATTHES, Circuit Judges.
GARDNER, Circuit Judge.
Appellant, Frank Illingworth, was the owner and driver of a truck-tractor which, while it was being driven westward on Highway No. 6, about one mile east of South Amana, Iowa, became stalled while partly on the paved portion of the highway. A truck-trailer driven by appellee Laverne Carrington in a westerly direction collided with appellant’s stalled tractor. The tractor driven by appellee Carrington belonged to ap-pellee Industrial Molasses Corporation, which also owned the cargo of molasses being transported in the trailer attached to the tractor. Based upon claims of personal injuries or damage to property resulting from this accident two actions were brought, one by appellees Carring-ton and Industrial Molasses Corporation for personal injuries to Carrington and damages to property of Industrial Molasses Corporation, and the other by one Kenneth C. Koch doing business as Chilli-cothe Cartage Company, for damages to property.
In the action brought by Carrington and Industrial Molasses Corporation it was alleged in the complaint that defendant in that action, appellant here, was negligent in the following particulars: (a) in stopping, parking, or leaving standing, said truck upon the paved traveled part of U. S. Highway No. 6; (b) in failing to leave said truck stopped, parked or standing off of the paved or main traveled part of said Highway No. 6 and upon the shoulder of said highway; (c) in failing to leave a clear and unobstructed width of at least twenty feet of said Highway No. 6 opposite said parked or standing vehicle for the free passage of other vehicles, including plaintiff’s vehicle; (d) in failing to display a lighted fusee, lighted flares, red reflector electric lanterns, or red reflectors, when defendant’s tractor was stopped on the traveled portion of Highway No. 6; (e) in failing to display a red light visible to the rear from a distance of 500 feet, when the defendant’s tractor was parked or stopped upon Highway No. 6.
Illingworth, in his answer to the complaint, denied all charges of negligence charged in the complaint and by way of counterclaim charged the plaintiffs with negligence in the following particulars: (a) the failure to operate said tractor and trailer at such a rate of speed as to permit the same to be brought to a stop within the assured clear distance ahead; (b) the failure to have said tractor and trailer under control; (c) the failure to keep a proper lookout; (d) operating said tractor and trailer at a speed in excess of fifty miles per hour; (e) not driving said tractor and trailer at a careful and prudent speed under the conditions then existing; (f) failing at the time and place of said accident to use a distribution of light, or composite beam directed high enough and of sufficient intensity to> reveal persons and vehicles at a safe distance in advance of the vehicle which the plaintiff Laverne Carrington was then and there driving. The plaintiffs by reply put in issue all the allegations of negligence contained in Illingworth’s counterclaim.
In the action brought by Kenneth C. Koch, the complaint charged Illingworth with the same acts of negligence as alleged in the complaint of Carrington and Industrial Molasses Corporation, and in turn Illingworth by his answer denied all acts of negligence.
As the two actions grew out of the same accident, the court consolidated them for the purpose of trial and they were tried to the court and a jury on instructions to which certain exceptions hereinafter to be noted were saved by Illingworth, appellant herein. The jury returned a verdict in favor of Kenneth C. Koch and against Illingworth, and also returned a verdict against appellant on his counterclaim in the action brought by Carrington and Industrial Molasses Corporation. In due course the court entered judgments pursuant to these verdicts. Appellant moved for a new trial in each of the cases, which the court denied. Illingworth did not prosecute his appeal from the judgment in favor of Kenneth C. Koch, but settled same.
From the judgment in favor of ap-pellees on his counterclaim appellant seeks reversal on the ground that the court erred in the following particulars: (1) the trial court erred in refusing to give an instruction of Section 321.415, Code of Iowa (1954), as amended, I.C.A.; (2) the trial court erred in submitting a specification of negligence based solely on negative testimony; (3) the trial court erred in refusing to strike that portion of the testimony of the witness Hummel which was based on hearsay; (4) the trial court erred in submitting Instruction No. 12 to the jury; (5) the trial court erred in failing to give an instruction on disabled vehicles; (6) the trial court erred in submitting Instruction No. 13 to the jury.
It will be observed that the alleged errors complained of are errors in giving or refusing to give instructions or alleged errors in ruling on the admissibility of evidence. There is no challenge to the sufficiency of the evidence to sustain the verdict on which the court entered judgment dismissing appellant’s counterclaim on its merits. The court instructed the jury in great detail, the instructions being numbered from 1 to 23, both inclusive. Appellant challenges only three of these instructions; to wit, Instruction No. 11, Instruction No. 12, and Instruction No. 13. He also complains that the court erred in refusing two instructions requested by him.
We have given careful consideration to all the exceptions now urged to the court’s instructions and in doing so have considered the instructions as a whole with meticulous care and think they properly presented the issues to the jury and contained no prejudicial error. In view of our conclusion, hereinafter expressed, as to the effect to be given to Instruction No. 16, which was not objected to, we deem it unnecessary to review the alleged errors in the giving or refusing of other instructions. Instruction No. 16 given by the court reads as follows:
“If your verdict is in favor of Kenneth C. Koch on his claim against Frank Illingworth, you need not give consideration to the claim of Frank Illingworth against the Industrial Molasses Corporation and Laverne Carrington. Further, if your verdict is in favor of the Industrial Molasses Corporation and Laverne Car-rington on their claims against Frank Illingworth, you need not give consideration to the claim of Frank Illingworth against them. Under the applicable law if Kenneth C. Koch or the Industrial Molasses Corporation and Laverne Carrington recover against Frank Illingworth, he cannot recover against the Industrial Molasses Corporation and Laverne Carrington and you should thereupon return a verdict in their favor on his claim against them. If you find that the Industrial Molasses Corporation and Laverne Carrington or Kenneth C. Koch are not entitled to recover against Frank Illing-worth, you will then consider the claim of Frank Illingworth against the Industrial Molasses Corporation and Laverne Carrington.”
This instruction was not objected to by any of the parties to the action, and it is not alleged nor charged as error in appellant’s brief. It cannot therefore be reviewed on this appeal. Rule 51, Federal Rules of Civil Procedure, Title 28 United States Code; Palmer v. Miller, 8 Cir., 145 F.2d 926; Hall v. Aetna Life Ins. Co., 8 Cir., 85 F.2d 447. The allegations as to- negligence were common to both actions, as was also the evidence in support of the allegations of negligence. As the sufficiency of the evidence to sustain the verdict is not challenged, this instruction became the law of the case. Baker v. Chicago, B. & Q. R. Co., 8 Cir., 220 F.2d 721; Pierce Consulting Engineering Co. v. City of Burlington, 2 Cir., 221 F.2d 607; Kelly v. Emary, 242 Iowa 683, 45 N.W.2d 866; 53 Am.Jur. Trial, Sec. 844, p. 620; Barron and Holtzoff, Sec. 1106, p. 804. In this Instruction No. 16 the court specifically told the jury that if their verdict was in favor of Kenneth C. Koch on his claim against Illingworth they need not give consideration to the claim of Illingworth against Industrial Molasses Corporation and Carrington. The jury, as has been observed, returned a verdict in favor of Kenneth C. Koch and against Illingworth. In so doing the jury of necessity found appellant guilty of negligence in the particulars alleged in the complaint of the appellees in their action against appellant. As this finding of the jury conclusively precluded appellant’s right to recover on his counterclaim, we pretermit any further consideration as to other instructions given or refused by the court.
It is finally urged that the court erred in refusing to strike the testimony of an expert witness called by appellees to the effect that the right rear wheel of the Illingworth tractor was five feet, ten inches south of the north edge of the highway, for the reason that it was based on hearsay. The evidence was not objected to when given and there was no suggestion that sufficient foundation had not been laid for the opinion of the witness nor that the matter was not the proper subject of expert testimony, although that was apparent on the face of the question. This same question was urged on motion for new trial, in response to which the court said:
“As to Paragraph 2 of the Motions. The question asked Patrolman Ray Hummel was on its face an improper question. Thornbury v. Maley (1951) [242 Iowa 70] 45 N.W.2d 576; McKeever v. Batcheler (1934), 219 Iowa 93, 257 N.W. 567. If the proper objection had been made to it, i. e., that the question called for expert testimony on a subject which was not a proper subject for expert testimony, the objection would have been sustained and the evidence sought to be elicited by the question would have been barred from the record. The defendant chose not to object to the question and the evidence which was responsive to the question came in without objection. During the cross-examination it developed that possibly the evidence so received was excludable upon another ground. Although it is not clear that the evidence was excludable upon such other ground, yet, if it were, it would seem that the defendant’s action was belated in character.” .
No proper objection having been made to the testimony of this witness when offered, we think the court did not abuse its discretion in refusing to grant appellant’s motion to strike. Quite aside from the testimony of this expert witness there was other testimony as to the physical facts and circumstances, leaving no room for doubt that the appellant was stopped, at least temporarily, in the north half of the road in front of appellee. Appellant himself testified on direct examination that:
“Just when I rolled to a stop, I rolled it over so the right front wheel and the back right was off of the pavement. Both the right wheels were off the pavement. My tractor was facing northwest.”
And on cross-examination he testified that:
“I didn’t think it would be hazardous to stop on the traveled part of the highway for a minute or two. I figured I would get her to the shoulder first, but right at the immediate place where I went to pull over, there was a big ditch.”
We have considered all other contentions urged by appellant but think they are without merit, and we are convinced that the court committed no prejudicial error in the trial of this case and that appellant had a fair trial. The judgment appealed from is therefore affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_casetyp1_7-3-1 | H | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
Irene BARTSCH, Plaintiff-Appellant, v. METRO-GOLDWYN-MAYER, INC., Defendant-Appellee.
No. 224, Docket 31633.
United States Court of Appeals Second Circuit.
Argued Dec. 6, 1967.
Decided Feb. 16, 1968.
Monroe E. Stein, New York City (Heit & Rothenberg, New York City, Stanley Rothenberg, New York City, of counsel), for plaintiff-appellant.
Eugene L. Girden, New York City (Coudert Brothers, New York City, Carleton G. Eldridge, Jr., New York City, of counsel), for defendant-appellee.
Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal from a judgment of the District Court for the Southern District of New York raises the question whether, on the facts here appearing, an assignee of motion picture rights to a musical play is entitled to authorize the telecasting of its copyrighted film. Although the issue seems considerably closer to us than it did to Judge Bryan, we affirm the judgment dismissing the complaint of the copyright owner.
In January 1930, the authors, composers, and publishers of and owners of certain other interests in a German musical play “Wie Einst in Mai,” which had been produced in this country as “May-time” with a changed libretto and score, assigned to Hans Bartsch
the motion picture rights and all our right, title and interest in and in connection with such motion picture rights of the said operetta or musical play, throughout the world, together with the sole and exclusive rights to use, adapt, translate, add to and change the said operetta or musical play and the title thereof in the making of motion picture photoplays, and to project, transmit and otherwise reproduce the said work or any adaptation or version thereof, visually or audibly by the art of cinematography or any process analogous thereto, and to copyright, vend, license and exhibit such motion picture photoplays throughout the world; together with the further sole and exclusive rights by mechanical and/or electrical means to record, reproduce and transmit sound, including spoken words, dialogue, songs and music, and to change such dialogue, if extracted from said works, and to interpolate or use other dialogue, songs and music in or in connection with or as part of said motion picture photo-plays, and the exhibition, reproduction and transmission thereof, and to make, use, license, import and vend any and all records or other devices required or desired for any such purposes.
In May of that year Bartsch assigned to Warner Bros. Pictures, Inc.
the motion picture rights throughout the world, in and to a certain musical play entitled “Wie Einst in Mai,” libretto and lyrics by Rudolf Schanzer and Rudolph Bernauer, music by Walter Kollo and Willy Bredschneider, for the full period of all copyrights and any renewed and extended terms thereof, together with the sole and exclusive right to use, adapt, translate, add to, subtract from, interpolate in and change said musical play, and the title thereof (subject so far as the right to use said title is concerned to Paragraph 7 hereof), in the making of motion picture photoplays and to project, transmit and otherwise reproduce the said musical play or any adaptation or version thereof visually or audibly by the art of cinematography or any process analogous thereto, and to copyright, vend, license and exhibit such motion picture photoplays throughout the world, together with the further sole and exclusive right by mechanical and/or electrical means to record, reproduce and transmit sound, including spoken words, dialogue, songs and music, and to change such dialogue, if extracted from said musical play, and at its own expense and responsibility to interpolate and use other dialogue, songs and music in or in connection with or as part of said motion picture photoplays, and the exhibition, reproduction and transmission thereof, and to make, use, license, import, vend and copyright any and all records or other devices made or required or desired for any such purposes.
By another clause Bartsch reserved the right to exercise for himself the rights generally granted to Warner Brothers insofar as these concerned German language motion pictures in certain countries and subject to specified restrictions:
but it is expressly understood and agreed that nothing herein contained shall in any way limit or restrict the absolute right of Purchaser to produce, release, distribute and/or exhibit the photoplay or photoplays produced hereunder based in whole or in part on “Wie Einst in Mai” and/or “May-time,” in all countries of the world, including the territory mentioned in this paragraph, at any time, and regardless of the right herein reserved to the Owner.
A further clause recited
The rights which the Purchaser obtains from the Owner in “Wie Einst in Mai” and/or “Maytime” are specifically limited to those granted herein. All other rights now in existence or which may hereafter come into existence shall always be reserved to the Owner and for his sole benefit, but nothing herein contained shall in any way limit or restrict the rights which Purchaser has acquired or shall hereafter acquire from any other person, firm or corporation in and to “Wie Einst in Mai” and/or “Maytime.”
Warner Brothers transferred its rights to defendant Metro-Goldwyn-Mayer, Inc. early in 1935, which made, distributed and exhibited a highly successful motion picture “Maytime.” The co-authors of the German libretto, one in 1935 and the other in 1938, transferred all their copyright interests and renewal rights to Bartsch, whose rights in turn have devolved to the plaintiff, his widow. The controversy stems from MGM’s licensing its motion picture for television, beginning in 1958.
Although the district judge upheld MGM’s contention that the 1930 assignment from Bartsch to Warner Brothers included the right to permit telecasting of the motion picture to be made from the musical play, he thought there was “a further reason why plaintiff cannot prevail in this action,” namely, that Bartsch had granted all that he had. This does not do justice to plaintiff’s argument. Her position is that in 1930 Bartsch not only did not but could not grant the right to televise the motion picture since, under the similar language of the assignment to him, it was not his to grant; her claim of infringement is based not on the 1930 assignment to Bartseh of the motion picture rights but on the authors’ later assignments of the full copyright.
The district court, appearing to consider that defendant’s rights turned on the authorization “to project, transmit and otherwise reproduce the said musical play or any adaptation or version thereof visually and audibly by the art of cinematography or any process analogous thereto,” concluded that television came within the phrase we have italicized. We have grave doubt on that score. We freely grant that “analogous” is a broader word than “similar,” and also that the first step in a telecast of a film, namely, the projection of the motion picture to an electronic pickup, is “analogous” to throwing the picture on a theatre screen. But to characterize the to us nigh miraculous processes whereby these images actuate airwaves so as to cause electronic changes in sets in millions of homes which are then “unscrambled” or “descanned” and thus produce pictures on television screens — along with the simultaneous electronic transmission of sound —as “analogous” to cinematography pushes the analogy beyond the breaking point. This is particularly so since the district court’s construction would seem to lead to the conclusion that the assignment would entitle the assignee to “project, transmit and otherwise reproduce” the musical play by a live telecast — a right which pretty clearly was not granted and indeed has not been claimed.
As we read the instruments, defendant’s rights do not turn on the language we have been discussing but rather on the broad grant, in the assignments to and from Bartseh, of “the motion picture rights throughout the world,” which were spelled out to include the right “to copyright, vend, license and exhibit such motion picture photoplays throughout the world.” The “to project, transmit and otherwise reproduce” language appears rather to have been directed at how the musical play was to be made into a photo-play. This may well have seemed a more vexing problem in 1930, due to uncertainties as to the best method for linking visual and audible reproduction, cf. Paramount Publix Corp. v. American TriErgon Corp., 294 U.S. 464, 55 S.Ct. 449. 79 L.Ed. 997 (1935), and whether a grant of motion picture rights to a play or novel included the right to sound reproduction, see L. C. Page & Co. v. Fox Film Corp., 83 F.2d 196 (2 Cir. 1936), than today. Being unclear whether sound reproduction would require alterations in previous methods of converting a play into a photoplay, Warner Brothers sought and obtained a considerable degree of freedom in that regard. On this view the clause whose meaning has been so hotly debated is irrelevant to the point here at issue, and decision turns rather on whether a broad assignment of the right “to copyright, vend, license and exhibit such motion picture photoplays throughout the world” includes the right to “license” a broadcaster to “exhibit” the copyrighted motion picture by a telecast without a further grant by the copyright owner.
A threshold issue — which the pre-Erie L. C. Page decision was not required to take into account — is whether this question should be determined under state or federal law. The seventeenth paragraph of Bartsch’s assignment says, somewhat unhelpfully, that “Each and every term of this agreement shall be construed in accordance with the laws of the United States of America and of the State of New York.” [Emphasis supplied.] We hold that New York law governs. The development of a “federal common law” of contracts is justified only when required by a distinctive national policy and, as we found in T. B. Harms v. Eliscu, 339 F.2d 823, 828 (2 Cir. 1964), citing many cases, “the general interest that copyrights, like all other forms of property, should be enjoyed by their true owner is not enough to meet this * * * test.” Contrast Murphy v. Colonial Savings and Loan Ass’n, 388 F.2d 609 (2 Cir. 1967), and Ivy Broadcasting Company, Inc. v. American Telephone & Telegraph Co., 391 F.2d 486 (2 Cir. 1968), with McFaddin Express, Inc. v. Adley Corp., 363 F.2d 546 (2 Cir.), cert. denied, 385 U.S. 900, 87 S.Ct. 206, 17 L.Ed.2d 132 (1966). The fact that plaintiff is seeking a remedy granted by Congress to copyright owners removes any problem of federal jurisdiction but does not mean that federal principles must govern the disposition of every aspect of her claim. Cf. DeSylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956).
Unfortunately, when we turn to state law, we find that it offers little assistance. Two other situations must be distinguished. This is not a case like Manners v. Morosco, 252 U.S. 317, 40 S.Ct. 335, 64 L.Ed. 590 (1920), cited with approval, Underhill v. Schenck, 238 N.Y. 7, 143 N.E. 773, 33 A.L.R. 303 (1924), in which an all encompassing grant found in one provision must be limited by the context created by other terms of the agreement indicating that the use of the copyrighted material in only one medium was contemplated. The words of Bartsch’s assignment, as we have shown, were well designed to give the assignee the broadest rights with respect to its copyrighted property, to wit, the photo-play. “Exhibit” means to “display” or to “show” by any method, and nothing in the rest of the grant sufficiently reveals a contrary intention. Nor is this case like Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79, 188 N.E. 163 (1938), in which the new medium was completely unknown at the time when the contract was written. Rather, the trial court correctly found that, “During 1930 the future possibilities of television were recognized by knowledgeable people in the entertainment and motion picture industries,” though surely not in the scope it has attained. While Kirke La Shelle teaches that New York will not charge a grantor with the duty of expressly saving television rights when he could not know of the invention’s existence, we have found no case holding that an experienced businessman like Bartsch is not bound by the natural implications of the language he accepted when he had reason to know of the new medium’s potential.
Plaintiff, naturally enough, would not frame the issue in precisely this way. Instead, she argues that even in 1930 Warner Brothers often attempted to obtain an express grant of television rights and that its failure to succeed in Bartsch’s case should persuade us that, despite the broad language, only established forms of exhibition were contemplated. She buttresses this argument by producing a number of 1930 assignments to Warner Brothers, some of which specifically granted the right to televise motion pictures and others of which granted full television rights, and by adducing testimony of the Warner Brothers lawyer who had approved the assignment from Bartsch that on many occasions Warner Brothers attempted to secure an express grant of such rights but did not always succeed.
However, this is not enough to show that the Bartsch assignments were a case of that sort. For all that appears Warner Brothers may have decided that, in dealing with Bartsch, it would be better tactics to rely on general words that were sufficiently broad rather than seek an express inclusion and perhaps end up with the opposite, or may have used a form regular in the industry without thinking very precisely about television, or — perhaps most likely — may simply have parroted the language in the grant from Bartsch’s assignors to him on the theory it would thus be getting all he had, whatever that might be. Indeed, it is really the assignment to Bartsch rather than the one from him that must control. While plaintiff suggests that Warner Brothers may have furnished Bartsch the forms to be used with his assignors, this is sheer speculation. There is no showing that the form was unique to Warner Brothers; indeed the contrary appears.
With Bartsch dead, his grantors apparently so, and the Warner Brothers lawyer understandably having no recollection of the negotiation, any effort to reconstruct what the parties actually intended nearly forty years ago is doomed to failure. In the end, decision must turn, as Professor Nimmer has suggested, The Law of Copyright § 125.3 (1964), on a choice between two basic approaches more than on an attempt to distill decisive meaning out of language that very likely had none. As between an approach that “a license of rights in a given medium (e. g., ‘motion picture rights’) includes only such uses as fall within the unambiguous core meaning of the term (e. g., exhibition of motion picture film in motion picture theaters) and exclude any uses which lie within the ambiguous penumbra (e. g., exhibition of motion picture film on television)” and another whereby “the licensee may properly pursue any uses which may reasonably be said to fall within the medium as described in the license,” he prefers the latter. So do we. But see Warner, Radio and Television Rights § 52 (1953). If the words are broad enough to cover the new use, it seems fairer that the burden of framing and negotiating an exception should fall on the grantor; if Bartsch or his assignors had desired to limit “exhibition” of the motion picture to the conventional method where light is carried from a projector to a screen directly beheld by the viewer, they could have said so. A further reason favoring the broader view in a case like this is that it provides a single person who can make the copyrighted work available to the public over the penumbral medium, whereas the narrower one involves the risk that a deadlock between the grantor and the grantee might prevent the work’s being shown over the new medium at all. Quite apart from the probable impraeticality, the assignments are broad enough even on plaintiff’s view to prevent the copyright owners from licensing anyone else to make a photoplay for telecasting. The risk that some May might find the nation’s television screens bereft of the annual display of “Maytime,” interlarded with the usual liberal diet of commercials, is not one- a court can take lightly.
Affirmed.
. The plaintiff points to paragraph 13 of the agreement, reproduced in the text, as indicating an intention to exclude television rights. The provision limits the rights of the assignee to those “specifically * * * granted herein,” and saves to Bartsch “all other rights now in existence or which may hereafter come into existence.” We cannot read this as standing for more than the truism that whatever Bartsch had not granted, he had retained.
. In Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481, cert. denied, 351 U.S. 926, 76 S.Ct. 783, 100 L.Ed. 1456 (1956), the Third Circuit, applying Pennsylvania law, held that a 1935 contract granting moving picture rights did not permit the grantee to televise the film. However, unlike Bartsch, the grantor, Ettore, was not an experienced businessman but a prize fighter, and the Court relied heavily on his lack of sophistication in determining whether it was fair to charge him with knowledge of the new medium. Id. at 491, n. 14.
. From all that appears, it would seem that this first assignment was negotiated in Germany and that German law would apply in its interpretation. Since neither party has suggested that German law differs from New York law in any relevant respect, we have not embarked on an independent investigation of the matter. El Hoss Engineering & Transportation Co. v. American Independent Oil Co., 183 F.Supp. 394, 399 (S.D.N.Y.1960), rev’d on other grounds, 289 F.2d 346 (2 Cir.), cert. denied, 368 U.S. 837, 82 S.Ct. 51, 7 L.Ed.2d 38 (1961). Though new Rule 44.1 establishes that courts may, in their discretion, examine foreign legal sources independently, it does not require them to do so in the absence of any suggestion that such a course will be fruitful or any help from the parties. Miller, Federal Rule 44.1 and the “Fact” Approach to Determining Foreign Law: Death Knell for a Die Hard Doctrine, 65 Mich.L.Rev. 615, 692-702 (1967).
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer: |
songer_respond2_1_2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "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".
TADEMY v. SCOTT et al.
No. 11477.
Circuit Court of Appeals, Fifth Circuit.
Oct. 23, 1946.
J. F. Kemp and J. M. Johnson, both of Atlanta, Ga., Ross R. Barnett, P. Z. Jones, and John E. Stone, all of Jackson, Miss., for appellant.
W. Colquitt Carter and Shepard Bryan, both of Atlanta, Ga., for appellees.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
McCORD, Circuit Judge.
Edward Tademy, a resident of Mississippi, brought action for damages for libel against C. A. Scott, administrator, and others, residents of Georgia.' The two newspaper articles upon which action was predicated appeared on successive weeks in the Jackson Advocate, a paper for negroes, edited, circulated, and sold in Jackson, Mississippi, and vicinity by one Percy Green. The Jackson Advocate was listed and recognized by the Scotts as a member of their “Scott Newspaper Syndicate”, and the editions in question were printed at the Scott plant in Atlanta, Georgia.
Among other asserted defenses, the Scotts sought to have the action dismissed on the ground that notice and opportunity for retraction and apology had not been given by Tademy as required by the Georgia statute governing libel actions against newspapers. Georgia Code, Sections 105-712, 105-713. Decision on this point of law was reserved by the trial judge and the parties proceeded with the introduction of evidence. Trial was had without a jury, and at the conclusion of the trial the court entered findings of fact and conclusions of law, and entered judgment for the defendants. In addition to findings on the merits, the court concluded that the failure of Tademy to give notice as required by the Georgia statute precluded recovery by him.
We shall not discuss the evidence or the findings made on the merits, for we are of opinion that the issues could not be developed until decision was made as to the applicability of the Georgia notice statute.
It is clear that the libellous articles were prepared and written by Percy Green in Jackson, Mississippi; that the matter was printed by the Scotts in Atlanta, Georgia; and that circulation and distribution of the newspapers was made in Mississippi.
Jurisdiction of the federal court sitting in Georgia was obtained because of the diversity of citizenship of the parties. Is the Georgia notice statute applicable?
In diversity of citizenship cases the conflict of law rules applied by federal courts must conform to those prevailing in the state courts. “Otherwise the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side.” Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477. In actions such as this, the local policy of the state must be considered. Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481, 134 A.L.R. 1462. Certainly, the statutes of Georgia reflect the public policy of the state. Lott v. Board of Education, 164 Ga. 863, 139 S.E. 722, 723.
The Georgia statute governing the bringing of newspaper libel actions provides :
“Notice to defendant specifying libelous article, etc., as condition precedent to civil action. — Before any civil action shall be brought because of any publication of a libel in any newspaper, magazine or periodical, the plaintiff shall, within the period of the statute of limitations for such actions and at least five days before instituting such action, give notice in writing to the defendant specifying the article and the statements therein which he claims to be false and defamatory and further stating in said notice what the complaining party claims to be the true state of facts.” Georgia Acts 1939, p. 343, Georgia Code, Section 105-712.
Section 105-713 of the Georgia Code provides for the effect of retraction as to damages recoverable for libel, and outlines the circumstances under which a plaintiff “shall recover only such special or actual damages as the plaintiff shows he has sustained.”
In the only cases in which the cited notice statute has been considered by the Georgia appellate courts, it was held that the statute was constitutional and that an action filed without the giving of notice was premature. Hall v. Kelly, 61 Ga.App. 694, 7 S.E. 290; Kelly v. Hall, 191 Ga. 470, 12 S.E.2d 881.
The notice statute fixes and declares the policy of the State of Georgia in actions such as this, and it is clear that had this case been brought in the state court it would have been held to be prematurely brought. Hall v. Kelly and Kelly v. Hall, supra.; Cf. Obear v. First National Bank, 97 Ga. 587, 25 S.E. 335, 33 L.R.A. 384. A federal court sitting in Georgia should likewise hold that the action was prematurely brought.
The judgment for the defendants should not have been a general judgment of non-liability on the merits. The judgment should have been one of dismissal without prejudice because of the plaintiff’s failure to comply with the Georgia notice statute governing newspaper libel actions.
The judgment is modified accordingly, and as modified is 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_genapel2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
MADDRIX et al. v. DIZE.
No. 5491.
Circuit Court of Appeals, Fourth Circuit.
June 13, 1946.
Simon E. Sobeloff, of Baltimore, Md. (Sigmund Levin, of Baltimore, Md., on the brief), for appellants.
Before GRONER, Chief Justice, U. S. Court of Appeals for the District of Columbia, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
Upon the first appeal in this case, 4 Cir., 144 F.2d 584, we affirmed the judgment of the District Court that Dize should pay to Maddrix the sum of $1052.10 and a fee of $75 for overtime compensation, liquidated damages and an attorney’s fee under the Fair Labor Standards Act. The controversy in this court related to the right of Maddrix to overtime compensation and no question was raised as to the amount of the fee. Subsequently the Supreme Court granted a writ of certiorari and affirmed the judgment: Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296.
Maddrix’ attorney then filed a petition in the District Court for an additional fee for services rendered in the appellate courts, including the preparation of the brief and the argument in this court, the preparation of brief in opposition to the petition of Dize for writ of certiorari in the Supreme Court, and the preparation of the brief and the argument of the case on its merits in that court. The District Judge was of the opinion that he was without power to allow an additional fee and dismissed the petition. D.C., 61 F.Supp. 946. Upon appeal from this action we held, 4 Cir., 153 F.2d 274, 276, that the District Judge had the power and we therefore reversed the order and remanded the case so that “a suitable allowance” might be made to the attorney “for services rendered upon the appeal to this court and in connection with the application to the Supreme Court for writ of certiorari and upon a'consideration of the case by that court.” Upon the remand the District Judge allowed an additional fee of $100. This allowance was not in accordance with the mandate of this court since the sum of $100 was obviously not a suitable allowance for the services rendered. The order of the District Court will therefore be reversed and in lieu thereof the case will be remanded with direction to the District Court to issue an order allowing the attorney a fee of Seven Hundred Dollars ($700).
Reversed and remanded.
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_genresp1 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED SCENIC ARTISTS, LOCAL 829, BROTHERHOOD OF PAINTERS AND ALLIED TRADES, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 79-1898.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 14, 1981.
Decided May 26, 1981.
Keith E. Secular, New York City, with whom Bruce H. Simon, New York City, and Sally M. Armstrong, Washington, D. C., were on the brief, for petitioner.
Catherine Garcia, Atty. N. L. R. B.,. Washington, D. C., of the bar of the Supreme Court of Virginia, pro hac vice, by special leave of court, with whom Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., were on the brief, for respondent.
Before TAMM, WALD and MIKVA, Circuit Judges.
Opinion for the court filed by Circuit Judge TAMM.
TAMM, Circuit Judge:
In this case a labor union challenges the finding by the National Labor Relations Board that the union violated section 8(b)(4)(ii)(B) of the National Labor Relations Act. Because we find that the result reached by the Board is not supported by substantial evidence, we reverse and remand for further proceedings.
I. BACKGROUND
Theater Techniques, Inc. (TTI) is a general contractor that supplies theatrical settings, props, and draperies for Broadway productions, motion pictures, and television programs. Nolan Scenery Studios, Inc. (Nolan) is similarly involved in the manufacture of settings, although primarily in the painting of scenery and props. Although Nolan has on occasion acted as a general contractor, its usual contractual relationship with TTI from January of 1977 to June of 1978 was that of subcontractor for the painting of scenery and props provided by TTI.
Nolan is a party to a collective bargaining agreement with United Scenic Artists, Local 829 of the Brotherhood of Painters and Allied Trades, AFL-CIO (Local 829 or Union). This agreement contained the following relevant clause:
For the purpose of clarification, it is specifically provided herein that the jurisdiction of the Union shall include all Scenic Artists’ work for Broadway Productions, “Off-Broadway,” Resident and Regional Theatres ... etc. This includes painting and application of all decorative material when applied by any means including all scenic creative art work, whether applied by painting or otherwise. It is agreed between the parties that the jurisdiction of the Union with regard to sculpturing shall include drawings, pounces and application of pounces, modeling or sculpturing over and above the rough blocking, in accordance with past practice.
Joint Appendix (J.A.) at 321. Nolan’s president, Arnold Abramson, stated his understanding that this agreement prohibited his company from subcontracting out any sculpturing work that had been assigned to it. J.A. at 150.
The alleged unfair labor practice at issue here involved the painting of scenery for a show entitled “Stop the World I Want to Get Off.” TTI entered into a contract with Nolan on April 26, 1978 for the painting of certain elements for this show. Exhibit 3A, J.A. at 308-09. Other elements were added by a separate contract dated April 28, 1978. Exhibit 3B, J.A. at 310-11. TTI shipped the necessary props and materials to Nolan on May 3 and 8. Included within the last shipment were the design sketches and materials necessary to construct the “environment unit.” At least four pieces of sculpture had to be created as a part of this unit. Nolan fabricated two of these pieces while two props, a dragon’s head and an airplane, arrived at Nolan already fabricated.
On May 9, Abramson telephoned the president of TTI, Peter Feller, to inform him that Nolan employees refused to work on those two prefabricated props. Abramson informed Feller later that day that a Union representative would visit the Nolan plant and that Abramson would see that the props were painted. Doug LeBrecht, assistant business representative for the Union, visited the plant on May 9 and spoke separately with Abramson, Nolan employees, and the designer for the show in question. Abramson testified that he informed Le-Brecht that the props had come from TTI. United Scenic Artists, Local 829, 243 N.L. R.B. No. 7 (June 25,1979) (Board Decision), J.A. at 6.
On May 10, Abramson telephoned the Union business representative, Domingo Rodriguez, about the two prefabricated props. Rodriguez gave his permission for the painting of the props by Nolan employees but told Abramson that Nolan had violated the collective bargaining agreement which, Rodriguez asserted', entitled Nolan’s employees to all of the sculpturing work. Rodriguez also informed Abramson that Nolan would be assessed a certain monetary amount based upon an estimate of the amount of time it would have taken Nolan employees to fabricate the props. Feller testified that Abramson subsequently informed him that the Union planned to charge Nolan in the future for painting props fabricated elsewhere as if Nolan employees had actually executed them. On May 11, Rodriguez sent a telegram to Abramson that stated:
It has come to our attention that you intend to paint sculpture which has not been produced by scenic artists employed by you. Painting of such sculpture constitutes a flagrant violation of Section 1 of the collective bargaining agreement between United Scenic Artists Local 829 and Theatrical Contractors Association Inc. to which you are a party. We demand that any and all work on such sculpture be stopped immediately and that you immediately comply with your contractual commitments.
It has also come to our attention that Nolan has entered into an illegal conspiracy with Theatre Techniques, Inc. [TTI] to deprive scenic artists of work opportunities. Please be advised that this Union will take appropriate action to the maximum extent permitted by law to counteract the effects of your improper activities.
J.A. at 320.
TTI filed charges before the Board on May 12, alleging that the Union had encouraged the refusal of Nolan employees to paint certain props sent by TTI to Nolan and that the Union had threatened Nolan with a financial penalty should it continue to paint props from TTI; a complaint issued on June 7. The Administrative Law Judge, after hearing evidence and considering the parties’ briefs, found that the Union had induced or encouraged a work stoppage in violation of section 8(b)(4)(i)(B) and violated the secondary boycott provision, section 8(b)(4)(ii)(B). National Labor Relations Act (Act), 29 U.S.C: §§ 158(b)(4)(i)(B) & (ii)(B) (1976). United Scenic Artists, Local 829, Case 2-CC-1553, Decision of the Administrative Law Judge (Sept. 22, 1978) (AU Decision), J.A. at 15-30. A Board panel, after evaluating exceptions to this decision, reversed the ALJ’s decision as to the work stoppage violation, but upheld his finding of a violation of the secondary boycott provision. Board Decision, J.A. at 4-14. The Union petitioned for review of this decision and order; the Board cross-petitioned for enforcement.
II. DISCUSSION
The “secondary boycott” provision of the Act states simply that it shall be an unfair labor practice for a labor organization or its agents “to threaten, coerce, or restrain any person engaged in commerce” where “an object thereof is — forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person .... ” 29 U.S.C. § 158(b)(4)(ii)(B) (1976). The Union attacks the Board’s decision that it violated this provision on two fronts. First, the Union argues that it possessed no “secondary” objective but was concerned only with the preservation of work for its members. Second, the Union contends that the conduct of its business representative did not amount to threats, coercion, or restraint within the meaning of the Act.
The Supreme Court has made clear that section 8(b)(4)(ii)(B), despite its broad language, does not ban all union actions that may cause a cessation of business between employers. Instead, only union activity with a “secondary” objective is prohibited. NLRB v. Enterprise Association of Pipefitters, Local 638, 429 U.S. 507, 510, 97 S.Ct. 891, 894, 51 L.Ed.2d 1 (1977); National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). The evaluation of activity as primary or secondary depends upon whether the activity was “ ‘addressed to the labor relations of the contracting employer vis-a-vis his own employees,’ National Woodwork, supra, at 645, 87 S.Ct. at 1268, and is therefore primary conduct, or whether the [activity] was ‘tactically calculated to satisfy union objectives elsewhere,’ 386 U.S., at 644, 87 S.Ct. at 1268, in which event the [activity] would be prohibited secondary activity.” Enterprise, 429 U.S. at 511, 97 S.Ct. at 894r-95. The secondary objective need not, however, be the union’s sole objective for the activity to be prohibited. Enterprise, 429 U.S. at 530 n.17, 97 S.Ct. at 904 n.17; Local 644, United Brotherhood of Carpenters v. NLRB, 533 F.2d 1136, 1149 (D.C.Cir.1975).
The Board began its analysis of the union activity here by pointing out the well-established principle that “Section 8(b)(4)(ii)(B) is violated where a union employs unlawful pressure to claim work that the immediate employer is not in a position to award.” J.A. at 10. In Enterprise the Supreme Court upheld the Board’s determination that the union of steamfitters had violated the statutory provision at issue here when it refused to install climate-control units because the factory-installed internal piping on the units violated its collective bargaining agreement which provided that the piping be done by the steamfitters. There, similar to the case at hand, the general contractor had specified the installation of particular units and the subcontractor, the employer organized by the union, had no contractual right to select other units. The Court held that the Board’s emphasis upon this “right to control” was a matter within its discretion and did not constitute “a departure from the totality-of-the-circumstances test recognized in National Woodwork.” 429 U.S. at 524, 97 S.Ct. at 901.
The Union argues in this court that Enterprise is distinguishable because here Rodriguez, the Union representative, possessed a reasonable, good faith belief that Nolan, rather than TTI, had the right to control the disputed work. Rodriguez testified that he believed that Nolan had the painting contract for the show in question and therefore control over whatever sculpting was to be done. J.A. at 231-32, 257. The ALJ found the whole of Rodriguez’s testimony “unreliable,” however, J.A. at 20, and the Board found no reason to overturn credibility determinations made by the ALJ. J.A. at 4 n.l. Were this merely a question of credibility, we would agree that it is properly left to the ALJ and the Board. Amalgamated Clothing Workers v. NLRB, 527 F.2d 803, 806 (D.C.Cir.1975), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976).
Resolution of credibility questions does not provide us, however, with the necessary record evidence to support the foundation upon which the Board apparently based its decision. An examination of that decision suggests that the Board, ignoring Rodriguez’s discredited testimony, assumed that the Union knew the terms of this particular contractual relationship and therefore the locus of the “right of control.” As the record now stands, substantial evidence cannot be found to support this unstated assumption. Even apart from Rodriguez’s direct testimony that he had no knowledge of TTI’s contractual control over the sculpturing work in question, J.A. at 231, 237, 265, much of the evidence on this point suggests that the Union did not know the provisions of the contract. For example, record evidence suggests that Local 829 had no way of knowing the existence of subcontractual arrangements on particular shows. J.A. at 84,149. In this case, moreover, Rodriguez testified that the shop report filed on Nolan made no mention of any involvement by TTI. J.A. at 213-15.
Record evidence upon which the Board might have based its unstated inference includes the apparent understanding by Abramson of TTI’s absolute right of control, J.A. at 125, and the visit by the assistant union representative LeBrecht to Nolan during which LeBrecht spoke with scenic artists, Abramson, and the designer of the show. J.A. at 18,129. Although Abramson stated that he informed LeBrecht that the props had come from TTI, J.A. at 130, nothing in the record before us contradicts Rodriguez’s assertion that Abramson told him only that the designer “had requested” that TTI execute the. pieces in question rather than Nolan. J.A. at 232. This record is therefore inadequate to support an unstated assumption drawn by the Board that the Union had knowledge of TTI’s complete control over the disputed work. NLRB v. Yeshiva University, 444 U.S. 672, 691, 100 S.Ct. 856, 867, 63 L.Ed.2d 115 (1980); NLRB v. General Telephone Directory Co., 602 F.2d 912, 920 (9th Cir. 1979).
Underlying the Board’s decision in this case, however, may be an implicit holding that the Union’s mistaken belief as to the locus of the right of control fails to constitute an adequate defense to the charged 8(b)(4)(ii)(B) violation. Because the Board’s decision does not reveal that it explicitly addressed this issue, we will not decide this troublesome question. We note in passing, however, that to allow a good-faith but mistaken belief that the pressured employer had the contractual right of control in such a situation to constitute a defense to an alleged violation of section 8(b)(4)(ii)(B) would appear to comport best with the statutory. requirement of a secondary “object.” But see General Truck Drivers, Local 85, 243 N.L.R.B. No. 94 (1979); National Association of Broadcast Employees, Local 31, 237 N.L.R.B. 1370, 1379 (1978), enforced, 631 F.2d 944 (D.C.Cir.1980).
Because we reverse and remand for further proceedings, we have no occasion to reach two further troubling questions raised by this case. First, unlike Enterprise, the economic “pressure” exerted by the Union in this case was in the form of a request for estimated hours for the purpose of calculating a monetary assessment. In essence, the Union made known its request for “premium pay” for painting the prefabricated props. The Union contends that such a request of an immediate employer, even where the employer is powerless to award the disputed work, constitutes primary activity. See Local 742, United Brotherhood of Carpenters v. NLRB, 533 F.2d 683 (D.C.Cir.1976), vacated and remanded in light of Enterprise, 430 U.S. 912, 97 S.Ct. 1322, 51 L.Ed.2d 590 (1977). But see Local 742, United Brotherhood of Carpenters, 237 N.L.R.B. 564 (1978) (Board action upon remand). The Union also contends, moreover, that the mere request for an estimate of hours in this case, without more, does not rise to the level of “coercion” made unlawful by section 8(b)(4)(ii)(B). We intimate no position on these issues.
III. CONCLUSION
Our statutory duty in this case is to examine the administrative record to determine whether the result reached by the Board is “supported by substantial evidence on the record considered as a whole,” 29 U.S.C. § 160(e) (1976). Taking care not to substitute our own view of the facts, we cannot discover adequate record evidence supporting the apparent, albeit unstated, assumption made by the Board that the Union in this case knew that TTI possessed absolute contractual control over the disputed work. Upon remand the Board must at least develop adequate evidentiary support for this assumption. Should some alternative rationale underlie the Board’s decision here, however, fuller explication of such a rationale is required. Only after the basis of the Board’s decision is made clear can meaningful judicial review occur. The decision of the Board is therefore reversed and the case remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
. The meaning of the term “painting” was disputed in this case. E. g., Joint Appendix (J.A.) 257-59, 273-74. Unless otherwise stated, the term is used in its ordinary meaning in this opinion.
. As appellate counsel for the Board noted at oral argument, the Board seemingly did not “address the situation of a bona fide belief that Nolan had controlled it all from the beginning and subcontracted a part away.”
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".
LAMB’S CHAPEL and John Steigerwald, Plaintiffs-Appellants, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT and Louise Tramontano, in her official capacity as president of the Board of Education for Center Moriches Schools, Defendants-Appellees, New York State Attorney General’s Office, Intervenor.
No. 470, Docket 91-7718.
United States Court of Appeals, Second Circuit.
Argued Nov. 4, 1991.
Decided March 18, 1992.
Mark N. Troobnick, Washington, D.C. (Jordan W. Lorence, Concerned Women for America Legal Foundation, Jay A. Seku-low, Walter M. Weber, Free Speech Advocates, of counsel), for plaintiffs-appellants.
Harold G. Trabold, Patchogue, N.Y. (Dranitzke, Lechtrecker & Trabold, Pat-chogue, N.Y., August H. Englert, Fiedel-man & Hoefling, Jericho, N.Y., of counsel) for defendants-appellees Center Moriches Union Free School Dist. and Louise Tra-montano.
Jeffrey I. Slonim, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Lawrence S. Kahn, Deputy Sol. Gen., Atty. Gem’s Office, State of N.Y., of counsel), for intervenor New York State Atty. Gen.
Jay Worona, Albany, N.Y. (Cynthia P. Fletcher, New York State School Boards Ass’n, Inc., of counsel) for amicus curiae New York State School Boards Ass’n, Inc.
Before CARDAMONE, PIERCE and MINER, Circuit Judges.
MINER, Circuit Judge:
Plaintiffs-appellants Lamb’s Chapel and John Steigerwald appeal from a summary judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.) in favor of defendants-appellees Center Moriches Union Free School District and Louise Tramontano, as President of the Board of Education of the School District. Lamb’s Chapel is an Evangelical Christian church, incorporated under the New York not-for-profit corporation law, located at Center Moriches, Suffolk County, New York. John Steigerwald is the Pastor of Lamb’s Chapel. The School District is a subdivision of the State of New York duly organized to provide public education in Suffolk County. This action was brought to secure declaratory and injunctive relief as redress for the refusal of the School District to allow the use of School District facilities, during non-school hours, for the showing of a series of religious films. The School District relied on a New York statute as well as a local rule in denying use of the facilities.
In granting summary judgment, the district court determined that the School District’s facilities were “limited public forums,” which had not been opened to religious groups by policy or practice. Accordingly, the court concluded that the facilities properly were barred to the plaintiffs in accordance with the New York Education Law and the School District’s own Local Rules.
On appeal, appellants contend that the School District, having created public forums by policy and practice, has excluded speech from the forum on the basis of content. This, they urge, is violative of the First Amendment. Appellants also contend that the denial to them of equal access to the School District’s facilities, based on the religious content of their speech, is a violation of the Establishment Clause. Finally, they contend that a prior decision of this Court upholding the New York statute that allows the exclusion of religious groups from school district facilities in the absence of a practice of opening the facilities to other religious organizations is erroneous and should not be followed. Finding no merit in any of these contentions, we affirm the judgment of the district court.
BACKGROUND
By application dated November 19, 1988, Pastor Steigerwald sought the use of rooms in the Center Moriches High School for Lamb’s Chapel Sunday morning services and for Sunday School. The hours specified were 9:00 A.M. to 1:00 P.M., and the time period indicated was one year, beginning in December of 1988. The application was made on a form provided by the School District and entitled “Application For Use of School District Facilities.” Attached to the application form was a sheet entitled “Rules and Regulations for Community Use of School Facilities.” Rule No. 7 was set out as follows: “The school premises shall not be used by any group for religious purposes.” Above his signature on the application form, Pastor Steigerwald indicated that he had read the Rules and Regulations and agreed to comply fully with them “excluding #7.”
Accompanying the application, and dated November 21, 1988, was a letter to Alice Schoener, School District Clerk, from the Pastor. In the letter, Pastor Steigerwald introduced himself and his Church and noted that their “paramount objective [was] to share the love of Christ in very real and practical ways.” He also indicated that he had taken a tour of the Center Moriches High School to “see if the school had adequate facilities for a movie series on the family that will be free of charge and open for the community to attend.” Pastor Steigerwald stated in his letter that he had met with the high school principal, who was concerned that the content of the film be nonsectarian in view of the constitutional requirement for the “separation of church and state.” The letter continued: “Those who espouse such a ... view are seriously misinformed. Enclosed you will find several articles that correctly interpret the law that is presently being upheld by the Supreme Court of the United States of America.”
By letter dated November 23, 1988 on behalf of the School District, Ms. Schoener advised Pastor Steigerwald that the application “requesting the use of the high school for your Sunday services” was denied, citing Local Rule No. 7 as well as the State Education law. Referring to scheduling problems, Ms. Schoener further advised that she was “very much afraid that, even without the prohibited religious activity aspect, your request would have to be denied.” Undeterred, Pastor Steigerwald pressed forward on December 16, 1988 with another application for use of the high school facilities, the second application being limited to one evening per week for five weeks. The hours designated were 7:00 P.M. to 10:00 P.M. and the activity specified was “Family emphasis & Movie presentation by Dr. James Dobson.” The purpose set forth was “To open up the film to share some pracital [sic] insights about the family.” The facilities requested were the auditorium or gymnasium.
In response to the second application Ms. Schoener wrote to Pastor Steigerwald on January 18, 1989 to request “a more detailed description of your proposed use (including a brochure describing the film),” noting that she was “hard pressed to determine from your description, what the five-part movie would represent” but “suspected] that it would certainly have religious connotations.” In the letter requesting additional information, Ms. Schoener observed that “[t]he district has not, in the past, allowed the high school auditorium to be used by any group primarily for its own purposes.”
A brochure describing the film, “Turn Your Heart Toward Home,” was forwarded by Pastor Steigerwald to Ms. Schoener on February 2, 1989. According to the brochure, the film comes in a 6-part series “every parent should see.” In the film, Dr. James Dobson, said to be an expert on family life, “reminds parents of society’s slide toward humanism — the undermining influences of radio, television, films and the press — which can only be counterbalanced by a loving home where Christian values are instilled from an early age.” In her response dated February 8, 1989, Ms. Schoener advised Pastor Steigerwald as follows: “This film does appear to be church related and therefore your request must be refused.” Additionally, Ms. Schoener denied a request made by Pastor Steigerwald on February 2,1989, for use of the elementary or high school on Friday or Saturday evenings “for ‘non-religious purposes’ such as volley ball.” The reason given was: “We do not schedule outside organizations to use the facilities on Fridays and Saturdays.”
Pastor Steigerwald continued to press his petition. On October 11, 1989, he submitted yet another application for the use of Center Moriches School District facilities to show the same film series, described in this application as a “Family oriented movie from a Christian perspective.” The stated purpose of Lamb’s Chapel was “To invite community of Center Moriches to view this very practical movie for family raising.” Once again, the use of an auditorium for five week days over a five-week period was sought. This last application met with a terse response by Ms. Schoener: “This film does appear to be church related and therefore your request must be refused.”
The complaint in this action was filed on February 9, 1990 and includes four causes of action: violation of the Freedom of Speech and Assembly Clauses; violation of the Equal Protection Clause; violation of the Free Exercise Clause; and violation of the Establishment Clause. As to each cause, the plaintiffs allege that the defendants’ actions were taken under color of state law and in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1983. The injunctive relief sought was an order permitting plaintiffs the use of the auditorium of the high school or elementary school to show the film series and to allow religious groups use of the facilities without discrimination because of the religious content of their speech. Also sought was a judgment declaratory of plaintiffs’ rights to use the facilities in question in accordance with constitutional protections guaranteed by the First and Fourteenth Amendments, including the Free Speech, Freedom of Assembly, Free Exercise, Establishment and Equal Protection Clauses of the Constitution. Plaintiffs also sought a declaration of the unconstitutionality of section 414 of the New York Education Law to the extent it bars the use of school district facilities for purposes of religious speech.
Plaintiffs’ motion for a preliminary injunction to compel the School District to allow the use of the District’s facilities was denied by the district court in a Memorandum and Order dated May 16, 1990. The court reviewed the facts presented on the motion as well as the applicable legal and constitutional principles and concluded that plaintiffs had “not shown either a substantial likelihood of success on the merits or sufficiently serious questions going to the merits.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 736 F.Supp. 1247, 1254 (E.D.N.Y.1990). An appeal to this Court from the Order denying the preliminary injunction was withdrawn, and the matter was returned to the district court for further proceedings. Thereafter, the plaintiffs moved for summary judgment and the School District cross-moved for the same relief. After hearing testimony as well as considering exhibits and affidavits, the district court granted the School District’s motion and denied the plaintiffs’ motion in a Memorandum and Order dated July 15, 1991, giving rise to this appeal.
In granting summary judgment, the district court found “that if the intended use of school facilities is not required or authorized by statute, there is no constitutional right to such use where a school district has not, by policy or practice, permitted a similar use in the past.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 770 F.Supp. 91, 98 (E.D.N.Y.1991). Although it determined that the Center Mo-riches School District facilities are limited public forums, the court concluded that the “District ha[d] not, by policy or practice, opened its doors to groups akin to Lamb’s Chapel,” and therefore held “that the School District’s denial of plaintiffs’ applications to show the film series [was] viewpoint-neutral and, hence, constitutional.” Id. at 99. We agree with the conclusion reached by the district court.
DISCUSSION
According to the Supreme Court, the extent of permissible governmental regulation of expressive activity on publicly owned property is dependent upon the character of the public property in question. See Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The Court has identified three categories of publicly owned property and has defined what regulatory power, consistent with the First Amendment, may be exercised in each category. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985).
The power of the State to regulate expression is most limited in regard to the category of public property designated “traditional public forum.” Streets, parks and similar locales, said to “have immemorially been held in trust for the use of the public and [which], time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939), fall within this classification. In such a forum, a regulation providing a content-based exclusion may be enforced only when “necessary to serve a compelling state interest” and must be “narrowly drawn” to serve that purpose. Perry, 460 U.S. at 45, 103 S.Ct. at 955. Also, narrowly tailored, content-neutral regulations pertaining to the time, place and manner of expression in a traditional public forum may be enforced, if they “serve a significant government interest, and leave open ample alternative channels of communication.” Id. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989).
The second category of public property pertinent to this analysis is made up of property purposefully opened for use by the public for expressive activity. Although government is not required to open this sort of forum or to keep it open indefinitely, the regulation of expression in a locale encompassed within the second category must meet the same standards as are applicable to a traditional public forum. Perry, 460 U.S. at 46, 103 S.Ct. at 955. Places opened specifically for the use of certain speakers or for the discussion of certain subjects are referred to as “limited” or “designated” fora. See Longo v. U.S. Postal Service, 953 F.2d 790, 793-94 (2d Cir.1992); Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 692 (2d Cir.1991). As to these fora, “the first amendment protections provided to traditional public forums only apply to entities of a character similar to those the government admits to the forum.” Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986).
Least restricted is the power of government to regulate expression in the third category of public property — the nonpublic forum. Included in this category is property that is not open for communicative purposes either by tradition or designation. Perry, 460 U.S. at 46, 103 S.Ct. at 955. With respect to such property, where governmental control is analogous to that of a private owner, see United States Postal Service v. Council of Greenburgh, 453 U.S. 114, 129-30, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981), a reasonableness standard prevails, see International Soc’y For Krishna Consciousness v. Lee, 925 F.2d 576, 580 (2d Cir.1991), cert. granted, — U.S. -, 112 S.Ct. 855, 116 L.Ed.2d 764 (1992). The standard is met when the applicable restrictions “reflect a legitimate government concern and do not suppress expression merely because public officials oppose the speaker’s view.” See Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.1991).
The Center Moriches School District facilities appellants sought to use do not fall within the categories of “traditional public forum” or “non-public forum,” and appellants do not contend that they do. What appellants do contend is that the school authorities in the Center Moriches School District by policy and practice have opened the facilities for the use of the general public and that the exclusion of religious speech is prohibited under the standards governing the second category. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988). An examination of pertinent policy and actual practices, however, convinces us that the school property in question falls within the subcategory of “limited public forum,” the classification that allows it to remain non-public except as to specified uses. See Deeper Life Christian Fellowship v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988) (Deeper Life I).
In the matter of School District policy, the District is governed by section 414 of the New York Education Law and its own Local Rule No. 7. Section 414 sets out ten purposes for which the use of schoolhouse facilities may be granted throughout the State of New York: instruction; public library purposes; social, civic and recreational meetings; events for which admission fees are charged, if the fees are to be applied to educational and charitable (but not religious) purposes; elections and political meetings; civic forums and community centers; classes for mentally retarded minors; recreation and athletics; child care services during non-school hours; and graduation exercisés held by not-for-profit elementary and secondary schools, provided no religious service is performed. N.Y.Educ.Law § 414[l](a)-(j) (McKinney 1988 & Supp.1992). Religious uses are nowhere permitted in this enumeration. All the uses specified are subject to such regulations as may be adopted by boards of education in the various school districts of the state, but the regulations must not conflict with the state law. See id. As previously noted, the Board of Education of the Center Moriches Union Free School District has provided in its Local Rule No. 7 that “[t]he school premises shall not be used by any group for religious purposes.”
In Deeper Life I we adopted a state court interpretation of section 414 that the use of New York school facilities is confined to nonreligious purposes, see Trietley v. Board of Educ., 65 A.D.2d 1, 5-6, 409 N.Y.S.2d 912, 915 (4th Dep’t 1978), and thereby ascertained the state’s intent to create a limited public forum from which religious uses would be excluded. See Deeper Life I, 852 F.2d at 680. We determined in that case that under the statute and applicable New York City Board of Education regulations, the School Board had no discretion with respect to the granting of use permits to religious groups. See Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83 (2d Cir.1991) (Deeper Life II).
Appellants argue, in effect, that once the school district facilities are opened as a public forum for one purpose, they are opened for all purposes. They take issue with our view that “property remains a nonpublic forum as to all unspecified uses ..., and exclusion of uses — even if based upon subject matter or the speaker’s identity — need only be reasonable and viewpoint-neutral to pass constitutional muster,” Deeper Life I, 852 F.2d at 679-80 (citations omitted), and contend that our view does not represent a proper interpretation of Supreme Court precedent. That challenge is barred by the rule of stare decisis, not only as a consequence of the Deeper Life cases but also as a consequence of our decision in Travis, where we held that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” 927 F.2d at 692.
In Travis, the school district was constrained to open its facilities to a religiously-oriented, fund-raising entertainment event benefitting a pregnancy counselling organization affiliated with an organization that promoted Christian gospel evangelism, having previously opened the facilities to a religious Christmas program involving the collection of toys for needy children. “The Christmas program .., created at least a limited public forum for fund-raisers with religious themes.” Id. at 693. In Deeper Ufe I, we sustained a preliminary injunction in a case in which a church sought the temporary use of an elementary school building, finding as a fair ground for litigation that “the School Board ha[d] opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” 852 F.2d at 680. Whether Center Moriches has opened its facilities to religious uses and purposes presents a close question here.
On appeal, appellants principally rely upon three prior uses of school district facilities to demonstrate a prior practice of opening Center Moriches public schools to outside of school religious uses: a Salvation Army Band Benefit Concert; a Gospel Music Concert; and a lecture series entitled “Psychology and the Unknown,” given by Jerry Huck. The Band Benefit Concert involved performances by the Center Mo-riches High School Band as well as the Salvation Army Greater New York Youth Band. The money raised at this concert was used to provide a scholarship for a high school band member and to provide funds for children to go to summer camp. The only religious connotations found in the Joint Band Program were the invocation, the performance of a piece called “Jericho Revisited” and the finale, “God Bless America.” Although appellants adduced evidence that “the Salvation Army is a church or a quasi-church,” the Joint Band Program hardly can be described as any kind of a religious use of school district property. The theme of the Program was not religious and any reference to religion was incidental at best.
The Gospel Music Concert was performed by a group called the “Southern Harmonizers Gospel Singers.” The purpose of the program was to raise money for the school’s black student scholarship fund. The program consisted in the main of gospel and spiritual music. The business manager of the Singers defined gospel music as “the good news of God.” Included in the program were such well-known religious songs as “Amazing Grace!” and “The Lord is my Shepherd” from the Twenty-Third Psalm of the Old Testament. The business manager responded in the affirmative when asked if the concert could be enjoyed for the music itself. Obviously, this is so. Much of the world’s greatest music has some religious connotation but can be enjoyed by people of all religious beliefs as well as people of no religious beliefs. The performance by the Southern Harmonizers was not a religious service or event but a musical and cultural one. It took place in a non-religious context and had a non-religious purpose.
The lecture series, “Psychology and The Unknown,” by Jerry Huck, was sponsored by the Center Moriches Free Public Library. The library’s newsletter characterized Mr. Huck as a psychotherapist who would discuss such topics as parapsychology, transpersonal psychology, physics and metaphysics in his 4-night series of lectures. Mr. Huck testified that he lectured principally on parapsychology, which he defined by “reference to the human unconscious, the mind, the unconscious emotional system or the body system.” When asked whether his lecture involved matters of both a spiritual and a scientific nature, Mr. Huck responded: “It was all science. Anything I speak on based on parapsychology, analytic, quantum physicists [sic].” Although some incidental reference to religious matters apparently was made in the lectures, Mr. Huck himself characterized such matters as “a fascinating sideline” and “not the purpose of the [lecture].”
As is apparent from the foregoing, none of the prior uses pointed to by the appellants were for religious purposes. Nor are we able to discern any previous uses of any school district property for religious purposes upon an examination of the record. Incidental references to religion or religious figures, the occasional use of religious terms, and the performance of music with religious overtones do not convert a secular program into a religious one. The programs cited as examples did not carry out religious themes nor were they presented in a religious context. We simply have not been able to identify any prior use of Center Moriches School District facilities for purposes that are religious in any meaningful way. We therefore conclude that the facilities were limited forums not opened to religious uses by policy or practice and that there was no constitutional violation in the failure of the School District to afford access to appellants.
Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) and Board of Educ. of the Westside Community Schs. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), relied upon appellants, do not dictate a contrary result. In Widmar, the Court held that a state university could not deny access to university facilities to students who wished to conduct religious meetings on campus. Widmar, 454 U.S. at 273, 102 S.Ct. at 276. The Court found in that case that “[t]hrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups,” noting that “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Id. at 267 & n. 5, 102 S.Ct. at 273 & n. 5. In Mergens, the Court held that the Equal Access Act, 20 U.S.C. § 4071(b) prohibited a high school from “discriminating, based on the content of the students’ speech, against students who wish to meet on school premises during noninstructional time.” 496 U.S. at 247, 110 S.Ct. at 2370. The high school had created a limited open forum- by allowing noncurriculum-related student groups to use the school facilities. The denial of a request to form a Christian club, under the circumstances revealed, constituted a denial of equal access under- the Equal Access Act.
Although appellants contend that our Deeper Life opinions are incompatible with these Supreme Court decisions and that the decisions compel a reversal of the district court in the case at bar, the contention is baseless. Widmar involved the use of university property by student groups in a situation where a number of such groups had been afforded access, to the point where, as to the students, a “generally open forum” was created. 454 U.S. at 267, 102 S.Ct. at 273. Similarly, in Mergens, the religious use of school property was sought by students, who have a greater claim on the use of school property than outsiders, especially when the property generally is open to student groups. The Supreme Court decided Mergens purely on statutory grounds, noting that it did not need to decide whether the First Amendment requires the same result. In the Deeper Life cases, as in the case at bar, we are presented with outside organizations seeking access where access has been limited and all religious use has been barred by policy and practice.
The appellants argue that denial of access somehow violated the Establishment Clause of the First Amendment as well as the Freedom of Speech Clause. It is difficult to see how this is so. If anything, a claim of a violation of the Free Exercise Clause would be expected. Nevertheless, there is no basis for any claim of First Amendment violation here. We have considered all of the arguments advanced by the appellants and find them meritless.
CONCLUSION
The judgment of the district court is affirmed in all respects.
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_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".
O’BRIEN v. PUBLIC SERVICE TAXI CO.
No. 9942.
United States Court of Appeals Third Circuit.
Submitted on briefs Oct. 11, 1949.
Decided Dec. 7, 1949.
William A. Bissell, Scranton, Pa., and Stark, Bissell & Griffith, Scranton, Pa., for appellant.
Carlon M. O’Malley, Scranton Pa., and John W. Bour Scranton, Pa., for appellee.
Before McLAUGHLIN and KALODNER, Circuit Judges, and FEE, District Judge.
KALODNER, Circuit Judge.
In this action, the plaintiff seeks redress for injuries alleged to have been sustained while he was riding in a taxicab owned by the defendant and operated by one of its employees. The jury returned a verdict in his favor, upon which judgment was entered, and the District Judge denied the defendant’s alternative motions for a new trial or for judgment notwithstanding the verdict. 83 F.Supp. 55.
It should be stated that federal jurisdiction exists here through the diversity of citizenship of the parties, and, since all the events relevant to the action occurred in Pennsylvania, its law is determinative of their rights. Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.
The verdict of the jury requires that the evidence and the inferences therefrom be taken favorably to the plaintiff. We do not deem it of utility to repeat the evidence; rather, it is sufficient to state that our examination of the record leads us to hold that there was adequate evidence to permit the jury to find, either directly or through legitimate inference, the following critical facts:
At about 2 o’clock on the morning of August 16, 1946, the plaintiff was a fare-paying passenger in the defendant’s taxicab, then being driven by one Angelo Cali who was, at that time, engaged in executing the contract of carriage. The plaintiff was occupying the front seat to the right of Cali at the latter’s request, and there were no other persons in the taxicab. The plaintiff, without having done anything to provoke it, received from Cali a blow on his head of such force as to render him unconscious.
The plaintiff, in seeking to support the verdict on this appeal, asserts that a presumption of negligence arose On proof that he was a passenger in a vehicle operated by the defendant as a common carrier and that he was injured during the carriage. He relies, as did the court below, on Bickley v. Philadelphia & Reading Ry. Co., 1917, 257 Pa. 369, 101 A. 654, although it would appear, from later cases, that the requisites for such a presumption in Pennsylvania are more exacting: see Nebel v. Burrelli, 1945, 352 Pa. 70, 74-75, 41 A.2d 873. However, neither the issue of negligence nor the suggested presumption was submitted to the jury. Indeed, the jury was instructed, in accordance with the defendant’s request, that it was bound to return a verdict for the defendant if it did not find that Cali had struck the plaintiff. Accordingly, in our view of the case, the issue of negligence is not of decisive importance.
The learned District Judge exhaustively dealt with the problem of determining the state of the law of Pennsylvania with respect to the liability of the defendant for the assault of a passenger by its employee. There is no dispute that the defendant was a common carrier. Cf. Hughes v. Pittsburgh Transportation Co., 1930, 300 Pa. 55, 150 A. 153. And we agree with the holding of the court below that the rationale of Artherholt v. Erie Elec. Motor Co., 1905, 27 Pa.Super. 141, warrants the result it reached.
In that case, the court said, 27 Pa.Super at pages 146-147: “1. The responsibility of a common carrier for the tortious acts of its servants affecting passengers being transported, does not rest alone upon the doctrine respondeat superior. When a passenger has entered a car of a street railway company and has paid his fare, a quasi contractual relation is established whereby the company assumes certain duties from responsibility for the breach of which it cannot discharge itself by prescribing rules for the government of the conduct of its servants. True, common carriers do not, in legal contemplation, warrant the absolute safety of their passengers, but they are bound to the exercise of the utmost degree of diligence and care, and it has been held that this duty includes the exertion of such power as conductors and other trainmen have to protect passengers from violence of other persons. * * * If the duty of the carrier to afford protection, which he is to discharge through his servants, extends to the prevention of injury from the acts of third persons which it is practicable for the servant in charge to prevent, it is difficult to see why it should be held not to include protection against the active participation of the servant himself in an unprovoked and wanton assault upon a passenger, committed while he is being transported, and while the servant is engaged in executing the contract of carriage. According to the great weight of authority the carrier is responsible for such misconduct of the servant to whom it has intrusted the safe carriage of passengers * * * and none of the Pennsylvania cases cited by the appellant’s counsel upon this point hold a different doctrine.”
The principle enunciated in the Artherholt case was adhered to in Greb v. Pennsylvania R. Co., 1909, 41 Pa.Super. 61, 67-68, where it was held to be a logical conclusion to those cases in Pennsylvania imposing a duty on the carrier to protect passengers from violence of other persons.
The Artherholt case was also cited with approval in Durando v. Philadelphia Rapid Transit Co., 1922, 80 Pa.Super. 65. In Cherillo v. Steinberg, 1935, 118 Pa.Super. 485, 493-494, 180 A. 115, 119,’ it was said; “Common carrier cases, where the carrier was held liable for the assault of its employee on a passenger, are also distinguishable, because there the liability was based, not so much on the doctrine ‘respondeat superior,’ as because of the duty of the common carrier to exercise the utmost degree of diligence and care in the transportation of its passengers, and this duty includes protection against the active participation of its servants in a wanton and unprovoked attack upon a passenger, while he is being transported and while the servant is engaged in executing the contract of carriage.”
A like result is adopted in the Restatement of the Law of-Agency, Section 214 Comment d, and is consistent with the weight of authority.
Patently, non-carrier cases, where a special duty toward the person injured does not exist, are not in point. Other carrier cases merely serve to set out the limitations upon the Artherholt decision. Thus, the special duty dissolves upon termination of the contract of carriage, and there is an indication that its consequences would not attend a passenger who is on the station premises. Similarly, the rule would, not seem to be applicable where the employee has left his post and deserted his duty, nor where the employee’s duties are not of the class of a conductor, e. g., a porter, a brakeman, or a policeman. Indeed, in another connection the Supreme Court of Pennsylvania has recognized the peculiar nature of a conductor’s position: Ainsley v. Pittsburgh, C., C. & St. Louis Ry. Co., 1914, 243 Pa. 437, 90 A. 129. And, insofar as the issue of the instant case is concerned, we cannot say that there is such a difference between a taxicab or bus driver, on the one hand, and a street car or railroad car conductor, on the other, as to justify a difference in result. -
We conclude, therefore, that the instant case comes within the specific sphere of Artherholt v. Erie Elec. Motor Co.; supra, in that an employee of the defendant who was in charge and to whom the safe carriage of passengers had been entrusted, while he was engaged in executing the contract of carriage, committed an assault upon a passenger being transported at the time.
For the reasons stated, the judgment of the court below will be affirmed.
. We deem irrelevant the defendant’s contention that Cali and the plaintiff had stopped at various bars and engaged in a “drinking bout” inasmuch as, the jury by its verdict found that at the time of the assault the contract of carriage was in effect.
. The leading cases were, and still are, Pittsburgh, Ft. W. & C. Ry. Co. v. Hinds, 1867, 53 Pa. 512, 91 Am.Dec. 224, and Pittsburgh & Connellsville R. Co., v. Pillow, 1875, 76 Pa. 510, 18 Am.Rep. 424.
. See 10 Am.Jur., Carriers, Sections 1443, 1447; 13 C.J.S., Carriers, §§ 691, 692; 2 Hutchinson on Carriers (3rd Ed., 1906) Sections 1093, 1094, cited with approval in Greb v. Pennsylvania R. Co., 41 Pa. Super. 61, 70-71 (1909); 4 Williston on Contracts (Rev.Ed., 1936), Section 1113.
. Berryman v. Pennsylvania R. Co., 1910, 228 Pa. 621, 77 A. 1011, 30 L.R.A.,N.S., 1049; see Greb v. Pennsylvania R. Co., 1909, 41 Pa.Super. 61, 70-71.
. See Greb v. Pennsylvania R. Co., supra, note 3, quoting with approval 2 Hutchinson on Carriers (3rd Ed., 1906), Section 1093.
. See Greb v. Pennsylvania R. Co., supra, note 3, 41 Pa.Super. at page 69.
. Rohrback v. Pennsylvania R. Co., 1914, 244 Pa. 132, 90 A. 557.
. Win v. Atlantic City R. Co., 1915, 248 Pa. 134, 93 A. 876.
. See Berryman v. Pennsylvania R. Co., supra, note 3, 228 Pa. at page 627, 77 A. 1011, 30 L.R.A.,N.S., 1049. As to policemen in non-carrier eases, see Pilipovich v. Pittsburgh Coal Co., 1934, , 314 Pa. 585, 172 A. 136, citing with approval Greb v. Pennsylvania R. Co., supra, note 3.
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_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.
UNITED STATES of America v. James R. ANDERSON, Appellant.
No. 81-2273.
United States Court of Appeals, District of Columbia Circuit.
Jan. 29, 1982.
Before MacKINNON and ROBB, Circuit Judges.
Opinion PER CURIAM.
PER CURIAM:
James R. Anderson was convicted in District Court of possession of one ounce of heroin in violation of D.C. Code § 33-402 (1973) and on one count of possession of the implements of crime (narcotics paraphernalia) in violation of D.C. Code § 22-3601 (1973). During trial he had been released on bail but upon the return of the guilty verdict his bail was revoked and his release terminated. The trial judge found on the basis of the convictions of the two offenses and his prior record that he would pose a danger to the community if released. Thereafter the court adjudged sentences of one year imprisonment on each count, such sentences to be served consecutively. Anderson subsequently appealed his convictions and moved the trial court for release on bond pending appeal. The court denied this motion for substantially the same reasons that he had terminated his release following the convictions. He now brings that decision of the trial court before us by a motion for release on bond until his appeal is decided. We deny the motion for reasons hereafter stated.
At the outset we note that the heroin in his possession, as found by the jury, was contained in 45 separate packages having a total street value of $1,800. Anderson was not a heroin user and such quantity of heroin was sufficient to support a finding of intent to distribute. The narcotics paraphernalia that was the subject of the third count would support the same finding. Anderson also had a prior conviction in the District of Columbia for possession of heroin for which he was sentenced on November 21, 1980 to a suspended sentence with nine months probation. Thus on April 23, 1981 when he committed the instant offenses he was still on probation. To further aggravate his record, on May 28, 1981, while he was still on probation, he was charged with the actual selling of heroin— across from his store.
With this background his counsel points, in support of his release on bond pending appeal, that he has always shown up for trial, that he is living in the community with his family, that he has diabetes; and argues that because the convictions in this case were only misdemeanors and were pos-sessory offenses, not involving weapons, violence or felonies, that he should be released on bond. We disagree. Counsel’s argument goes only to his likelihood of flight and he has misstated Anderson’s record and the record shows that his release would pose a danger to the community.
First, as to Anderson’s record. As indicated above on November 21, 1980 in the District of Columbia he was adjudged guilty of possessing heroin. That, so far as this record indicates, was his first conviction. Then followed the instant offense on April 23, 1981 of again having heroin in his possession and under his control, not in some minor quantity, but in quantity sufficient to indicate an intent to distribute. Counsel indicates that this second conviction was for a misdemeanor — it was not. It was a felony since it was his second conviction for such offense and was punishable by imprisonment up to 10 years or a $5,000 fine, or both. D.C. Code § 33-524 (1981) is applicable. It provides:
(a) Except as hereinafter provided, a person violating any provision of this chapter [Narcotic Drugs], ... for which no specific penalty is otherwise provided, shall be fined not less than $100 nor more than $1,000, or imprisoned for not more than 1 year, or both.
(b) A person convicted of an offense punishable pursuant to this section, who shall have previously been convicted in the District of Columbia of such an offense, . . . shall be fined not less than $500 nor more than $5,000 or imprisoned for not more than 10 years, or both. (Emphasis added)
(c) For additional penalties for 2 or more violations of this chapter, see §§ 22-104 and 22-104a. (June 20, 1938, 52 Stat. 796, ch. 532, § 23; July 24, 1956, 70 Stat. 622, ch. 676, title III, § 301(n); July 29, 1970, 84 Stat. 603, Pub.L. 91-358, title II, § 208; 1973 Ed., § 33-423.)
Additional aggravation of his record occurred with the charge of selling heroin on May 28, 1981. So his true record, ignoring for the time being the conviction for possessing the implements of crime and the May 28 charge of selling, indicates that shortly after he was placed on probation he committed the same narcotics violation a second time. This proves that he did not learn his lesson, that if he were released on bond there is a strong likelihood that he would continue to possess and control heroin in substantial quantities, and that for such reasons his release would endanger the community. The court therefore soundly decided to protect the community from the danger that would result from his release. In other words we find that society is endangered when courts release those individuals onto the community whose past conduct indicates that they are likely to possess, control or distribute controlled substances.
Counsel, however, argues that the convictions were only possessory offenses. They were, however, for the possession of heroin, one of the most dangerous and addictive of all the controlled substances and for the possession of implements of crime associated with offenses involving heroin. In further response to counsel’s argument we would observe that heroin must be possessed before it can be sold. So the possession and control of heroin, particularly in quantities sufficient to indicate an intent to distribute — as here — is not a minor offense as some contend. Further, one who is guilty of repetitive offenses of possession or control of heroin, especially when he is not a user and the quantity of heroin is substantial, is a substantial danger to any community.
Even though the convictions were for D.C. Code offenses the case was properly tried in the United States District Court because Count I charged a U.S. Code offense in violation of 21 U.S.C. § 841(a). Anderson’s release on bond pending appeal is therefore governed by Fed.R.App.P. (9)(b) and 18 U.S.C. § 3148. This statute provides: “A person .. . convicted of an offense ... [who] has filed an appeal . .. shall be treated in accordance with the provisions of section 3146 [the release statute] unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger ... to the community. If such a risk of flight or danger is believed to exist . . . the person may be ordered detained.” (Emphasis added). Having found that Anderson’s release would pose a danger to the community the judge properly denied his release. We reach a similar conclusion and deny appellant’s motion for bond pending appeal.
So ordered.
. D.C. Code § 33-402 provides: “(a) It shall be unlawful for any person to ... possess [or], have under his control .. . any narcotic drug, except as authorized by this chapter.”
. He was acquitted of possession of the heroin with intent to distribute as charged under 21 U.S.C. § 841(a).
. 18 U.S.C. § 3148, discussed, infra.
. If Anderson is convicted of the May 28, 1981 alleged offense, subsection (c) of D.C. Code § 33-574 might become applicable.
. D.C. Code § 11-502(3) (1973). See United States v. Shepard, 515 F.2d 1324, 1328-31 (D.C.Cir.1975).
. Fed.R.App.P. 9(b) provides:
(b) Release Pending Appeal from a Judgment of Conviction. Application for release after a judgment of conviction shall be made in the first instance in the district court. If the district court refuses release pending appeal, or imposes conditions of release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the court of appeals or to a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The court of appeals or a judge thereof may order the release of the appellant pending disposition of the motion.
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_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.
LOVE v. UNITED STATES.
No. 11503.
Circuit Court of Appeals, Eighth Circuit
Nov. 21, 1939.
Rehearing Denied Dec. 9, 1939.
Harold R. Love, pro se.
Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., of St. Paul, Minn., on the brief), for appellee.
Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.
WOODROUGH, Circuit Judge.
This action was brought against the United States of America by Harold R. Love to obtain an adjudication and judgment by the court compelling the United States to take him into its employment, and to pay him certain sums of money (less than ten thousand dollars) as compensation for certain periods during which he claims he had a legal right to government employment but such right was wrongfully denied him. He filed his suit and appeared in the District Court without counsel, and his very voluminous complaint lacks the formality and coherence usually found in pleadings. It contains, however, specific allegations that jurisdiction in the case is conferred upon the District Court by the provisions of the Tucker Act, 28 U.S.C.A. § 41 (20), and that the cause of action arises under the Acts of Congress and lawful Regulations pursuant thereto.
The United States urged no point against the complaint as to any defect of form, but moved to dismiss it upon the grounds (1) that the court was without jurisdiction of the subject matter, and (2) that there was a failure to state facts sufficient to constitute a cause of action. After hearing upon briefs and oral arguments, the motion was “in all respects granted” and the action was dismissed for want of jurisdiction. Mr. Love has appealed, asserting error in the ruling and judgment.
It appears from the complaint that Mr. Love is a native-born United States citizen and an honorably discharged veteran of the World War, and that after his army discharge he was employed under the Treasury Department of the United States from 1920 through 1923 in the capacity of “agent” or “inspector” at a salary of (apparently) $2,750 per annum. After the termination of that employment and in the year 1920, he took and successfully passed a civil service examination, receiving the classification of “auditor, accountant and -statistician”, but was never appointed or assigned to duty in such capacity. Since March 1933 he has been in actual need or classified as such, and from June, 1936, until August 22, 1938, he was employed upon Works Progress Administration Project 5191 in Minneapolis, Minnesota. He was discharged from that work on the last named date and has been unable to obtain private employment and has been without government employment since that time.
The complaint has been studied in all its parts, but as the controlling question for this court is whether the District Court had jurisdiction, it is not necessary to set out all the particulars. The prayer of the complaint is elaborated and discloses the theory upon which the jurisdiction was invoked. Upon consideration of the prayer, it is observed that in the initial paragraphs Mr. Love “demands that it be adjudged” (in substance) that by virtue of his preference rights as a World War veteran and the passing grade he obtained in his classified civil service examination in 1920, he became and has remained and now is entitled to and shall receive immediate employment under the Department of the Treasury; that payment for his services shall be made to him at the same rate he was receiving when he was employed as a revenue agent in the year 1923; and that he recover from the United States back pay at the same rate from March 13, 1936, until his employment begins under the order of the court in this case.
Following this prayer of the complaint, it is stated that if the court should not determine as thus prayed, then alternative relief was demanded. Such alternative re.lief is not related to employment of Mr. •Love under the Department of the Treasury, but to his employment under the Works Progress Administration. That part of the prayer will, therefore, be later and separately discussed. We consider first whether the court had jurisdiction to entertain the action against the United States to compel the employment of Mr. Love in the Department of the Treasury of the United States, or to award him a money judgment for pay during the period for which he asserts he had a right to be employed.
It is to be noted in the first place that Mr. Love has asserted no claim that he has ever had or now has any “title to office” in the government as the term “office” is understood and accepted. His contentions relate only to the alleged right to be employed in capacities distinct from and subordinate to those who hold “office”. He makes many charges against such officers and others subordinate to “officers” but superior to himself in the conduct of tfye “office” where he has worked and in other departments, and they are alleged to have acted arbitrarily and unlawfully in denying him employment. Certain disputes which have arisen on various occasions in the course of our history in respect to the tenure of “offices” and the power to make removals of incumbents or to replace them with other appointees, have called forth the utmost effort of the courts to find peaceful solution in law and reason. Several such controversies were recognized to be of far-reaching importance. They were justiciable and were settled upon profound consideration by judicial determination.
But such determination has always been rested upon the interpretation and application of the provisions of the constitution and federal enactments. It can not be predicated upon any judicial concept concerning an able-bodied, competent and willing man’s natural or inherent right to work. Unless a legal right has been defined and conferred by legislative authority, no justiciable controversy is present. The principles applicable are the same in the field of government work as in the broader field of private enterprise. The right to work at a particular employment must be shown to have become vested by law in the person asserting it. Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828; Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160; Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611.
Mr. Love contends that the preference provisions of the Civil Service Act, 5 U.S. C.A. § 631 et seq., as amended and supplemented by the Rules and Regulations, operate to confer the legal right upon him to have government employment and that they impose a reciprocal duty and obligation upon the government to give him employment which is enforceable in his favor in this action.
The'first sentence of the Veterans’ Preference Act, 5 U.S.C.A. § 35, was enacted in 1865, and the second in 1919. 5 U.S.C.A. § 37 was enacted in 1876, and although modifications in some details have been made and many lawful Rules and Regulations have been promulgated to effectuate the provisions of the law as amended, the nature of the privilege conferred upon honorably discharged veterans in the matter of their employment in the government service has not been changed. The intendment of the law was considered by the Supreme Court in 1900 in the case of Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 576, 44 L.Ed. 774. In that case it appeared that Keim was a Civil War veteran who had been discharged for inefficiency from the clerkship in the Department of the Interior to which he had been appointed. He instituted proceedings in the' United States Court of Claims, asserting his status as an honorably discharged veteran who had successfully passed the civil service examination. He requested determination that he had been discharged without any fault of his own and without just cause; that he was an efficient clerk and discharged his duties faithfully and efficiently and possessed the necessary business capacity for the proper discharge of the duties of his clerkship. He proved that other clerks of the same division were retained in the Department who were not veterans honorably discharged, and that still others lacking such preferred status were appointed on or about the day of his discharge. He sought compensation in damages for loss of his employment. The Court of Claims declined to make findings requested by Mr. Keim and dismissed his petition. On áppeal to the Supreme Court the decree of the Court of Claims was affirmed and the decision of the Supreme Court clearly establishes that the preferential provisions of the Civil Service Act, as they stood at the time of the decision, did not operate to confer any absolute right to work for the government such as is claimed by Mr. Love in this case. The court said: “No thoughtful .person questions the obligations which the nation is under to those who have done faithful service in its army or navy. Congress has generously provided for the discharge of those obligations in a system of* pensions more munificent than has ever before been known in the history of the world. But it would be an insult to the intelligence of Congress to suppose that it contemplated any degradation of the civil service by the appointment to or continuance in office of incompetent or • inefficient clerks simply because they had been honorably discharged from the military or naval service. The preference, and it is only a preference, is to be exercised as between those ‘equally qualified,’ * * *.”
The court found nothing in the statutory provisions to indicate that the duty of passing on the competency or qualifications of persons who apply for or who have obtained and are engaged in government employment had been taken away from the administrative officers or transferred to the courts. The court doubted whether “that is a duty which is strictly judicial in its nature.” It said: “It would seem strange that one having passed a civil service examination could challenge the rating made bthe commission, and ask the courts to review such rating, thus transferring from the commission, charged with the duty of exam-¡nation, to the courts a function which is, at least, more administrative than judicial; and if courts should not be called upon to supervise the results of a civil service examination equally inappropriate would be an investigation into the actual work done by the various clerks, a comparison of one with another as to competency, attention to duty, etc. These „are matters peculiarly within the province of those who are in charge of and superintending the departments, and until Congress by some special and direct legislation makes provision to the contrary, we are clear that they must be settled by those administrative officers.”
See also Longfellow v. Gudger, 57 App. D.C. 50, 16 F.2d 653; Platt v. Prince, 53 R. I. 492, 167 A. 540.
It is contended by Mr. Love that his case should be distinguished from the Keim case because in that case a record had been made in the Department in which Mr. Keim worked that Mr. Keim had been “discharged for inefficiency” and no such record has been made as to Mr. Love in the Department of the Treasury. Mr. Love’s complaint does not purport to disclose any of the circumstances attending the termination of his employment in that Department. It may have been voluntary on his part. But however his employment in the Department may have terminated in 1923, the same principles are applicable and controlling in both the Keim case and this case, and we do not find that any amendments have been made to the Civil Service Act which change the nature of the preference privileges due on account of military service since the decision in the Keim case was handed down. The power to exercise judgment and discretion there found to reside in the administrative officers remains with them and has not been “transferred to the courts”.
Mr. Love contends that a different conclusion, more favorable to him, may be drawn from the decision of the Supreme Court in Dismuke v. United States, 297 U. S. 167, 56 S.Ct. 400, 402, 80 L.Ed. 561. In that case Dismuke claimed to be a retired government employee in the classified civil service who had rendered thirty years service to the government. The Act of Congress by mandatory provision declared such retired government employee “shall be entitled to an annuity * * * payable from the civil service retirement and disability fund,” 5 U.S.C.A. § 736a, and the Director of Insurance having refused to allow Dismuke’s claim for the annuity, Dismuke brought suit for it against the United States under the Tucker Act. The Supreme Court held that the suit was maintainable. It was observed that the right of the employee to the annuity granted by mandatory Act of Congress was “inseparable from the correlative obligation of the employer, the United States” and it was held that the suit to recover’ the annuity was “upon a claim ‘founded upon O. law of Congress’ ”, and so was “within the jurisdiction conferred upon District Courts, as are suits to recover sums of money which administrative officers are directed by Act .of Congress to ‘pay’ or ‘repay.’ ”
Careful study of the decision discloses no support for Mr. Love’s contentions in respect to his claimed right to employment in the Treasury Department. No mandatory act of Congress compelled the United States or any of its officers to employ Mr. Love in the Treasury Department, and consequently neither the United States nor any of its officers was under an obligation to pay him compensation for failure to obtain employment in that Department which could be said to be “founded upon a law of Congress” comparable to the obligation of the United States to Mr. Dismuke shown in this case.
Mr. Love also urges that the Keim case and others in accord with it were decided prior to the passage of the Tucker Act, and that such enlargement of the judicial power results from the provisions of that Act as to justify jurisdiction in this case. Undoubtedly the United States does by the terms of the Act give its consent to be sued in the courts upon many claims which the courts were not theretofore empowered to entertain without special consent shown. But we find • nothing in the Act extending the judicial power to such supervision over administrative action as is involved in this action. The extent of and the limitations upon judicial review of administrative action are most clearly illustrated by the decision in the Dismuke case, above discussed, and the facts in this case do not bring it within the principles upon which jurisdiction was there sustained. We conclude that notwithstanding the Tucker Act, the administrative action and inaction resulting in Mr. Love’s unemployment remains “beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed”. Keim v. United States, supra, 177 U.S. page 294, 20 S.Ct. page 575, 44 L.Ed. 774. The District Court, therefore, was entirely without jurisdiction to award Mr. Love any of the relief he prayed for in respect to compelling his employment in the Department of the Treasury or awarding him compensation that would have been payable to one employed in that Department of .the government.
Following that part of the prayer of Mr. Love’s complaint above set forth and in the next paragraphs it is prayed as alternative relief that it be adjudged (in substance) :
That plaintiff was entitled to be employed iipon the Works Progress Administration Project 5191 after August 22nd 1938 and is now entitled to such employment upon the successor project of Project 5191, either at the rate of pay he was receiving when he was discharged on that date or at the higher rate of pay given to one Paul Cox who was employed in his place, and that a recovery be awarded him for the period during which he was wrongfully denied employment under the Works Progress Administration.
Mr. Love’s complaint relating to his employment by the Works Progress Administration after he had been classified as a person in actual need, contains more details than were set forth in respect to his employment in the Department of the Treasury. It appears that the Works Progress Administration project on which Mr. Love was given employment had as its object the survey of Minneapolis, Minnesota, and he worked as a statistician and “Assistant in Charge of the Office”. His duties included computation and instruction in trigonometric functions and surveying calculations, assisting transit men in the field, making the survey computations used in the office for the compiling of maps and the checking of errors, and general office supervision. In the course of his checking for errors he became convinced that the survey was not being conducted properly for lack of an accurate base-line and for lack of astronomical observation on triangulation lines. He thought that the result of the errors would render the survey useless and had a conversation with the Superintendent of the project in which the matter was argued, the Superintendent being of the opinion that adjustments could be made. Mr. Love then, in company with a subordinate civil engineer who was in accord with him, took up the matter in a conversation with one Stanley Jacobson, who was in charge of all the “white collar” W. P. A. projects, and subsequent to the conversation he wrote Mr. Jacobson an extended letter of suggestion and criticism about the survey project and the way in which it had been and was being conducted. Charges were made by Mr. Love to Mr. Jacobson that large sums of money were being wasted on the project and that further sums would be lost unless his judgment was followed. Shortly after-wards Mr. Love’s resignation from the project was requested by the Superintendent and refused by Mr. Love. It is alleged that the Superintendent found no fault with the work which had been and was being done by Mr. Love under his employment and that an offer was made to Mr. Love to change him to the work on another project and that Mr. Love refused the offer. Mr. Love’s employment on the project was terminated by formal notice known as W. P. A. Form 403 Revised, and the cause assigned for the discharge was “This man not wanted on this project”. Although the communications, oral and written, between Mr. Love and the Superintendent of the project might suggest at least some proper considerations prompting the Superintendent, in the exercise of his discretion, to issue the termination order, it is directly charged in the complaint that there 'was no just cause for the discharge and that Mr. Love was entirely without fault and that he was at all times willing, qualified and able to proceed with the work that he was engaged in and that his services were needed and necessary for the proper execution of the project and that he had refused to resign.
Thus it is apparent that Mr. Love’s action in respect to the matter of his employment under the Works Progress Administration presents the element of involuntary termination which was not alleged to be present in the matter of his employment in the Department of the Treasury.
Our study of the Acts of Congress and the Rules and Regulations governing the Works Progress Administration convinces that no provision can be found indicating an intent on the part of Congress that those who are authorized to employ and discharge employees in the prosecution of the projects shall perform their function capriciously, arbitrarily or wantonly. The Rules and Regulations especially are designed and intended to assure against such action and elaborate provision is made for hearing, passing upon and reviewing complaints and grievances within the Administration.
On the other hand, there is no claim that Mr. Love’s employment was for the duration of any term, and it has long been settled law that the power to make selection or appointment implies and carries with it the power to dismiss. Burnap v. United States, 252 U.S. 512, 40 S.Ct. 374, 64 L.Ed. 692; Keim v. United States, supra. There can be no question that the authority to select and appoint qualified and suitable persons to carry on the work of the W.P.A. projects has been conferred upon and rested in the Administration to which the execution of the work has been entrusted under the Acts of Congress. The power to dispense with unneeded or unsatisfactory services must also be recognized to reside in the same Administration. No power of supervision over such Administrative action is lodged in the courts. In re Hennen, 13 Pet. 230, 10 L.Ed. 138; Keim v. United States, supra; United States ex rel. Palmer v. Lapp, 6 Cir., 244 F. 377; Block v. Sassman, D.C., 26 F. Supp. 105.
Mr. Love has alleged in his complaint, however that he has exhausted all administrative remedies and on that ground he claims that there is jurisdiction in the court to inquire into the facts and circumstances of his discharge and award him a judgment against the United States if he should be found to have been without fault in his employment. He relies on this point "largely upon Dismuke v. United States, above discussed.
As we observed concerning that case, Dismuke had a claim against the United States founded upon an act of Congress which in mandatory terms conferred upon him the right to receive and upon the United States the correlative obligation to pay a certain annuity. It was denied him by the ruling of the Director of Insurance, and on review by the Board of Veterans’ Appeals. The United States contended that such ruling was conclusive against Dismuke, but it appeared that the ruling and determination of the administrative authority had turned upon a question of law. Accordingly, in Dismuke’s suit against the United States for his annuity under the Tucker Act, the Supreme Court held that the “power of the administrative officer will not, in the absence of a plain command, be deemed to extend to the denial of a right which the statute Creates, and to which the claimant, upon facts found or admitted by the administrative officer, is entitled.” The court concluded that the administrative ruling upon the question of law was open to judicial review in Dismuke’s action.
But in the instant case there was no absolute right to work conferred upon Mr. Love by mandatory Act of Congress comparable to the right to the annuity granted to Dismuke, either because of Mr. Love’s preference privileges or because he had passed examination and had obtained some employment under the Public Works Administration. Neither can it be found from the complaint herein that there has been any final administrative decision turning upon any defined question of law based upon facts found or admitted to be true by administrative authority or which could be reviewed by the court in this case. The merits of Mr. Love’s disputes with his superiors cannot be passed by the court without assuming a supervision over the course of administering the W. P. A. project. The complaint discloses that Mr. Love disagrees with those in charge as to the degree of accuracy necessary to make the survey valuable and as to whether adjustments are possible. This and other disagreements disclosed may figure in the statement charged to the supervisor and denied by Mr. Love, that the project had a limited use for a man of Mr. Love’s particular training and capacity. Such matters are for determination within the Administration. The decision of the Supreme Court in the Keim case is as fully controlling against the jurisdiction in the matter of the employment in and discharge from the W. P. A. employment as in the matter of the employment in the Treasury Department.
In the case of Eberlein v. United States, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140, an employee of the Customs Service of the Treasury Department was removed upon certain charges preferred against him. Upon subsequent re-investigation it was reported by the Attorney General and the Supervisor of Customs that the charges had not been sustained, and the President caused Eberlein to be reinstated. He sued the United States in the Court of Claims for his salary for the time he was out of employment. The Court of Claims stated in its opinion .that the subsequent investigation had established Eberlein’s innocence but it denied him any recovery. The Supreme Court in affirming, stated:
“There can be no question, from the findings in this case, that the plaintiff had the benefit of a hearing according to the regulations then in force. * * * But the things required by law and regulations were done, and the discretion of the authorized officers was exercised as required by law. It is settled that in such cases the action of executive officers is not subject to revision in the courts. Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774.
“The order of the President could not have the effect of reinstating the plaintiff to the office from which he was removed. The power of appointment and removal was in the Secretary of the Treasury. It was 'within the power of Congress to confer this authority on the Secretary. Burnap v. United States, 252 U.S. 512, 40 S.Ct. 374, 64 L.Ed. 692.”
In Medkirk v. United States, 44 Ct.Cl. 469, the Court of Claims held that discretion in discharging as to the determination of who is “equally qualified” is executed for the President through the executive departments and is not to be reviewed by the courts. In Miller v. United States, 45 Ct.Cl. 509, 514, et seq., it held that the determination of the individual with authority to discharge was final. In this case an individual who was discharged took up his case with the Civil Service Commission and it determined that the discharge was wrongful. The employee then brought his action for damages, but was denied relief on the ground that the court would not go behind the authority of the government officer who had the power to discharge. See 65 C.J. 1296, Sec. 75.
Mr. Love has also based contentions upon the provisions of the Declaratory Judgment Act, 28 U.S.C.A. § 400. It is argued (in effect) that even if there was no jurisdiction in the Court over the suit to require the United States to employ Mr. Love or directly to award a judgment for compensation for time when it is claimed he ought to have been employed, still jurisdiction to proceed in the case and declare rights in his favor may be found under that Act. We have given the argument consideration but are persuaded that the Act does not extend the consent of the United States to be sued to suits in vyhich the causes o,f action presented are not of such -a nature as to be justiciable in the courts. The Act makes no mention of suits against the United States, nor does it give any indication of intention to broaden judicial supervision over the executive or administrative departments of the government. As the Supreme Court said in United States v. West Virginia, 295 U.S. 463, 55 S.Ct. 789, 793, 79 L.Ed. 1546, “It does not purport to alter the character of the controversies which are the subject of the judicial power under the Constitution”.
In suits against the United States the judgment of the court must necessarily be largely declaratory in its nature because the usual award of process or execution is inappropriate. But the Act does not create new substantive rights. Ohio Casualty Ins. Co. v. Marr, 10 Cir., 98 F.2d 973, 975; Board of Commissioners v. Cockrell, 5 Cir., 91 F.2d 412. It is essentially a procedural statute. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Aetna Casualty & S. Co. v. Quarles, 4 Cir., 92 F.2d 321; Putnam v. Ickes, 64 App.D.C. 339, 78 F. 2d 223; Southern Pac. Co. v. McAdoo, 9 Cir., 82 F.2d 121, 122; Gully v. Interstate Natural Gas Co., 5 Cir., 82 F.2d 145, 149; Borchard, The Federal Declaratory Judgments Act, 21 Va.L.Rev. 35, 39. The controversy must be one which is appropriate for judicial determination. Aetna Life Ins. Co. v. Haworth, supra; Stephenson v. Equitable Life Assur. Soc., 4 Cir., 92 F.2d 406, 409; Bradley Lumber Co. v. National Labor Relations Board, 5 Cir., 84 F.2d 97. See Wilson & Co. v. Gates, 8 Cir., 90 F.2d 247.
Other contentions argued have been found to be without merit. We conclude that the .court below was without jurisdiction to review the administrative action or omission to act in respect to Mr. Love’s employment, and was without jurisdiction to enter any judgment or adjudication in his favor or against the United States.
Affirmed.
See 5 U.S.C.A. §§ 35 and 37, and 35a and 37a, providing that the preference shall not be extended to the spouses of married employees.
See Civil Service Rules amended to June 30, 1937; Rule VI Sec. 2, Eligible registers; Rule VII Certification; Rule IX Reinstatement.
See Handbook of Procedure for State and District Administration, revised February 10, 1938, Ch. XIV Section 10.
See and compare 18 R.C.L. 509, Sec. 19; 11 A.L.R. 469 and 100 A.L.R. 834 (notes).
See and compare cases and comment Tiffany v. Pacific Sewer Pipe Co., 180 Cal. 700, 182 P. 428, 6 A.L.R. 1497, 1502, 1503.
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_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.
STUART v. COMMISSIONER OF INTERNAL REVENUE.
No. 3098.
Circuit Court of Appeals, First Circuit.
June 3, 1936.
MORTON, Circuit Judge, dissenting.
Richard Wait, of Boston, Mass. (Abbot P. Mills, of Washington, D. C., on the brief), for petitioner for review.
Morton K. Rothschild, Sp. Asst, to the Atty. Gen. (Robert H. Jackson, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for Commissioner of Internal Revenue.
Before BINGHAM, WILSON, and • MORTON, Circuit Judges.
WILSON, Circuit Judge.
The petitioner seeks to review a decision of the Board of Tax Appeals refusing to allow the petitioner to deduct from his gross income for the calendar year 1930 the sum of $35,633,55, paid by him to a trust of which he was trustee, to reimburse the trust for a loss of an improper investment in which he had participated, and, further, to deduct $7,411.26 paid by him as an individual to attorneys and accountants in connection with the same loss.
The issues arise under section 23 of the Revenue Act of 1928 (26 U.S.C.A. § 23 and note), which section provides that “in computing net income there shall be allowed as -deductions: (a) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. * * *
“(e) In the case of an individual, losses sustained during the taxable year * * * (1) if incurred in trade or business; or (2) if incurred in any transaction entered into for profit, though not connected with a trade or business.”
The questions to be determined are whether the findings of the Board are supported by any substantial evidence, and whether upon their findings, if so supported, the petitioner as a matter of law was engaged in a regular business in which the-losses and expenses occurred.
The Board of Tax Appeals found the following facts: Since 1904 the petitioner has been trustee under a trust created by the will of his grandfather, who died in 1904, said trust estate consisting of property of the value of $500,000. The other trustees originally were the petitioner’s half brother, Arioch Erickson, and his mother, Susan M. Stuart. The latter was never active in the affairs of the trust, the details of which were attended to by the petitioner and Erickson. The mother died in 1926, since which time the petitioner and Erickson have been sole trustees of this trust.
Since 1915 the petitioner has also been trustee under a trust for the benefit of his father, involving property worth $500,000, and since 1926 he has been trustee of a trust involving his mother’s estate.
During the taxable year 1930, and for many years prior thereto, the only activities of the petitioner have consisted of acting as trustee under the above-mentioned trusts and attending to his own investments. In his income tax return for 1930, and whenever he filed papers stating his business, he designated his occupation as that of trustee.
Since 1904 the trustees made arrangements with a law firm in Boston by which the petitioner and Erickson should each have a room in the offices of the law firm, and have the use of its stenographers, bookkeepers, and legal advice, in return for the firm receiving the commissions due from the trust. The petitioner was at his office day after day, but all the clerical work connected with the management of the trust was done by the employees of the law firm above mentioned.
The petitioner in his income tax return never returned as income any commissions to which he was entitled as trustee, for the reason that under the arrangement with the law firm all such commissions were paid to the law firm, though undoubtedly they should have been returned by him as income.
' In 1914, at the suggestion of Erickson, a loan of $75,000 was made from the funds of the trust created by the grandfather of the petitioner, to a company known as the Quigley Furnace & Foundry Company, in which Erickson was financially interested. The Quigley Company, as it will be hereinafter referred to, was a corporation which had been formed in 1912 and which had not prospered, and in 1914 it incurred a los» of $84,000. The petitioner knew the condition of the company and of Erickson’s interest in it, but he consented to the loan being made on Erickson’s assurance that if anything went wrong with the loan, he (Erickson) would stand the loss.
The Quigley Company became bankrupt, with the result that out of the original loan of $75,000 there was a loss of trust funds to the amount of $71,267.10, for which the trustees were jointly and severally liable.
As bearing on the allowance of counsel and accountants’ fees, the Board found that, in connection with the filing of an account in the estate of the mother, Susan M. Stuart, the question arose: From what source were the funds for the loan to the Quigley Company advanced, whether from the trust created by the grandfather, or from the mother’s property ?
Investigation of the facts in that connection by an attorney and by a firm of certified public accountants employed by the petitioner disclosed as a result of their investigations that the loan of $75,000 to the Quigley Company was advanced from the trust created under the will of the grandfather, and counsel advised the petitioner and Erickson that, as such a loan was an improper investment of the trust funds, they were jointly and severally liable, and therefore the petitioner was liable for the whole amount if it could not be obtained from Erickson.
Petitioner brought a bill in equity to compel Erickson to make good the loss. Counsel advised the petitioner that Erickson’s verbal agreement as to being responsible himself for the entire loss to the trust would be unenforceable in the Massachusetts courts; and, after extended litigation, and the employment of additional counsel, the case was settled before it came to trial, and the petitioner and Erickson, in May, 1930, each paid into the trust the sum of $35,633.55, representing one-half of the loss to the trust. For the services performed by counsel and accountants, the petitioner in 1930 paid $7,411.26, for which he claims a refund based upon the contention that these expenses wefe incurred in his business and should have been allowed as a deduction from the petitioner’s gross income in his income tax return for 1930.
The Board further found that the petitioner’s activities as trustee were not “for the purpose of obtaining a livelihood, or profit,” Bouv.Law Diet. vol. 1, title, Business, p. 406; and held that the term “trade or business” refers to an established trade or business, and therefore, in order to deduct a loss under section 23 (e) (1) of the Revenue Act of 1928 (26 U.S.C.A. § 23 note), it must be shown that the loss was sustained in the regular and established business of the taxpayer as distinguished from isolated transactions; that the sum of $35,633.55 paid to reimburse the trust was not a loss incurred in his regular trade or business; and that the sum paid to attorneys and accountants as fees during the year 1930, therefore, was not ordinary and necessary expenses incurred in carrying on a trade or business, and the taxpayer was not entitled to a refund.
The taxpayer also claims that he is entitled to a deduction of $35,633.55 as his share of the loss incurred by the loan to the Quigley Company on the ground that it was a transaction entered into for profit ; but any profits arising from the loan, if a proper loan of trust funds, would have belonged to the trust, and the petitioner testified he never expected personally to profit therefrom. In any event, his interest in any profits as beneficiary under the trust would not have been sufficient to comply with subparagraph (e) (2) of section 23 of the 1928 act (26 U.S.C.A. § 23 note). It follows, therefore, as the Board held, that, if the amount was a legal deduction from the taxpayer’s gross income for the year 1930, it must be by reason of having been incurred in a trade or business in which he was engaged as an individual.
The Board also held that, since the trustees restored to the trust the amount of the loss, and under the will were entitled to receive one-half the income during their lives, and upon their death the income was to be distributed among their children, there was no loss to them. We think the Board could not be sustained on this ruling. Before restoring the loss to the trust, the petitioner had $35,633.55 which he could use as he pleased. After he had paid it into the trust, it went from his control, and he had only the income, whatever that might be, as a beneficiary under the trust and during his life.
While we do not agree with all the reasons assigned for the Board’s conclusions, we think their final conclusion upon their findings should be affirmed. The petitioner’s 'activities in the management of the trust estates were in his capacity as trustee-and not as an individual. It does not appear from the record that he was engaged in any regular business as an individual, unless in the management of his own property, in which the loss did not occur. The restitution by the petitioner of the loss to the trust estate was an isolated case, and the payment of the expenses incurred for counsel and accountants’ fees, for which he claims deductions, were in discharge of a liability incurred in his individual capacity and riot as trustee, and therefore were not deductible as having been incurred in any trade or business.
This case is not governed by that of Foss v. Commissioner (C.C.A.) 75 F.(2d) 326, or by that of Washburn v. Commissioner (C.C.A.) 51 F.(2d) 949.
In each of those cases the taxpayer was personally caring for, managing, or assisting in managing, large interests of various kinds, but not as a trustee, and by the diversity and size of such interests each could be fairly said to be conducting a regular business. As a result, it was held that the expenses paid in the Foss Case and the losses suffered by the taxpayer in the Wash-burn Case were individual expenses and losses in the course of a regular business, and were allowed. In this case the regular business activities of the petitioner, if he had such, were in the management of trust estates in his capacity as trustee. As such trustee he might be said to have been engaged in a trade or business within the meaning of the statute; but, when he made the unauthorized loan, the liabilities he incurred were those of an individual. He cannot be- said to have acted in his capacity as a trustee. A trustee and an individual are, in law, separate entities, with different rights, obligations, and duties, and are treated as such for taxation purposes. Subtitle B (section 11 et seq.), section 143 of supplement D of subtitle C, and supplement E of subtitle C (section 161 et seq.) of the Revenue Act-of 1928 (26 U.S.C.A. §§ 11 et seq., 142, 161 et seq., and notes). So far as the record shows, the petitioner personally had no business outside of his duties as trustee, except that of receiving income from the trusts and caring for his own investments, the extent of which we cannot determine from the record. It does not appear, therefore, as a matter of law, that as an individual he conducted any regular business, at least, any business in which the alleged loss or the expenses of counsel and accountants were incurred.
We think the Board’s finding in this case, that the petitioner was not engaged in a regular trade or business, finds support in the record and must stand. At least, from the finding of the Board, it cannot be said, as a matter of law, that he was engaged in a trade or business within the meaning of section 23 (e) (1).
The order of the Board of Tax Appeals is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_appel1_7_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).
McWILLIAMS v. BLACKARD.
No. 10677.
Circuit Court of Appeals, Eighth Circuit.
Nov. 13, 1936.
Jesse Reynolds, of Clarksville, Ark., for appellant.
Before GARDNER, SANBORN, and FARIS, Circuit Judges.
GARDNER, Circuit Judge.
This is an appeal from an adjudication of bankruptcy under section 75 (s) of the Bankruptcy Act as amended August 28, 1935 (11 U.S.C.A. § 203 (s), and which embodied a reference to a conciliation commissioner. The record discloses the following pertinent facts:
On February 26, 1930, appellee executed his promissory note to appellant in the sum of $1,000, due one year after date, with interest at the rate of 10 per cent., which he secured by a mortgage on 80 acres of land located in Johnson county, Ark. He paid the interest on this note for 1931 and 1932. On January 5, 1931, he executed another note in the sum of $400, due one year after date, with interest at 10 per cent., to Guy Walton, which he secured by a mortgage on the same land. This note and mortgage in due course were sold and transferred to appellant. One payment of interest was made on this last-named note in 1932. There has been no payment on principal or interest on either of these notes since 1932. Appellant paid insurance on the mortgaged property for the years 1933, 1934, and 1935, in the sum of $87.20, and paid taxes for the years 1932, 1933, and 1934, in the sum of $93.92.
On April 26, 1935, appellant commenced suit to foreclose these mortgages, and on the same date appellee filed petition for composition or extension under section 75 of the Bankruptcy Act (47 Stat. 1470, 48 Stat. 925, 1289) in the District Court of the United States for the Western District of Arkansas, and the cause was referred to the conciliation commissioner. Testimony was taken before the conciliation commissioner. Appellee offered a composition or extension proposal which was rejected, and on January 31, 1936, he filed an amended petition for adjudication under section 75 (s) of the Bankruptcy Act, as amended (11 U.S.C.A. § 203 (s). Appellant filed answer to appellee’s petition, in which he asserted that subsection (s) of section 75 was unconstitutional. The lower court overruled and denied appellant’s contention, and entered the adjudication from which this appeal was taken.
It is the contention of appellant: (1) That subsection (s) of section 75 of the Bankruptcy Act, as amended, is unconstitutional ; and (2) that, if not, there was no probability of rehabilitation of the bankrupt. Appellee has filed no brief in this court.
The decree appealed from was entered by the lower court before the opinion of this court in United States National Bank v. Pamp, 83 F.(2d) 493, was handed down. The facts in this case bring it clearly within the doctrine of the Pamp Case, and, on the authority of that case, the decree appealed from must be and is reversed, and the cause is remanded to the lower court, with directions to dismiss appellee’s petition.
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_suffic | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" 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".
ROBINETTE v. COMMISSIONER OF INTERNAL REVENUE.
No. 9473.
Circuit Court of Appeals, Sixth Circuit.
Dec. 8, 1943.
Clark J. Milliron, of Los Angeles, Cal., and T. G. Thompson, of Cleveland, Ohio (T. G. Thompson, of Cleveland, Ohio, on the brief), for petitioner.
Irving Axelrod, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, Samuel H. Levy, and Irving Axelrod, all of Washington, D. C., on the brief), Tor respondent.
Before PUCKS, ALLEN, and McALLISTER, Circuit Judges.
HICKS, Circuit Judge.
Petition by Lenore S. Robinette, a transferee of the transferee of the assets of the taxpayer, Charles C. Cohn, deceased. It is to review a decision of the Board of Tax Appeals affirming the action of the Commissioner of Internal Revenue in assessing against petitioner a deficiency in income tax for 1918 due from the original transferor, Cohn, in the sum of $27,914.38, with interest.
The facts as stipulated and as found by the Board are briefly as follows:
Charles C. Cohn, a citizen of the United States, resided in the Philippine Islands from 1903 until 1919. He practiced law in Manila and his income as an attorney was derived from legal services performed in the Islands. He was then a married man and had a minor child.
On February 20, 1919, the taxpayer filed with the Collector of Internal Revenue for the Philippine Islands at Manila, a return of his income from all sources for 1918, and in June of that year he paid in pesos the tax shown to be due thereon in an amount equivalent to $1,667.06. In September 1920 he paid in pesos an additional assessment for 1918 in an amount equivalent to $1,635.63.
He filed no tax return for 1919 except as above stated.
In July 1919 the taxpayer returned to the United States and was a resident of San Francisco until his death in 1931. In 1919 he changed his 'name to Charles C. Cole and the Collector at Baltimore was notified of this change on August 28, 1923.
A son, Creswell C. Cole, received from the taxpayer’s estate assets worth in excess of $30,712.22. Creswell died on September 30, 1935, and his widow, petitioner here, received assets from his estate worth 'in excess of $30,712.22. The deficiencies which respondent assessed against petitioner were never assessed against either Charles C. Cole, Creswell C. Cole or their estates.
Other questions to one side, the taxpayer was liable for both a normal tax and a surtax upon his net income for 1918 under Sections 210 and 211(a), Rev. Act 1918, Ch. 18, 40 Stat. 1057, 1062. Every individual having the requisite income was liable for such taxes. Lawrence v. Wardell, 9 Cir., 273 F. 405, 409; Cotterman v. United States, 62 Ct.Cl. 415, 418. The Commissioner found them to be $31,207.07 and in assessing the deficiency he was given credit by virtue of Sec. 222(a) of the Act of 1918 in the sum of of $3,302.69 paid by him to the Collector at Manila. The taxpayer was not only liable for these taxes but because he had no legal residence or principal place of business in the United States (Sec. 227, Act of 1918) he was required to make return and pay them to the Collector at Baltimore.
Notwithstanding this plain provision, the petitioner contends that the taxpayer was not required to file any return for 1918 other than that filed with the Collector at Manila and that he was not required to pay any tax in addition to that paid to that Collector. Her position stems from her conception of the effect of Sec. 261 of the Act of 1918. The material portion of this section is as follows:
“Sec. 261. That in Porto Rico and the Philippine Islands the income tax shall be levied, assessed, collected, and paid in accordance with the provisions of the Revenue Act of 1916 as amended.
“Returns shall be made and taxes shall be paid under Title I of such Act in Porto Rico or the Philippine Islands, as the case may be, by (1) every individual who is a citizen or resident of Porto Rico or the Philippine Islands or derives income from sources therein * *
Petitioner points out that the taxpayer was a resident of the Philippine Islands in 1918; that he derived his income therein and that he made his return with the Collector at Manila as provided by Sec. 8(b) of the Revenue Act of 1916, 39 Stat. 761, and that the Collector there was the proper officer to receive his taxes as provided by Sec. 23 of the Revenue Act of 1916.
All this is clear enough. The taxpayer did pay the taxes levied and assessed against him in 1918 as a resident of the Philippine Islands in accordance with the provision of the Revenue Act of 1916, Sec. 23 as amended, to the effect that the administration of the law in the collection of the taxes imposed in the Islands should be by the appropriate Internal Revenue officers thereof, and that all revenue collected thereunder should accrue, intact, to the general Government thereof. And although the Act of 1916 was repealed as a general statute by the Revenue Act of 1918, it was continued in force for the assessment and collection of income taxes in Porto Rico and the Philippine Islands “except as may be otherwise provided by their respective legislatures.” Sec. 1400 of the Revenue Act of 1918, 40 Stat. 1149. In other words, it was continued in force for the assessment, levy and collection of taxes against that class of taxpayers of which the taxpayer was one, to wit, residents of the Philippine Islands, and the taxes when collected were appropriated to the governmental administration of the Islands.
But the Revenue Act of 1918 assessed both normal and surtaxes against a larger class of taxpayers than residents of the Philippine Islands and at higher rates and for the general governmental administration of the United States within which under that Act, for tax purposes, the Philippine Islands, in a geographical sense, were not included. It assessed these taxes against “every individual.” As pointed out in Lawrence v. Wardell, supra, 273 F. page 409, the comprehensiveness of the 1918 Act is as great as language can' make it. Although the taxpayer was a resident of the Islands he fell directly within that class of taxpayers, to wit, all individuals, i.e., citizens of the United States where-ever residing against whom the normal and surtaxes were levied and assessed as provided by Sections 210 and 211(a) of the Act of 1918, and because he had no legal residence or place of business in any collection district of the United States, he was required to make return and payment to the Collector at Baltimore. He could not make return and payment to the Collector at Manila, because, as pointed out, the Philippine Islands were not included for tax purposes within the term “United States,” as they had formerly been under the Revenue Act of 1916.
We tbink that it was the clear intention of Congress by the Act of 1918 to provide separate income taxes for the United States and the Philippine Islands and this conclusion has solid support in the provision [Sec. 222(a)] of the Act, that in computing the tax to be paid by a citizen of the United States, he shall be credited with any amount of income, war profits and excess profits taxes paid by him during the taxable year to any possession of the United States. Having failed to file his return with and pay his taxes to the Collector at Baltimore, as required by the Act of 1918, it follows that these taxes are still liable to assessment and collection unless barred by the statute of limitations of five years, found in Sec. 250(d) of the Revenue Act of 1921, Ch. 136, 42 Stat. 227, 265. But the five year period is not a bar because of another provision of the statute that in cases of a failure to file a return, the amount of tax due may be determined, assessed and collected, and a suit or proceeding for the collection thereof may be begun at any time after it becomes due.
Petitioner insists that the statute of limitations began, to run on February 20, 1919, when the taxpayer filed his return with the Collector at Manila, and that this proceeding against her was therefore barred within' five years thereafter, but petitioner’s handicap here is that the taxpayer failed to file a “required return” with the Collector at Baltimore (Rev.Act 1921, Ch. 136, supra) and no statute of limitations protected that failure.
The question with reference to interest arises. The deficiency found to be due from the taxpayer was $27,914.38. He would have been liable for this amount with interest from the date when it became due in 1918. If he had lived and the assets had not been transferred to petitioner he would have been liable for interest only from July 1, 1939, by virtue of Sec. 813(a) of the Revenue Act of 1938, 26 U.S.C.A. Int.Rev.Acts, page 1154. In November 1936 the petitioner received assets of a greater value than the deficiency. If she had paid the amount of the deficiency on July 1, 1939, as she might have done, she would not have been liable for any interest. ' Se did not do this. She retained the assets for her own use, which, to the extent of the deficiency, belonged both in law and equity to the Government. She was therefore chargeable with interest from July 1, 1939, just as a taxpayer would have been so charged. See Sec. 280(a) (1) of the Revenue Act of 1926, 26 U.S.C. A.Int.Rev.Acts, page 212; Buzard v. Helvering, 64 App.D.C. 268, 77 F.2d 391, 396.
Laying to one side the question of whether there is statutory authority for the decision of the Board as to interest, nevertheless we cannot upset its holding. If we proceed upon the theory that the transferee was liable for any unpaid taxes of the transferor with interest only to the extent of the amount received, the burden was upon the Commissioner to show that petitioner was liable as a transferee. See Internal Revenue Code, Sec. 1119(a), 26 U.S.C.A.Int.Rev.Code, § 1119(a). The Commissioner carried this burden by proving that petitioner had received assets as a transferee in excess of $30,712.22. He thus made out a prima facie case and the burden of going further then rested upon petitioner. The value of the excessive assets, which she admitted having, was peculiarly within her knowledge and she should have shown this value if she wished to win on the question of interest. See Commissioner v. Renyx, 2 Cir., 66 F.2d 260; Hutton v. Commissioner, 21 B.T.A. 101, 103.
The decision of the Board of Tax Appeals is affirmed.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_genapel1 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
MURPHY v. UNITED STATES.
Circuit Court of Appeals, First Circuit.
August 6, 1925.
No. 1831.
Jury <§=>131 (4) — No abuse of discretion in court’s limiting examination for bias and prejudice.
For trial judge to refuse to allow counsel personally to examine jurors on their voir dire along a line suggested by him, which from its nature might have been extended to great length, and then on counsel suggesting no questions to be submitted by the court, as the judge told counsel he might do, to state to tho jurors the purport of the indictment, and ask if there was any reason why any of them could not fairly and impartially try defendant, and direct that if there was he should stand aside, held, not unwise or arbitrary or abuse of discretion.
In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.
John A. Murphy was convicted under Cr. Code, § 37, and brings error. Affirmed.
George D. Zahm, of New York City, for plaintiff in error.
George R. Farnum, of Boston, Mass. (Harold P. Williams, of Boston, Mass., on the brief), for defendant in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
Certiorari denied 46 S. Ct. 120, 70 L. Ed. —.
JOHNSON, Circuit Judge.
The defendant, one Ryan, and one House were indicted under section 37 of the Criminal Code (Comp. St. § 10201) for conspiring to commit an offense against the United States by fraudulently altering certain registered United States Liberty bonds by erasing the name of the original owner thereon and substituting the name of House, and thereafter negotiating them. House and Ryan pleaded guilty. The defendant was convicted, and sentence imposed.
The case is here upon thirty assignments of error; but only three have been argued. Two of these relate to the refusal of the District Judge to permit counsel for the defendant to examine the jurors upon the voir dire or to interrogate them himself “as to their attitude towards this sort of a case and to .determine whether, if selected as jurors, they would be fair and impartial.”
Defendant filed a motion to set aside the verdict and for a new trial, which was denied, and this is assigned as error. The' grounds for this motion were stated to be “that the verdict is contrary to the weight of evidence, contrary to the law, and upon the further ground that the defendant was deprived of a constitutional right because the court refused to permit counsel for the said defendant to interrogate the prospective jurors on their voir dire,” and refused to interrogate them, as alleged in the other two assignments of error.
There is no merit in the defendant’s contention that the verdict is against the weight of evidence, as the only question before us is whether there was any evidence to support the verdict; but of this there can be no dofcbt. The sole question for our consideration, then, is whether defendant was deprived of any constitutional right because of the alleged refusal of the District Judge to permit counsel to interrogate the jurors on the voir dire or to interrogate them himself, as requested by defendant.
The record discloses that, when the jury was being impaneled, Mr. Zahm, the defendant’s counsel, stated that he desired to interrogate the jurors as they were called, substantially according to the practice which prevails in the state of New York and in the federal courts of that state. The- court explained to Mr. Zahm. the practice which prevails in Massachusetts and the. United States courts in Massachusetts. Mr. Zahm replied that he thought it did not meet the constitutional requirements. The following colloquy then occurred:
“The Court: You may suggest to me any questions that you would like to have put to the jury, and I will consider them.
“Mr. Zahm: We should like to interrogate the jurors as to their attitude towards this sort of case, and to determine whether, if selected as jurors, they would be fair and impartial.
“The Court: No; I should not permit examination along that line, and I will save your exception. Perhaps you had better state more fully what line your examination would follow.
“Mr. Zahm: My line would be whether or not they ever lost any bonds; whether the fact of an indictment would prejudice them against the defendant; whether they felt they could sit as jurors fairly; whether, their attitude is such that, if they were in the position of the defendant, they would select a man of similar mental attitude to pass judgment. I want to examine the prospective jurors upon their voir dire, in order to determine whether their mental attitude is such that, if selected, they can give the defendant a fair and impartial trial under the Constitution of the United States. My questions would follow those general lines.
“The Court: I see no occasion for such a voir dire, and should not permit it. I will adhere to the Massachusetts practice.
“Mr. Zahm: I recognize that the practice here is as the court states; but I say that the defendant has the right to interrogate jurors to determine for himself whether they are fair and impartial to try the case.
“The Court: It is a matter of discretion with the court.
“Mr. Zahm: And I may have an exception to your honor’s ruling?
“The Court: Yes.”
The record contains the following statement :
“After the panel had been called and taken their seats, but while the right of challenge was still open, the court stated to the jurors the purport of the indictment, and inquired specially if there was any reason why any of them could not fairly and impartially try the defendant on the indictment. The court directed that, if such was the fact, the juryman concerned should make it known and stand aside. No juror did stand aside. Both parties were left free to exercise peremptory challenges in the usual manner. The jury was then sworn and the trial proceeded.”
Under the Massachusetts' practice, an examination of jurors upon their voir dire may be made under the direction of the court, and here, as elsewhere, the ’court, in the exercise of a sound judicial discretion, may determine the extent and character of such examination. By the exercise of sound, judicial discretion it will be understood that the court is not to exercise discretion in an arbitrary or unwise manner; but that such examination shall be permitted as may disclose any prejudice or bias on the part of jurors.
In Connors v. United States, 158 U. S. 408, 413, 15 S. Ct. 951, 953 (39 L. Ed. 1033), the court, speaking through Mr. Justice Harlan, said:
“It is quite true, as suggested by the accused, that he was entitled to bo tried by an impartial jury, that is, by jurors who had no bias or prejudice that would prevent them from returning a verdict according to the law and evidence. It is equally time that a suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by Mm of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases.”
Although the District Judge did not allow defendant’s counsel, personally, to examine the jurors along the line suggested j>y him, which, from the nature of the inquiry suggested, might have been extended to great length and have led to long delay, he did state that counsel might suggest such questions as he would like to have put to the jurors. Counsel did not propose any questions to be submitted by the court, but insisted upon his right to interrogate them personally, and stated, at some length, what his line of examination would be, insisting that he had the right to conduct such an examination.
The opinion expressed by Justice Harlan, before quoted, has become the guide of all federal courts in the selection and impaneling of juries, and we know of no decision by the Supreme Court, nor has any been called to our attention, which does not place the method in which this shall be done within the sound judicial discretion of the presiding judge.
¥or convenience, and because the method adopted by the-highest court of the state in which the District Court is hold is well known to practitioners, that method has been usually adopted; and in the state of Massachusetts the examination has been conducted under the direction of the presiding judge.
In speaking of this, Judge Holmes, in Commonwealth v. Poisson, 157 Mass. 510, 512, 32 N. E. 906, 907, says:
“It would be unfortunate if all control of such an examination should be taken from the court, and we do not interpret the Statute of 1887, c. 149, as having that effect. On the contrary, the power given by the Statute of 1887 to the parties to make the examination provided for by the public statutes is, in terms, to make it ‘under the direction of the court.’ ”
The record in this case discloses that, while the right to challenge was still open, “the court stated to the jurors the purport of the indictment and inquired 'specially if there was any reason why any of them could not fairly and impartially try the defendant on the indictment,” and directed “that, if such was the fact, the juryman concerned should make it known and stand aside. No juror did stand aside.”
The record also discloses that “both parties were left free to exercise peremptory challenges in the usual maner.”
We think there is no ground for holding that the action of the presiding judge was unwise or arbitrary, but that what he did was within the exercise of a sound judicial discretion.
The judgment of the District Court 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_const2 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Marcus Wayne CHENAULT, Petitioner-Appellant, v. Leroy N. STYNCHCOMBE, Sheriff of Fulton County, Respondent-Appellee.
No. 77-2501.
United States Court of Appeals, Fifth Circuit.
Oct. 3, 1978.
Randy Bacote, Atlanta, Ga., for petitioner-appellant.
Lewis R. Slaton, Dist. Atty., Carter Goode, Allen Moye, Asst. Dist. Attys., Atlanta, Ga., for respondent-appellee.
Before WISDOM, TJOFLAT and VANCE, Circuit Judges.
WISDOM, Circuit Judge:
Marcus Wayne Chenault appeals a district court order denying certain portions of his habeas corpus petition. We remand to the district court with instructions to dismiss the petition without prejudice so that Chenault may exhaust state remedies.
I.
On Sunday morning, June 30, 1974, Che-nault attended services at Ebenezer Baptist Church in Atlanta,' Georgia. During the service, Chenault shot Mrs. Martin Luther King, Sr., Deacon Edward Boykin, and Mrs. Jimmie Mitchell. Mrs. King and Mr. Boy-kin died from their wounds. On July 9, 1974, a Fulton County grand jury indicted the petitioner on two counts of murder and one count each of aggravated assault, of carrying a pistol without a license, and of carrying a concealed weapon. On September 12, 1974, a jury found the petitioner guilty of all charges. The jury imposed sentences of death on both counts of murder and a sentence of ten-years imprisonment on the aggravated assault count, which was to run consecutively with the death sentences. In addition, the trial judge imposed a one-year concurrent sentence on the count of carrying a pistol without a license and the count of carrying a concealed weapon. Chenault appealed, asserting sixteen errors. The Supreme Court of Georgia affirmed both his conviction and sentence. Chenault v. State, 1975, 234 Ga. 216, 215 S.E.2d 223. Chenault then instituted this federal habeas corpus proceeding, in which he presented the same errors he had asserted on his direct appeal.
The district court denied relief on fourteen alleged errors, and this Court affirmed. Chenault v. Stynchcombe, 5 Cir. 1977, 546 F.2d 1191, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158. The district court stayed consideration of enumerations of error fifteen and sixteen, which attacked the constitutionality of the Georgia death penalty statute and the imposition of the death sentence, pending determination by the Supreme Court on the constitutionality of the death penalty. On May 26,1977, after the Supreme Court decisions in the 1976 death penalty cases, the district court denied relief on enumerations of error fifteen and sixteen.
The petitioner contends that the district court erred in denying relief on enumerations of error fifteen and sixteen. In addition, during oral argument before this Court the petitioner made two new allegations of error. These contentions will be considered in turn.
II.
The district court properly denied relief on enumerations of error fifteen and sixteen. Enumeration of error fifteen contended that the Georgia death penalty statutes violate the constitutional prohibition against cruel and unusual punishment. In Gregg v. Georgia, 1976, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the Supreme Court upheld the constitutionality of these Georgia statutes. Enumeration of error sixteen asserted that the petitioner’s death sentence had been imposed in violation of Ga.Code Ann. § 27-2503, because the prosecutor introduced no evidence on aggravation of punishment at the sentencing stage of the trial, choosing instead to rely only upon evidence heard on the issue of guilt. Whether this statute requires the prosecutor to present additional evidence at the sentencing stage is a question of state law, which is not cognizable in a federal habeas proceeding. Enumeration of error sixteen suggests no colorable federal constitutional claim.
III.
During oral argument before this Court, the petitioner asserted that the trial judge’s instructions to the jury during the sentencing stage of the trial about mitigating circumstances and the option to recommend mercy were constitutionally inadequate. The petitioner did not raise this issue in his appeal to the Supreme Court of Georgia or in his habeas petition in the district court. Furthermore, he has never attempted to raise it by filing a state habeas corpus proceeding under Georgia law. If the state habeas proceeding is available to him, the petitioner has failed to exhaust state remedies on this issue, as required by 28 U.S.C. § 2254. Because it appears that the petitioner can avail himself of the state habeas procedure, this Court determines that the issue of the adequacy of sentencing instructions is not properly before us.
The Georgia courts appear willing to entertain habeas corpus proceedings challenging the imposition of the death penalty on federal constitutional grounds. See, e. g., Ross v. Hopper, 1977, 240 Ga. 369, 240 S.E.2d 850; Wilkes, Postconviction Habeas Corpus Relief in Georgia : A Decade After the Habeas Corpus Act, 12 Ga.L.Rev. 249, 258-59 (1978). Ga.Code Ann. § 50-127 (1977 Cum. Pocket Part) is the habeas provision applicable to persons, like the petitioner, imprisoned by virtue of a sentence imposed by a Georgia court. The statute allows the imprisoned person to assert that he has suffered a “substantial denial” of rights conferred by the United States Constitution. Ga.Code Ann. § 50-127(1). Except when the composition of a grand or traverse jury is challenged, federal constitutional rights are not deemed to have been waived unless it is shown that the habeas petitioner “voluntarily, knowingly, and intelligently” participated in the “intentional relinquishment or abandonment of a known right or privilege”. Id. Under this standard, it appears that the petitioner’s failure to object to the sentencing instructions at trial did not operate as a waiver. Therefore, he may pursue the state habeas remedy if his objection implicates a “substantial denial” of a federal constitutional right.
In view of the two most recent Supreme Court death penalty decisions — Lockett v. Ohio, 1978,- U.S.--, 98 S.Ct. 2954, 57 L.Ed.2d 973, and Bell v. Ohio, 1978, - U.S. -, 98 S.Ct. 2977, 57 L.Ed.2d 1010 — we conclude that the petitioner’s objection does implicate a substantial denial of a federal constitutional right. In Lock-ett the plurality opinion of the Chief Justice, in which Justices Stewart, Powell, and Stevens joined, states that the Eighth and Fourteenth Amendments require that the sentencing judge or jury must be allowed to consider, as a mitigating factor, “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”. - U.S. at --, 98 S.Ct. at 2965. See Bell,-U.S. at--, 98 S.Ct. 2977 (applying Lockett). The plurality would apply this requirement in all cases except perhaps where a mandatory death sentence is needed to deter certain kinds of homicide. See Lockett, - U.S. at--& n.ll, 98 S.Ct. 2954. Justice Marshall, although still adhering to his view that capital punishment is always unconstitutional, appears to have suggested that the sentencer must be allowed to consider “the unique individuality of every criminal defendant”. Lockett, - U.S. at -, 98 S.Ct. at 2973 (Marshall, J., concurring in the judgment). Justice Brennan did not participate in either decision. He has, however, consistently maintained that the death penalty is always unconstitutional. See, e. g., Coker v. Georgia, 1977, 433 U.S. 584, 600, 97 S.Ct. 2861, 53 L.Ed.2d 982 (Brennan, J., concurring in the judgment).
It now seems, therefore, that a death sentence imposed by a sentencer barred from considering mitigating circumstances will be vacated by a six-member majority of the Supreme Court — the plurality in Lockett and Bell and Justices Brennan and Marshall. This constitutional requirement to allow consideration of mitigating circumstances would have no importance, of course, if the sentencing jury is unaware of what it may consider in reaching its decision. We read Lockett and Bell, then, to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against ■ death. Thus, the petitioner’s contention that the sentencing instructions given by the trial judge were not adequate on this point does implicate a substantial denial of a federal constitutional right. Should he file a state habeas petition raising this contention, the state courts would be required, in light of Lockett and Bell, to determine whether the instructions given adequately comport with the United States Constitution.
IV.
Georgia law provides that, in a capital case, a prospective juror who is opposed to the imposition of the death penalty under any circumstances is automatically removed by the trial judge “for cause”. Ga.Code Ann. §§ 59-806(4), 59-807. See Eberheart v. State, 1974, 232 Ga. 247, 250-51, 206 S.E.2d 12, 15-16, vacated on other grounds, 1977, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104, modified, 239 Ga. 407, 238 S.E.2d 1. During oral argument before this Court, the petitioner contended that this use of a so-called “death-qualified jury” violated the Georgia Constitution’s guarantee to a “trial by an impartial jury”. Ga.Code Ann. § 2-105 (Const.1945). That is clearly an issue of state law, which is not cognizable in a federal habeas corpus proceeding.
The petitioner can obtain no relief even if his contention were recast as an argument that the death-qualified jury provision violates his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments of the Constitution. First, this issue is not properly before this Court, because the petitioner has failed to exhaust state remedies on this issue, as required by 28 U.S.C. § 2254. He did not present the issue on his appeal to the Supreme Court of Georgia, and he has not raised it by filing a state habeas proceeding under Ga.Code Ann. § 50-127. Second, in the recent case of Spinkellink v. Wainwright, 5 Cir. 1978, 578 F.2d 582, a panel of this Court held that a death-qualified jury procedure does not violate the constitutional right to a jury trial. Thus, this Court would be required to reject the petitioner’s argument if we had jurisdiction over this issue.
V.
In summary, we affirm the decision of the district court that the petitioner’s enumerations of error fifteen and sixteen are without merit. We find that his challenges to the sentencing instructions and to the death-qualified jury are not properly before this Court because he has failed to exhaust state remedies. We remand the case to the district court with instructions to dismiss the petition without prejudice so that the petitioner may pursue state remedies for these contentions.
AFFIRMED and REMANDED.
. Georgia allows a person incarcerated under a sentence imposed by a State court to institute a habeas corpus proceeding. See Ga.Code Ann. § 50-127 (1977 Cum. Pocket Part). The petitioner has never attempted to obtain the writ of habeas corpus for the Georgia courts. In the district court, the respondent argued that the federal habeas corpus petition must be dismissed because the petitioner had failed to exhaust state remedies, as required under 28 U.S.C. § 2254. The district court determined that the petitioner had met the exhaustion requirement because on appeal the Supreme Court of Georgia had ruled upon every enumeration of error contained in the federal petition. The respondent has not renewed this exhaustion argument in this Court.
. Gregg v. Georgia, 1976, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, 1976, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 1976, 428 U.S. 262, 96 S.Ct.. 2950, 49 L.Ed.2d 929; Woodson v. North Carolina, 1976, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Roberts v. Louisiana, 1976, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974.
. In the petitioner’s direct appeal, the Supreme Court of Georgia held that the prosecutor was not required to present additional evidence at the sentencing stage of the trial. Chenault v. State, 234 Ga. at 224-25, 215 S.E.2d at 229.
. There are many cases that state that a state prisoner may not pursue federal habeas corpus unless he has raised his issues in a state habeas proceeding. Recent Fifth Circuit cases to this effect are: Mosley v. Smith, 5 Cir. 1973, 470 F.2d 1320, cert. denied, 1973, 412 U.S. 932, 93 S.Ct. 2757, 37 L.Ed.2d 160; Brookins v. Florida, 5 Cir. 1972, 461 F.2d 663; Pebworth v. Henderson, 5 Cir. 1970, 428 F.2d 789; Wheeler v. Beto, 5 Cir. 1969, 407 F.2d 816.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer: |
songer_opinstat | A | 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.
REALTY OPERATORS, Inc., v. COMMISSIONER OF INTERNAL REVENUE.
No. 11424.
Circuit Court of Appeals, Fifth Circuit
Feb. 18, 1946.
Rehearing Denied March 15,1946.
C. J. Batter, of Washington, D. C., for petitioner.
' ¡Maryhelen Wigle and Helen R. Carloss, Sp. Assts. to Atty. Gen., Sewall Key, Acting Asst. Atty. Gen., and-J.-P. Wenchel, Chief Counsel, Bureau of Internal Revenue, Raymond F. Brown and R. E. Maiden, Jr.-, Sp. Attys., Bureau of Internal Revenue, all of Washington, \D. C., for respondent.
Before SIBLEY, HOLMES, and Mc-CORD, Circuit Judges.
HOLMES, Circuit Judge.
This is an action against the United States to recover sugar-processing taxes paid by Realty Operators, Incorporated. It was preceded by a timely claim for refund, filed with the Commissioner of Internal Revenue. This claim was disallowed in full. Thereupon, the taxpayer filed its petition for a hearing on the merits with the Board of Review, an administrative agency in the Treasury Department, which pe.tition was. transferred to the Tax Court. Our jurisdiction to review the decision of said court is invoked pursuant to Sections 1141 and 1142 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, §§ 1141, 1142.
The Tax Court made no finding of fact as to whether the margin comparisons were favorable or unfavorable to the taxpayer. It first considered the case without resort to statutory presumptions, and determined 'that petitioner, along with the entire sugar ■industry, increased «its price of sugar in the amount of the tax on the very day that the tax went into effect, and that the price was not reduced at any later time by the amount of the tax or. for the purpose of subtracting the tax from the sales price. The court therefore concluded, without recourse to any presumption, that petitioner shifted the entire burden of the tax through inclusion of the entire amount thereof in the price of the sugar.
The court then resolved all controversies with regard to the margin comparisons in favor of the taxpayer; and assumed, without deciding, that the margin during the tax period was lower than the margin during the period before and after the tax. This raised a presumption in favor of the taxpayer under Section 907 of the Act, which the court held was entirely rebutted by proof that the claimant increased its selling price of sugar by the amount of the tax on the day that the tax went into effect, and that the price was not reduced at any later time by the amount of the tax or for the purpose of deducting the tax from the selling price. The claimant in turn sought to establish that this increase was caused by changes in factors other than the tax. The court said that, while the record showed that changes occurred .during the tax period in the type of commodity produced by petitioner and in the cost of production, there was no proof that these changes occurred at the time of the price increase, or were reasonably to be anticipated at that time, or in any way caused the price increase in substantially the amount of the tax, which occurred at the time when the tax went into effect.
The evidence in the record supports the findings of the Tax Court that the claimant participated in the nation-wide increase in the price of sugar in the amount of the tax on the very day that the tax went into effect, and that the price was not reduced at any later time by the amount of the tax or for the purpose of subtracting the tax from the selling price. Petitioner contends that the increase in price made by the sugar industry on June 8, 1934, was caused by the quota system, which became effective as of that date, and that the quota-control must be considered a factor under said Section 907(e) (2). The Tax Court found that the quotas placed upon the importation of sugar made the price increase possible, but that the increase was made not only when the tax went into effect but in the approximate amount of the tax, and that this indicated clearly that the petitioner, was shifting the entire burden thereof by the increase in price. The claimant failed to show that this price increase was caused by factors other than the. processing tax.
Conceding, as did the Tax Court, that the presumption here was in favor of the claimant, we think the proof introduced by the Commissioner was sufficient to support a finding that the entire tax was shifted. Evidence that petitioner increased its selling price of sugar in the amount of the tax on the very day that the tax went into effect, and never reduced it during the tax period, was exactly the kind of evidence mentioned in the statute as sufficient to rebut the presumption in favor of the taxpayer. Therefore, upon the authority of Webre Steib v. Commissioner, 324 U.S. 164, 65 S.Ct. 578, the decision of the Tax Court is
Affirmed.
Established by virtue of Section 906 of the Act of June 22, 1936, 49 Stat. 1748, 7 U.S.C.A. § 648(b).
Effective as of the close of business on December 31, 1942, said Board of Review was abolished and its jurisdiction transferred to and vested in the Board of Tax Appeals, now known as The Tax Court, an independent agency in the executive branch of the Government. 56 Stat. 957, 967, 53 Stat. 158, 26 U.S.C.A. Int.Rev. Code, §§ 1100, 1101, 1101 note.
Act of June 22, 1936, 49 Stat 1751, 7 U.S.C.A. | 649(a).
7 U.S.C.A. § 649(e) (2).
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_state | 50 | 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".
LOCAL 879, ALLIED INDUSTRIAL WORKERS of AMERICA, AFL-CIO, and International Union, Allied Industrial Workers of America, AFL-CIO, Plaintiffs-Appellees, v. CHRYSLER MARINE CORPORATION and Chrysler Corporation, Defendants-Appellants.
No. 85-2872.
United States Court of Appeals, Seventh Circuit.
Argued April 17, 1986.
Decided May 20, 1987.
Frederick A. Muth, Jr., Whyte & Hirsch-boeck, S.C., Milwaukee, Wis., for defendants-appellants.
Kenneth R. Loebel, Habush Habush & Davis, Milwaukee, Wis., for plaintiffs-ap-pellees.
Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
Appellants Chrysler Marine Corporation and Chrysler Corporation (“Chrysler” or “the Company”) appeal from the district court judgment enforcing an arbitrator’s award and awarding attorney’s fees to ap-pellees International Union, Allied Industrial Workers of America and Local 879 (“the Union”). Jurisdiction was based on § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. For the reasons set forth below, we will Affirm the enforcement of the arbitrator’s award, and Reverse the grant of attorneys’ fees.
FACTS
In May, 1983, Chrysler and the Union began to negotiate a successor agreement to that covering the Company’s Hartford and Beaver Dam, Wisconsin, plants, which was due to expire on June 30, 1983. Because of rumors that. Chrysler was considering closing or selling these plants, the Union twice proposed severance pay plans, both of which Chrysler rejected. In agreeing to a new contract, the Union accepted a company letter of intent stating that “in the event the Company should close all of its Hartford and/or Beaver Dam Plants, the Company will provide the Union six (6) months advance notice of such closing and will negotiate with the Union regarding a Severance Pay Plan.”
In August, 1983, Chrysler began to negotiate with Bayliner Corporation for the sale of the Hartford and Beaver Dam plants. Bayliner agreed to acquire Chrysler’s assets, to operate the Hartford plant for one year, excluding a reasonable transition period, and to operate the Beaver Dam plant for at least two months. The sale was originally scheduled to become effective December 30, 1983. The agreement was reached December 8,1983 and the sale was first made known to the Union and the employees at that time.
On December 12, 1983, the Union filed a grievance alleging that the sale was a closing which violated the June 30 agreement because six months’ notice had not been given. It requested that the closing be delayed for at least six months for negotiation of a severance pay plan. Chrysler denied the grievance, contending that the sale was not a closing, and the issue was ultimately submitted to arbitration.
The Union immediately brought suit to enjoin the sale pending arbitration. The district court granted a preliminary injunction, but on January 9, 1984, this court granted a stay, finding that the risk of irreparable injury weighed most heavily against Chrysler. The preliminary injunction was reversed May 31, 1984, 735 F.2d 1367. Both orders were unpublished.
On January 11, 1984, Chrysler informed all employees at both plants that effective January 13, 1984, they would no longer be employed. Ownership of the Hartford assets was transferred to the buyer on January 13, 1984, but the Beaver Dam assets were never sold, and operations there continued without interruption. Although Bayliner did not guarantee that the Company’s employees would be retained, as of February 6, 1984, 223 of 272 former Chrysler employees were employed at the Hartford plant.
The parties then proceeded with arbitration as provided by their collective bargaining agreement. On May 30, 1984, the arbitrator issued an award. The arbitrator found that the term “close” applied to the sale of the Hartford operation and that Chrysler had therefore obligated itself to give six months’ notice of the sale, and to negotiate a severance pay plan. He ordered several adjustments, affecting groups of employees, consistent with the theory that the sale could not have occurred less than six months after December 8, 1983, the date the employees learned of it. These adjustments are not in issue on this appeal. He also directed the parties to attempt to agree upon a severance pay plan comparable to plans in comparable relationships. He stated his opinion “that had such negotiations occurred prior to the effectuation of the sale in question, the Union would have been in an advantageous bargaining position, since the Company would probably have sought its acquiescence to a waiver of the six months’ notice requirement which would have enabled it to. meet the purchaser’s demands with respect to the timing of the transaction. Based upon these considerations, it is the undersigned’s opinion that the Union would in all likelihood have been able to negotiate a severance pay plan which provided benefits comparable with the more generous of such plans in existence at that time in comparable employee-union relationships.”
The parties were given 90 days in which to negotiate, after which the proceeding would be reconvened at the request of either party. Chrysler brought an action seeking to set aside the award. The parties did not negotiate, and the arbitrator reconvened the proceeding.
A supplemental award was issued on March 15, 1985, including, among other things, a severance pay plan for all former Chrysler employees. The arbitrator reviewed severance pay plans collectively bargained in three plants neighboring Chrysler’s. Based upon them, he termed the plan awarded “a fair and generally comparable severance pay plan.” The arbitrator stated that because it was impossible to determine with any certainty the Union’s and the employees’ damages as a result of Chrysler’s violation of the contract, he had attempted in the first award to provide an incentive for the Company to reach an agreement with the Union. That having failed, imposition of a severance pay plan is “the most viable way of affording the employees whose contractual rights were violated meaningful relief, and of imposing upon the Company obligations which in any way coincide with the obligations it had at the time of the contractual violation.” Supplemental Award at 14. The arbitrator also observed that no lesser or more traditional remedy, such as a cease and desist order or a direction to bargain, could be effective because the parties no longer had a bargaining relationship and Chrysler had no incentive to reach an agreement with the Union. Even employees hired by Bay-liner were to receive severance pay, because when Chrysler ceased operations, its employees had no rights to employment with the buyer. Moreover, while one purpose of severance pay is to provide income between jobs, it also compensates employees for their service and for termination for reasons unrelated to their conduct.
The district court ordered enforcement of both awards. It found that the arbitrator’s construction of the contract did not manifestly ignore the agreement, and that the creation of the severance plan was within the scope of his remedial powers. The court also awarded attorney’s fees incurred by the Union to enforce the award.
ARBITRATION AWARD
This court has repeatedly stressed that review of an arbitration award is extremely limited. See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and Local 449 v. Keystone Consolidated Industries, Inc., 782 F.2d 1400, 1402 (7th Cir.1986) and cases cited therein. So long as the arbitrator interpreted the contract in making the award, even if arguably incorrectly, it must be upheld. Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180, 187 (7th Cir.1985).
An award may be overturned only if the arbitrator must have based his. award on his own personal notions of right and wrong, for only then does the award fail “to draw its essence from the collective bargaining agreement” as required by the Supreme Court in United Steelworkers v. Enterprise Wheel,- 363 U.S. 593, 597, 80 S.Ct. 1353, 1361, 4 L.Ed.2d 1424, and by ourselves in Ethyl Corporation, 768 F.2d at 184-85; Jones Dairy Farm v. Local No. P-1236, United Food and Commercial Workers International Union, 760 F.2d 173, 176 (7th Cir.1985), certiorari denied, — U.S.-, 106 S.Ct. 136, 88 L.Ed.2d 112; Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1162 (7th Cir.1984), certiorari denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 926....
This low standard of review is essential to prevent a “judicialization” of the arbitration process. Ethyl Corporation, 768 F.2d at 184. Arbitration is an alternative to the judicial resolution of disputes, and an extremely low standard of review is necessary to prevent arbitration from becoming merely an added preliminary step to judicial resolution rather than a true alternative. Id. The parties have bargained ex ante for arbitration as an alternative means of dispute resolution, and ex post they must abide by this bargain. Camacho [v. Ritz-Carlton Water Tower, 786 F.2d 242, 244 (7th Cir.1986)].
E.I. Dupont de Nemours v. Grasselli Employees Independent Ass’n of East Chicago, Inc., 790 F.2d 611, 614 (7th Cir.1986).
Chrysler does not challenge the arbitrator’s construction of the collective bargaining agreement nor his finding of a breach by failing to give the Union six months’ notice of the sale and failing to negotiate regarding a severance pay plan. Instead, it argues that the remedy awarded exceeds the authority granted to the arbitrator by the contract.
The arbitration clause provides that: [t]he decision of the arbitrator shall be final, and binding on all parties. The arbitrator shall have authority only to decide questions as to the meaning and application of the terms of this Agreement, and such arbitrator shall have no authority to change existing rate ranges, incentive base rates or day work rates, for any labor grade or to add, delete or modify any of the terms of this Agreement.
Chrysler contends that by creating the duty “out of whole cloth” to provide severance pay, the arbitrator modified the terms of the agreement by imposing the obligation to come to terms, where only negotiations had been bargained for. It also argues that the arbitrator’s reasoning was faulty, and that the award to employees who were hired by Bayliner exceeds his remedial powers by creating a windfall and contradicting the parties’ bargaining history-
We disagree.
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There is the need for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet the particular contingency.
United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); see Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1163 (7th Cir.1984) (“Collective bargaining agreements often say little or nothing about the arbitrator’s remedial powers; yet it cannot be that he has none; and since he derives all his powers from the agreement, the agreement must implicitly grant him remedial powers when there is no explicit grant.”).
Concerning the breadth of such implication, we have said,
In these circumstances we must consider whether it is at all plausible to suppose that the remedy he devised was within the contemplation of the parties and hence implicitly authorized by the agreement. Only if we think it clearly was not may we reverse.
Id. at 1164. See also United Elec., Radio and Mach. Workers of Am., Local 1139 v. Litton Microwave Cooking Products, 728 F.2d 970, 972 (8th Cir.1984) (en banc); Desert Palace, Inc. v. Local Joint Executive Bd. of Las Vegas, 679 F.2d 789, 793 (9th Cir.1982) (as long as solution is within general framework of agreement, arbitrator may decide what parties would have agreed had they foreseen the dispute).
Of course, if Chrysler had given six months’ notice of its sale and had negotiated in good faith, but unsuccessfully, for a severance pay plan, no plan could have been imposed upon it under the collective bargaining agreement. Here, however, Chrysler has made it impossible to determine with certainty what would have been the result of negotiation either if six months’ notice had been given, or, as seems more likely under the circumstances, Chrysler had also sought a Union waiver of the full six months’ notice period. “We cannot say that the arbitrator clearly exceeded his authority or violated the collective-bargaining agreement, when he resolved doubts as to the remedy against the party that had broken its promise.” United Electric, 728 F.2d at 972.
The arbitrator carried out what appears to be a careful and reasonable determination of a plan which would probably have resulted from negotiation under the latter assumption. Expressly conferring on the arbitrator, as the agreement does, the authority to decide the meaning and application of the agreement, necessarily implies the authority to find that there has been a breach of the agreement as interpreted, and, we think, further implies the authority to prescribe a remedy which can be said reasonably to cure the breach. Thus the award was within the range of remedial authority which can reasonably be said to be implied by the contract.
Other remedies did not appear feasible, and Chrysler proposes none; indeed, its position leads to the conclusion that the arbitrator was helpless to provide redress for the Company’s breach, a conclusion not mandated by the agreement or by common sense. Cf. Grigoleit Co. v. United Rubber, Cork, Linoleum and Plastic Workers of Am., Local No. 270, 769 F.2d 434, 440-41 (7th Cir.1985); United Elec. Radio & Machine Workers of Am. v. Honeywell, Inc., 522 F.2d 1221, 1226 (7th Cir.1975) (arbitrators have flexibility in formulating remedies); Mogge v. District 8 Int’l Ass’n of Machinists, 454 F.2d 510, 514 (7th Cir.1971) (where contract is not explicit concerning the proper remedy, arbitrator has wide latitude in fashioning appropriate remedy).
Chrysler challenges the arbitrator’s assumption that the contractual entitlement to six months’ notice of the sale gave the Union bargaining power by withholding consent to a shortening of the notice period. In this challenge, Chrysler relies on this court’s stay and reversal of a preliminary injunction against proceeding with the sale in January, 1984 after only one month’s notice.
This argument rests on an inapt comparison between the premises of the court’s decision and those of the arbitrator’s. This dispute was whether the “sale” was a “closing” under the collective bargaining agreement. That issue had not been resolved when this court decided that Chrysler’s risk of irreparable hardship if it lost the sale opportunity and ultimately won on the merits was much greater than the Union’s risk if the sale occurred and it ultimately won on the merits. Before the arbitrator prescribed the remedy, however, he had reached the merits and determined the Company’s contractual obligation not to sell without six months’ notice.
This court’s two unpublished orders did not, of course, address the merits of the dispute, nor even assess the probability of success. They were plainly based on this court’s evaluation of the respective risks of irreparable injury. The stay order (incorporated also in the final order) suggests that this court perceived an award of (if not agreement on) a severance pay plan as at least a very probable outcome, for it said, at page 5:
Finally, as we previously stated, if Chrysler is not permitted to complete the sale, there is a substantial likelihood that Chrysler will lose large amounts of money greatly in excess of the $1,000 injunction bond filed by the union in this case. After all, in a large commercial transaction such as this, time is sensitive and of the essence. The union members face no such dilemma. If the sale is completed, the Union still has the opportunity to arbitrate severance pay under the collective bargaining agreement against a solvent Chrysler. If the arbitrator finds an award of severance pay to be proper in this instance, then every union member not hired by Bayliner will be entitled to such pay. The arbitrator’s award of severance pay will be in the form of money damages, easily calculable, and within the power of the panel to award. The Union simply cannot complain of irreparable harm if it is remitted to this remedy. Moreover, arbitration may be avoidable since Chrysler has offered to pay in settlement the severance pay proposed by the Union immediately prior to the time the labor contract was signed.
Chrysler further points out that most of the affected employees were hired by Bay-liner, the purchaser of the Hartford plant. Chrysler seems to contend that even if a severance pay plan is an appropriate remedy, it “must be limited to former hourly Chrysler employees who, despite reasonable efforts, have not secured other employment.”
It relies on two decisions which held that pension administrators’ interpretation of employers’ severance pay policies so as not to afford benefits to persons employed by a successor employer did not violate ERISA. Sly v. P.R. Malloy & Co., Inc., 712 F.2d 1209 (7th Cir.1983) and Jung v. FMC Corp., 755 F.2d 708 (9th Cir.1985). These cases involved different situations and have little pertinence here.
ATTORNEY’S FEES
The district court also awarded the Union attorney’s fees incurred to enforce the award, but without any explanation, or finding of bad faith or frivolous litigation. Some courts have held that although § 301 of the LMRA does not provide for the shifting of costs and fees in suits for enforcement of awards, when a challenger refuses to abide by an arbitrator’s decision “without justification,” attorney’s fees and costs may be awarded. See, e.g., Teamsters Local Union No. 764 v. J.H. Merritt & Co., 770 F.2d 40, 43 n. 2 (3rd Cir.1985); Amalgamated Meat Cutters Local Union 540 v. Great Western Food Co., 712 F.2d 122, 125 (5th Cir.1983); Int'l Union of Petroleum & Indus. Workers v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428-29 (9th Cir.1983).
This court has stated that normally when no statute authorizes the award of attorney’s fees “the prevailing party is entitled to attorney’s fees only if his opponent’s suit or defense was frivolous, which our cases define to mean brought in bad faith — brought to harass rather than to win.” Miller, 739 F.2d at 1167. More recently, since the amendment of Rule 11, F.R.Civ.P., we have held that the test under present Rule 11 is objective, and that a finding of bad faith is not essential. See Brown v. National Bd. of Medical Examiners, 800 F.2d 168, 171 (7th Cir.1986) (standard under revised Rule 11 is objective reasonableness under the circumstances). Here there was no finding of bad faith, nor do we see evidence thereof. We do not deem Chrysler’s position so devoid of arguable merit as to warrant sanctions under Rule 11.
The award of attorney’s fees is Reversed, and the judgment is Affirmed in all other respects. Costs on appeal are allowed to plaintiffs.
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_genresp1 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Bell Atlantic Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. US West, Inc., Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Ameritech, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Pacific Telesis Group, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. BellSouth Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Southwestern Bell Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., and American Telephone and Telegraph Company NYNEX Corporation, Appellant.
Nos. 90-5333, 90-5335, 90-5337, 90-5351, 90-5365, 90-5367 and 90-5373.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 21, 1992.
Decided July 24, 1992.
Stephen M. Shapiro, with whom Mark I. Levy and Michael K. Kellogg, for Bell Companies, John Thorne, Michael D. Lowe, and Michael E. Glover, for Bell Atlantic Corp., Jeffrey S. Bork, for US WEST, Inc., Richard W. Odgers, Margaret DeB. Brown, and Stanley J. Moore, for Pacific Telesis Group, Walter H. Alford and Mark D. Hal-lenbeck, for BellSouth Corp., Liam S. Coo-nan, Ann Meuleman, and Martin E. Gram-bow, for Southwestern Bell Corp., and Raymond F. Burke, for NYNEX Corp., were on the joint brief, for Bell Co. appellants in all cases.
Nancy C. Garrison, Atty., Dept, of Justice, with whom James F. Rill, Asst. Atty. Gen., and Catherine G. O’Sullivan, Atty., were on the brief, for Federal appellee in all cases.
David W. Carpenter, with whom Mark C. Rosenblum and Howard J. Trienens, were on the brief, for appellee American Tel. & Tel. Co. in all cases.
Michael H. Salsbury, with whom Chester T. Kamin and Carl S. Nadler, were on the brief, for appellee MCI Communications Corp. in all cases. Anthony C. Epstein also entered an appearance, for appellee.
Martin T. McCue entered an appearance, for appellee U.S. Tel. Ass’n in all cases.
Gail L. Polivy entered an appearance, for appellee GTE Corp. in all cases.
John E. Ingle, Deputy Associate Gen. Counsel, and Robert L. Pettit, Gen. Counsel, filed a statement, for amicus curiae F.C.C. in 90-5333, explaining an FCC order.
Before: SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Dissenting Opinion filed by Circuit Judge STEPHEN F. WILLIAMS.
SILBERMAN, Circuit Judge:
The seven regional Bell Operating Companies (BOCs or Companies) and the United States appeal from the district court’s denial of a waiver of the AT & T consent decree to permit centralized provision of the “signaling” component of long distance telephone calls. The appellants maintain that their motion for a waiver should not be evaluated under the standard set forth in section VIII(C) of the decree — whether the proposal presents no substantial 'possibility of impeding competition — but rather under section VII and the more permissive test for unopposed decree modifications that we applied to the information services portion of the Triennial Review case: whether the requested waiver would be certain to lessen competition. See United States v. Western Elec. Co., 900 F.2d 283, 308 (D.C.Cir.) (Triennial Review Opinion ), cert. denied, — U.S. -, 111 S.Ct. 283, 112 L.Ed.2d 238 (1990).
We think that the section VIII(C) standard applies and that the BOCs failed to demonstrate • that their proposal satisfied that standard. We therefore affirm the judgment of the district court.
I.
The 1982 consent decree settled the government’s antitrust suit against the “Bell System” by first separating the BOCs and their monopolies over local telephone (“exchange”) service from AT & T and its more competitive long distance (“interexchange”) and equipment manufacturing businesses and then — with section II(D)’s “line-of-business” restrictions — prohibiting the BOCs from reentering those and other competitive markets. See generally United States v. American Tel. & Tel. Co., 552 F.Supp. 131 (D.D.C.1982) (Decree Opinion), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983); United States v. Western Elec. Co., 569 F.Supp. 1057 (D.D.C.) (Reorganization Opinion), aff'd mem. sub nom. California v. United States, 464 U.S. 1013, 104 S.Ct. 542, 78 L.Ed.2d 719 (1983).
Section II(D)(1) of the decree, which prohibits the BOCs from providing any “inter-exchange telecommunications services,” was implemented, and the scope of the seven BOCs’ local monopolies defined, by dividing the country geographically into 164 “exchange areas” (better known as “LATAs”). See generally United States v. Western Elec. Co., 569 F.Supp. 990 (D.D.C.1983) (LATA Opinion). Each local operating company (see note 2) encompasses several LATAs but is nevertheless allowed to transmit telecommunications information only between points within a single LATA, providing what is, basically, the traditional local telephone service. When a person in one LATA calls a person in another, the BOC serving the caller’s LATA must transmit the call to an interexchange carrier, such as AT & T or MCI, which then carries the" call on its own network across the LATA boundaries, where it is picked up by the BOC serving the called party’s LATA. (If the caller and called party live in different LATAs within one Company’s region, the same Company both passes and picks up the interexchange call.) Section 11(A) of the decree obliges the BOCs to provide such “exchange access” services to all interexchange carriers, and section IV(F) requires them to do so “at a point or points within [a LATA] designated by [the] interexchange carrier.” These “points of presence” in each LATA are thus the locations where the telecommunications networks of the seven Companies and the numerous interexchange carriers interconnect. See LATA Opinion, 569 F.Supp. at 994 n. 13.
The telephone “call” that a Company-passes to an interexchange carrier consists of two components. One is the actual communication (e.g., the voices) of the calling and called parties. The other is “network control signaling,” which directs the operation of the telecommunications network, telling the switches and circuits how and when to set up and disconnect a call. The signaling indicates that a receiver has been picked up, what digits were dialed, whether the called line is ringing or busy, when the phone is hung up, and so forth. When the decree was approved in 1982, almost all signaling was “in-band,” meaning that the communication and its associated network control signals were transmitted over the same circuit and therefore delivered to the interexchange carrier at the same location — the carrier’s point of presence in each LATA. In-band signaling, however, has significant limitations. Because the signals travel over the same circuit as the callers’ communication, they must precede or follow the communication. In-band signaling is also relatively slow and can carry relatively little information.
In recent years a new signaling technology has emerged. In “out-of-band” or Common Channel Signaling (CCS), the signals are transmitted over a system of switches and circuits separate from that of the communications they control. The CCS and communications networks are not parallel but rather linked only at special CCS switches known as Signal Transfer Points (STPs). Out-of-band signaling is much more efficient than in-band. The CCS network contains only signals, which can be packeted into bursts of information and loaded into a circuit with no gaps; in contrast, a single voice communication takes up an entire circuit, even when the parties are not saying anything. As a result, a single CCS circuit can carry the signaling for over 10,000 calls. Each STP pair, moreover, can be connected to multiple communications switches, allowing a few STP pairs to serve a very large area.
The advantages of CCS are undisputed. Its speed'markedly reduces call set-up time — the time between dialing on one end and ringing on the other — a benefit of particular value to long distance service. It also frees circuits for communications by not clogging them while callers listen to busy signals or service announcements. And it provides the technological foundation for a variety of new telecommunications services, including some for which the signaling functions as part or all of' the communicated information. For example, CCS enables the telephone number of the calling party to be transmitted to the called party, allowing such caller identification features as distinctive ringing and selective call screening, call waiting, and call forwarding.
The BOCs have begun to deploy CCS networks for use in providing local (intra-LATA) exchange services. The CCS efficiencies and network structure have allowed the Companies to deploy centralized STP pairs, each pair having the capacity to serve several of a Company's LATAs. US WEST’S STP pair in Minneapolis, for example, serves U S WEST switches in six of its LATAs. In 1989, in fact, the BOCs predicted that all 164 LATAs could be served by only 27 STP pairs, although many more pairs have been installed in the last three years. The interexchange carriers have also been deploying CCS networks for use in their interexchange systems. AT & T inherited the Bell System’s nascent CCS network at divestiture, and MCI has also extended signaling facilities to almost every LATA. The smaller carriers have lagged somewhat behind.
This case is brought because the BOCs have not yet installed an STP pair in every LATA and wish to avoid having to do so just to allow the interexchange carriers to connect in every LATA. Instead, they would like authority to provide the carriers access to CCS service only at certain centralized locations. Under their proposal, in other words, there would not be a section IV(B) point of presence — at least for this service — in every LATA. Thé BOCs maintain that meeting the section IV(B) requirement for CCS would be expensive and inefficient for both them and the interexchange carriers, particularly the smaller ones. It is claimed that not all LATAs (especially in less populated areas) have sufficient call volume to cost-justify their own STP and that the smaller carriers also could not afford construction of a CCS link to an STP in every LATA. AT & T and MCI, on the other hand, with significant investment in CCS systems more extensive than their smaller competitors, want interconnections in every LATA so as to benefit from those investments.
In February 1989 US WEST filed a motion in the district court requesting a waiver “of the Decree” to allow centralized signaling interfaces. (Under its proposal, the communications component of interexchange calls would still be provided at the point of presence in each LATA, as would in-band signaling if the carrier so requested.) US WEST purported to act “pursuant to section VII of the Decree,” a provision that authorizes the district court to modify the decree upon application of any party. Section VII does not include any criterion for judging proposed changes, so motions under it are presumed to be governed by the appropriate common law standard. See Triennial Review Opinion, 900 F.2d at 305-07. Changes uncontested by any party to the decree are granted if - “within the reaches of the public interest,” id. at 306 (quotation marks omitted) — that is, unless they are “certain to lessen competition,” id. at 308.
The positions of the decree parties in this case were divided. The other six BOCs supported US WEST’S motion and filed similar motions of their own. The Department of Justice (DOJ) told the Companies to file directly in the district court, claiming that the motions did not involve a modification of the line-of-business provisions and so the DOJ pre-screening procedure, see United States v. Western Elec. Co., 592 F.Supp. 846, 873-74 (D.D.C.1984), appeal dismissed, 777 F.2d 23 (D.C.Cir.1985), was inapplicable. The DOJ then filed a “memorandum” supporting the CCS waiver request.
However, the remaining party to the decree, AT & T, opposed the Companies’ motions, arguing that section IV(F) of the decree expressly obliges the Companies to provide access to network control signaling in every LATA and that the centralization of signaling would allow the BOCs to transmit telecommunications information— the signals — across LATA boundaries in violation of the section II(D)(1) interex-change services ban. AT & T argued that the proposal should therefore be evaluated not under section VII but under the decree’s other provision for modification, section VIII(C). That section was added to the decree to establish an explicit standard governing a particularly important type of modification:, contested changes in the decree’s core line-of-business restrictions. See Triennial Review Opinion, 900 F.2d at 291. Section VIII(C) requires a BOC seeking to waive or remove a section 11(D) restriction to demonstrate that “there is no substantial possibility that it could use its monopoly power [in the local exchange market] to impede competition in the market it seeks to.enter.” The Companies’ blanket, nationwide waiver proposal, AT & T asserted, could not satisfy that test, and the BOCs were unwilling to limit their request to transitional.waivers for the particular LATAs for which a specific showing of low call volume and inefficiency of STP and CCS link installation might be made. MCI, intervening, essentially joined AT & T in these arguments.
The district court, shortly after our Triennial Review Opinion issued, held that the waiver proposal did not satisfy the section VIII(C) test. See United States v. Western Elec. Co., 131 F.R.D. 647, 650-52 (D.D.C.1990) (Waiver Opinion), reconsideration denied, Civ. No. 82-0192 [1990 WL 139788, 1990 U.S.Dist. LEXIS 12153] (D.D.C. Sept. 6, 1990) (Reconsideration Opinion). The BOCs and the Department of Justice appeal.
II.
The dispute between the parties has two main facets. The Companies and the Justice Department contend that the waiver request does not substantially implicate the decree’s line-of-business restrictions and therefore that the standard to determine whether it should be granted is not the potentially demanding section VIII(C) test but- rathér the more relaxed public interest test embodied in section VII. Alternatively, the appellants maintain that the applicability of section VIII(C) turns on the position of the DOJ — the plaintiff and “Prime Mover” in the antitrust ease underlying the decree. Even if section VIII(C) would apply had the government contested the CCS waiver, the argument goes, section VII and the public interest test govern here because the DOJ does support the proposal. AT & T’s opposition to a modification of a line-óf-business restriction, the appellants claim, has no more significance than that of other, non-party interexchange carriers.
The first argument is based on the notion that the centralization of signaling interfaces involves primarily not an entry into the interexchange services' market prohibited by section II(D)(1) but rather a redefinition of the Companies’ obligation under section IV(F) to provide network control signaling in each LATA. The appellants assert that a small adjustment in the definition of the BOCs’ exchange access monopoly is distinguishable from an “entry” into a new and competitive line of business, even though the CCS waiver might “affect” the interexchange market. We think that is a distinction without a difference. By that logic, the decree’s most sensitive restriction placed on the Companies might be eroded merely by redefining the decree’s terms. The Companies could, for example, just as well move to redefine “interexchange telecommunications” as transmission of information from one Company’s region to another’s, rather than from one LATA to another, vastly expanding the Companies’ monopolies. It is therefore plain to us that the CCS waiver would not merely change the details of existing exchange access service, but would allow the BOCs to expand their monopolies over exchange access into a slice of the competitive interexchange services market — maybe a narrow slice, involving (for now) only the transmission of traditional network control signaling between the LATAs in each Company’s region, but a slice nevertheless. Therefore, a modification that requires a change in a line-of-business restriction is, if contested, governed by the section VIII(C) test.
The more serious argument, that the relaxed section VII public interest standard governs waivers supported by the DOJ whether or not opposed by AT & T— i.e., if the DOJ approves a waiver, it is not “contested” — is largely a product of a footnote in our Triennial Review Opinion. See 900 F.2d at 294 n. 12. We affirmed, in that case, the district court’s refusal to lift the decree’s ban on the BOCs’ manufacturing of telephone equipment, see id. at 301-04, but reversed a similar refusal to allow the Companies to provide information services, see id. at 305-09. We drew a distinction between proposed modifications of the line-of-business restrictions that were unopposed by the other two parties to the decree (the government and AT & T), and waivers contested by either or both of them. The latter were governed by the section VIII(C) standard, whereas uncontested proposals were to be judged by the more lenient “within the reaches of the public interest” standard. See id. at 305-07.
We also noted that the decree contemplated that only the Companies could petition under section VIII(C) for modification of the line-of-business restrictions. See id. at 294-95. Therefore, if the DOJ wanted an alteration of those restrictions it would necessarily proceed under section VII, the provision authorizing any party to seek decree modifications. See id. at 294. We then added a footnote raising a question as to what standard would apply to such a motion:
The Government opposed the modification sought in Swift, and therefore it is not at all clear to us that the stringent, so-called “unforeseen conditions” test of Swift would apply to motions brought by the DOJ under section VII. Since the DOJ is, as plaintiff, the “Prime Mover” of this case, it may well be that modifications it seeks should be evaluated under a standard somewhat more akin to the “public interest” test of the Tunney Act. Still, it is true that the line of business restrictions were part of what AT & T bargained for in the original decree, therefore suggesting that the modification requests that AT & T opposes should perhaps be viewed differently from those that all the parties agree to. We need not pass on this issue here since the DOJ brought no motion under section VII.
Id. at 294 n. 12 (emphasis in original deleted; new emphasis added).
Appellants, relying exclusively on the italicized portion of the footnote, assert that by asking the question of what standard applied, we answered it — that we have strongly implied that the government’s support for a waiver causes the public interest test to govern. That is a strained interpretation at best, since we have clearly indicated that if AT & T opposes a line-of-business modification, then DOJ’s support, in whatever1 form, does not relieve the Companies from meeting the section VIII(C) test. Thus, in the Triennial Review Opinion itself we treated the BOCs’ motion to remove the manufacturing line-of-business restriction as contested and subject to the section VIII(C) standard notwithstanding DOJ’s support for the proposal. See id. at 301. And in the subsequent NYNEX Procurement Opinion (United States v. Western Elec. Co., 907 F.2d 1205 (D.C.Cir.1990)), where it was the Justice Department that formally moved for a waiver of a section 11(D) restriction, we said that the Department “bears the same burden that [the BOC] would” and remanded for the district court to determine whether AT & T had properly opposed the waiver. See id. at 1207-09 & n. 3.
Appellants nevertheless, and for the first time in this' series of cases, squarely challenge the proposition that AT & T’s opposition to a proposed change should have such important consequences as to trigger the more stringent section VIII(C) standard. They argue that AT & T’s “rights” under the decree are unaffected by changes in the line-of-business restrictions on the BOCs, and therefore that AT & T’s “legal or equitable status” in relation to the CCS waiver should be thought no different than any other interexchange carrier’s — i.e., not significant enough to affect the standard by which we evaluate the proposal. See Triennial Review Opinion, 900 F.2d at 292, 305-07 (opposition by non-party inter-venors does not make the information services modification “contested” and subject to the section VIII(C) test). Appellants point in particular to the Justice Department’s role as the “principal proponent” of the line-of-business restrictions, Decree Opinion, 552 F.Supp. at 186 n. 227, and to AT & T’s' professed neutrality or opposition to those restrictions during the decree negotiations. As those provisions were not part of the “bargain” AT & T sought, we are told, AT & T’s opposition to their, alteration now should be deemed legally inconsequential.
It is, however, those line-of-business restrictions that prevent the Companies from a full-bore entry into the interexchange market. It seems more than passing strange to suggest that the decree should be interpreted so as not to allow AT & T to contest, under section VIII(C), the BOCs’ complete entry into the interexchange market. After all, the AT & T lawsuit was based on the premise that a corporation that enjoyed a monopoly on local calls would ineluctably leverage that bottleneck control in the interexchange (long distance) market. See id. at 142, 188-89. The Bell System was for that reason broken up; the local monopolies were taken away from AT & T. (Of course, “AT & T” is a different entity after the decree than it was before.) To claim that AT & T has no interest under the decree in challenging one or more of the Company’s “return” to the interexchange market, there to compete against AT & T with the same sort of local monopoly leverage that caused the government to bring suit against AT & T in the first place, has an ironic, even Kafkaesque, quality. By the appellants’ logic, if the BOCs’ proposed entry into the interex-change market was likely to impede competition (which would violate the section VIII(C) test) but not certain to do so (thus surviving section VII’s public interest test), and if the government did not object, the district judge would be obliged to permit the entry. Are we to believe that AT & T had in 1982, and has today, no interest in effectively objecting to such a proposal?
The dissent responds to our question in the negative. Judge Williams argues that AT' & T has no institutional interest in competition in the interexchange market, and thus to read the decree to allow AT & T to object to any sort of BOC entry into that market — including a complete and full-scale entry — is to sanction a broad “allocation” of telecommunications markets in contradiction to the purpose of the antitrust laws. Dissent at 1243-44. That argument, which has the virtue of boldly confronting the core problem with appellants’ case (even if it is an argument that neither appellants nor the government dare make), is nothing less than an attack on the very premise of the consent decree. AT & T today, after all, has the same economic interest vis-a-vis the BOCs’ effort to gain access to the interexchange market that MCI (the company that first sought to'compete against the Bell System in the interex-change market) had at the time the government’s lawsuit was brought against the Bell System. MCI then, and both AT & T and MCI now, seek to confine the BOCs to that portion of the telecommunications market in which they enjoy a historical natural monopoly.
Certainly there is nothing in the language of the decree that suggests that AT & T should be thought unconcerned with the line-of-business restrictions, so that it should be regarded as not a “real” party with respect to those matters. It is not, as our dissenting colleague puts it, that we “assume[] that just because the Department of Justice and AT & T are parties to the same contract, and both have interests in the line-of-business restrictions (one acting for the public, the other for its shareholders), it follows that they must have identical rights in relation to those restrictions.” Dissent at 1245. To the contrary, section III treats AT & T as a formal party to the entire decree, with specific authority under section VII to demand enforcement of any section of the agreement. Indeed, in a 1987 filing in the district court, the government stated that AT & T “ha[s] the right to seek enforcement [of a line-of-business restriction]... itself at any time,” citing section VII. Nor have we been shown any precedent applying a variable standard to judge a suggested modification of general language of a decree, depending on which party objects.
Appellants have, nevertheless, combed the multitude of documents filed and hearing transcripts generated during the decree approval proceedings and have found numerous examples of Bell System representatives (who now work for AT & T) professing opposition to the line-of-business restrictions or acceptance of them simply as a step towards an overall settlement. Appel-lees in turn point to some statements demonstrating more affirmative interest in the prohibitions. But what are we to make of these offerings? After all, the Bell System (pre-divestiture AT & T) had been defending itself for decades — and presumably would have continued defending itself - if the settlement negotiations failed — on the ground that vertical integration of telecommunications businesses is efficient and pro-competitive. The Bell System representatives also faced a significant inherent conflict of interest: post-divestiture AT & T, as an interexchange carrier and equipment manufacturer,. would obviously favor a complete prohibition on competition from the powerful local monopolies, while the post-divestiture BOCs would undoubtedly desire no such restrictions. The Bell System’s duty at the time was, of course, to maximize the combined future value of AT & T and the BOCs for its (and soon to be their) shareholders. See United States v. Western Elec. Co., 797 F.2d 1082, 1088 (D.C.Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987). Perhaps to satisfy that obligation perfectly was psychologically impossible, but we presume that the negotiators fulfilled their duty and thus that the decree, and especially the section 11(D) prohibitions at its core, represents a balanced amalgamation of benefits to and burdens upon both AT & T and the BOCs. For that reason, we think recourse to the decree’s bargaining history to interpret how those who were negotiating for the unified Bell System saw the benefits and burdens distributed between post-divestiture AT & T and the BOCs is of little use today. Cf. Triennial Review Opinion, 900 F.2d at 293 (decree negotiating history may be useful in other contexts).
The Justice Department, although it does not go so far as our dissenting colleague in challenging the consent decree as an anti-competitive division of the telecommunications industry, does caution that we should not “interpret” the decree to give AT & T a “strong incentive to oppose pro-competitive decree modifications in order to protect itself from the very competition such modifications could promote.” This contention is, as the dissent elaborates, sort of a variation on the antitrust injury doctrine. See, e.g., Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 109-13, 107 S.Ct. 484, 488-91, 93 L.Ed.2d 427 (1986). But if, as the dissent suggests, AT & T should not be thought to have “antitrust standing” to assert its apparent rights under the decree because the BOCs’ entry into the interex-change market would come at AT & T’s expense, Dissent at 1247-48, then it follows that MCI should not have had standing to file suit, see MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983), or to complain to the Justice Department, concerning the Bell System’s activities in the interex-change market in the first place. That AT & T is now the largest carrier in the inter-exchange market hardly immunizes it against antitrust injury from new competitors who are monopolists in the local exchange markets. The flaw in our colleague’s reasoning, we respectfully suggest, is that he entirely ignores the potential anti-competitive leverage that the BOCs’ monopoly position in the bottleneck local markets affords their entry into the interexchange markets.
Insofar as the government believes that there are pro-competitive aspects of a BOC’s proposed “reentry” into part or all of the interexchange market, it can aid the BOC in seeking to meet the section VIII(C) test by showing that the proposal will enhance rather than impede competition. The government expresses particular concern that AT & T might somehow use its rights under section VIII(C) to handicap its existing interexchange competitors by making it more difficult for the BOCs to provide services to those competitors in the interexchange market. We note, however, that AT & T’s fiercest competitor, MCI, supports AT & T’s construction of the decree, and that although the BOCs claim that AT & T’s smaller competitors would benefit from both the CCS proposal and their construction of the decree, none of those companies appeared before us. It should be remembered that section VIII(C) does not give AT & T the power to veto truly pro-competitive line-of-business modifications, only to block those changes that are quite possibly, though not certainly, anti-competitive.
In any event, as MCI observes, the question before us is not how we would fashion the decree if we were writing on a clean slate. The decree is not ambiguous; it gives AT & T the right, as a party to the decree, to assert its objection to the BOCs’ proposal and thus to invoke section VIII(C). Until this case, the government never even suggested that the decree could be read otherwise.
We are thus persuaded by AT & T’s argument that the CCS waiver must be judged according to section VIII(C)’s standard, for whenever a modification implicates the line-of-business restrictions and is contested by any of the parties to the decree, the section VIII(C) test governs. Even if we had doubts, however, we think our prior decisions in the Triennial Review and NYNEX Procurement cases would deter us from accepting appellants’ argument. It may be, as the BOCs contend, that the premise we here reaffirm — that AT & T’s opposition makes a line-of-business modification “undeniably ‘contested,’ ” Triennial Review Opinion, 900 F.2d at 292, regardless of the government’s position — was not forcefully argued in those cases. The BOCs did assert to the district court in Triennial that AT & T had no interest under the decree in the line-of-business restrictions. On appeal, the Companies referenced that argument but emphasized the converse point — that AT & T’s acquiescence in the removal of the information services ban left that proposal uncontested (notwithstanding the opposition of other interexchange carriers that were not decree parties). We were, therefore, clearly focused on the significance of AT & T’s position, and but for AT & T’s opposition, we would have reversed and remanded the manufacturing portion of Triennial just as we did the information services portion. Indeed, in discussing the latter proposal, we explained that “[f]or purposes of identifying the proper standard of review, the critical point is that neither AT & T nor the DOJ opposed the... motion.” Id. at 305 n. 27 (emphasis omitted). And in the NYNEX Procurement Opinion we again viewed AT & T’s position as pivotal, directing the district court on remand to apply the section VIII(C) standard if AT & T had properly contested the (government-supported) waiver. See 907 F.2d at 1209.
The proposition that AT & T’s position on a proposed line-of-business modification can be determinative of whether the section VIII(C) test applies has thus been a linchpin of two of our opinions. Although it is true that we cannot be said to have held that AT & T’s opposition makes a requested modification contested — because the point was not directly controverted— we do not think that the Companies can opportunistically, after so much litigation involving the same parties, switch their position and challenge that proposition at this late date. Cf. Northwestern Ind. Tele. Co. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989), cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990); Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1089-90 (D.C.Cir.1984) (per curiam).
III.
The appellants’ submissions to the district court were not clearly focused on the section VIII(c) test — that is
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_appel1_1_2 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". 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".
ORIENTAL IMPORTS AND EXPORTS, INC., a Florida corporation, Plaintiff-Appellee, Cross-Appellant, v. MADURO & CURIEL’S BANK, N.V. a foreign banking corporation, Defendant-Appellant, Cross-Appellee.
No. 81-5717.
United States Court of Appeals, Eleventh Circuit.
March 28, 1983.
Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Nancy Schleifer, Miami, Fla., for defendant-appellant, cross-appellee.
Arnold R. Ginsberg, Miami, Fla., for plaintiff-appellee, cross-appellant.
Before RONEY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.
RONEY, Circuit Judge:
In a case of first impression in this Court, we hold that a foreign banking corporation engaged in the normal activity with resident correspondent banks to facilitate the movement of money is not subject to long-arm jurisdiction in Florida, even though it makes certain passive investments in federal funds. We therefore reverse a money judgment against it.
This is a diversity case. Plaintiff Oriental Imports and Exports, a Florida corporation, sold garments to a purchaser in the Netherlands Antilles. When it did not receive payment for the goods, it sued Madu-ro & Curiel’s Bank, a Netherlands Antilles bank which maintains correspondent bank accounts in Miami, Florida, on the ground that Maduro & Curiel’s Bank wrongfully delivered title documents to the purchaser without payment. Finding jurisdiction under the long-arm statute, the district court held the defendant negligent in the handling of this commercial collection item and rendered judgment for $21,104.24. The court denied punitive damages on the ground that the plaintiff had not demonstrated malicious or wanton conduct. The bank appeals the findings of jurisdiction and negligence. The plaintiff cross-appeals the denial of punitive damages. Since the district court was without in personam jurisdiction, we do not reach the merits of the negligence issue or the cross-appeal.
The facts that control the jurisdictional issue are not in dispute. Maduro & Curiel’s Bank is a Netherlands Antilles bank which acts as a correspondent bank for various Miami banks. It received sale documents from Flagship Bank of Miami, along with a sight draft and an airway bill for goods sold by plaintiff. Prior to that, the president of Oriental Imports had gone to Curacao in the Netherlands Antilles and obtained an order from Jose Faerman & Company, a Netherlands Antilles corporation. Oriental Imports had then delivered certain sale documents (invoices, packing lists and a letter of authority) to Flagship Bank which forwarded them to defendant for delivery to the purchaser Jose Faerman & Company upon receipt of payment for the goods. If the transaction had gone as planned, the customer would have made payment to Ma-duro & Curiel’s Bank, which would have notified its correspondent bank in Miami. The Miami bank would have then debited Maduro & Curiel’s account and credited the seller’s account. Although some facts are disputed, it is clear that Jose Faerman & Company eventually received possession of the goods, and that no payment was ever made to Oriental Imports and Exports.
The law is clear that a federal court in a diversity action may exercise personal jurisdiction over a nonresident defendant only to the extent permitted by the long-arm statute of the forum state. Rubaii v. Lakewood Pipe of Texas, Inc., 695 F.2d 541 (11th Cir.1983); Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375, 377 (5th Cir.1980). Because the reach of the Florida long-arm statute is a question of Florida state law, federal courts are required to construe it as would the Florida Supreme Court. See Moore v. Lindsey, 662 F.2d 354, 357-58 (5th Cir. Unit B 1981); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1232 (5th Cir.1973). The Florida long-arm statute is strictly construed, and the person invoking jurisdiction under it has the burden of proving facts which clearly justify the use of this method of service of process. Bank of Wessington v. Winters Government Securities Corporation, 361 So.2d 757, 759 (Fla.Dist.Ct.App.1978); Elmex Corp. v. Atlantic Federal Savings and Loan Association, 325 So.2d 58, 61 (Fla.Dist.Ct.App.1976).
Since the defendant has no office or agency in this state, the key portions of the Florida long-arm statute require that the defendant “engage in” or “carry on” a business or business venture in the state, commit a tortious act in the state, or engage in solicitation or service activities within the state.
Plaintiff argues that first, the normal activities of a foreign correspondent bank constitute doing business in Florida and second, in addition to such activities, the bank here had investments in the United States which either alone, or coupled with its correspondent bank activities, constitute doing business and third, in any event, the defendant committed a tort within the state and is subject to jurisdiction under that section of the Florida statute.
We first examine whether the bank was “doing business” in Florida through its correspondent bank accounts in Miami. Here we are focusing on the normal activities that would probably be carried on by any correspondent bank. A representative of Citizens & Southern International Bank testified that correspondent accounts facilitate the transfer of funds incidental to the conduct of international trade between citizens of different countries. Maduro & Curiel’s Bank has its principal place of business in Curacao. It has no offices, agents, personnel or property in Florida. It is not licensed to do business in Florida, and has no agent to accept service of process in Florida. It maintains correspondent bank accounts with Miami banks, including Southeast First National Bank and Citizens & Southern International Bank of Miami. Plaintiff introduced evidence that Maduro & Curiel’s Bank had passed at least $150,-000,000 through these accounts in deposits and withdrawals. This was essentially money of its customers. The transactions with the Miami banks were handled by mail or courier.
Although there appears to be no Florida authority directly on point, courts in other jurisdictions have held that the maintenance of a correspondent banking relationship alone is not sufficient to confer personal jurisdiction over a foreign bank. See Faravelli v. Bankers Trust Co., 85 A.D.2d 335, 447 N.Y.S.2d 962, 964-65 (N.Y.App.Div.1982); Nemetsky v. Banque de Developpement de la Republique du Niger, 64 A.D.2d 694, 407 N.Y.S.2d 556 (N.Y.App.Div.1978), aff’d, 48 N.Y.2d 962, 425 N.Y.S.2d 277, 401 N.E.2d 388 (N.Y.1979); Amigo Foods Corp. v. Marine Midland Bank—New York, 39 N.Y.2d 391, 384 N.Y.S.2d 124, 127, 348 N.E.2d 581 (N.Y.1976). In E.I.C., Inc. v. Bank of Virginia, 108 Cal.App.3d 148, 166 Cal.Rptr. 317 (Cal.App.1980), the California court held that it lacked jurisdiction over a Virginia bank which maintained balances and had a correspondent banking relationship with two California banks. Although the California statute allowed the court to “exercise jurisdiction on any basis not inconsistent with the Constitution of California or of the United States,” the court concluded that the correspondent bank relationship did not provide the requisite “minimum contacts” with California to satisfy the due process clause:
[M]ost banks of any size maintain correspondents in all major regions of the country and in selected areas overseas. It would be a distortion of due process to hold that a state acquires general personal jurisdiction over an out-of-state bank (as opposed to in rem jurisdiction) merely because the bank has a correspondent relationship with a bank within the state and a balance on deposit with its correspondent bank.
166 Cal.Rptr. at 320, citing Bank of Ameri-ca v. Whitney National Bank, 261 U.S. 171, 173, 43 S.Ct. 311, 312, 67 L.Ed. 594 (1922). In Whitney, decided before the “minimum contacts” standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and without reference to a long-arm statute, the Supreme Court held that a Louisiana bank which maintained six correspondent bank accounts in New York had no “presence” in New York for jurisdictional purposes, and therefore could not be sued in New York.
A Florida case suggests the fact that Miami banks were holding the funds of Maduro & Curiel’s Bank in Florida would not be sufficient for long-arm jurisdiction. In April Industries, Inc. v. Levy, 411 So.2d 303 (Fla.Dist.Ct.App.1982), parties outside of Florida entered into a stock purchase agreement which included an escrow agreement whereby a Miami attorney would hold certain notes in Florida. When the escrow-ee was sued in Florida, the court held that the presence of the corporation’s personal property in Florida pursuant to an escrow agreement entered outside of Florida, and the control of that property by a Florida escrowee, were insufficient contacts to find that the corporation conducted business or had an agency in Florida for the purposes of the long-arm statute.
The reasoning of these cases seems sound. We are persuaded that the Florida long-arm statute, which confers jurisdiction over a nonresident defendant who “operates, conducts, engages in or carries on a business” in Florida, would not be interpreted to permit personal jurisdiction solely on the basis of foreign bank’s correspondent relationship with a Florida bank.
The fact that Maduro & Curiel’s Bank maintained large balances in its Miami accounts, or transferred large amounts of money through these accounts, does not alter this analysis. The inquiry whether a nonresident is conducting business in Florida concerns the nature, not the extent, of the nonresident’s activities in Florida. McLean v. Church of Scientology, 538 F.Supp. 545, 549 (M.D.Fla.1982). The requirement that the defendant have a connection with the forum state substantial enough to make the exercise of jurisdiction reasonable cannot be satisfied by the dollar amount of the transaction, but depends on the facts and circumstances of the case. Elmex Corp. v. Atlantic Federal Savings and Loan Association, 325 So.2d 58, 63 n. 7 (Fla.Dist.Ct.App.1976).
Plaintiff argues that more than an ordinary correspondent banking relationship existed in this case. Focusing upon the agreement between Maduro & Curiel’s Bank and Citizens & Southern International Bank of Miami, which required Citizens & Southern to invest any funds in Maduro & Curiel’s account in excess of $50,000 in the federal funds market, plaintiff argues that by investing in federal funds through a Miami correspondent, Maduro & Curiel’s Bank was conducting business in Florida. A representative of Citizens & Southern International Bank testified that the bank made this opportunity to have excess funds invested available to all of its correspondents.
The cases in which Florida courts have interpreted the long-arm statute do not support the theory that a nonresident’s passive investment of money in Florida provides a basis for jurisdiction. In Klein v. Mega Trading, Ltd., 416 So.2d 866 (Fla.Dist.Ct.App.1982), a New Jersey resident purchased an interest in a Florida limited partnership. Noting that this investment was analogous to the purchase of corporate stock, the court held that the nonresident’s investment was not sufficient contact with Florida to satisfy the long-arm statute. In Compuguide Corp. v. Sachs, 259 So.2d 513 (Fla.Dist.Ct.App.1972), a nonresident corporation’s contract, which was neither entered into nor executed in Florida, to purchase all the stock of a Florida corporation did not constitute doing business in Florida.
MacMillan-Bloedel v. Canada, 391 So.2d 749 (Fla.Dist.Ct.App.1980), held that a nonresident corporation was not “doing business” for jurisdictional purposes even though its wholly owned subsidiary was engaged in business in Florida, because the nonresident corporation was not shown to have “control” over the subsidiary selling its products in Florida. In Volkswagenwerk Atkiengelselischaft v. McCurdy, 340 So.2d 544 (Fla.Dist.Ct.App.1976), cert. denied, 348 So.2d 950 (Fla.1977), the court determined that it lacked jurisdiction over a German corporation which had a wholly owned subsidiary engaged in business in Florida. “Only where there is a showing by plaintiff that the parent corporation exercised such a degree of control over its subsidiary that the activities of the subsidiary were in fact the activities of the parent within the state is substituted service of process permitted.” 340 So.2d at 546.
Although these cases involved Fla. Stat.Ann. § 48.181, the substituted service of process statute which was in effect before the current long-arm statute was enacted, decisions concerning what constituted doing business under Section 48.181 apply to Section 48.193(l)(a). Orange Motors, Inc. v. Reuben H. Donnelly Corp., 415 So.2d 892, 895 n. 3 (Fla.Dist.Ct.App.1982). Under earlier Florida statutes, investment by a nonresident was not a sufficient basis for jurisdiction. See Uible v. Landstreet, 392 F.2d 467 (5th Cir.1968) (no jurisdiction over nonresidents who held stock in Florida corporation as investment for profit); Crockin v. Boston Store, 137 Fla. 853, 188 So. 853, 856 (Fla.1939) (nonresident corporation was not doing business in Florida by owning a controlling interest in a Florida corporation). These cases indicate that Maduro & Curiel’s Bank’s investment in the federal funds market through its agreement with a Miami bank would not suffice for jurisdiction under the Florida long-arm statute.
Neither do Maduro & Curiel’s Bank’s activities in Florida considered collectively show a general course of business activity in the state. Compare Compuguide v. Sachs, 259 So.2d 513 (Fla.Dist.Ct.App.1972) (contract to purchase all of Florida corporation’s stock did not constitute business venture sufficient for jurisdiction) with Anson v. Lemperuer, 390 So.2d 478 (Fla.Dist.Ct.App.1980) (jurisdiction where express object of partnership was to acquire land in Florida and develop condominium units). Instead, the activities show merely a correspondent banking relationship coupled with a passive investment in federal funds. We conclude that these activities of Maduro & Curiel’s Bank do not amount to conducting a business in Florida sufficient for the assertion of long-arm jurisdiction under Fla. Stat.Ann. § 48.193(lXa).
Although Florida courts have occasionally found contacts with banks in Florida to be an adequate basis for jurisdiction, those eases involved nonresident defendants who undertook specific contractual obligations in Florida. In Horace v. American National Bank and Trust Co., 251 So.2d 33 (Fla.Dist.Ct.App.1971), Horace and two others, purchasing 60% of the stock of a Florida corporation, personally appeared at the bank seeking to guarantee the present and future obligations of the corporation. The same day, they opened a commercial checking account, signing the signature card. On the basis of the guarantees, the bank honored the checks of the corporation until the account was overdrawn by $25,000. The court upheld service of process on Horace, a nonresident, stating that by becoming the guarantor of a Florida corporation’s debts he had engaged in business in Florida. In this case, Maduro & Curiel’s Bank has undertaken no agreement on behalf of a business in Florida.
Florida courts upheld jurisdiction over out-of-state banks in two recent cases, where agents of the nonresident banks had allegedly obligated themselves to buy and sell Government National Mortgage Association Contracts. See Bank of Wessingbon v. Winters Government Securities Corporation, 361 So.2d 757 (Fla.Dist.Ct.App.1978); Citizens State Bank v. Winters Government Securities Corp., 361 So.2d 760 (Fla.Dist.Ct.App.1978). These cases make it clear that a nonresident bank need not have a Florida office, agent, or meeting in order for Florida courts to exercise jurisdiction. The banks involved in those cases, however, unlike Maduro & Curiel’s Bank, allegedly made affirmative commitments to purchase particular securities.
Plaintiff contends that jurisdiction may be asserted under Section 48.193(l)(b), which authorizes jurisdiction over one who “commits a tortious act within this state.” The district court found that Maduro & Curiel’s Bank, contrary to the terms of the commercial collection agreements, either obtained the approval and advice of the intended purchaser for payment of a draft prior to release of the documents and then cancelled the intended purchaser’s approval for payment of the draft, or simply released the documents without obtaining payment of the draft as required. If either of these two negligent acts did occur, it occurred in Netherlands Antilles.
This is not a case where the precise location of the alleged tort is difficult to identify. Cf. Rebozo v. Washington Post Co., 515 F.2d 1208 (5th Cir.1975) (out-of-town newspaper published allegedly libelous article circulated in Florida); Bangor Punta Operations v. Universal Marine Co., 543 F.2d 1107 (5th Cir.1976) (foreign corporate defendant advertised and sold trawlers in Florida which were built in violation of plaintiff’s property rights). The negligence alleged here clearly occurred in the Netherlands Antilles, although injury in Florida may have resulted. In Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla.Dist.Ct.App.1977), the court held that a nonresident auto dealer who serviced a car, which was eventually sold to a Florida resident and caused injury in Florida, had not committed a tortious act within the state. “[The dealer] has committed no act in Florida, tortious or otherwise .... [T]he occurrence of the injury alone in the forum state does not satisfy the statutory test.” 352 So.2d at 134. See April Industries, Inc. v. Levy, 411 So.2d 303, 305-06 (Fla.Dist.Ct.App.1982) (no jurisdiction under Section 48.-193(1)(b) where alleged wrong occurred outside Florida). Cf. Watts v. Haun, 393 So.2d 54 (Fla.Dist.Ct.App.1981) (jurisdiction where act essential for tort occurred in Florida). We conclude that jurisdiction under Section 48.193(1)(b) is not appropriate here.
Under Section 48.193(l)(f)(l), Florida courts may exercise jurisdiction over a nonresident defendant who causes injury in Florida by an act outside the state, if at the time of the injury the defendant was engaged in solicitation or service activities within Florida which resulted in the injury. Where a business allegedly breaches a contract outside the state, resulting in damage to plaintiffs in Florida, but does not conduct or solicit business activities in Florida, it does not have the requisite contacts with Florida to sustain jurisdiction under the long-arm statute. Joyce Brothers Storage & Van Co. v. Piechalak, 343 So.2d 97 (Fla.Dist.Ct.App.1977). Maduro & Curiel’s Bank was not engaged in solicitation or service activities within the state of Florida. It did not solicit business or advertise in Florida, and its service activities were locally based in the Netherlands Antilles. Therefore jurisdiction over Maduro & Curiel’s Bank cannot be sustained under Section 48.193(l)(f)(l).
The judgment is reversed and the case is dismissed for lack of personal jurisdiction over the defendant.
REVERSED AND RENDERED.
. Three sections of the Florida long-arm statute, Fla.Stat.Ann. §§ 48.193(l)(a), (b), and (f)(1), are involved.
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state. (b) Commits a tortious act within this state.
(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury
1. The defendant was engaged in solicitation or service activities within this state which resulted in such injury....
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_applfrom | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Kurt Karl Friedrich HEGERICH, Appellant, v. Albert DEL GUERCIO, District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.
No. 15577.
United States Court of Appeals Ninth Circuit.
May 12, 1958.
Harry Wolpin, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Burton C. Jacobson, Asst. U. S. Attys., Los Angeles, Cal., for ap-pellee.
Before CHAMBERS and BARNES, Circuit Judges, and CHASE A. CLARK, District Judge.
PER CURIAM.
Hegerich is a national and citizen of Germany. He was properly admitted at New York City on February 18, 1956. His permit authorized him to stay until May 20, 1956. With his passport was a visa from the United States consul in Munich, Germany, reciting that he had until May, 1957, to apply for permanent admission to the United States.
On May 23, 1956, he went for the second time to the immigration and naturalization office in Los Angeles to clear up his status, to seek extension of the time of his stay. The office’s reply to his request was to arrest him on the spot. Subsequently, administrative proceedings were held to determine his deportability and to consider his application for voluntary departure. The result was an order directing his deportation and denying his application for voluntary departure.
The administrative proceedings were upheld on review by the district court. This appeal followed.
As to deportability, the facts would seem to positively support the administrative conclusion. However, as tc the ruling on voluntary departure which would affect Hegerich’s right to apply for readmission, this court is of the opinion that there was an abuse of discretion. No suggestion is made that appellant is not a person of good moral character. His overstaying was de minimis in time. Blunderingly, he was trying to comply with the law. It is clear that his conduct was neither slick nor foxy. In this field of voluntary departure, ordinarily action unfavorable to the deportee must be upheld. But the government, as it should, seems to concede that there can be a case where the denial of voluntary departure can be an abuse of administrative discretion. This court holds that this is it.
Reversed for proceedings which will permit appellant’s voluntary departure.
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_opinstat | A | 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.
Irving PASTERNAK, Defendant-Appellant, v. PAN AMERICAN PETROLEUM CORPORATION, a Delaware corporation, Plaintiff-Appellee.
No. 203-69.
United States Court of Appeals Tenth Circuit.
Oct. 21, 1969.
Rehearing Denied Dec. 3, 1969.
A. M. Alloway, Denver, Colo. (C. M. Peterson and Poulson, Odell, Peterson & Levine, Denver, Colo., on the brief), for appellant.
Donald C. MeKinlay, Denver, Colo., (Ted P. Stockmar, and Holme, Roberts & Owen, Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BREITENSTEIN and HICKEY, Circuit Judges.
ORIE L. PHILLIPS., Circuit Judge.
Pan American Petroleum Corporation entered into a joint operating agreement with Pasternak with respect to a well to be drilled for oil and gas, under which Pan American was to drill and operate the well. Pasternak agreed to pay 37% per cent of the cost of drilling, testing, equipping and operating the well; and if a dry hole, also the cost of plugging it. The well was drilled by Pan American and completed as a dry hole. Pan American billed Pasternak for $59,736.84, being his share of the cost of drilling, testing, and plugging the well. Pasternak denied liability on the alleged grounds that Pan American improperly drilled, tested, fracted, worked over and reworked the well, thereby preventing it from being a producer.
Pan American then brought this diversity action against Pasternak to recover his share of the cost of drilling, testing, and plugging the hole. Trial to a jury resulted in a verdict for Pan American for $66,266.99, which included accrued interest.
From a judgment entered on the verdict for $66,266.99, which included interest from May 1, 1967, Pasternak has appealed.
Colorado Revised Statutes 1963, § 154-1-1, provides in part as follows:
“154-1 — 1. Who may testify — interest. * * * Evidence of a previous conviction of a felony where the witness testifying was convicted five years prior to the time when the witness testifies shall not be admissible in evidence in any civil action.”
It will be observed that such statute is exclusionary in character.
Rule 43(a) of the Federal Rules of Civil Procedure for the United States District Courts in part here pertinent provides:
“Rule 43. Evidence
“(a) Form and Admissibility. * * * All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. * * * ”
At the trial Pasternak had testified as a witness on his own behalf. On cross-examination he was asked if he had ever been convicted of a felony. He answered that he had. After the question had been answered, counsel for Pasternak objected to the question, because it did not contain the five-year limitation provided for in the Colorado statute. The objection was overruled. Prior to the •time such question was asked, at a session held in chambers, counsel for Pasternak stated that counsel for Pan American had advised him he was going to interrogate Pasternak respecting such conviction; and counsel for Pasternak, when asked by the court if he had any objection thereto advised the court he objected, unless the question included the phrase “within the immediately preceding five years.”
Pasternak was then asked the approximate date of his conviction. He answered, “July, 1962.” He was then asked if the conviction was for conspiracy to defraud the United States by impeding, obstructing and defeating the functioning of an agency of the United States, to wit, the Securities and Exchange Commission. Counsel for Pasternak objected to that question for the same reasons he had objected to the two previous questions. The court overruled the objection.
The sole question presented on this appeal is whether the admissibility of the evidence of Pasternak’s conviction of a felony is controlled by Rule 43(a) or the Colorado Statute.
Evidence that Pasternak had been convicted of a felony would have been admissible “in the courts of the United States on the hearing of suits in equity,” prior to September 16,1938.
When the fact of a conviction of a felony loses its probative value by reason of the lapse of time after the conviction is not fixed by any rigid rule, but is a matter for the trial court’s determination under the attendant circumstances, in the exercise of a sound discretion.
We hold that the instant case is ruled by the decision of this court in Mutual Life Insurance Company of New York v. Bohlman, 10 Cir., 328 F.2d 289. That was a diversity case, tried in the Western District of Oklahoma, in an action to recover benefits on a life .insurance policy. The question presented was whether a health statement executed by the insured in his application for the insurance policy was admissible. Such evidence was vital to the insurance company’s defense, since it showed “the insured not only failed to disclose the apparent changes in health but actively misrepresented the state of his health up to the time the policy was delivered to him.” The application was not attached to nor made a part of the policy of insurance. The trial court held it was inadmissible under an Oklahoma statute which provided that an application for a life insurance policy was inadmissible unless it was either attached to or made a part of the policy. This court reversed, saying in its opinion that:
“ * * * The fact that certain evidence might be inadmissible under a state exclusionary rule or a state statute, such as is involved here, is not controlling in the federal courts. United States v. Featherston, (10 Cir., 325 F.2d 539); Monarch Insurance Company of Ohio v. Spach, 5 Cir., 281 F.2d 401. ‘ * * * while state rules of admissibility are controlling in the federal courts, state exclusionary rules are not, and evidence admissible under either of the first two tests must be received even though the state courts would hold otherwise. The rule of Erie R. Co. v. Tompkins, [304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188], limited as it is to matters affecting substantive rights, does not compel a different result.’
“We have not been referred to any exclusionary principle laid down by any federal statute or rule of federal equity practice which would make the health statement inadmissible. Accordingly and since admissibility under Rule 43(a) is on the basis of relevancy and materiality, 5 Moore’s Federal Practice, § 43.04, p. 1319, we need only say that it is both relevant and material, and that it should have been admitted into evidence at the trial and may properly be considered a part of the appellant’s evidence here.”
Our decision in Mutual Life Insurance Company of New York v. Bohlman, supra, is supported by Monarch Insurance Company of Ohio v. Spach, 5 Cir., 281 F.2d 401, which was an action to recover on a fire insurance policy in a diversity case. The question presented was whether a federal court, sitting in Florida, should exclude evidence otherwise admissible, because of the provision of a Florida statute, F.S.A. § 92.33. Such statute provided: “Every person who shall take a written statement by any injured person * * * with respect to any injury to person or property shall, at the time of taking such statement, furnish to the person making” it “a true and complete copy thereof” and such statement by the injured person shall not “be admissible in evidence or otherwise used in any manner in any civil action relating to the subject matter thereof unless it shall be made to appear that a true and complete copy thereof was furnished to the person making such statement at the time of the making thereof, or, if it shall be made to appear that thereafter a person having possession of such statement refused, upon request of the person who made” it “or his personal representatives to furnish him a true and complete copy thereof.”
Such statement was made by the president of the insured, under oath. He testified at the trial for the insured. The statement was offered in evidence to impeach his credibility as a witness and as proof of a defense for breach of warranty by false swearing. Objection to its admission was made on the ground that the insurance company, at the time of the taking of the statement and on a request made thereafter, had declined to furnish a draft of the statement to the president of the insured.
After a thorough and exhaustive consideration of the question, the Fifth Circuit Court of Appeals concluded that the statement was admissible under the rules of evidence theretofore applied in courts of the United States in suits in equity, and that Rule 43(a), not the Florida statute, was controlling.
We entertain no doubt that the evidence of Pasternak’s conviction, five and one-half years immediately prior to the date he was testifying, was admissible to impeach his credibility under the second category laid down in Rule 43(a), that is, under rules of evidence applied prior to September 16, 1938, in courts of the United States in suits in equity.
We think a reading of Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8, makes it clear that Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, and other cases relied on by counsel for Pasternak have no application in the instant case.
The judgment is affirmed.
. Hereinafter called Pan American.
. The conviction was, in fact, on June 5, 1963.
. The court properly instructed the jury that Pasternak’s admission that he had been convicted of a felony could be considered by the jury only on the question of his credibility, and Pasternak’s counsel made no objection to that instruction.
. Wigmore on Evidence (3d Ed. 1940), Vol. 1, § 6e, p. 201; Moore’s Federal Practice, Vol. 5, § 43.04, p. 1328.
. Fire Ass’n of Philadelphia v. Weathered, 5 Cir., 62 F.2d 78, 79; Sinclair Refining Co. v. Southern Coast Corp., 5 Cir., 195 F.2d 626, 629; See also, Lewis v. Owen, 10 Cir., 395 F.2d 537, 541.
. To the same effect, see Mecore’g Federal Practice, Vol. 5, § 43.04, pp. 1327-1328.
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_othadmis | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
DROHAN et al. v. STANDARD OIL CO. STANDARD OIL CO. v. KEESHIN MOTOR EXP. CO., Inc. et al. NICHOLS v. KEESHIN MOTOR EXP. CO., Inc. et al.
No. 9365.
Circuit Court of Appeals, Seventh Circuit.
June 8, 1948.
Rehearing Denied July 26,1948.
Richard P. Tinkham and John F. Beck-man, Jr., both of Hammond, Ind., and Walter C. Williams, of Michigan City, Ind., for appellant.
Charles A. Boyle, of Chicago, 111., and Harold Hector, A. H. Highland, Edwin H. Friedrich and Bernard A. Petrie, all of Hammond, Ind., (Crumpacker & Fried-rich, of Hammond, Ind., and Boyle, Morrissey & Wagner, of Chicago, 111., of counsel), for appellees.
Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.
KERNER, Circuit Judge.
Plaintiffs brought this action against Standard Oil Company to recover damages sustained as the result of alleged negligence of defendant’s driver in operating a motor truck which collided with plaintiff’s tractor-trailer. Defendant, in its answer, denied it had been negligent and alleged that plaintiffs’ damages were caused by the negligence of their servant in the operation of the tractor-trailer. Standard also filed a cross-claim against plaintiffs in which it joined C. A. Conklin Truck Line, Inc., and in which it sought to recover damages for loss of its truck and cargo. In its cross-claim it alleged that the collision was caused by the negligent operation of a truck owned and controlled by Conklin, and by the negligent operation of plaintiffs’ tractor-trailer. Martha Nichols, administratrix of the estate of Ferris Nichols, deceased (the driver of Standard’s truck), was permitted to intervene and file her cross-claim against plaintiffs and Conklin. She sought to recover damages for the death of her husband, which she alleged was caused by the negligence of Conklin and plaintiffs’ servant. Upon these issues, the trial judge submitted the case to the jury for a general verdict. The jury rendered a verdict for plaintiffs and against Standard, and verdicts for plaintiffs and Conklin on the cross-claims of Standard and the administratrix, upon which verdicts judgments were entered. These judgments, Standard and Martha Nichols seek to reverse.
The negligence charged was that defendant drove its truck at a speed greater than was reasonable and proper and that defendant negligently maintained and controlled its motor vehicle.
The collision occurred on a paved highway running in an easterly and westerly direction. The highway was divided into four lanes separated by black lines. The two most northerly lanes are reserved for west-bound traffic, and the two southerly lanes for the east-bound traffic. That part of the highway where the collision occurred is in open country. Shortly prior to 6:00 a. m. on February 22, 1945, Conklin’s truck, traveling east, caught fire. He stopped and parked on the outer east-bound lane of the highway, and placed flares or pot torches from 40 to 75 feet to the rear, some along the side, and others in front of the truck. The Conklin driver then disengaged his tractor and drove off to secure help. During his absence, other trucks approached from, the east. The drivers stopped on the north side of the highway, and attempted to put out the fire. At this time the fire was visible for about a mile to persons approaching the scene from the east. At about 6:15 a. m. the Michigan City fire department arrived and proceeded to exinguish the fire and while so engaged, the Keeshin tractor-trailer — 10 to 12 feet in height, 20 feet long and 7 feet wide, .loaded with 15,000 to 20,000 pounds of cargo, fully lighted and equipped in the rear with a bar of three red lights across the top, one red light on each corner, tail lights above the axles, and two reflectors hanging from the body which could be seen from a distance of 800 feet to the rear — slowly approached from the west and came to a stop in the outer east-bound lane. By this time the Conklin truck had been moved forward and practically off of the paved portion of the highway. Within a minute or less after plaintiffs’ tractor-trailer arrived, defendant’s truck (an oil tanker), loaded with 5,000 gallons of gasoline and operated by Ferris Nichols, approached from the west. It was traveling in the outer east-bound lane at a speed of 35 or 40 to 45 miles per hour. Just as the Keeshin tractor-trailer was starting to go, the driver thereof blinked his clearance lights several times, and when he noticed that the driver of defendant’s oil tanker was not slowing down, he took the tractor-trailer out of gear and braced himself for the crash. Defendant’s truck hit the Keeshin tractor-trailer squarely in the rear and pushed it 70 to 90 feet. The impact smashed defendant’s tractor; Nichols was killed; an explosion occurred; and both outfits and their cargoes were destroyed in the fire that followed.
In its brief, in arguing for a reversal, defendant contended that the verdicts were not sustained by the evidence. Upon oral argument, however, counsel for defendant stated that he was not asking this court to reverse on the ground that the trial court had overruled his motion for a directed verdict. We take this to mean that defendant conceded that the evidence was such as to present to the jury a question of fact, i.e., whether defendant was guilty of negligence as charged in the complaint. We shall therefore proceed to consider the remaining claimed errors, the most important of which concern the instructions.
The court, after instructing the jury that an operator of an automobile was required to keep a reasonable lookout for other vehicles and use that degree of care which a reasonable and prudent person would exercise to avoid an accident, told the jury that Nichols was charged with the duty “to regularly and continuously observe the highway ahead of him so as to discover any vehicle or other conveyance on the highway.”
The argument is that all that is required of one who operates a motor vehicle upon a public highway is the exercise of ordinary and reasonable care, and that by this instruction the court imposed upon defendant and Nichols a duty greater than the duty of reasonable care, and Martin v. Lilly, 188 Ind. 139, 121 N.E. 443, and Northwestern Transit v. Wagner, 223 Ind. 447, 61 N.E.2d 591, are cited.
Concerning the Wagner case, supra, it will be enough to say that that case did not involve any question of instructions and hence is not applicable. It is true, however, that in the Lilly case, supra, the court condemned an instruction which told the jury that it was the duty of the driver of an automobile, while driving the same upon a public highway, to be constantly on the lookout for vehicles that might at the time be making use of the highway. But since that case, Indiana has provided that “No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” § 47-2004, Burns’ Ind.Stat.Ann. For that reason we think that case is distinguishable on the facts and hence is not controlling here. We find support for this conclusion by what was said in the case of Pfisterer v. Key, 218 Ind. 521, 33 N.E.2d 330, 335.
In the Pfisterer case, supra, the driver struck a pedestrian. The statute involved was § 47-513, Burns’ Ind.Stat.Ann. By the provisions of that statute it was the duty of a driver of a vehicle on a highway to slow down and give warning upon approaching pedestrians. There was a verdict and judgment for plaintiff. Upon appeal appellant complained of an instruction which told the jury that the driver was bound “to constantly observe the highway in front of him so as to discover other vehicles or pedestrians thereon.” The court said that by the use of the words “constantly observe” the jury was told that appellant must keep his eyes constantly on the roadway while he was driving, and that the phrase “constantly observe the highway” meant to continually or regularly pay attention to the highway, and held that there was no reversible error in the giving of the instruction. It is clear that the language used in the instruction in our case is the equivalent of the language used in the Pfisterer case, supra, and since 'by the provisions of § 47-2004 it was the duty of a driver, having regard to the actual and potential hazards, not to drive his vehicle at a speed greater than was reasonable and prudent, it cannot be said, under the circumstances here appearing, that the court committed reversible error.
The point is next made that when the court told the jury that the driver of the oil tanker was charged with the duty to so restrict the speed of his vehicle as to avoid colliding with any conveyance on the highway, it imposed an extra-legal obstacle in the path of Nichols and defendant, and in effect directed a verdict against them. To be sure, had the court made such a charge, without more, the instruction would have been erroneous, Schlarb v. Henderson, 211 Ind. 1, 4 N.E.2d 205, and Opple v. Ray, 208 Ind. 450, 195 N.E. 81, because the question of negligence, with respect to the speed and the visibility of objects on the road ahead, is a question for the jury, and must be determined from the facts and circumstances of each case. But the instruction in question provided that the speed of every vehicle should be so restricted, “in compliance with legal requirements and with the duty of all persons to use due care,” and concluded that “if you find that the facts and circumstances were such that he should have so restricted his speed in such compliance, then such failure would be negligence as a matter of law.” Thus it is clear that the instruction as given' left the question of fact for the jury. We see no error in the instruction.
The next point urged is that the court erred in instructing the jury on prior or remote causes. The instruction was given at the request of Conklin. The complaint is that the instruction omitted the principal allegation of negligence against Conklin, i.e., that Conklin failed to place proper warning signals on the highway, and that the conduct of Conklin was therefore the legal cause of the collision. The record discloses that flares were placed on the, road and that they remained there up to the time that Nichols crashed into plaintiffs’ tractor-trailer.
We observe that before the trial judge read to the jury the instruction now being considered, he instructed them as to the issues and the contentions of all the parties. We note, too, that in the questioned instruction he charged the jury that if they should find from all of the evidence-that the acts of Conklin in stopping on the highway was a prior or remote cause of the accident, and" if they further found from all the evidence that there intervened a distinct, unrelated cause that proximately produced the injury, then, in that event, the verdict should be for Conklin.
Since the law is (Van Hoorebecke v. Iowa Illinois Gas & Electric Co., 324 Ill.App. 88, 57 N.E.2d 652) that if the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury when the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate cause, we cannot, in view of the state of this record, hold that error was committed by the giving of that instruction.
We now consider the contention that the court erred in refusing to charge the jury as requested by Nichols and defendant. By one of the tendered instructions, defendant endeavored to have the court tell the jury that the Keeshin driver was guilty of negligence if he turned into the inner lane of the highway without first ascertaining that any traffic was approaching from the rear. The other requested instruction dealt with the statute requiring flares to be placed on highways.
All that need be said is, that we have read the refused instructions as well as the instructions given by the court covering these questions. The given instruction properly and fully announced the correct propositions of law applicable to the case;- hence no error was committed in refusing to give the tendered instructions. Rea Riggin & Sons v. Scott, 114 Ind.App. 4, 50 N.E.2d 664, and Frick v. Bickel, 115 Ind.App. 114, 54 N.E.2d 436.
The next proposition urged is that the court improperly admitted in evidence photographs of the vehicles involved in the collision. The argument is that these photographs did not tend to prove or disprove any issue in the case, and merely served to prejudice the jury on the speed of defendant’s oil tanker.
The admission or rejection of photographs in evidence is a question that lies within the discretion of the trial court, and its discretion will not be disturbed unless an abuse of such discretion is shown, Haven v. Snyder, 93 Ind.App. 54, 176 N.E. 149.
We have already noted that the Keeshin tractor-trailer was loaded with 15,000 to 20,000 pounds of cargo, and that when the oil tanker crashed into it, the impact hurled the tractor-trailer 70 to 90 feet. The photographs showed that the tractor of defendant’s oil tanker was smashed. These facts, had, in our opinion, some probative weight not only in identifying the type and size of the equipment involved, but were some proof as to the speed at which Nichols approached the place of collision. In such a situation, we do not believe it can be said that the court abused its discretion; rather, we think the judge was acting clearly within the limits of his discretion.
Finally, the point is made that the court erred in including in the amount of damages the claim of Ditto, Inc., an owner and consignor of a portion of the cargo destroyed.
The record discloses that plaintiffs in their complaint had listed certain consignments of cargo which was destroyed in the collision and fire. During the progress of the trial, the parties stipulated that the trial judge would instruct the jury that plaintiffs’ damages amounted to $12,195.60 and that if the jury found for plaintiffs, that would be the amount of the verdict. “If, afterwards, proofs of loss and cancelled checks come in showing , the damages are less, the verdict and judgment will be modified accordingly by agreement of the parties.” The verdict of the jury was for $12,195.60.
It also appears that after the bringing in of the verdict and while the cause was being argued on the motion to set aside the verdict, defendant objected to the amount of the Ditto claim of $1,024.15 on the ground that the Ditto claim had not been listed in the complaint. Thereupon plaintiffs moved to amend the complaint to include the Ditto claim, and the defendant’s objection to the amount of the Ditto claim was overruled. Upon this record, we see no reason to hold that the court erred in including the amount of the Ditto claim.
Affirmed.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_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.
In the Matter of Ronald COHEN, Debtor. Dale WOOTTON, Trustee For the Estate of Ron Cohen a/k/a Ronald Cohen, Appellee, v. V.W. BARGE, III, Appellant.
No. 88-1722.
United States Court of Appeals, Fifth Circuit.
June 19, 1989.
James L. Schutza, Dallas, Tex., for appellant.
Dale Wootton, Dallas, Tex., for appellee.
Before GARWOOD, JONES and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The bankruptcy trustee of an estate created by a Ponzi scheme seeks to recover as preferential payments certain amounts paid by the debtor to appellant V.W. Barge, III within ninety days preceding the bankruptcy. The district court affirmed the bankruptcy court’s judgment in favor of the trustee pursuant to 11 U.S.C. § 547. We hold that although 11 U.S.C. § 548(b) may cover payments made to Barge that exceeded his “investment” with the debtor, § 547 does not. Consequently, we affirm in part and reverse in part.
The facts have been agreed or stipulated. Ron Cohen, the debtor, operated a multimillion dollar sham stock brokerage business in a typical Ponzi scheme. That is, he enticed investors into his web with promises of 17% to 20% returns on their “investments,” or on promissory notes. After he received their money, Cohen would frequently send confirmation slips to the “customers” reflecting what he represented to be purchases or sales of stock on their behalf. Cohen was not, however, a licensed stockbroker, for he had been barred from associating with any member of the National Association of Security Dealers, Inc. Although he did occasionally purchase and sell some shares of stock, those transactions did not correlate to his “confirmations” for his clients in general or for Barge in particular. The continuing success of the scheme depended on Cohen’s ability to attract new investors whose money would be used to pay the earlier ones. Cohen commingled all of the “investors’ ” funds he received.
At the time Cohen voluntarily sought relief under Chapter 7 of the Bankruptcy Code, Barge had invested over $2.3 million with Cohen. He received approximately $2.5 million from Cohen, of which $730,-876.25 was, to Barge’s misfortune, paid within ninety days of the bankruptcy filing.
Dale Wootton, trustee for Ron Cohen’s estate, sued Barge to recover the payments he received within ninety days of bankruptcy as preferential transfers under 11 U.S.C. § 547(b). The bankruptcy court entered judgment for Wootton, and its decision was sustained on appeal by the district court. Barge appeals, contending that (1) he was not a “creditor” of Ron Cohen, (2) there was no “antecedent debt” on account of which Cohen made payments to him, and alternatively (3) the maximum amount recoverable as a preference was the amount Barge invested with Cohen, and not any funds in excess of that “investment.”
DISCUSSION
The preference provision of the Bankruptcy Code enables a trustee to recover for the benefit of all creditors payments that the debtor has made within a short period prior to his bankruptcy. The objectives of this provision are to put creditors on an equal footing with each other by disallowing such preferential payments and to discourage creditors’ race to dismember the debtor in anticipation of bankruptcy. 4 Collier on Bankruptcy ¶ 547.01 at 547-11 (15th Ed.1988) (hereafter, “Collier”). Section 547(b) empowers the trustee to avoid any transfer of property of the debtor:
(1) To or for the benefit of a creditor;
(2) For or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) Made while the debtor was insolvent;
(4) Made — [in pertinent part] on or within ninety days before the date of the filing of the petition; and
(5) That enables such creditor to receive more than it would have received if the transfer had not been made and the debt- or’s estate were liquidated according to the provisions of the Code.
The trustee had the burden to prove that each of these criteria was satisfied as to the challenged payments made by Cohen to Barge. 11 U.S.C. § 547(g). Barge contests the bankruptcy court’s findings only on the first and second elements of the preference statute.
There is no merit in Barge’s initial claim that he was not a “creditor” of Cohen in any way. The Bankruptcy Code defines a creditor as an entity that has a claim against the debtor. 11 U.S.C. § 101(9). A “claim” is defined in the broadest possible terms as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured,” or a right to an equitable remedy for breach of performance if such breach gives rise to a right to payment. 11 U.S.C. § 101(4). Barge asserts that he entrusted his money to Cohen, gambling on the stock market and assuming the risk whether he could make a profit. This assertion flies in the face of the bankruptcy court’s finding that Cohen defrauded Barge and the other investors by never or rarely purchasing stock for them and having no intention of making money for them in the stock market. Regardless whether Barge’s transactions with Cohen create claims in the nature of contract, based on breach of Cohen’s obligation to invest in stock, or in fraud, they are nevertheless claims as defined by the Bankruptcy Code. See discussion at 4 Collier tf 547.04, at 547-30-31. Barge was thus a creditor of Cohen to the extent of funds he committed to Cohen.
Likewise, Cohen’s repayment of funds to Barge up to the $2.3 million that Barge invested with him were for or on account of an antecedent debt. Barge asserts that as he was not legally entitled to any return on his investment, there was no indebtedness, pre-existing or otherwise, and therefore no claim which would fall in the category of antecedent debt. The Bankruptcy Code defines a debt as liability on a claim. 11 U.S.C. § 101(11). The terms creditor and debt are thus statutorily congruent. Cohen owed a debt to Barge inasmuch as he was liable on Barge’s claims against him. The claims may be characterized in contract or fraud, but they are claims in bankruptcy nevertheless.
The express terms of the Bankruptcy Code foreclose Barge’s defense based on the first two elements of § 547(b). See also In re Bullion Reserve of North America, 836 F.2d 1214 (9th Cir.1988) (party who committed money to a fraudulent gold bullion operation and actually received bullion within ninety days of bankruptcy was a creditor paid on account of antecedent debt). Because Barge has not contested the other statutory prerequisites to an avoidable preference, the bankruptcy court’s judgment must be upheld insofar as it required Barge to repay the payments he received which compensated for the $2.3 million he had invested.
The foregoing reasoning does not, however, justify the bankruptcy court’s treatment as preferential payments of some $211,817.32 in “profits” received by Barge over and above his investment with Cohen. The lower courts and the trustee explain in a conclusory fashion that such excess funds must be part of Barge’s claim on which he is a creditor of Cohen. We disagree. This reasoning perpetuates the theory that the transaction between Barge and Cohen had economic substance and a profit potential. Contrary to this supposition, however, the bankruptcy court had already found that the stock reported as sold for Barge involved fictitious transactions for which Cohen did not actually own sufficient amounts of stock to cover all of his customers’ competing claims. If the transactions are consistently characterized as fraudulent, then Barge’s claim against the estate derives from fraud and would seek no more than restitution of the amount he committed to Cohen. Such a claim would generate no right by Barge to payment of stock sale “profits.” On the other hand, even if Barge’s investment created a contractual relationship with Cohen, Barge was not contractually entitled to receive “profits” on sales of stock that did not occur. We are unable to agree with the lower courts’ conclusion that Barge had a claim, i.e. a right to payment, from Cohen in excess of the amount he invested with him.
No case cited by the parties or located in research has held that fictitious profits paid to an investor in a Ponzi scheme are statutory preferences. The results, rather, have depended on the precise facts of each scheme and the nature of the investor’s claim. For instance, in Bullion Reserve, supra, the investor had paid money to the debtor to purchase gold bullion on an international market. He was ordered to repay the debtor’s estate because he received bullion within the preference period. No issue of “profit” arose. By contrast, the victims of the scheme in In re Western World Funding, Inc., 54 B.R. 470 (Bptcy.Nev.1985), possessed the debtor’s promissory notes and received some payments of principal and interest within the preference period. The claims of those creditors rested on their promissory notes. Here, by contrast, Cohen did not contract to pay Barge interest; his contractual obligation for “profits” arose only if he made a profit selling stock for Barge. Cohen was not personally liable for profit if none resulted.
The trustee contends that in excluding from Barge’s preference liability the fictitious “profit” he received over and above his $2.3 million investment with Cohen, we violate the subsequent advance exception to preference liability codified at 11 U.S.C. § 547(e)(4). This section provides that a creditor is not liable for payments within the ninety days preceding bankruptcy to the extent that it subsequently furnished unsecured credit to the debtor. 4 Collier 11547.12 at 547-51. The subsequent advance exception substantially modified its predecessor provision, Section 60c in the former Bankruptcy Act, which stated a “net result rule” affording broader protection for creditors who dealt on open account with the debtor preceding bankruptcy. According to the trustee, our analysis represents an unauthorized return to the “net result rule”. Again, we disagree. Both Sections 60c and 547(c)(4), as exceptions to the preference provision, assume that a creditor has a claim enforceable against the debtor for the entire amount he receives in payment. These sections are irrelevant to the issue before us.
That there was not a preferential transfer of the $211,817.32 excess funds paid to Barge does not necessarily mean that he will retain a profit from the misfortune of other people duped by Cohen. Such payments may well constitute a fraudulent conveyance avoidable pursuant to 11 U.S.C. § 548. Indeed, courts have ruled for trustees asserting such claims against investors in other Ponzi schemes. Rosenberg v. Collins, 624 F.2d 659 (5th Cir.1980); In re Independent Clearing House Company, 77 B.R. 843 (D.Utah 1987). The trustee here did not predicate his claim on § 548, and we need not analyze its applicability further.
For the foregoing reasons, we conclude that Barge received $519,077.68 in preferential payments from Cohen within ninety days of his bankruptcy, and judgment should be entered against him for that amount. The remaining $211,817.32 represents monies paid to Barge in excess of the amount he invested with Cohen, and such funds were neither part of a claim by Barge against Cohen nor paid on account of an antecedent debt.
The judgments of the bankruptcy and district courts are AFFIRMED in part and REVERSED in part and REMANDED for entry of judgment in accordance herewith.
. The rate of recovery in Ponzi schemes is ordinarily low. Only in rare circumstances does an investor like Barge fortuitously recover more than he put into the scheme. Usually, investors’ defenses against preference actions have unsuccessfully asserted that the debtor held their money in constructive trust and thus returned only what they originally owed. See e.g., Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924) (the original Ponzi case; preferentially paid creditors had received their principal back on Ponzi’s worthless promissory notes); In re Bullion Reserve, supra; In re Independent Clearing House, Co., 77 B.R. 843 (D.Utah 1987); In re Western World Funding, Inc., 54 B.R. 470 (Bptcy.Nev.1985).
. Some creditors argued that payments of interest to them were for interest obligations that accrued contemporaneously and accordingly fell within various exceptions to § 547(b) or were not paid on account of antecedent debt. 54 B.R. 477-80. It was undisputed, however, that their claims arose out of these notes.
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_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.
SUN OIL COMPANY, Transferee, Sunray DX Oil Company and Subsidiaries, Transferor v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
No. 76-2388.
United States Court of Appeals, Third Circuit.
Argued May 5, 1977.
Decided Sept. 7, 1977.
As Amended Nov. 29,1977.
Myron C. Baum, Acting Asst. Atty. Gen., Gilbert E. Andrews, Gary R. Allen, John A. Dudeck, Jr., Attys., Tax Div., Dept, of Justice, Washington, D. C., for appellant.
Thompson, Knight, Simmons & Bullion, Buford P. Berry, J. David Anders, Emily A. Parker, Dallas, Tex., for appellee.
Before SEITZ, Chief Judge, ROSENN, Circuit Judge, and LORD, Chief Judge.
Joseph S. Lord, III, Chief Judge of the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
ROSENN, Circuit Judge.
In the quest to obtain capital, to generate business liquidity, or to minimize taxes, private enterprise often resorts to the sale of property and a simultaneous leaseback to the seller. A recurring question in transactions of this sort is whether after the transfer of title to the property some or all of the critical incidents of ownership still remain with the grantor despite his newly designated status as lessee.
This case concerns conveyances of 320 parcels of unimproved service station sites at cost by Sunray DX Oil Company (“Sun-ray”) to a tax-exempt trust and simultaneous leasebacks to the grantor. The sole question is whether the transaction was a mere financing arrangement between the parties or an authentic sale. The Commissioner disallowed Sunray’s deduction of its rental payments on the ground that the transaction did not constitute a true sale and that the rental payments were not a bona fide business expense deductible under section 162(a)(3) of the Internal Revenue Code of 1954 (“the Code”). In a proceeding for redetermination of the deficiency brought by Sun Oil Co., Sunray’s successor in interest, the United States Tax Court held that the rental payments were deductible. The Commissioner appealed and we reverse.
I.
During the taxable years in issue (1965-1968), Sunray, together with its subsidiaries and predecessors, was an integrated oil company engaged in all phases of the petroleum business, including marketing of petroleum and petroleum products. It was merged on October 25, 1968, into Sun Oil Company, a New Jersey corporation which was subsequently restructured as the Sun Oil Company, the appellee taxpayer herein. During the 1950’s and early 1960’s Sunray was actively involved in acquiring service station sites primarily in seventeen central-states along interstate highways and in certain urban areas. For a variety of business reasons, Sunray concluded that the most preferable means of obtaining working capital would be to convey its service station sites and then simultaneously lease them back rather than to mortgage the properties and incur a debt obligation on its books. After deciding to pursue this course of action, Sunray ascertained that General Electric Pension Trust (the “Trust”) was interested in taking title to the properties, advancing funds to Sunray equal to the cost of the properties, and then entering into lease agreements with Sunray on a long term basis together with options to purchase.
After extensive negotiations concerning terms and conditions of the proposed sale and leasebacks, Sunray and the Trust entered into their first letter agreement, dated October 13, 1964, under the terms of which Sunray agreed to convey by general warranty deed and the Trust agreed to purchase approximately 120 service station sites. The agreed purchase price for the parcels of land, mostly unimproved, was equal to Sunray’s cost of acquisition and in the aggregate was not to exceed six million dollars. Simultaneous with purchase, Sun-ray agreed to lease the properties from the Trust for a primary term of 25 years with quarterly rentals sufficient to enable the Trust to amortize its investment in full over such initial term at an interest return of 4% percent on its investment. The lease contained options exercisable by Sunray to renew the lease for two five-year terms at annual rentals equivalent to 2V2 percent of the purchase price of the land and for an additional eleven five-year terms at annual rentals equivalent to IV2 percent of the purchase price.
On April 24, 1967, Sunray entered into a second letter agreement with the Trust under the terms of which the Trust agreed to purchase and Sunray agreed to sell approximately 200 additional service station sites at a price equal to Sunray’s acquisition costs but not to exceed an aggregate price of eleven million dollars. Sunray again agreed to leaseback the properties for a primary term of 25 years with quarterly rentals sufficient to amortize the Trust’s investment in full over such initial term at an interest return of 5% percent with similar renewal options to Sunray as in the first letter; the annual rentals for the first two five-year terms were equivalent to 3 percent of the purchase price, for five additional five-year terms were equivalent to 2V2 percent of the purchase price, and for six final five-year terms equaled 2 percent of the purchase price.
Sunray consummated the second letter agreement by conveying 213 separate parcels of land each by separate warranty deed. At or about the same time, Sunray leased the properties for rentals under the terms set out in the letter agreement. Sun-ray and the Trust executed master leases at each of the closings, the terms of such leases being essentially the same except for the effective dates, properties described, and the quarter-annual payments. The leases require that the basic rent be payable absolutely net to the Trust throughout the term without deduction or setoff and that Sunray, as lessee, pay all taxes, assessments, or similar charges assessed against the premises.
The major provisions of the leases were capsulized by the Tax Court as follows:
Each lease afforded Sunray an option to purchase any of the leased properties on specified dates, provided Sunray had discontinued or would discontinue the then business use of the property to be purchased. In each instance the price to be paid for the property was to equal its “fair appraised value * * * to Lessor.” The appraisal of the property was to be conducted by three appraisers: one chosen by the lessor, one chosen by the lessee, and one chosen by the other two appraisers. The decision of any two appraisers was to be conclusive.
Sunray required that it be able to terminate its obligations to lease any property that might prove uneconomical to operate as a service station. Each lease was therefore made to provide:
During the Primary Term of this Lease, Lessee may, if Lessee intends to discontinue or has discontinued the use of the Leased Premises for its then business use, make a rejectable offer to purchase the Leased Premises as of any Basic Rent payment date occurring, in the Primary Term at a price in cash equal to the sum of the present values * * * of all quarterly Basic Rent payments to become due on and after the proposed purchase date * * *
plus an amount sufficient to insure the Trust of a return of 5 percent per annum over the term of the investment.
Each lease further provided that if on any one of several specified dates
* * * Lessee, in the sole exercise of its business judgment, determines that the continued leasing of the Leased Premises has become unprofitable or unreasonable or unnecessary in the conduct of its business use, Lessee may make a rejectable offer to purchase * * *.
Offers to purchase made pursuant to this clause were to be identical to those offers that might have been made by Sunray had it discontinued the then business use of the property.
The Trust was given 30 days in which to consider any rejectable offer that might be made and was nowise obligated to accept such an offer. In the event such an offer were rejected, however, Sunray would be released from its obligation to lease the property which it had offered to purchase.
Each lease further provided:
In lieu of making any rejectable offer to purchase the Leased Premises permitted * * * under this Lease, Lessee shall have the right to substitute for the Leased Premises other property (to consist of land only) having a then value at lease equal to the rejectable offer to purchase consideration which otherwise would have been applicable. * * *
(Footnotes deleted.)
As of July 15, 1974, Sunray made over 130 rejectable offers to repurchase properties which it had decided would not be used for business purposes. The Trust accepted each of the offers, reconveyed the properties, and released Sunray from all obligations under the lease.
II.
Relying heavily on Helvering v. Lazarus & Co., 308 U.S. 252, 60 S.Ct. 209, 84 L.Ed. 226 (1939), the Commissioner contends that Sunray retained all of the benefits and burdens of ownership to the 320 service station sites it conveyed to the Trust. He maintains that the purported transfer of title and leaseback agreements were, in substance, nothing more than an elaborate financing device in which the Trust stood essentially in the position of a secured lender. The leaseback agreements, the Commissioner asserts, enabled Sunray to reflect the transactions as a footnote on its balance sheets rather than a liability, minimizing any impact on its credit rating, and, at the same time, enabled Sunray to claim a 100 percent “rental” deduction for its full cost of acquiring non-depreciable land; and that Sunray in fact retained an equity interest in the properties disqualifying the periodic payments under the leases from being deductible under section 162(a) of the Code. The Commissioner asserts that his position is supported by: (1) the “net” lease arrangement; (2) the condemnation and casualty loss provisions of the lease; (3) Sun-ray’s absolute options to repurchase under the terms of the leases; (4) Sunray’s unique right to substitute properties in the event its offers were rejected; and (5) “rental” provisions which served simply to return to the Trust the principal sum advanced with fixed interest. Sunray, however, argues that the periodic quarterly payments made pursuant to its agreements with the Trust constituted consideration for the use for business purposes of the service station sites, that the properties were sold for a fair sales price in an arm’s length transaction, and that the payments were, therefore, deductible as rentals under section 162(a)(3).
The Tax Court concluded that the terms of the leases did not support the Commissioner’s contention that Sunray retained an equity interest in the leased properties after the conveyances. The court believed that the purpose of the provisions for repurchase of the leases was not “to provide Sunray with the means to reacquire the leased properties,” the Trust being under no obligation to accept any offers which might be made, but to insure Sunray’s ability to cancel the leases of any property which might prove uneconomical to operate as a service station site. We disagree.
III.
A threshold problem confronting us is the standard of review. Sunray asserts that the Tax Court based its decision on findings of fact, which included a finding as to the parties’ intent, and that these findings are binding upon us unless clearly erroneous. The record in the instant case, however, rests substantially on an indisputed record, consisting principally of stipulations of the underlying facts and appended exhibits, including the leases at issue. The basic rights, duties, and economic interests of the parties are essentially not in dispute. The dispute centers around the characterization for income tax purposes of the letter and lease agreements. The oral testimony offered by each of the parties was either expert testimony interpreting the documents or background testimony of some of the principals pertaining to the negotiations and their views of the transaction. In ABKCO Industries, Inc., v. Commissioner, 482 F.2d 150, 155 (3d Cir. 1973), we held the “interpretation and construction of a contract is a question of law and that the interpretation by the Tax Court is reviewable by this court.” Of course, the subjective intent of the parties may be a consideration in interpreting an agreement where the documents are ambiguous or incomplete and, in such circumstances, the court’s determination of the unexplained subjective intent is a finding of fact. When, however, the documents embodying the transaction are clear and complete, “the court is called upon to interpret the documents, and from their substance, to characterize the transaction for tax purposes as a matter of law.” Frank Lyon Co. v. United States, 536 F.2d 746, 751 (8th Cir.), cert. granted, 1976, 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534. Regardless of whether the parties honestly believe the transaction to be a lease, where the documents they have executed fully embody the elements of their bargain it is the documents themselves, not the parties’ conceptions of them, which must govern the legal characterization of the transaction. See Oesterreich v. Commissioner, 226 F.2d 798, 801-02 (9th Cir. 1955). We view the question here as essentially legal, not factual, and fully reviewable by this court. Helvering v. Lazarus & Co., supra; American Realty Trust v. United States, 498 F.2d 1194, 1198 (4th Cir. 1974).
IY.
In the usual mortgage transaction between a debtor and creditor, the funds advanced to the debtor are secured by a lien on his property. The debtor agrees to repay the funds over a fixed term together with specified interest for their use; generally, the ownership of property does not change hands. The usual business bargain between a commercial lessor and lessee is far more complex. Real estate interests between a lessor and lessee normally are divided into a number of parts, each of which represents an ownership interest in property. In order to sort out these interests, the following pragmatic approach has recently been suggested:
If the characterization for federal income tax law purposes of the interests of a lessor and a lessee is to be determined in a manner consistent with business realities, the inquiry must change from “Who is the owner of the property for tax purposes?” to “Are the ownership interests of lessor and lessee as characterized by the parties consistent with traditional substantive business bargains between lessors and lessees?”
Rosenberg & Weinstein, Sale-Leasebacks: An Analysis of These Transactions After The Lyon Decision, 45 J. of Tax, 146, 148 (1976).
In the instant case, the actual conveyance to the Trust of title to the properties and the fair market value of the prices assigned to them does not appear to be an issue. Although Sunray argues that the presence of -fair market value as a consideration for the transfer distinguishes the instant case from Helvering v. Lazarus & Co., supra; and Leeds & Lippincott Co. v. United States, 276 F.2d 927 (3d Cir. 1960), we doubt that this is a controlling consideration. We deem much more significant the relationships of the parties after the transfer of the properties as a result of the burdens, benefits, and risks imposed on each of them by the terms and conditions of their lease agreements. In determining whether the sale-leaseback transactions in the instant case created the traditionally bargained for business relationships between owner and lessee or whether Sunray in fact retained an equity in the real estate despite the conveyances, we look to the economic realities of the leases and not to the labels applied by the parties.
In Lazarus, supra, the taxpayer claimed depreciation on three buildings in which it operated a department store, the legal title to two of which and the assignment of a 99 year lease to the third it had transferred to a bank as trustee for certain land trust-certificate holders. The trustee had at the same time leased all three back to the taxpayer for 99 years with options to renew and purchase. The taxpayer claimed depreciation as a deduction because it bore the capital loss from wear, tear, and exhaustion of the buildings. The Commissioner disallowed the deduction on the ground that the statutory right to depreciation follows legal title. The Court of Tax Appeals, however, allowed the deduction, concluding that the transaction between the taxpayer and the trustee bank was in reality a mortgage loan; that the conveyance of title to the bank was actually given merely as security for a loan and that the “rent” stipulated in the leaseback was intended as a promise to pay an agreed 5 percent interest on the loan. The circuit and Supreme Courts affirmed, the Supreme Court noting that in the field of taxation the courts are “concerned with substance and realities, and formal written documents are not rigidly binding.”
Lazarus, supra, 308 U.S. at 255, 60 S.Ct. at 210.
A. THE RISKS AND RESPONSIBILITIES
As in Lazarus, the lease arrangements between the parties in the case sub judice provide that the lessee, Sunray, pay all taxes and assume the full burden and cost of keeping the premises in good condition. The Trust is relieved of the responsibility to repair, rebuild, or renew any buildings, structures, or improvements “or to make any expenditures whatsoever in connection with this lease....” Moreover, Sunray has agreed to indemnify the Trust and hold it harmless from any and all liabilities arising from the use and occupancy of the premises, including liability for any causes of action, judgments or violations of laws or regulations affecting the premises. Sunray has also obligated itself to pay rent absolutely net throughout the term without deduction or setoff under any circumstances. Diminution of rental even because of casualty or condemnation is not permitted. Thus, it is apparent that the leases impose essentially all burdens, risks, and responsibilities for the properties upon the lessee. Thrusting all of such burdens and risks on the lessee under every condition and circumstance and none on the lessor is hardly consistent with customary substantive bargains in the market place between lessors and lessees.
B. THE BENEFITS OF THE TRANSACTION
1. Bejectable offers upon condemnation or seizure by eminent domain.
In addition to assuming the risks and burdens incident to the ownership of property, Sunray also controls certain important benefits which traditionally are reserved to the owner in the event leased premises are condemned or seized by eminent domain. During the primary term, if all or any part of the leased premises becomes “in the sole and absolute judgment of lessee” undesirable for the lessee’s business or for any use then existing, because of a taking by condemnation or eminent domain, the lessee has the right to make a “rejectable offer” to purchase the property. The Trust has thirty days after receipt of the written offer to accept or reject it and failure to act within the prescribed period constitutes an acceptance. Significantly, the lessee not only has the unilateral right to determine whether the taking is sufficient to make the premises “undesirable” for its further use, but the repurchase price fixed for the offer is equal to the sum of all present values of the quarterly payments to become due after the proposed date of repurchase, plus a pre-determined premium. If Sunray’s offer to repurchase during the primary term is rejected by the Trust, then the condemnation award is payable both to Sunray and the Trust as “their interests may appear” at the time of the taking. During the extended term of the leases, Sunray also has the absolute right to share in any condemnation award as “their interest may appear.” Significantly, if a portion of the premises is taken by condemnation or eminent domain but the lessee elects to occupy the balance, there is no abatement of rent and the entire award for the taking belongs to the lessee. The lessee is also irrevocably empowered to negotiate the terms and price for any taking and to sell and convey the properties without the prior approval or joinder of the Trust. We view the retention of such broad powers by the lessee in the event of condemnation or government seizure of the land, especially the power to negotiate the price for the land, and the absence of rent abatement in the event of a partial taking and continued occupancy of the balance as inconsistent with the traditional role of a lessee.
2. Rejectable offers upon discontinuance of use.
Sunray also enjoys the unique right when, “in the sole exercise of its business judgment,” it decides that the use of a parcel of land is no longer profitable or necessary in conducting its business to make a rejectable offer to purchase it. Again, the price is not dependent upon the fair market value of the land at the time but is fixed in an amount equal to the sum of the present values of all quarterly basic rent payments to become due in the future plus the applicable prepayment premium shown in Schedule “C” attached to the leases.
3. Lessee’s rights of substitution.
Sunray also had the extraordinary and absolute right, in lieu of making any reject-able offer or upon rejection of such an offer, to substitute other land having at least equal value for the leased premises. The value of the land to be substituted “[was to] be determined by the lessee’s book value therefor.” This unilateral right of substitution thus enabled Sunray to reacquire legal title to any parcel of land whenever it made a rejectable offer.
4. Analysis of rejectable offer provisions.
We believe that the substance and reality of the “rejectable offer” provisions, particularly the rights of substitution, enabled Sunray during the taxable years in issue to retain ultimate control over the leased properties subject to repayment with interest of the advances made by the Trust. We cannot accept the Tax Court’s conclusion that the rejectable offer provisions do not vest any equity interest in the lessee because “the trust was under no obligation to accept such offers as might be made.” The Tax Court, failed to analyze the lessee’s rights of substitution, dismissing them with the observation that they were never exercised and were ultimately rescinded on August 9, 1972; we believe these rights of substitution rendered illusory the lessor’s rights to reject an offer.
The limitations of time, distance, and subject matter also erode whatever substance may have existed in the lessor’s rights to reject an offer. The Trust had only thirty days after the receipt of reject-able offers to reject them and the failure to act was deemed to be an acceptance. The offers left the Trust with virtually an impossible task of securing independent appraisals on comparative low unit value properties, securing competent advice, and reaching an intelligent, considered decision within a short time on multiple pieces of diverse properties geographically dispersed over many states. In fact, the Trust initially objected to the thirty-day limitation but ultimately accepted it and agreed to waive an appraisal requirement. Rejecting the offer would have required the Trust, having no employees with background or experience in real estate management, to undertake the heavy burden of managing small real estate parcels and properties scattered over 17 states. The acceptance of such a burden was viewed by trust officials as being inconsistent with the investment goals of this 2V2 billion dollar trust. Furthermore, since Sunray had to certify that the property would no longer be used for its then existing business purposes, the only time the parcels would be repurchased as a practical matter would be for resale. The extreme impracticality of rejecting a rejectable offer is evidenced by the Trust’s acceptance of all 186 of Sunray's “rejectable” offers made during the first few years of the leases. The Trust never took possession of any property described in a rejectable offer.
Thus, Sunray, even though it was the titular lessee of the properties, had the exclusive means of realizing the benefits in appreciation in the market value of the properties by making a rejectable offer which had little likelihood of being rejected; if perchance it were rejected, Sunray had the absolute right to substitute other parcels of property. In addition, as we later discuss, Sunray had also the absolute option to repurchase the properties during the extended terms of the leases for an option price equal to the fair appraised value of the leased premises to the lessor.
In our view, the powers vested in the lessee in the event of condemnation or seizure of property pursuant to the power of eminent domain, including the right to negotiate the sale or settlement price, the right to make rejectable offers, and the extraordinary rights of substitution are significant benefits characteristic of the ownership of property rather than that of a leasehold.
C. THE RENTALS
Rentals in these transactions were apparently geared to return the Trust’s advances plus interest. To achieve such a result, the rentals for the primary term were set at a predetermined figure. According to R. Paul Henry, who negotiated these transactions for Sunray, the rental value was fixed by formula based on a twenty-five year period to enable the Trust to recover the amount of money advanced for the properties plus “a reasonable agreed amount for what would be comparable to interest. And then, should the leases be terminated prior to the end of the twenty-five year primary term, an added amount would be paid to G.E. [the Trust] because this was a rather awkward type transaction.”
Additional evidence in the record indicates that the rentals do not reflect the market value of the properties. We think it significant that the Trust determined the fair rental value for the properties by merely treating the transaction as an “investment alternative,” rather than applying the capitalization of earnings method as an accepted appraisal method. Mr. Pope, the Commissioner’s expert, prepared a valuation report for the properties which is in the record. It reveals that the rentals fixed for the primary term are quite high. A fair rental value for a non-wasting asset such as unimproved land to a lessee with Sunray’s high credit standing would be the cost of money times the investment. Mr. Pope’s valuation report reveals that in October 1964, Government bonds were yielding 4.15 percent, triple A utility bonds were paying 4% percent, and top grade corporate bonds were paying 4.52 percent. Effective mortgage rates ranged from 5.5 percent to 6.1 percent, depending upon the lending institution. Although the annual rate of return due under the transactions with the Trust was 6.79 percent, Mr. Pope revealed that a reasonable rate of return would have been 4% percent, the interest rate specified in the lease agreement, without the amortization of the cost of the land. The amortization of unimproved land as part of the rental, represented by the difference of 2.144 percent, is not a common practice in the marketplace. In short, the rentals were mathematically geared to amortize the moneys advanced by the Trust at the agreed annual rate of 4% percent over the primary 25 year term of the lease or through the exercise of Sunray’s repurchase rights; they bear little resemblance to the true economic value of the properties.
Also supporting the Commissioner’s contention that the rentals do not reflect market value but were merely based on a formula which included the current interest rate plus an amortization factor is the underlying “Schedule of Direct Reduction Loan” attached to the leases which sets forth in typical loan arrangement form the interest rate, the amount of the principal loan, the term of years, the payment number and the apportionment of the quarterly payments between principal and interest. This schedule of payments is identical to the procedures utilized in conventional direct reduction mortgage loans which became popular in this country during the “Great Depression” of the 1930’s. Likewise, in their negotiations, the parties frequently referred to the payment of interest and principal, to “standby fees” and loan “commitment fees,” terms common in mortgage financing and not in the traditional relationships between lessor and lessee.
In the letter dated September 21,1974, to Eastman Dillon, Sunray’s counsel also points out that in the twenty-sixth year of the proposed lease, “the unencumbered appraised value would probably exceed the original investment if present inflationary trends continue.” Notwithstanding his conception of the increased value in the land and his prophetic view of inflationary trends, the rentals payable in the twenty-sixth year and thereafter during the next sixty-four years of the thirteen extended terms do not increase but are sharply reduced. The quarter annual rents drop from $1015.38 to $375.00 for the first two extended terms and then drop again to $225.00 for the next eleven extended terms. Thus, Sunray having paid for the properties in full during the primary term, was entitled to remain in possession for the next sixty-five years at nominal rents. If it exercised all of its options for each of the extended terms, the additional cost therefor, as the Tax Court recognized, was merely to increase the Trust’s return from 4% percent per annum to 5'A percent. It is hardly conceivable that an owner of real estate— especially a large sophisticated trust — concerned with a fair rental on its land rather than a return of its loan and interest, would enter into a lease with sharply declining rentals for sixty-five years following the conclusion of the primary term on December 31, 1989. The extended term features of the lease further indicate to us that the Trust, as a lender, was only looking to a return at a fixed rate on its advances, and not to a reasonable return on the fair market value of property which it held as owner.
D. THE OPTIONS TO REPURCHASE
The repurchase provisions of a sale and leaseback agreement serve the same function as a mortgage loan when the repurchase price is geared to the unamortized principal advanced by the purchaser-lessor. See Frank Lyon Co., supra, 536 F.2d at 752-54. In the instant case, in addition to Sunray’s right to make rejectable offers to repurchase the parcels in certain situations by, in effect, paying off the unpaid principal balance of the Trust’s advance plus the applicable schedule “C” premium payment, Sunray has the absolute right to purchase leased parcels under section 9 of the leases during the first year of each of the thirteen extended terms. This right is subject to the same conditions stipulated in connection with the rejectable offers (1) that Sunray must discontinue the use of the premises “for its then business use” and (2) that the repurchase price be equal to the “fair appraised value of the leased premises to Lessor” as fixed by three appraisers. These provisions give Sunray considerable flexibility despite the requirement that it must discontinue “its then business use” of the property. Since most of the sites were unimproved non-income properties at the time of the lease arrangements, Sunray could improve the properties and resell them to investors whenever it deemed conditions appropriate in the future, as it previously had done on other occasions with similar properties, and such a sale would work a change in the “then business use.” Furthermore, nothing prevented Sunray from diversifying its operations and using the land for other income producing purposes.
The Commissioner contends that the appraisal procedure prescribed for these nonrejectable options gives Sunray another avenue by which to enjoy appreciation and the “equity” built up through its “rental” payments. The contract provides that upon exercise of the option, the lessor and lessee will each appoint an appraiser and the two appraisers thus chosen will select a third. The appraisers are required by majority decision to fix “the fair appraisal value of the leased premises to the Lessor” and the appraisal fees and expenses are to be paid solely by the lessee. The Tax Court disagreed with the Commissioner’s analysis of this provision, reasoning:
Respondent [Commissioner] maintains that the price established by this formula would be the appraised value of the property as encumbered by the Sunray leases — an amount equated by respondent with the present value of future rentals. Thus understood, the provision establishing the option price would preclude the Trust from enjoying appreciation in the value of the property subsequent to the conveyance by Sunray. In our opinion, however, the formula, based as it is upon an appraisal of the property, would secure to the Trust the benefit of such appreciation.
We believe the Tax Court misconstrued the provisions when it read them as requiring the lessee to pay the fair market value for the property upon the exercise of the options. In the absence of a provision to the contrary, the appraisers had to consider all legal obligations encumbering the property in appraising its value and had to recognize the present value of any reversion in the land at the termination of the encumbrance. Plaza Hotel Ass’n v. Wellington Ass’n, 55 Misc.2d 483, 285 N.Y.S.2d 941 (Sup.Ct.), aff’d, 28 A.D.2d 1209, 285 N.Y.S.2d 267 (1967), aff’d, 22 N.Y.2d 846, 293 N.Y.S.2d 108, 239 N.E.2d 736 (1968). Counsel for Sunray recognized that the leases encumbered the properties and adversely affected their appraisal after the primary term. Thus, in assessing the “fair appraised value... to Lessor,” the appraisers would have to consider the encumbrances of the properties with leases of very low rentals, thereby seriously reducing the present value of future rentals.
The Commissioner also contends that since the option price was equal to the present value of future rents payable under the lease the appraisers must recognize that the reversionary value of the property in the year 2055 is de minimis because of the high discount factor applicable to a sum due sixty-five years in the future. If the fair market value had doubled or quadrupled, Sunray would be able to acquire the property for a fraction of its original cost. Sun-ray argues, on the other hand, that the lease agreements are not totally clear, and that the Commissioner’s interpretation conflicts with the language of the lease, with the interpretation of his own expert, and with that of the trustees of the Trust. Sunray asserts that the Tax Court appropriately found that the option price was not merely equivalent to the present value of future rents but that it would secure to the Trust, upon appraisal, the benefit of any appreciation in value of the properties.
Our review of this holding by the Tax Court is not limited to the clearly erroneous rule, as Sunray argues, since the interpretation of the option provisions is a question of law. We disagree with the Tax Court’s view of these provisions of the leases for the reasons previously expressed and hold that the “then appraised value” to the lessor is essentially equivalent to the present value of the future rents under the lease. Thus, the options to repurchase provide Sunray with a built in latch-string by which it could spring legal title to the properties whenever it served its convenience without obligating Sunray to pay the fair market value. Sunray could thereby acquire the benefits of appreciation in the property by merely paying the present value of future rents payable under the lease.
Finally, Sunray contends that the Trust may, without notice to or consent of Sun-ray, assign or transfer to any party, for any purpose, at any time its rights under the lease, even for purposes of refinancing. It argues that the Trust’s ability to refinance its investment is a significant attribute of real estate ownership. This may be true as a general principle. In the instant case, however, the right to assign or refinance may be hollow since it is subject to the extraordinary low rentals during the lengthy extended terms of the leases. Furthermore, any significance attached to the right to refinance is eroded in the instant case by other significant attributes of ownership retained by the lessee.
V.
In conclusion, we recognize that sale-leaseback arrangements play a useful and accepted role in our economy. We also note that some of the provisions of the leases in the instant case when viewed independently do not brand the transaction as a financing arrangement. A number of other important features, however, “have been employed in the same transaction with the cumulative effect of depriving [the lessor] of any significant ownership interest.” Frank Lyon Company v. United States, supra, 536 F.2d at 754.
As the lessee, Sunray bore the burdens, risks, and responsibilities for the properties, including the obligation to provide the Trust with a fixed guaranteed return under all circumstances and conditions. The lessee also controlled important benefits traditionally reserved to the owner of property: the lessee had the right to negotiate the settlement or accept the condemnation award and receive the payment; in the event of total or partial condemnation the lessee retained the right to terminate the lease whenever in its sole judgment a parcel of land was no longer profitable or necessary in its business and to make a “rejectable offer” which for all practical purposes was unrejectable; the lessee, in any event, enjoyed the right to substitute other land if perchance an offer was rejected or in substitution of a rejectable offer. These risks, burdens, and benefits are strong attributes of ownership, not of a leasehold interest.
The leases also bear marked similarities to debt financing, particularly to direct reductions loans, including the structural and guaranteed interest rate, consistent with the going market interest rate for quality firms of Sunray’s credit standing, the prepayment penalties, the schedule of payments, and the rejectable offer procedures. The rents have no visible connection with the economic value of the property but are evidently related to a fixed interest return on the advances. Finally, the options to acquire the property at the end of the primary term at the value to the lessor is a form of “equity” because the value to lessor is really the present value of future payments for sixty-five years at a specified rate.
We therefore conclude that the sale-leaseback transactions were a financing arrangement. Sunray’s claim under section 162(a)(3) for rental payments made pursuant to the leases will accordingly be disallowed.
The decision of the Tax Court will be reversed and the case remanded for the entry of an appropriate decision not inconsistent with this opinion.
. Section 162(a)(3) of the Internal Revenue Code of 1954 provides in part that,
(a) In general. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable
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_state | 21 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Appellee, v. Joanne Uline GIDDEN, Appellant.
No. 79-5122.
United States Court of Appeals, Fourth Circuit.
Argued April 2, 1982.
Decided May 17, 1982.
Certiorari Denied Oct. 4, 1982.
See 103 S.Ct. 167.
Joseph A. Miklasz, Glen Bumie, Md. (M. R. Rohrback, Glen Bumie, Md., on brief), for appellant.
Catherine C. Blake, Asst. U. S. Atty., Baltimore, Md. (J. Frederick Motz, U. S. Atty., Jane W. Moscowitz, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.
Before BUTZNER, RUSSELL and HALL, Circuit Judges.
PER CURIAM:
Joanne Uline Gidden was convicted under 18 U.S.C. § 81 for setting fire to her family’s living quarters at the Annapolis Naval Station. She appeals and we affirm.
One of Gidden’s arguments merits brief attention because of its novelty. She contends that the government destroyed the evidence of the fire by repairing the apartment and, as a consequence, her expert witness was unable to formulate an opinion about the source of the fire. Although the government agents took photographs of the scene and saved bags of evidence which they though would be relevant, Gidden’s expert opined that those pieces of evidence were insufficient to support any conclusions.
We simply cannot agree that the government should have left the burned apartment intact until an indictment issued and the defendant’s expert had an opportunity to see it. Health and safety considerations as well as the practical necessity of utilizing the space available for military housing required that the Giddens’ living quarters be restored to normal without undue delay. Moreover, the categorical imperative is disturbing: if every crime scene were preserved pending an indictment, a substantial part of our country would be in a state of suspended animation.
The other issues raised on appeal are patently without merit. Accordingly, the judgment of the district court is affirmed.
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_opinstat | A | 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.
JONES v. WATERMAN S. S. CORPORATION (READING CO., Third Party Defendant).
Nos. 8930, 8945.
Circuit Cburt of Appeals, Third Circuit
Argued Nov. 20, 1945.
Decided May 28, 1946.
McLAUGHLIN, Circuit Judge, dissenting in part.
Abraham E. Freedman, of Philadelphia, Pa. (Freedman, Landy & Lorry, all of Philadelphia, Pa., on the brief), for appellant David E. Jones.
George M. Brodhead, of Philadelphia, Pa. (Rawle & Henderson and Joseph W. Henderson, all of Philadelphia, Pa., on the brief), for appellant Waterman Steamship Co.
Henry R. Heebner and Wm. Clarke Mason, both of Philadelphia, Pa. (Morgan, Lewis & Bockius, of Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, McLAUGHLIN and O’CONNELL, Circuit Judges.
BIGGS, Circuit Judge.
The plaintiff, David E. Jones, a seaman employed by the defendant and third-party plaintiff, Waterman Steamship Corporation, brought suit against his employer in a civil action to recover maintenance and cure and wages. Jones had left his ship, the S.S. “Beauregard”, on shore leave and was proceeding across the pier toward the street when all the lights on the pier were extinguished. As a result of the darkness he fell into an open ditch along a railway siding owned and operated by the third-party defendant, Reading Company, and sustained injuries which incapacitated him for some months. Waterman impleaded Reading Company as a third-party defendant for reasons set out hereinafter.
The suit at bar, Civil Action No. 1481 in the District Court, was instituted by Jones on the same day that he brought a civil action against Reading Company in the court below, Civil Action No. 1480, to recover damages for his injuries and expenses in connection therewith. No. 1480 was tried to a jury and a verdict was returned for the plaintiff in the amount of $2,387.50. Thereafter, the court granted a motion made by Reading for a new trial. See Jones v. Reading Company, D.C., 45 F.Supp. 566. Jones then settled his case with Reading for the sum of $750 and executed a general release in the latter’s favor. The release was in the usual form and released and discharged Reading from all claims and demands whatsoever which Jones had against Reading “by reason of any matter, cause or thing whatsoever * * * and particularly, * * * by reason of injuries and losses sustained as a result of * * * ” the fall “to recover for which I brought suit in the U. S. District Court for the Eastern District of Pennsylvania against Reading Company, in Civil Action No. 1480, * *
During the pendency of No. 1481 Waterman filed a motion to dismiss the action against it on the ground that a ship owner was not liable for maintenance and cure for an injury occurring on a pier. The motion was granted by the court below but the judgment was reversed by this court. See 3 Cir., 130 F.2d 797. Our decision was affirmed. Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. After remand Waterman filed an answer setting out the release which Jones had executed to Reading and impleaded Reading asserting that Waterman is entitled to indemnity from Reading for any sum which Jones may recover against Waterman.
The case went to trial. Jones introduced as evidence the testimony received in No. 1480. Other evidence was also received which need not be detailed here. It is enough to state that certain testimony was given by Jones respecting his inability to work following his medical discharge and that shipping articles of the “Beauregard” were introduced in evidence as was the release to Reading. In No. 1480 Jones sought to recover both compensation and consequential damages, the latter including, as the evidence shows, substantially all the items recoverable by Jones as maintenance and cure and wages.
The court below in the instant case concluded that “To permit the plaintiff to successfully prosecute [the action at bar] would be to enable him to obtain two satisfactions for the one injury by resort to two different causes of action.” 60 F.Supp. 30, 32. Judgment was entered in favor of Waterman and against Jones. Judgment also was entered in favor of Reading as third-party defendant and against Waterman as third-party plaintiff on the theory enunciated in The Federal No. 2, 2 Cir., 21 F.2d 313. Both Jones and Waterman have appealed at our Nos. 8930 and 8945, respectively.
If a seaman falls sick or is injured and must be removed or is kept from his vessel he is entitled to maintenance and cure as well as to his wages. Smith v. Lylces Brothers-Ripley S.S. Co., 5 Cir., 105 F.2d 604, 605. Wages, even if they include “keep”, must be restricted to the term of employment as specified by the shipping articles while the duty to provide maintenance and cure lasts as long as the seaman’s need continues. Calmar Steamship Corporation v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L.Ed. 993; Loverich v. Warner Co., 3 Cir., 118 F.2d 690, certiorari denied 313 U.S. 577, 61 S.Ct. 1104, 85 L.Ed. 1535. Jones has a cause of action against Waterman for maintenance and cure and for his wages as set out in his complaint in the suit at bar. This is an action ex contractu. Jones may maintain it by reason of the obligations and duties imposed on Waterman by the shipping articles and by virtue of his status as a member of the crew of the “Beauregard”. Jones also had a cause of action against Reading sounding in tort and arising ex delicto by reason of Reading’s alleged failure properly to maintain its right-of-way. Jones was careful to restrict his complaint in the case at bar to a claim for “wages to the end of the articles and maintenance and cure for the period of his disability * * * He does not seek to recover damages from Waterman.
The distinction between the right to maintenance and cure and wages and the right to damages is made clear by the Supreme Court in Pacific Steamship Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220, wherein Mr. Justice Sanford stated, “In short, the right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence ; and these two rights are consistent and cumulative.” See also Aguilar v. Standard Oil Co., supra, 318 U.S. at pages 730, 731, 63 S.Ct. 930, 87 L.Ed. 1107. Jones could not have recovered maintenance and cure and wages from Reading, nor may he recover damages from Waterman. It follows that Waterman and Reading were not joint tortfeasors. In fact, Waterman committed no tort. It is not alleged that it did. Under no theory of law can Jones’ release to Reading release Waterman. It is unnecessary therefore to discuss the Pennsylvania law of release of joint tortfeasors or to compare it with the federal law. Cf. Thompson v. Fox, 326 Pa. 209, 192 A. 107, 112 A.L.R. 550 and McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659, 148 A.L.R. 1253.
Jones has settled his cause of action against Reading but he is free to assert and to recover on his ex contractu cause of action against Waterman. He would be free to do this even if he had obtained a judgment against Reading and had executed it. The circumstances are somewhat analogous to those which would be presented if a person insured against personal liability were injured by an automobile driven by an alleged tortfeasor. He has sued the tortfeasor who drove the automobile which hit him and recovered a verdict. This has been set aside and he, thereafter, makes a settlement with the alleged tortfeasor. He then seeks to collect a sum of money which he alleges is due to him under his insurance policy because of his injuries. The insurance carrier says, “You have made a settlement with and have received money from the tortfeasor, the amount of your claim against us has been satisfied.by that settlement or at the least your recovery against us must be reduced pro tanto.” This contention in substance was dealt with by the court in Dempsey v. Baltimore & O. R. Co., D.C., 219 F. 619 and was refuted. See also Sprinkle v. Davis, 111 F. 2d 925, 128 A.L.R. 1101 and Clune v. Ris-tine, 10 Cir., 94 F. 745. The position taken by Waterman as to Jones is untenable.
In the suit at No. 1480 there was a certain confusion evinced by counsel for both parties as to the nature of the damages which Jones was entitled to prove and this confusion seems to have been carried over into the suit at bar. As we have indicated at an earlier point in this opinion, a seaman is entitled to wages only to the end of the period of time covered by the shipping articles, whereas he is entitled to maintenance and cure as long as he shall have need of them. Two sets of shipping articles were introduced in evidence. We are concerned with only one, those signed by Jones on January 6, 1941, and which were in effect on January 16, 1941, the day of the accident. It has been stipulated by the parties that these shipping articles were “closed out” on February 5, 1941. But the articles state, inter alia, that the seamen should make one or more voyages on the “Beauregard” as the master might direct “for a term of time not exceeding twenty-four calendar months.” We entertain no doubt in the light of such decisions as MCarron v. Dominion Atlantic Railway Company, D.C., 134 F. 762, and Enochasson v. Freeport Sulphur Co., D.C., 7 F.2d 674, that Waterman’s obligation to pay Jones’ wages endured as long as the period for which he claims maintenance and cure. Since this was the fact the District Court at No. 1480 could not have permitted Jones to recover from Reading damages based upon maintenance and cure and wages. Jones was entitled to recover in the suit at No. 1480 only compensatory damages including an amount to be awarded for pain and suffering. Since Jones was not entitled to recover damages for maintenance and cure and wages in the suit at No. 1480, all other considerations aside, these elements may not be deemed to have been included in the settlement of the suit at No. 1480.
We come now to the final phase of the case at bar. The question presented by it may be summed up as follows: May Waterman recover from Reading any sum which it may be required to pay to Jones for maintenance and cure and wages? In other words, if Waterman pays Jones, is Waterman entitled to indemnity from Reading if it be found that Reading negligently caused Jones’ injuries? The third party complaint filed by Waterman does not allege specifically that Reading was negligent or that Jones was injured by reason of Reading’s negligence. It does aver, however, that Reading was in charge of the premises through which Jones walked as an invitee and that when the lights on the pier were extinguished Jones fell into the railroad “ditch” sustaining the injuries which he recites in his complaint. The evidence in No. 1480 was introduced by a stipulation into the case at bar. The court below in the case at bar made no findings of fact or conclusions of law as to Reading s negligence, if any, since it relied on The Federal No. 2, supra. It is suggested by counsel for Jones that this court “as in an action in admiralty” may make findings of fact and conclusions of law. We may not do this. The suit at bar is not in admiralty though Jones’ rights against Waterman are governed by the general maritime law. It is a civil suit and is to be conducted in the court below according to the Rules of Civil Procedure. 28 U.S. C.A. following section 723c. Since it was tried to the court and not to a jury, findings of fact and conclusions of law must be made by the court b'elow as required by Rule 52. For the purpose of expediting the cause we will assume, arguendo, that Jones’ injuries were caused by Reading’s negligence and will endeavor to state the applicable principles of law governing the third-party action.
Whether Waterman may maintain its action against Reading in the present suit depends in part on whether the cause of action set out in the third-party complaint can be fitted into the frame of Rule 14(a). The answer to this question turns in large part on the construction, of the word “claim” as used in the rule. We think it would be difficult to employ a more inclusive term, and, as is stated in Moore’s Federal Practice, Vol. 1, at p. 742, “ * * * it is reasonably certain that Federal Rule 14 sought the same general objectives as * * * Admiralty Rule [56].” Admiralty Rule 56, 28 U.S.C.A. following section 723, is very broad and, if the suit at bar were in admiralty, would permit the defendant to maintain the third-party complaint under the assumption of proof which we have made. Moore states also at p. 740, that “The general purpose of Rule 14 is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant.” If Waterman will have a claim which it can assert against Reading because compelled to pay Jones money which, absent Reading’s negligence in relation to Jones, it would not have to pay, Waterman may assert that claim in the suit at bar by way of its third-party complaint.
The primary question therefore is whether or not Waterman has a cause of action which it can assert against Reading if Waterman is compelled to pay Jones. We think that Waterman has such a cause of action if it can prove that Reading’s negligence was the cause of Jones’ injuries. If Waterman can recover from Reading it can do so because a cause of action arises under the law of Pennsylvania where the operative facts occurred. and No Pennsylvania case in point has been cited to us and we can find none. The right is one of an employer to recover indemnity for sums of money which he has been compelled to pay to a servant who has been injured by the tortious act of another. This is not the right of an employer to recover against a tortfeasor for an act which has deprived him of the services of a servant but resembles the latter. It is desirable to state some of the precedents of the general law to the end that our reasons for allowing recovery to Waterman under the assumptions hereinbefore stated may be made plain.
At common law an employer could maintain an action against a tortfeasor to recover damages on account of loss of services which he sustained by reason of an injury to his employee. This cause of action included damages measured by the loss of the employee’s services. See 35 American Jurisprudence, Master and Servant, § 530, and the authorities cited therein, and 18 R.C.L., 542, § 58. As to servants infra moenia, some cases held that the master could recover only his out-of-pocket expense due to being deprived of the services. This rule of law persisted to a rather late date in New York. See Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145. These rights in substance were those of indemnification. Some of the early cases permitted indemnification against an intentional tortfeasor and denied it as to a merely negligent tortfeasor. The Supreme Judicial Court of Massachusetts did not make such a distinction in Ames v. Union Railway, 1875, 117 Mass. 541, 19 Am.Rep. 426, but permitted a master to recover for the loss of apprentice’s services, the latter having been injured due to negligent operation of the railway. See Coal Land Development Co. v. Chidister, 86 W.Va. 561, 103 S.E. 923. The American courts seem to have made no distinction between loss of services caused by intentional wrongdoing, such as assault and battery, and those in which the loss of services resulted from mere negligence. See Voss v. Howard, Fed.Cas. No. 17,013. The case of Cain v. Vollmer, 19 Idaho 163, 112 P. 686, 32 L.R.A. N.S., 38, seems typical. In this case a jockey was injured by a dog, negligently permitted to wander at large by its master. The employer of the jockey sued to recover the value of the prizes which the jockey might have won had he been able to ride. The damages, however, were held to be too speculative to permit recovery. The Supreme Court of Idaho, however, clearly found that a cause of action existed. Compare Fluker v. Georgia Railroad & Banking Co., 81 Ga. 461, 8 S.E. 529, 2 L.R.A. 843, 12 Am.St.Rep. 328.
A case which denies the master’s right to recovery is Chelsea Moving & Trucking Co. v. Ross Towboat Co., 280 Mass. 282, 182 N.E. 477. The Supreme Judicial Court of Massachusetts distinguished Ames v. Union Railway, supra, on the ground that the employee in the Ames case was an apprentice and the relationship between master and apprentice was different from that of an ordinary employer and employee, which was purely contractual. The Chelsea Moving & Trucking Co. case is the only decision among the early cases which we have found (though doubtless there are others in the deeps of the law) which holds that an employer cannot recover indemnity for the loss of his employee’s services, whether the loss was caused by intentional wrongdoing or negligence. The English law may have gone off in the direction of permitting recovery only if there had been intentional tortious interference with the employer and employee relationship. Lum-ley v. Gye, 2 El. & Bl. 216, may be said to look in that direction. But the general law in the United States upon this subject seems settled.
This is not to say, however, that the employer or master may necessarily recover the sums expended by him out of his own pocket to cure the servant or employee or to maintain him during the illness resulting from an accident. It would seem to follow, however, as a matter of logic that if the master by virtue of his contract of employment with the servant is compelled to maintain and cure his servant during the latter’s illness the master should be permitted to recover these sums from the wrongdoer as part of the remedy afforded him in his cause of action against the wrongdoer. There are a number of cases arising under the general maritime law where such recovery or indemnification was permitted. In Mystic Terminal Co. v. Thibeault, 1 Cir., 108 F.2d 813, the operator of a car float towed by a tug was held liable for injuries sustained by the mate of the tug when he stepped through the rotted roof of the car float. It was held that the mate was on the roof for a business purpose and that it was the intention of the parties to include within the contract of towage and implied warranty of a safe place to work. In New York & Porto Rico S.S. Co. of New York v. Lee’s Lighters, D.C.E.D.N.Y., 48 F.2d 372, the court held that the steamship company was entitled to indemnity for money paid by it in satisfaction of a judgment obtained against it, plus expenses, arising out of an injury to a stevedore, employed by the steamship company, the accident arising out of the unseaworthiness of a lighter operated by the lighterage company. It was held that there was an implied warranty of seaworthiness in the lighter under the lighterage contract. This case should be viewed in the light of the recent decision of the Supreme Court in Seas Shipping Co., Inc., v. Sieracki, 66 S. Ct. 872. In The No. 34, 2 Cir., 25 F.2d 602, a stevedoring company whose employee was injured by a defective ladder fastened to the side of a lighter and who had recovered a judgment against his employer in the state court, was held to be entitled to indemnification from the owner of the lighter. Again, it was ruled that there was an implied warranty of a safe place to work as an incident of the stevedoring contract. See also The Lewis Luckenbach, 2 Cir.., 207 F. 66. In this case a stevedore had been injured due to a defect in the ship’s machinery. The stevedore sued the owner and the charterer and settled with both. The charterer sued the owner for indemnity and recovered. See also Rederii v. Jarka Corporation, .D.C.S.D.Me., 26 F. Supp. 304. In this case an employee of a stevedoring company was injured in the hull of a vessel under circumstances possibly entitling him to compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. He sued the vessel and made a compromise settlement. The owner of the vessel brought a libel in personam against the stevedoring company for indemnity. It was held that the owner of the vessel had a cause of action. The Federal No. 2, supra, is the only decision which we have been able to find which militates against this view. We will discuss that decision at a later point in this opinion.
If the principles of the majority of the decisions cited in the foregoing paragraph are sound it would follow that indemnity or recovery over may be had against a pier owner, or one holding under him, by a ship for sums expended by it for the maintenance and cure of one of its seamen injured because the pier was not maintained in a condition fit for the business purpose for which it was intended. The duty to maintain the pier, or a railroad track running upon it, in a safe condition for the benefit of seamen leaving a ship moored to the pier is a warranty implicit in the contract between the pier owner and the ship and in the contract or arrangement between the pier owner and the railroad whose tracks run upon the pier. But putting this tortious spelling out of contractual obligations and implied warranties aside, it is clear that Reading had a duty so to maintain its tracks on the pier that a seaman leaving the “Beauregard” would not be injured if he exercised due care. Under this concept Reading’s obligation sounds in tort and not in contract but is none the less binding upon it for that reason. Chief Justice Holmes took this position in Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L.R.A. 781, 86 Am.St.Rep. 478, declaring that although the cause of action of the injured employee against the third party sounded in tort and the obligations and duties of the employer and the employee sounded in contract, the right of the employer to indemnity against the tortfeasor who had injured the employee was not impaired.
We come finally to such Pennsylvania cases as there are. There is no doubt that under the Pennsylvania law an employer has a right to recover against a tortfeasor for an act deliberately intended to deprive him of the services of his servant. Such a right was recognized by the early Pennsylvania decisions dealing with labor relations. We believe that the law of Pennsylvania follows the general law and will permit the employer to recover from a negligent tortfeasor for the value of the services of his injured employee, though we can find no decision directly in point upon this question. It is the law of Pennsylvania that property owners may recover indemnity from persons whose primary negligence has caused them to pay damages to injured persons. See Orth v. Consumers’ Gas Co., 280 Pa. 118, 124 A. 296, and Wise Shoes, Inc., v. Blatt, 107 Pa. Super. 473, 164 A. 89. Here the duty imposed upon the corporations primarily liable sounds in tort and grows directly out of the failure to maintain premises properly. The Pennsylvania labor relations cases and the two decisions last cited throw some light on the problem of law presented. Moreover, it must be borne in mind that the obligation of Waterman in the instant case grows out of the maritime law. Waterman cannot escape the burden of Jones’ maintenance and cure and it could not escape the loss of his services. Each element of the loss rose out of Reading’s tort, assuming Reading to have been negligent. We think that under these circumstances the law of Pennsylvania will permit Waterman to recover not only for the loss of Jones’ services but for the sums which it will be compelled to expend for his maintenance and cure.
In so holding we are not unmindful of the decision of the Circuit Court of Appeals for the Second Circuit in The Federal No. 2 which held to the contrary under circumstances analogous to those at bar. The substance of that Court’s ruling appears in 21 F.2d at page 314, where, after reference to a “social condition” which permits a father to recover for the loss of the services of a child or a husband for those of his wife, states, “But this social condition does not exist in the relationship of a seaman and his employer. It is a contract obligation, which [the employer] must perform, that imposes this responsibility, even though it be a special damage he suffers from a tortious act. The cause of the responsibility is the contract; the tort is the remote occasion.” In Seas Shipping Co., Inc. v. Sieracki, Mr. Justice Rutledge makes it plain that the obligations of the ship to its seamen do not rest solely in contract ; that a seaman is in effect a ward of the admiralty and that the relationship between owner and seaman, master and seaman, and ship and seaman is in essence a “consensual relationship”. We are of the opinion that the relationship of the ship owner to the seaman is more closely analogous to that of father and child than to that of an employer to a mere employee. We prefer to impose a higher degree of dignity upon the ship-seaman relationship, awarding to it a status or a “social condition” in excess of that given under the ruling in The Federal No. 2. Compare Crab Orchard Imp. Co. v. Chesapeake & O. R. Co., 4 Cir., 115 F.2d 277, 282, 283, where an employer was not permitted to recover indemnity against the tortfeasor who had injured his employee. It should be pointed out that in the cited case the relationship was merely that of employer and employee.
The status of the ship to its seaman bears comparison to that of a soldier in the United States Army to the United States. In United States v. Standard Oil Co., D.C. S.D.Cal., 60 F.Supp. 807, the United States sued the Standard Oil Company for indemnity for the money expended by it to cure an enlisted man of the United States Army who had been struck by the defendant’s truck and for the soldier’s wages during the period of his incapacity. The court permitted the recovery of both items. While the status of an enlisted man in the armed forces of the United States may be described as statutory and the obligation of the ship to grant maintenance and cure to the injured seaman arises under the admiralty law as embodied in decisions, the principle of liability so clearly enunciated in the cited case should be applicable under the facts of the case at bar. While the courts of the Commonwealth of Pennsylvania have not applied the maxim “Ubi jus, ibi remedi-um”, they have been apt in indemnifying injured employers and we conclude that it is no very great innovation to permit Waterman to recover from Reading for maintenance and cure to be paid by it to Jones, if Reading’s negligence is found to be the cause of Jones’ injuries.
It is clear that the release executed by Jones to Reading will not avail Reading in the third-party action for the right of Waterman against Reading is not a derivative right through Jones but is a separate and distinct cause of action which will vest in Waterman when it is ascertained what sum of money is due from Waterman to Jones. Cf. United States v. Standard Oil Co., supra.
The judgment against Jones and in favor of Waterman will be reversed. The judgment in favor of Reading and against Waterman will be reversed. The cause will be remanded with the direction to proceed in accordance with this opinion.
AVkile there was no express waiver of jury trial, the original plaintiff having requested trial by jury on April 17, 1941, as provided by Rule 38(b) and the third party plaintiff haying made no such request, it is apparent from the transcript of the proceedings in the court below on June 5, 1944, the day of the trial, that all the pai'ties waived all rights to trial by jury.
See that portion of Rule 14(a) which provides that a defendant may “serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff’s claim against him.”
The dividing line between Admiralty and the common law is set out in Bee. 128 and 128a of Benedict on Admiralty, Knauth’s 6th Ed. Contrast the English and American Rules. See the authorities cited to Knauth’s text. Under the decisions of the American courts there is no doubt that Waterman’s cause of action does not lie within the purview of the maritime law.
It will be observed that the third-party complaint alleges diversity of citizenship and jurisdictional amount and that tlie rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 must be applied.
The action by husband or parent for loss of services of wife or child is closely analogous. See the Restatement, Torts, Section 703. It will be noted that the husband or parent is entitled to recover reasonable expenses incurred in treating the illness or injury. See h. Damages, under Section 703 of the Restatement. The recovery of such items may be had because the husband or parent is himself legally liable for them.
It is stated as follows in 39 C.J., Master and Servant, § 1604, “A master may maintain an action for all injuries to his servants because of the negligent or wilful acts of third persons wMch result in damage to the master through loss of services; and the rule has been applied where loss of services resulted from an assault and battery upon the servant, or by reason of his false imprisonment, from the negligent shooting of the servant, or from negligently driving or transporting him, or from his being bitten by defendant’s dog.” See the authorities cited to the text, some of which have been referred to in this opinion.
The fact that a husband or father, suing for loss of services of wife or child, may recover for medical expenses supplies a helpful analogy. See note 5 supra.
See O’Neil v. Behanna, 182 Pa. 236, 37 A. 843, 38 L.R.A. 382, 61 Am.St.Rep. 702; Jefferson & Indiana Coal Co. v. Marks, 287 Pa. 171, 134 A. 430, 47 A. L.R. 745; Flaccus v. Smith, 199 Pa. 128, 48 A. 894, 54 L.R.A. 640, 85 Am. St.Rep. 779; Kraemer Hosiery Co. v. American Federation of Full Fashioned Hosiery Workers, 305 Pa. 206, 157 A. 588. Cf. Tugboat Indian Co. v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153, cited by Reading.
As to the general common law on this subject see 18 R.C.L. p. 542, § 58, and the authority cited to the text.
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_const1 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
In re CARTLIDGE.
(Court of Appeals of District of Columbia.
Submitted May 10, 1026.
Decided June 1, 1926.)
No. 1842.
1. Patents <§=>120 — Patentee of coal-mining machine, having been allowed applications covering two driver methods, held not entitled to allowance of general application covering all possible arrangements for converting machine from one driver method to the other.
Patentee of coal-mining machine capable of being driven by a single chain or by two flexible elements, who has an allowed application covering each method, hold not entitled to allowance of divisional application in general terms, covering all possible arrangements whereby the machine might be converted from one driven by one method to' one driven by the other method.
2. Patents <§=>120.
Patentee is not entitled to general divisional patent covering any means that may be discovered of producing the result accomplished through original patent.
Appeal from Commissioner of Patents.
In the matter of the application of Prank Cartlidge for a patent. Prom a decision denying the application, applicant appeals.
Affirmed.
J. II. Boyden, of Washington, D. C., and L. A. Maxson, of Claremont, N. H., for appellant.
T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.
ROBB, Associate Justice.
Appeal from a decision of the Patent Office rejecting the claims of an alleged divisional application relating to coalmining machines. The grounds' of the rejection were: First, that the claims are for substantially tbe same invention covered by appellant’s patent No. 1,538,684, of which this application is claimed to be a division; second, that the claims are unpatentable over the prior art; and, third, that they do not adequately define the invention.
Tho above patent, carrying 141 claims, was issued to appellant on May 19,1925. On the same day there was issued to him patent No. 1,538,685, carrying 81 claims, the application being a division of the original. The drawings of tho present application, filed later, are identical with those of the parent application. An examination of the present application discloses that the alleged invention consists in so arranging the machine that it may be driven by either a single driving chain or by two flexible elements. Tbe claims attempt to eovor broadly all possible arrangements whereby the machine may be converted from one driven by two flexible elements into one driven by a single chain, notwithstanding that appellant has an allowed application covering each of these elements. No mechanism for making the substitution is included. This, therefore, is an attempt through the use of general terms to cover any means that may be discovered of producing tbe result accomplished through tbe original patent. But this may not be done. Miller v. Eagle Mfg. Co., 151 U. S. 199, 14 S. Ct. 310, 38 L. Ed. 121; Heidbrink v. McKesson (C. C. A.) 290 F. 665.
For tbe reasons more fully stated by tho tribunals of the Patent Office, tbe decision is affirmed.
Affirmed.
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_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).
WILSON et al. v. UNITED STATES.
No. 8875.
Circuit Court of Appeals, Ninth Circuit
Dec. 23, 1938.
Joseph C. Meyerstein, of San Francisco, Cal., for appellants.
James W. Morris, Asst. U. S. Atty. Gen., Sewall Key, J. Louis Monarch, Morton K. Rothschild, and Louise Foster, Sp. Assts. to the Atty. Gen., and Frank J. Henmessy, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for the United States.
Before WILBUR, GARRECHT, and HANEY, Circuit Judges.
HANEY, Circuit Judge.
The court below decreed that funds transferred by a decedent to appellants constituted a trust fund for the payment of debts owing by decedent including the amounts decedent owed for income taxes, and rendered judgment against appellants for the amount of the taxes.
On March 12, 1919, Henry Wilson, the decedent, filed his income tax return for the year 1918, and paid the tax shown on the return. On March 15, 1920, decedent filed his income tax return for the calendar year 1919, and paid the tax shown on the return. On September 4, 1925, the Commissioner of Internal Revenue, after decedent had executed waivers extending the time for assessment, gave decedent notice of a deficiency for the year 1918 in the sum of $6,591.52, and for the year 1919 in the sum of $2,596.80. On October 26, 1925, decedent petitioned the Board of Tax Appeals for a redetermination of the deficiencies.
On June 1, 1928, decedent, being then over 79 years old, and contemplating his death, transferred to his wife, Mary H. Wilson, and to his son, Francis A. Wilson, a savings account, the principal and interest of which amounted to $430,737.73. On June 5, 1928, decedent died. Subsequently, the wife and son divided the funds they had received, after paying the expenses of decedent’s last illness in the sum of $361.25, the expenses of his funeral and interment in the sum of $4,024.15, and after making a gift to charity. The wife received $270,727.68, and the son and Winfred T. Wilson, another son, each received $67,681.92.
On November 6, 1928, the Board redetermined the deficiencies in tax paid by decedent in the sum of $4,006.61 and $775.74 interest for the year 1918, and in the sum of $1,725.39 and $334.06 interest for the year 1919. Review of the Board’s decision, entered pursuant to the redetermination was not sought, and the decision became final on May 18, 1929.
On December 26, 1934, appellee filed in the court below a bill against the wife and the two sons, hereinafter referred to as appellants, alleging the tax indebtedness of decedent, the transfer of funds, that the transfer “operated as a fraud” on appellee because it left decedent “without property” and with “no estate”, and that the property transferred to, and received by, appellants was “impressed with a trust in equity for the benefit” of appellee.
The trial court found, in addition to the facts related above, that at the time of the transfer decedent owed the following:
Expenses of last illness.........$ 361.25
Income taxes for years 1918, 1919........................ 6,841.80
Income taxes for years 1921— 1924 ........................ 13,102.01
Total .....................$20,305.06
It also found the funeral expenses to be $4,042.15, which, with the above total, makes a grand total of $24,346.21. The court below also found that the only asset in which decedent had an interest at the time of the transfer was a home, which was owned by decedent and his wife as joint tenants with right of survivorship; that the fair market value of the residence was $45,000; that the fair market value of the interest of one joint tenant did not equal $22,500; and that the total of decedent’s debts “at the time of his transfer of said bank account exceeded the fair market value of his interest as joint tenant in said residence.”
The trial court concluded that the transfer of the' bank account was fraudulent as to creditors; that decedent was “rendered insolvent by said transfer” and that the money received by appellants was impressed with a trust for the benefit of creditors. Decree was entered to the effect that the money received by appellants from decedent “constituted a trust fund for the payment of debts owed by said [decedent], including debts owed to the United States”, and judgment was rendered in favor of appellee against appellants for the amount of the deficiencies in the taxes for the years 1918 and 1919, with interest. Appellants have appealed from that decree.
Appellants contend that there is no evidence whatever to support the finding that decedent was rendered insolvent by the transfer of the bank account. This contention is based on three arguments. The first is that the sole evidence shows the value of the residence to be $45,000, and therefore decedent’s interest therein had a value of $22,500; that funeral expenses of decedent, which were $4,042.15, were not incurred at the time of the transfer, and were not a debt owing by decedent, and therefore his debts were only $20,305.06, and thus decedent was not insolvent at the time of, the transfer. The difficulty with this argument is that although all the interests in the residence were worth $45,-000 there is nothing to show that decedent’s interest was worth $22,500. We think it is apparent that a purchaser of a joint tenant’s interest would not pay as much, in comparison with what he would pay for the entire interest.
The second argument is that decedent had another asset consisting of a drawing account which should be added to his interest in the residence. The testimony of one of decedent’s sons, Francis A. Wilson, is the only testimony contained in the record. On direct examination he testified : - '
“ * * * At the date of his death he [decedent] owned the residence * * * in joint tenancy with my mother. That was all that he owned. I do not recall other interests of any kind or sort whatever * * *
“ * * * He was not interested in the lumber business at the time of his death except in so far as he acted as a sort of adviser for Wilson Bros, and Company and drew a salary from the Company * * ”
On cross-examination he testified: “ * * * My father acted in an advisory capacity to Wilson Bros. Company and had a drawing account for his services. For 1927 the drawing account was $12,000.00. It had not been fixed in 1928, but he did have a drawing account of $12,000 a year sfs ?fc :f:
If the foregoing evidence is sufficient to show that decedent was entitled to $12,-000 a year, a fact which is by no means clear, there is nothing to show that decedent had not been paid whatever was due him. Appellee, having the burden, as appellants contend, to show insolvency, presented evidence to that effect. The contrary evidence offered by appellants concerning the drawing account, did not specifically show that there was due decedent any sum, and therefore appellee carried its burden.
Finally, appellants contend that the entire value of the residence must be taken into consideration in determining whether or not appellant was insolvent at the time of the transfer. ‘ The argument is based upon the rule that “as against creditors, where the property taken in joint tenancy by husband and wife is community property, the whole of it, not a half, is liable for the husband’s debts”. While it is true that creditors may show that property, taken by husband and wife as joint tenants, was actually community property (Hulse v. Lawson, 212 Cal. 614, 299 P. 525), it is doubtful whether decedent’s wife could do so. Siberell v. Siberell, 214 Cal. 767, 773, 7 P.2d 1003. However, there appears to be no reason why the two sons could not make such a showing, and we consider the contention on the assumption that they could do so.
Did the evidence disclose that the property was community property? There was introduced in evidence an answer of the wife and one son, to a petition of an official of the State of California, filed in a state court seeking determination of the inheritance tax. due in connection with decedent’s estate. There was also admitted in evidence a claim for refund filed by appellants, regarding the federal estate tax paid in connection with decedent's estate. In each of these documents there was a •statement that the residence was purchased with community funds. An affidavit executed by one of the sons, and used in connection with the claim for refund contained a similar statement.
At the trial there was one witness only ■ — one of the sons. On direct examination he testified: “At the date of his death he [decedent] owned the residence * * * in joint tenancy with my mother.” On cross-examination he testified: “The real property in Piedmont • which was held in joint tenancy had been purchased with community funds.” The deed conveyed-the residence to decedent and wife “as joint tenants and not as tenants in common”. The habendum clause in the deed contained the identical quotation.
The declarations in the documents mentioned, and on cross-examination, make no attempt to disclose the “mode of acquisition” of the property which was asserted to be “community” property and used to purchase the residence. Such declarations fall within the rule stated in Bias v. Reed, 169 Cal. 33, 42, 145 P. 516, 519, that “the character of the ownership of property, whether separate or community, is to be determined by the proof showing the mode of acquisition, rather than by any declaration of one of the parties that the property was or was not community property.” See, also, Potter v. Smith, 48 Cal.App. 162, 191 P. 1023, 1025; In re Allan’s Estate, Cal.App., 82 P.2d 190, 193.
In these circumstances, the following quotation from Chamberlain v. Chamberlain, 2 Cal.App.2d 684, 687, 38 P.2d 790, 791, is pertinent: “* * * Appellant’s testimony was introduced to rebut the legal effect of the documentary evidence produced by plaintiff. However, the trial court was not obliged to accept the explanation offered by appellant and to decide that it overcame the legal effect of the áeeds and of the agreement for the sale of the property. Respondent’s documentary evidence created a presumption that the legal title to the property was in respondent and appellant as joint tenants in accordance with the plain language of the deeds. Appellant sought to overcome this presumption by the testimony which he himself offered. It remained for the trier of facts to decide whether the proof offered by appellant was sufficient to overthrow the presumption. * * * It is obvious that the principle which is here applicable is the very common principle which requires that a finding of a trial court attacked for lack of evidentiary support must be upheld if the evidence respecting the facts specified in the finding is conflicting. * * * ”
We think the trial court’s finding that decedent and his wife owned the property “as joint tenants with the right of survivor-ship” is not clearly erroneous.
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_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.
SPAUGH et al. v. UNITED STATES.
No. 7650.
Circuit Court of Appeals, Ninth Circuit.
May 20, 1935.
Frank P. Doherty and William R. Gallagher, both of Los Angeles, Cal., for appellant Spaugh.
Ames Peterson, of Los Angeles, Cal., for appellant Curry.
Peirson M. Hall, U. S. Atty., and Ernest R. Utley, Asst. U. S. Atty., both of Los Angeles, Cal.
Before WILBUR and GARRECHT, Circuit Judges.
GARRECHT, Circuit Judge.
Appellant J. V. Spaugh, together with appellant Harry M. Curry and eleven others, was indicted on a charge of conspiracy to make, forge, and counterfeit certain orders and writings, to wit, United States Liberty Loan bonds. This indictment, for convenience, will be hereafter referred to as the “conspiracy indictment.” Six other indictments were returned against several groups of defendants named in the conspiracy indictment. The indictments contained various counts charging different groups of defendants therein named with the substantive offenses of forging Liberty bonds and uttering the same, but in none of which was appellant Spaugh named as defendant. The conspiracy indictment was consolidated for- trial with the six other indictments in which appellant Spaugh was not mentioned.
This action of the court was objected to by appellant Spaugh and exception saved and the ruling made assigned as error. As appellant Curry is not concerned with this contention, and as the judgment of conviction must be reversed on other grounds, and because we have before us none of the evidence adduced at the trial, we refrain from expressing any opinion on this assignment of error.
After the jury had been deliberating for forty-six hours, the court recalled the jury. Thereupon the following took place:
“The Court: The Court desires to address itself to the jury, through the Foreman, and will ask the Foreman to be careful not to report the nature of any verdict, if any, which thus far may have been agreed upon, but rather to confine the answers to the specific matters mentioned in the questions.
“There are a number of cases in which the jury is considering the rendition of separate verdicts and, in addition, in all but one of the cases there are several counts or separate and distinct charges involved.
“We will ask the foreman to indicate whether the jury has finished balloting.
“Foreman Person: Not in all cases.
“The Court: Then, we will ask counsel whether there is any objection to inquiring as to which cases balloting is still being taken on.
“Mr. Doherty: I have no objection, your Honor, of inquiring of the jury as to which cases they are still considering and upon which they have not as yet reached a verdict.
“Mr. Ray: No objection on the part of defendant Clough, your Honor.”
After the court had ascertained as to which indictments the jury had finished balloting and those in which the jury had not agreed, the court proceeded to instruct the jury as follows:
“The Court: In view of the fact that the trial of this case has occupied approximately three weeks, and also inasmuch as the instructions given by the Court to the jury have occupied approximately two hours or more in delivering the same, and having in mind also the fact that the jury was in court Saturday night, in the presence of the defendants and counsel, and propounded a number of questions, which at that time I answered, and likewise some additions made to the instructions, we decided to ascertain whether the Court can be of any assistance to the jurors by way of any further instructions such as explaining some particular point of law, the meaning of any particular question of law, the application of any of the evidence to any particular question of law? And in the same connection the court will give the jury this further instruction:
“The only mode, provided by our constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other, in all cases. In the present case, the burden of proof is upon the United States to establish every part of it, beyond a reasonable doubt; and if, in any part of it, you are left a reasonable doubt, the defendant is entitled to the benefit of such doubt. And, in conferring together, you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments. And, on the one hand, if a majority are for acquittal, the minority ought seriously to ask themselves, whether they may not reasonably, and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated; and possibly distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows. And, on the other hand, if much the larger number of your panel are for a conviction, a dissenting juror should likewise consider whether a doubt in his own mind is a reasonable one, which malees no impression upon the minds of so many men, equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.”
Defendants J. V. Spaugh and Harry M. Curry duly excepted to the following portion of the foregoing instruction: “And, on the other hand, if much the larger number of your panel are for a conviction, a dissenting juror should likewise consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.”
Thereafter, and while the jury were still deliberating as to the guilt or innocence of the defendants Harry M. Curry and J. V. Spaugh and before the jury had reached a verdict as to said defendants, the court made .the following inquiry of the jury :
“Without indicating just how many ballots have been for one way and how many ballots the opposite way, that is to say, without indicating just how many stand in any particular way, either for acquittal or otherwise, but merely giving the numbers voting one way as against the other way; for example, if in one case stands 6 to 6, without indicating anything further, or if another case the vote stand's 8 to 4, without indicating how many stand for acquittal and how many for conviction, may we ask you to indicate first of all, how many ballots have been taken in 11,752, which is the so-called conspiracy charge.
“Foreman Person: Your Honor, the different number of ballots have been taken separately against the different defendants.
“The Court: Well, then, coming now to the last balloting, will you indicate the numerical division, without indicating how many voted for acquittal and how many .voted otherwise.”
The defendants J. V. Spaugh and Harry M. Curry thereupon obj ected to' the said inquiry of the court, in which the court asked the jury to indicate the numeri■cal division of the jury and how the jury was divided on the balloting. Said objection was overruled, and defendants J.-V. Spaugh and Harry M. Curry thereupon duly excepted to said ruling.
The court then made further inquiry of the jury as follows: “The Court: Now, turning to case No. 11,752, may we inquire as to any balloting that still remains to be done, without indicating as to which defendant, but as to any balloting that still remains to be done — the numerical division with respect to such ballot.”
The defendants J. V. Spaugh'and Harry M. Curry thereupon objected to the said inquiry of the court, in which #the court asked the jury to indicate the numerical division of the jury and how'the jury was divided on the balloting. Said objection was overruled, and defendants J. V. Spaugh and Harry M. Curry thereupon duly excepted to said ruling.
“Foreman Person: In the case of one defendant, the ballot is ten to two; in the case of another defendant it is eleven to one.
“The Court: Coming now to case No. 11,757, will you tell us the numerical division as to count 1 ?
“Foreman Person: Eleven to one.
“The Court: Count 2?
“Foreman Person: Eleven to one.
“The Court: Count 3?
“Foreman Person: Eleven to one.
“The Court: Count 4?
“Foreman Person: Eleven to one.
“The Court: Count 5?
“Foreman Person: Eleven to one.
“The Court: That is all to which balloting is still in progress.”
The defendants J. V. Spaugh and Harry M. Curry then and there objected to each and every inquiry made by the court as to how the jury wfere divided, which said objection was overruled, and to which ruling the defendants J. V. Spaugh and Harry M. Curry then and there duly excepted.
The verdicts are all dated, and the dates clearly disclosed that at the time the court made the inquiry of the jury as to the numerical division verdicts had not been arrived at as to these appellants. The action of the court was error. In Brasfield et al. v. U. S., 272 U. S. 448, 47 S. Ct. 135, 71 L. Ed. 345, and Burton v. U. S., 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482, which were followed by this court in Jordan v. U. S., 22 F.(2d) 966, 967, and Peterson v. U. S., 213 F. 920, the holding was that such inquiry itself should be regarded as ground for reversal.
Judge Rudkin, in the opinion in Jordan v. U. S., supra, quoting from Brasfield v. U. S., supra, said: “ * * * Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly he known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful, and is generally harmful, is not to be sanctioned.”
The judgment against appellant Curry in cause No. 11,757-H and the judgment against both appellants in cause No. 11,-752-H are reversed and cases remanded for new trial.
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_appfiduc | 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 "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.
NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant and Appellee, v. D. D. HARRINGTON et al., Appellees and Appellants. D. D. HARRINGTON et al., Appellees and Appellants, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant and Appellee.
No. 16206.
United States Court of Appeals Fifth Circuit.
July 9, 1957.
Clarence H. Ross, Chicago, 111., D. H. Culton, Amarillo, Tex., Warren T. Spies, Chicago, 111., Ross & O’Keefe, Chicago, 111., Culton, Morgan, Britain & White, Amarillo, Tex., of counsel, for appellants.
David T. Searls, Gene M. Woodfin, Houston, Tex., Hugh L. Umphres, Jr., Amarillo, Tex., J. Evans Attwell, Vinson, Elkins, Weems & Searls, Houston, Tex., Umphres & Umphres, Amarillo, Tex., Vinson, Elkins, Weems & Searls, Houston, Tex., Umphres & Umphres, Amarillo, Tex., of counsel, for appellee.
Before BORAH, RIVES and BROWN, Circuit Judges.
RIVES, Circuit Judge.
Restitution was sought by Natural from Harrington for the difference between the contract rate for the purchase of natural gas and the price paid in compliance with an order of the Oklahoma Corporation Commission which was later declared invalid by the United States Supreme Court. The district court found Natural entitled to restitution in the sum of $1,302,491.23. It deducted from the restitution claimed $321,279, being $237,000 paid by Panoma as increased royalties and $84,279 paid as increased gross production taxes, and allowed no interest prior to the date of the judgment. Both Harrington and Natural appeal.
Harrington insists that Natural is not entitled to any restitution; Natural contends that the court erred as to each of the several sums deducted, and in denying it full restitution plus interest. Since the district court rendered summary judgment, we must, in examining each of the questions, determine whether there was any genuine issue as to any material fact and whether the judgment was right as a matter of law.
Judge Estes’ excellent opinion, reported in 139 F.Supp. at 452, et seq., relieves us of the necessity for making more than a brief statement of the facts. Under the contract effective December 1, 1946, and to endure so long as gas is produced in paying quantities, Harrington had agreed to sell to Natural the gas produced from Harrington’s wells located in some 78,000 acres of gas reserves in the Guymon-Hugoton Field in Texas County, Oklahoma, at 7 cents per M. c. f. measured at 16.4 pounds per square inch, equivalent to 6.253 cents when measured at 14.65 pounds pressure and 60 degrees Fahrenheit. On December 9, 1946, a few days after the effective date of the contract, the Oklahoma Corporation Commission entered its first order fixing a minimum price of seven cents for all gas measured at 14.65 pounds and 60 degrees Fahrenheit removed from the Guymon-Hugoton Field. Natural refused to comply with this order, and, on May 17, 1951, the Oklahoma Commission directed Natural to pay the difference between the contract price and the seven cents minimum price. Natural posted bond and superseded the order. No payments were ever made under that first order.
On July 29, 1952, the Oklahoma Commission issued its second order increasing the minimum price to 9.8262 cents. The effective date of this order was delayed until September 10, 1952. On September 9, 1952, Natural notified Panoma, Harrington’s predecessor, that it would appeal from the order and would not supersede, but (repeated with each payment) that it would pay the 9.8262 cents under protest, and would, upon success in the appeal, seek restitution for the amounts paid in excess of the contract price with lawful interest thereon.
Without considering the Natural Gas Act enacted by Congress in 1938, 52 Stat. 833, 15 U.S.C. § 717v, the Supreme Court had in 1950 upheld the validity as against certain constitutional objections of the first Oklahoma minimum price order. Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71 S.Ct. 215, 95 L.Ed. 190. Following the landmark case of Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, the second order was declared invalid on April 11, 1955, because “such a sale and transportation cannot be regulated by a State but are subject to the exclusive regulation of the Federal Power Commission.” Natural Gas Pipeline Co. v. Panoma Corporation, et al., 349 U.S. 44, 75 S.Ct. 576, 99 L.Ed. 866.
Meanwhile, on July 1, 1954, pursuant to a plan for liquidation, Panoma transferred all its assets to its stockholders, Harrington, et al., the defendants below. The consent of Natural to certain assignments of the contract incident to such transfer was required, and, in consideration of Natural’s consent, Harrington, et al., executed a letter containing the following obligation:
“That we hereby jointly and severally agree on behalf of ourselves, our executors, administrators and assigns to pay you or cause to be paid you any sums of money with lawful interest thereon which you are entitled to have refunded or returned with respect to the payments to Panoma Corporation in excess of the contract price made under protest referred to in said letter of September 9, 1952. We do also jointly and severally, for ourselves, our heirs, executors, administrators and assigns agree to ami do hereby acknowledge and assume: any obligations imposed upon Panoma Corporation by virtue of the letter you addressed to it under date of September 9, 1952.”
Harrington, et al., resold the major portion of the assets to third persons, and received therefor $40,000,000 in cash plus other valuable considerations. The restitution here sought is for claimed overpayments for gas delivered between September 10, 1952, the effective date of the second Oklahoma minimum price order, and July 1, 1954, the date of sale of Harrington’s assets.
Harrington’s principal defense is based upon the equitable nature of the remedy of restitution so clearly expressed by Mr. Justice Cardozo in Atlantic Coast Line R. Co. v. State of Florida, 295 U.S. 301, 309, 310, 55 S.Ct. 713, 79 L.Ed. 1451. In that case, an order of the Interstate Commerce Commission requiring an increase of intrastate rates because discriminatory against intrastate commerce had been set aside “solely upon the ground that the facts supporting the conclusion were not embodied in the findings” (295 U.S. 311, 55 S.Ct 717). The Commission thereafter “looked into the past and ascertained the facts. In particular, it looked into the very years covered by the claims for restitution and found the inequality and injustice inherent in the Cummer rates during the years they were in suspense and during those they were in force.” 295 U.S. 312, 55 S.Ct. 718.
“By the time that the claim for restitution had been heard by the master and passed upon by the reviewing court, the Commission had cured the defects in the form of its earlier decision. During the years affected by the claim there existed in very truth the unjust discrimination against interstate commerce that the earlier decision had attempted to correct. If the processes
of the law had been instantaneous or adequate, the attempt at correction would not have missed the mark. It was foiled through imperfections of form, through slips of procedure * * * as the sequel of events has shown them to be.” 295 U.S. at pages 311, 312, 55 S.Ct. at page 717.
The Supreme Court directed that the claims for restitution be dismissed, holding that the federal court “discovers through the evidence submitted to the Commission and renewed in the present record that what was charged would have been lawful as well as fair if there had been no blunders of procedure, no administrative delays.” 295 U.S. at page 315, 55 S.Ct. at page 719. See also United States v. Morgan, 307 U.S. 183, 196, 59 S.Ct. 795, 83 L.Ed. 1211.
Harrington calls attention that in the instant case the order of the Oklahoma Commission was not invalidated on its merits, or because the rate of 9.8262 cents was unjust or unreasonable, but simply because exclusive jurisdiction was vested in the Federal Power Commission, and that that Commission, by its order of November 14, 1955, accepted as the present effective rate of Harrington’s successor in interest, the same 9.8262 cents.
It should further be noted, however, that the invalidity of the order of the Oklahoma Commission was not caused by any defect or imperfection of form or slip of procedure but resulted from a total lack of jurisdiction. Further, the Federal Power Commission by its order of November 14, 1955, spoke for the future only, and did not possess the power enjoyed by the Interstate Commerce Commission in the Atlantic Coast Line case, supra, of looking into the past and ascertaining the facts. Nor does any court possess such power for the purpose of fixing retroactively a just, reasonable, and lawful rate. Here the parties themselves had fixed the rate to be charged by their solemn and binding contract, and that contract rate could be changed only by the Federal Power Commission after a hearing conducted in accordance with Section 5(a) of the Natural Gas Act, 15 U.S.C.A. § 717d(a). United Gas Pipe Line Co. v. Mobile Gas Corporation, 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373. Moreover, in the Atlantic Coast lane case, supra, the railroad carrier -was entitled to the protection of the order of the Interstate Commerce Commission against being required to accept the unreasonably low intrastate rates, while here the primary aim of the Natural Gas Act was “protection of consumers against exploitation at the hands of natural-gas companies.” Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 685, 74 S.Ct. 794, 800 (concurring opinion of Mr. Justice Frankfurter). Even the Federal Power Commission, which had exclusive jurisdiction, could increase the contract rate only because of considerations of the public interest and not on account of any claimed right of Harrington to relief from an improvident bargain. Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348, 355, 76 S.Ct. 368, 100 L.Ed. 388.
True, in United Gas Pipe Line Co. v. Mobile Gas Corporation, supra, the contract was filed with the Federal Power Commission, and here it was not so filed. Section 4(c) of the Natural Gas Act, 15 U.S.C.A. § 717c(c), provides that:
“Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time (not less than sixty days from the date this act takes effect) and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.”
Until the decision in Phillips Petroleum Co. v. State of Wisconsin, 1954, 347 U.S. 672, 74 S.Ct. 794, the parties, and indeed the Commission itself, had proceeded upon the assumption that the Commission had no regulatory jurisdiction over the rates of independent producers. After that decision, the Commission, by its Orders 174 and 174A, entered July 16,1954 and August 6,1954, respectively fixed the time within which such producers could file their rates. Since the Phillips decision, it has become clear to all of the parties that the contract should have been filed with the Commission. The failure to file it earlier, however, did not prevent the jurisdiction of the Commission from attaching. Interstate Natural Gas Co. v. Southern California Gas Co., 9 Cir., 209 F.2d 380, 384. There is nothing in the Natural Gas Act or in the orders of the Federal Power Commission to indicate that, under such circumstances, until the rates were filed there was no effective or lawful rate. To the contrary, the Act expressly provided for delay in such filing, and under the rationale of United Gas Pipe Line Co. v. Mobile Gas Corporation, supra, the contract rate, even though unfiled, became and remained the only lawful rate until changed by order of the Federal Power Commission. Any price in excess of the contract rate was then contrary to the spirit, if not the letter, of the Natural Gas Act.
Harrington insists, however, that the excess payments were voluntarily made by Natural, or at least that there was a genuine issue of fact as to whether they were involuntarily made under coercion of “business duress.” Natural, of course, concedes that restitution will not lie if the excess payments were voluntarily made. Further, duress or coercion must exist, and the written protest does not, by itself, make the payments involuntary. Union Pacific R. Co. v. Dodge County Commissioners, 98 U.S. 541, 544, 25 L.Ed. 196; Bank of United States v. Bank of Washington, 1832, 6 Pet. 8, 12, 8 L.Ed. 299.
The order of the Oklahoma Commission directed,
“That no gas shall be produced from' any well located in the Guymon-Hugoton Field of Oklahoma except at a price of not less than 9.8262c per thousand cubic feet if sold at the wellhead or on the lease or drilling unit from which produced, or a price equivalent to not less than 9.8262c per thousand cubic feet at the wellhead if sold off the lease or drilling unit or otherwise utilized.”
Assuming validity of the order, its violation carried criminal sanctions under an Oklahoma Statute (O.S., Title 52, See. 278) providing for a fine of not to exceed $5,000 or imprisonment in the county jail for not more than thirty days, or both such fine and imprisonment on those who violate its conservation laws. Mr. T. Murray Robinson, counsel for Panoma, Harrington’s predecessor, filed an affidavit in which he conceded:
“That after said order was entered, Mr. Coleman Hayes, who represented Natural Gas Pipeline Company of America in said proceedings, visited with me by telephone concerning the effect of said order on the relationship of Panoma and Natural. In the course of that conversation I told Mr. Hayes that in my opinion as a lawyer the order of the Commission would become binding unless superseded and that Panoma, like all others, would be compelled to abide thereby, and that in my opinion the order directed producers who were not receiving the minimum price to ceas.e deliveries.”
Scant respect would be accorded to the laws of the State of Oklahoma, if it were held that Natural had to go further and speculate on whether Panoma actually would have ceased delivering gas if Natural had refused to pay the increased price.
Natural candidly admits that it was motivated not to supersede the order by its desire to seek from the Federal Power Commission increases reflecting the prices paid under the order, and thus to pass on the increase rather than itself bearing the entire risk. We do not agree with Harrington that such motive converted Natural’s payment of the increased rate into a “calculated business maneuver.” If anything, the choice between bearing the entire risk of loss and trying to pass it on increased the business duress on Natural to make payments in accordance with the order. See Union Pacific R. Co. v. Public Service Commission, 248 U.S. 67, 70, 39 S.Ct. 24, 63 L.Ed. 131.
Further, Harrington urges that the duress was not imposed by it but was exerted by the Oklahoma Commission. We need not stop to consider whether duress of a third person will suffice (see Restatement of Restitution, Sec. 70b) for, under the circumstances, the Oklahoma Commission was a representative of Harrington and other producers similarly situated. Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co., 249 U.S. 134, 146, 39 S.Ct. 237, 63 L.Ed. 517; see, also, United Gas Pipe Line Co. v. Mobile Gas Corporation, 350 U.S. 332, 347, 76 S.Ct. 373, 100 L.Ed. 373.
Harrington urges that an accord and satisfaction was effected by Panoma’s acceptance of Natural’s checks containing notations similar to that copied in the margin. It is elementary, however, that an accord and satisfaction can result only from an agreement, and, clearly, Natural made no offer of any agreement that would preclude it from seeking restitution when each of its checks was accompanied by a letter specifically renewing its protest as follows:
“Such payment is, as to any part thereof in excess of that payable under the price provisions of said contract, made involuntarily and under protest with full reservation of all rights to seek restitution thereof as is more particularly set forth in our letter to Panoma Corporation dated September 9, 1952, a copy of which is attached hereto for your information.”
We are in full agreement with the conclusion reached by the learned district judge that Natural is entitled to restitution.
The district court, however, denied Natural’s claim for restitution in the sum of $321,279 representing payments made by Panoma, Harrington’s predecessor, for increased royalties and increased production taxes. We have held that Panoma had no right to the increased price. It took the same with notice that the rights of all who were to share in such increase were disputed by Natural. It could not voluntarily pay its royalty owners and its taxes on the basis of the increased price at Natural’s expense, when the validity of the increase was in dispute Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 24, 40 S.Ct. 419, 64 L.Ed. 751.
We think that the state law provided adequate means by which Panoma could have withheld the increased payments from its royalty owners until the termination of the litigation, or could have paid under protest with a right of recovery, or could reserve the right to itself or its successors to take credit for any overpayment against future royalties. Panoma received the increase in price for the use and benefit of Natural, but it made no effort to protect Natural’s interest.
Like considerations are applicable to the payments of taxes on the basis of the increased price. Additionally, it may be noted that Title 68, Section 1475 of the Oklahoma Statutes, 1951, provides for the payment of taxes under protest and their subsequent recovery. Indeed, the Fourteenth Amendment itself would prevent the state from collecting unlawful taxes by coercive means without incurring any obligation to pay them back. Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 24, 40 S.Ct. 419. We hold, therefore, that the district court erred in denying Natural’s claim for restitution to the extent of $321,279.00.
We agree with the district court that the clear intent of the letter of the stockholders, Harrington, et al., incident to Panoma’s liquidation (see page 4, ante) was to assume the same liability that rested upon Panoma. We think, however, that its use of the expression “with lawful interest” referred to interest from and after the time when Natural might become entitled to restitution from such stockholders in lieu of Panoma. Ordinarily, a person liable to make restitution is under a duty to pay interest from the time he commits a breach of duty in failing to make restitution. Restatement of Restitution, Sec. 156(b). The duty to make restitution arose on April 11, 1955, when the Oklahoma order was declared invalid by the Supreme Court of the United States. Previous to that date, Panoma’s acceptance of the increased price had been due, not to its fault or volition, but simply to the requirement that it comply with the order of the Oklahoma Commission, and for such period previous to April 11, 1955, we think that interest should not be allowed. See The Claim of Jacobs v. Adams, 1781, 1 Dall. 52, 1 L.Ed. 53.
The district court denied the recovery of any interest without seeking to take advantage of its discretionary power to refuse interest (Okeechobee County, Florida v. Nuveen, 5 Cir., 145 F.2d 684, 687), but fully and fairly stating the reasons for such denial. Each of those reasons was known- to the parties on July 1, 1954, when Harrington, et al. agreed to pay Natural “any sums of money with lawful interest thereon which you are entitled to have refunded or returned with respect to the payments to Panoma Corporation in excess of the contract price made under protest referred to in said letter of September 9, 1952.” Further, with deference, we disagree with the reasons assigned by the learned district judge. In our opinion, no duty rested on Natural to supersede the order, Natural’s suggestion of an escrow arrangement should not prejudice its right to interest, and though, it had received increased rates from its customers, such increase was granted subject to the provision recited in the order of the Federal Power Commission, that if Natural be successful in thé litigation, “ * * * it will refund to its utility customers, on a basis to be approved by the Commission, the sum or sums so recovered.”
Finally, we find that there was no genuine issue as to any material fact and that Natural was entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A. While the judgment might be affirmed in the part complained of in Harrington’s appeal and reversed in the part complained of in Natural’s appeal, it is simpler, we think, to vacate the entire judgment and remand the cause with directions to enter judgment in accordance with this opinion in favor of the plaintiff against the defendants for the sum of $1,623,770.23, together with interest at 6 per cent per annum from April 11, 1955 on such sum or any portions thereof remaining unpaid down to the date of payment, and with costs, and it is so ordered. The costs of this appeal are taxed against D. D. Harrington, et al.
Vacated and remanded.
. To avoid confusion, particularly from the cross-appeals, D. D. Harrington, ot al, and their predecessors in interest, I’anoma Corporation, will be collectively referred to as “Harrington”, and Natural Pipeline Company of America as “Natural”.
. F,or the basic reason of that rule, see 40 Am.Jur., Payment, Sec. 158.
. “Acceptance of this check constitutes full payment of and settlement for the account described on the statement attached * * *
“Payment of gas purchased on original and supplemental contracts from June 23, 1954 to 10:00 A.M. July 1, 1954.”
. “As to the matter of interest, I have concluded that it is just and equitable, under the circumstances of this case, to deny plaintiff’s claim for interest. In so concluding, I have taken into account all the facts and circumstances before me, including the fact that Natural could have superseded the operation of the order as to this gas, and kept the use of the money, by filing a mere undertaking without surety or penal amount (as did Northern Natural Gas Company); that it was willing to waive interest if Panoma would agree to the escrowing of the excess payments; and that for most of the period in question it has been able to recoup the excess payments by increased rates to its customers, so that it has not in fact been deprived of the use of the money.” [139 F.Supp. 463.]
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer: |
songer_genresp2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Haldane M. PLUNKETT, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 71-1084.
United States Court of Appeals, Seventh Circuit.
July 10, 1972.
Argued Dec. 3, 1971.
Decided July 10, 1972.
Raymond J. Smith, Chicago, Ill., for petitioner-appellant; Arthur N. Nasser, Chicago, Ill., of counsel.
Fred B. Ugast, Acting Asst. Atty. Gen., Bruce I. Kogan, Gilbert E. Andrews, Elmer J. Kelsey, Attys., Tax Division, Dept, of Justice, Washington, D. C., for respondent-appellee.
Before KERNER, PELL, and SPRECHER, Circuit Judges.
Judge Kerner heard oral argument but did not participate in the adoption of this opinion.
PELL, Circuit Judge.
In 1968, taxpayer Haldane M. Plunkett filed two petitions in the Tax Court challenging the Commissioner’s determinations regarding deficiencies in income tax, additions to tax, and alleged over-payments. The two petitions, one involving the years 1957 through 1959 and the other 1960 through 1963, were consolidated for trial and decision. On October 2, 1970, the Tax Court entered its decisions sustaining a deficiency of $9,-504.96 for the taxable year 1957 and additions to tax under 26 U.S.C. § 6653(b) of $35,141.10 for the years 1957 through 1963. After the Tax Court denied his petition for reconsideration, Plunkett appealed to this court.
During the years in question, the taxpayer ran a food catering business with the assistance of Mrs. Plunkett. Both Plunkett, who has had little formal education, and his wife are allegedly untutored in the intricacies of bookkeeping and accounting. The taxpayer did not maintain any formal records for his business nor did he retain a bookkeeper or accountant to do so for him. He did, however, keep a customer order book which reflected each catering event and, in most instances, the amount charged therefor. He also separated paid bills from unpaid bills and retained them in different drawers.
Plunkett timely filed original individual income tax returns for the years 1957 through 1959 and original joint returns for the years 1960 through 1963. The original returns for 1957, 1958 and 1959 were prepared by others on the basis of information supplied by Plunkett. To compute the net income shown on those returns, the taxpayer had estimated his total expenses and deducted that amount from his estimated gross receipts or else he had deducted the total estimated expenses from the amount that he had deposited in his bank account.
During this period, Plunkett engaged in transactions in the stock market and in the commodity futures market. He subscribed to a security advisory service and maintained a margin account with a brokerage house, which periodically sent him information concerning his account and periodically credited cash dividends to the account.
Although Plunkett knew that dividends were taxable income, he failed to report such income for the taxable years 1957, 1958 and 1959. In his testimony in the Tax Court, he attributed this omission to his claimed belief at the time that dividends credited to an account need be reported only if they are withdrawn from the account. Plunkett did not withdraw any dividends during 1957, 1958 or 1959.
In about December 1963, the taxpayer became concerned with the manner in which he was handling his tax matters, and in early 1964, he consulted an aider-man who helped him find an attorney to advise him. Shortly after Plunkett began working with the attorney, a revenue officer conferred with Plunkett, his wife, and one of his employees about the employee’s tax affairs. At this time, late June 1964, the IRS had not assigned an agent to examine Plunkett’s income tax returns.
On the advice of his attorney, Plunkett decided to file amended returns for the years 1958 through 1963. (Counsel recommended that no amended return be prepared for 1957.) With the help of a CPA, Plunkett completed this task by the end of July. The returns were based on information that had been available to the taxpayer when he had filed originally. On August 6, 1964, Plunkett filed the amended returns and paid the additional taxes shown on them, plus interest. The Commissioner generally accepted the new returns as reflecting accurately Plunkett’s income, expenses and deductions for 1958 through 1963.
Subsequent to August 11, 1964, IRS agents conducted a criminal investigation of Plunkett’s original and amended returns. On the basis that the amended returns “spoke for themselves,” Plunkett and his represenatives declined any cooperation during the course of the criminal investigation. In December 1966, a four-count indictment was returned against Plunkett and his wife for violating 26 U.S.C. § 7201 with respect to their joint income tax returns for the years 1960 through 1963. The defendants entered pleas of not guilty. Plunkett later changed his pleas to nolo contendere upon his counsel’s understanding that the Government would then move to dismiss the indictment as to Mrs. Plunkett. However, the Government objected to the tendered pleas and stated that it would not move to dismiss. Plunkett, by his attorney, thereupon withdrew his tender of the nolo contendere pleas and pleaded guilty. Following a colloquy between Plunkett and the district court, the court entered the guilty pleas and granted the Government’s motion to dismiss Mrs. Plunkett.
Plunkett was sentenced to three years’ probation on each count of the indictment, the sentences to run concurrently on the condition that he serve 90 days of the probation in a “jail type” institution. He was also fined $20,000. Before the commencement of the jail term, Plunkett, then aged 73, suffered a stroke, and the court vacated the imposition of the 90 days’ imprisonment. Plunkett has never appealed from the conviction or sentence in the criminal case.
In the civil suit in the Tax Court below, the Commissioner introduced evidence as to the years 1957, 1958 and 1959 to meet his burden of proving fraud on the part of the taxpayer. However, to sustain the fraud penalties for the years 1960 through 1963 he relied entirely on the original and amended returns and the doctrine of collateral estoppel, based on Plunkett’s criminal conviction.
Plunkett’s first contention is that the Tax Court erred in finding that a part of his underpayments of income tax for the years 1957, 1958 and 1959 was due to fraud with intent to evade tax within the meaning of 26 U.S.C. § 6653(b) so as to render the petitioner liable for the “fraud penalty” addition to tax. More particularly, Plunkett argues that the court improperly ignored his defense of voluntary disclosure and that the Commissioner failed to satisfy the “clear and convincing evidence” standard.
Contrary to the Commissioner’s assertion, we think that the record supports Plunkett’s claim that his disclosure of the inaccuracies in his original returns was voluntary. He had filed amended returns for the years 1958 through 1963 before the criminal investigation of his tax affairs was initiated. The conferences between the Plunketts and Internal Revenue Service agents pri- or to the time the amended returns were filed concerned the tax returns of one of Plunkett’s employees; that is,, the petitioner was involved only as the employer of a person being investigated.
We cannot therefore conclude, however, that the United States Attorney was foreclosed from prosecuting Plunkett or that the Commissioner of Internal Revenue was precluded from pursuing civil remedies, including the imposition of fraud penalties, against a taxpayer whom he believed evidence showed to have filed false and fraudulent original returns. The IRS may have an informal policy of sometimes not seeking full sanctions against an errant taxpayer who voluntarily and prior to the initiation of an IRS investigation files amended returns and pays the additional taxes due, but it is not required to follow that policy of leniency. Cf. United States v. Shotwell Mfg. Co., 225 F.2d 394, 397-398 (7th Cir. 1955), cert. denied on the cross petition, 352 U.S. 998, 77 S.Ct. 552, 1 L.Ed.2d 544, and the decision vacated on other grounds, 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957).
Although we find that such admissions create no legal bar, we appreciate the irony that — as Plunkett points out — a taxpayer may thereby become the unintended victim of his own defensive maneuvers. An objective observer might well come to the conclusion that the combination of criminal and civil penalties visited upon Plunkett was unduly harsh under the circumstances here involved. Nevertheless, it is apparent that one of the calculated risks of tax evasion, as well as of the violation of any criminal law, is that the full measure of the law’s retribution may be asserted by way of demonstrating its irrefragability.
We turn then to the second prong of the petitioner’s challenge.
It is well established that whether an underpayment of income is due to fraud is a question of fact. “[Although . . . this is a fact which the Commissioner is required to prove by clear and convincing evidence, it, like other findings of fact, will not be upset unless clearly erroneous. . . . ” Archer v. Commissioner of Internal Revenue, 227 F.2d 270, 274 (5th Cir. 1955). See also Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). To meet his burden of proof, the Commissioner need not prove the precise amount of the underpayment resulting from fraud, but only that “any part” of the underpayment is attributable to fraud. See Estate of W. Y. Brame v. Commissioner of Internal Revenue, 25 T.C. 824 (1956), aff’d per curiam, 256 F.2d 343 (5th Cir. 1958). We are also mindful that fraud may be established by circumstantial evidence and that the taxpayer’s background and the context of the events in question may be considered, e. g., Gano v. Commissioner, 19 B.T.A. 518, 532 (1930).
Applying these principles to the present case, we hold that the Tax Court’s finding was not clearly erroneous. The court had a sufficient basis for sustaining the Commissioner’s determination that Plunkett filed false and fraudulent income tax returns for 1957, 1958 and 1959 within the purview of section 6653(b).
The factors that the court cited adequately support its finding that Plunkett “was more than grossly negligent. . . .”29 C.C.H. Tax Ct.Mem. at 1246. Among the factors considered were: Plunkett’s being a person of at least average intelligence and average business understanding; his success as a businessman; his long experience in investing in the stock market; his failure to maintain proper books and records of his business receipts; his further failure to utilize fully what information he did have at the time the original returns were prepared so as to facilitate the accurate reconstruction of his taxable income ; and his consistent and substantial understatement of income on his original tax returns.
Plunkett calls to our attention the fact, which the Commissioner does not contest, that his estimates of his business expenses on the original returns were much lower than his actual expenses. He argues that this belies his supposed fraudulent intent.
We agree that this circumstance is not without significance. However, because Plunkett understated his receipts by $35,649.76 more than he understated his expenses — resulting in a concealed net profit — we cannot fault the Tax Court for finding that that element of the misreporting was insufficient to counteract the combined force of all the other factors listed above.
Our resolution of the first issue raised by Plunkett controls our disposition of the second issue: whether the Tax Court erred in finding that the statute of limitations did not bar the assessment and collection of a deficiency in income tax for 1957, where no assessment for 1957 had been made within three years from the filing of the return for that year.
It is true that, as a general rule, the amount of any deficiency in income tax must be assessed within three years after the return was filed. 26 U.S.C. § 6501. But in the case of a false or fraudulent return with the intent to evade tax, the tax deficiency may be assessed at any time. 26 U.S.C. § 6501(c) (1). The Tax Court was therefore correct in holding that the statute of limitations had not run against the Commissioner.
The taxpayer next urges that he was entitled to receive credit for or a refund of overpayments of tax he made for 1958 and 1959 resulting from carrying forward to those years a capital loss incurred in 1957. This carry-forward loss was not reflected in the original or the amended returns filed by Plunkett for 1958 and 1959. The Commissioner contends that, because the taxpayer did not timely file a claim for refund, the statute of limitations bars him from receiving any credit or refund of the overpayments of tax. In rebuttal, Plunkett asserts that he should not be barred from recovering by any statutory limitations period because the Commissioner, having proven fraud for the years 1958 and 1959, is not restricted by any time limitation in the assessment of deficiencies and penalties for those years. “[T]he years should be open for all purposes including refunds.”
The Tax Court did not pass on Plunk-ett’s claim for a refund because it erroneously believed that the Commissioner had given the petitioner full credit for the overassessments in his recomputation of taxes and penalties for the years in question. Rather than remanding the case to the Tax Court, we have decided to settle the dispute since it involves a matter of law only.
Although Plunkett’s proposition that “the government should not have any greater advantage than the [taxpayer]” sounds appealingly evenhanded, unfortunately it has no support in the cases or in the existing statutes. Claims for credit or refund of an overpayment of tax are required to be filed within three years from the time the return respecting the overpaid tax was filed or within two years from the time the tax was paid, whichever expires the later. 26 U.S.C. § 6511(a). Generally, after the expiration of those time periods, the taxpayer is barred from receiving credit or refund unless he had timely filed his claim. 26 U.S.C. § 6511(b) (1). Plunkett cannot meet these requirements. He also cannot satisfy the conditions set out in 26 U.S.C. § 6511(c) and 26 U.S.C. § 6512.
Finally, Plunkettt argues that the Tax Court erred in determining that his conviction in 1967 for income tax evasion for the years 1960 through 1963 collaterally estopped him in the subsequent civil proceedings from denying that the returns for those years were fraudulent. The Commissioner introduced no affirmative evidence of fraud in the Tax Court but relied on the returns and Plunkett’s plea of guilty and his criminal conviction to sustain the imposition of the 50 percent “fraud penalty,” 26 U.S.C. § 6653(b).
Most courts faced with the question have held that a prior conviction for tax evasion after a trial on the merits operates as a collateral estoppel on the issue of civil fraud in a fraud penalty proceeding. The criminal conviction necessarily carries with it the ultimate factual determination that the underpayments of tax were “due to fraud” within the meaning of section 6653(b). E. g., Moore v. United States, 360 F.2d 353 (4th Cir. 1965), cert. denied, 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967); Armstrong v. United States, 354 F.2d 274, 173 Ct.Cl. 944 (1965); Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Amos v. Commissioner of Internal Revenue, 43 T.C. 50 (1964), aff’d, 360 F.2d 358 (4th Cir. 1965). Two recent decisions of the Tax Court reiterate this principle, C.B.C. Super Markets, Inc. v. Commissioner of Internal Revenue, 54 T.C. 882 (1970), and Rodney v. Commissioner of Internal Revenue, 53 T.C. 287 (1969).
Plunkett does not contest the validity of this rule, but he does maintain that it is inapplicable under the special circumstances of his guilty plea.
We note that there is strong authority holding that a guilty plea is an admission of all the elements of a formal criminal charge. McCarthy v. United States, 394 U. S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927).
In Arctic Ice Cream Co. v. Commissioner of Internal Revenue, 43 T.C. 68 (1964), a corporate taxpayer was held to be collaterally estopped from denying fraud in a civil proceeding by its previous conviction for tax evasion based upon a guilty plea. In upholding the imposition of a civil fraud penalty, the court declared :
“It is not material that Arctic’s conviction was based upon a guilty plea, because for purposes of applying the doctrine of collateral estoppel, as well as for other purposes, there is no difference between a judgment of conviction based upon such a plea and a judgment of conviction rendered after a trial on the merits. . . . Arctic’s plea of guilty to this indictment was therefore a conclusive judicial admission that its return for 1946 was false and fraudulent and that the deficiency in tax which was the necessary result of its being filed was due to fraud with intent to evade tax.” 43 T.C. at 75.
See also Otsuki v. Commissioner of Internal Revenue, 53 T.C. 96 (1969) (dicta).
In oral argument before this court, Plunkett conceded that perhaps there may be convictions based on pleas of guilty that should operate as estoppels. He stoutly contended, though, that his conviction requires different treatment. He urges us “to look behind [his] conviction” and to conclude that “where the circumstances of the plea, such as coercion induced by his wife’s indictment and failure by the trial court to inquire as to whether, in fact, he evaded taxes, indicate that the plea might have been involuntary, the government should not be allowed to use that plea to collaterally es-top the appellant in a civil case.” Cf. Worcester v. Commissioner of Internal Revenue, 370 F.2d 713 (1st Cir. 1966).
The judge presiding at the criminal proceeding informed Plunkett of the offenses charged against him in the indictment and of the consequences of his pleading guilty. Plunkett then acknowledged that he was fully aware of the charges against him and of the consequences of his plea. When the court inquired, “[Have] there been any representations of any kind made to you as to what disposition of your case would be, in view of your plea of guilty here, Mr. Plunkett?,” he answered, “No, your Hon- or.” This colloquy does not substantiate the appellant’s claim that his guilty plea was coerced as a matter of law.
We concur in the opinion of the court below that
“[t]he stated understanding of counsel, that the government would move to dismiss charges against Mrs. Plunk-ett if petitioner would plead guilty to the charges against him, does not vitiate petitioner’s otherwise voluntary plea of guilty where the agreement was fully performed in conformity with the petitioner’s expectations. Petitioner did not misunderstand the terms or the immediate consequences of the agreement and his plea of guilty. Hence, the existence of the agreement does not affect the volun-tariness of his plea.” 29 CCH Tax Ct.Mem. at 1247.
We find ample support for this holding in United States ex rel. Cunningham v. Follette, 397 F.2d 143 (2d Cir. 1968), cert. denied, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969); Cortez v. United States, 337 F.2d 699 (9th Cir. 1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726 (1965); and Kent v. United States, 272 F.2d 795 (1st Cir. 1959). See also United States v. Carlino, 400 F.2d 56 (2d Cir. 1968), cert. denied, 394 U.S. 1013, 89 S.Ct. 1630, 23 L.Ed.2d 39 (1969).
Plunkett also complains that the judge who accepted his guilty plea was not informed of any evidentiary foundation to support the criminal charge. Consequently, the provision of Rule 11 of the Federal Rules of Criminal Procedure that “[t]he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea” was allegedly violated.
Plunkett relies heavily on McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), where the Supreme Court admonished federal district courts to adhere rigorously to Rule 11. It held that if a district court does not comply fully with the rule, the defendant’s guilty plea must be set aside and his case remanded for another hearing at which he may plead anew. The Court carefully noted that its holding was not based upon constitutional grounds. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), the Court decided that McCarthy should be applied only to guilty pleas accepted after the date of that decision, April 2, 1969.
The alleged defect in the proceedings against Plunkett was not of constitutional dimensions. The petitioner took no appeal directly attacking his conviction or sentence, and he has paid the fine imposed upon him. In light of these circumstances and the restrictions placed on McCarthy by Halliday, we can see no justification for sustaining Plunkett’s collateral attack on the conviction and for voiding the consequences of that conviction in the present case.
In sum, we agree with the Tax Court below that “petitioner’s conviction for tax evasion in the years 1960, 1961, 1962 and 1963, pursuant to a plea of guilty, collaterally estops the petitioner from denying fraud for those years.” 29 CCH Tax Ct.Mem. at 1247.
We conclude that the decision of the Tax Court (as supplemented herein as to the point not reached by that court) should be and is
Affirmed.
. A petition filed by the appellant’s wife, Dorothy Plunkett, for a redetermination of deficiencies and additions to tax was also consolidated for the trial. The results of that redetermination are not involved in the appeal before us.
. Subsection (b) of 26 U.S.C. § 6653, “Failure to pay tax,” provides in part:
“(b) Fraud.
If any part of any underpayment (as defined in subsection (c)) of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment. In the case of income taxes . . . , this amount shall be in lieu of any amount determined under subsection (a) . . . . ”
. Judge Quealy’s memorandum findings of fact and opinion of Sept. 29, 1970, are unofficially reported at 29 CCH Tax Ct. Mem. 1237 [CCH Dec. 30,349 (M)].
. The original and amended returns for each of the years 1957 through 1963 reported taxable income and net tax due (including self-employment tax) as follows:
According to the statutory notice for 1957-1959, Plunkett’s taxable income for 1957 was $26,792.88, and his income tax due was $10,862.47.
. For the years 1957, 1958 and 1959, Plunkett understated his business expenses by a total of $326,294.78.
. The record shows that the sizable understatements of income resulted from taxpayer’s total failure to report his dividend income as well as from his understating the receipts and profits of his catering business. From 1957 through 1959, Plunkett received $37,203.60 in cash dividends which were credited to his margin account and of which he was notified by his stockbrokers. Although the Tax Court decided that it did not need to consider whether petitioner’s omission of this dividend income was due to fraud with intent to evade taxes, the Commissioner argued in his appellate brief that the omission of such income was further evidence of Plunkett’s fraudulent intent, citing Irolla v. United States, 390 F.2d 951, 954, 82 Ct.Cl. 775 (1968), and Lusk v. Commissioner of Internal Revenue, 250 F.2d 591, 594-595 (7th Cir. 1957), cert. denied, 357 U.S. 932, 78 S.Ct. 1376, 2 L.Ed.2d 1375 (1958).
. In its investigation of Plunkett’s returns for the years 1957 through 1959, the Internal Revenue Service had determined that Plunkett had incurred capital losses that were not reflected in the returns. It advised him of this in the notice of deficiency dated July 11, 1968.
. The Commissioner did in reality carry forward the 1957 capital losses in arriving at the figure to which the 50 percent penalty under 26 U.S.C. § 6653(b) would be applicable. Thus, the amended return for 1958 showed income tax of $19,512.43, which was paid. In effect, this figure, however, was reduced by (a) the amount paid in the original return and (b) the amount of the 1957 carryover applicable to 1958. The penalty was based on the remaining balance of $13,117.80 and not on the tax actually paid. The same procedure was followed for 1959.
It is also to be noted that while the Tax Court referred to “recomputation of taxes and penalties” for 1958 and 1959, no deficiency of tax was assessed for those years ; the recomputation was only for the purpose of determining the correct income tax liability to which the penalty would be applicable. The determination here was not whether the taxpayer owed more or less tax for 1958 and 1959 but involved the amount of the penalty for those years.
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_respond1_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
M. W. LOVELESS, dba Loveless Manufacturing Company, a sole proprietorship, Appellant, v. UNIVERSAL CARLOADING & DISTRIBUTING COMPANY, Inc., a corporation, Appellee.
No. 5075.
United States Court of Appeals Tenth Circuit.
July 29, 1955.
John M. Wheeler, Tulsa, Okl. (Wheeler & Wheeler, John Wheeler, Jr. and Robert L. Wheeler, Tulsa, Okl., were with him on the brief), for appellant.
William J. Treadgill, Tulsa, Okl. (Joseph N. Shidler, Tulsa, Okl., was with him on the brief), for appellee.
Before BRATTON and MURRAH, Circuit Judges, and WALLACE, District Judge.
MURRAH, Circuit Judge.
M. W. Loveless, dba Loveless Manufacturing Company, sued Universal Car-loading & Distributing Company, Inc. as the- terminating carrier, for damages to machinery shipped under a bill of lading in interstate commerce. The case was removed from the state court to the federal court on requisite diversity of citizenship and amount in controversy and as one arising under the laws of the United States.
The undisputed facts are that Loveless orally notified Universal’s local manager, Gillam, on May 5, 1952, that he would not accept delivery of the damaged goods. One of Universal’s ware-housemen then inspected the machinery, noting upon the consignment memo the extent of apparent damage and signing his name thereto. After extensive negotiations between Loveless and Gillam, Loveless agreed to accept the machinery and install it, with the understanding that a formal claim for ultimately ascertained damages could be filed at any time within two years. And on the same date Gillam wrote Loveless enclosing the consignment memo, stating:
“You will note this freight bill carries notation as to damage noted on arrival.
“Inasmuch as this does not nor is intended to cover probable damage that might exist due to apparent rough handling on the part of the carriers, we have notified both the Prisco and the New York Central that the shipment had shifted approximately five feet and that the lags holding the machine to the skids had been pulled away from the machine, indicating that the car had been terrifically humped somewhere along the line.
“This will protect you in the event claim will be filed, for a period of up to two years. As you explained it will be possible to determine the damage, if any, long before that time, but just to make sure, we have notified the carriers that claim will be filed, undetermined amount at some future date * * * ”
The machine did not function properly from the time of installation, but Loveless did not present a formal claim for the damages until December, 1953, 19 months after delivery. Universal denied the claim solely on the ground that not having been filed within 9 months of the delivery date, it was barred by Sec. 2(b) of the bill of lading, which provides in presently material part that:
“As a condition precedent to recovery, claims must be filed in writ-' ing with the * * * carrier * * * within nine months after delivery of the property * * * ” and “ * * * Where claims are not filed * * * in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.”
The decisive question is whether the writings between the parties can be said to be a claim “in writing” within the meaning of Sec. 2(b) as judicially construed and applied.
Loveless contends that the notation by Appellee’s warehouseman on the consignment memo together with the letter from Appellee’s local manager to him, constitute a substantial compliance with the notice requirements of Sec. 2(b) of the bill of lading; and that in any event actual knowledge of the damages by Universal served as timely notice to initiate the necessary investigation by the carrier and thus excused the filing of a claim. Loveless also pleads estop-pel to assert non-compliance with Sec. 2(b) having acted to his prejudice upon representations of the local manager that he had two years within which to file a claim.
While the trial court was impressed with the equities of Loveless’ contentions, it was nevertheless constrained to deny the claim on the grounds that neither the notation on the consignment memo nor the letter written by. Gillam, separately or together, constituted a sufficient claim “in writing” as required by Sec. 2(b) of the bill of lading; and that the facts did not justify the imposition of equitable estoppel.
The Carmack Amendment to the Interstate Commerce Act, Title 49 U.S.C. A. § 20(11), specifically requires the carrier to issue a bill of lading for property received for transportation in interstate commerce. And it also forbids the carrier from contracting for the filing of claims within a shorter period than nine months. While the statute does not specifically provide that notice of claim shall be in writing, or for that matter in any other particular form, Sec. 2(b) has historically been incorporated in the uniform bill of lading as a safeguard against tariff abuses and discriminations. The requirement in 2(b) that the notice of claim shall be “in writing” has come to be an integral part of the uniform published tariffs and regulations which the carrier may not waive or be estopped to assert. Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 S.Ct. 541, 60 L.Ed. 948; Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209, 21 S.Ct. 453, 75 L.Ed. 983; Insurance Co. of North America v. Newtowne Mfg. Co., 1 Cir., 187 F.2d 675; Burns v. Chicago, M., St. P. & P. R. Co., 8 Cir., 192 F.2d 472; Delphi Frosted Foods Corp. v. Illinois Cent. R. Co., 6 Cir., 188 F.2d 343.
To satisfy the requirements of Sec. 2(b) the writing need not be in any particular form. It is sufficient if it apprises the carrier that damages have occurred for which reparations are expected, so that the carrier may make a prompt investigation consistent with the “practical exigencies of the situation.” Georgia, Fla. & Ala. Ry. Co. v. Blish, supra; Thompson v. James G. McCarrick Co., 5 Cir., 205 F.2d 897; Insurance Co. of North America v. Newtowne Mfg. Co., supra; Minot Beverage Co. v. Minneapolis & St. Louis Ry. Co., D.C., 65 F.Supp. 293. Thus the practical construction of Sec. 2(b) has been satisfied by an exchange of telegrams between the shipper and the carrier the last of which claimed damages for the total loss, Georgia, Fla. & Ala. Ry. Co. v. Blish, supra; by a timely informal letter from the shipper’s agent to the carrier stating that a claim “will be filed against you” on a specified shipment, Minot Beverage Co. v. Minneapolis & St. Louis Ry. Co., supra; and by writings entitled “statements of protest” and “placement notices" filed with the carrier's agent stating damages, identifying the shipment, and containing the notation “this is consignee’s claim”, Thompson v. James G. McCarrick Co., supra.
Formal written notice was deemed unnecessary in Hopper Paper Co. v. Baltimore & O. R. Co., 7 Cir., 178 F.2d 179, 182, where the carrier had actual knowledge of the damage and had notified the shipper thereof. “In such a situation a formal notice by plaintiff to the defendant could not have accomplished anything more. * * * ” and “ * * * the carrier may not use the provisions of the bill of lading to shield itself from the liability imposed upon it by the statute and the common law for its negligent destruction of the shipper’s property. To hold otherwise would not be construing the bill of lading ‘in a practical way.’ ” As against the contention that dispensation with the requirements of the formal written notice would open the door to widespread discrimination, hence frustration of the purpose of the Interstate Commerce Act, the court took the view that actual knowledge in lieu of written notice was neither discriminatory nor a preference in favor of one particular shipper at the expense of another but rather a mode of proof “applicable alike to all railroads and in favor of all shippers.”
While the Hopper case was deemed “perhaps out of line with * * * other cases” in Insurance Co. of North America v. Newtowne Mfg. Co., supra [187 F.2d 681], the court was at pains to point out that in the Hopper case the carrier at least “knew that the loss had occurred during the transportation on its line and had so advised the shipper by telegram.” Whereas in the Newtowne case the carrier had no record of having accepted any shipment, had no knowledge of the loss, and denied responsibility for it. Notice or knowledge of the loss was in issue. In these circumstances the court refused to open the door to possible abuses by admitting oral proof of actual notice or knowledge.
The Hopper case was again distinguished in Delphi Frosted Foods Corp. v. Illinois Cent. R. Co., supra, where the shipper’s customers who had contracted to purchase portions of the shipment gave notice of the damage to the delivering carrier. The case went off on the theory that the person damaged, not having filed the claim, the notice given did not substantially comply with the requirements of the bill of lading.
The Hopper case was also distinguished in the light of its “unusual circumstances” in Northern Pac. Ry. Co. v. Mackie, 9 Cir., 195 F.2d 641, where the carrier’s written report noted the damages and that the consignee would call for final inspection, but specifically denied that it was an acknowledgment of liability. And in the language of Sec. 2(b) the report stated that a claim must be filed in writing with the carrier within nine months after the delivery of the property. Neither the consignee nor the shipper called for final inspection and no formal claim was submitted within nine months of the delivery. The trial court rejected the carrier’s plea of untimeliness, but the case was reversed on the grounds that to disregard the condition precedent to recovery incorporated in the bill of lading would “under the circumstances shown, open the door to evasions of the spirit and purpose of the Act * * * ” See also Louda v. Prague Assurance-National Corp., 1952, 347 Ill.App. 211, 106 N.E.2d 757 and Cf. Public Service Electric & Gas Co. v. Reading Co., 1951, 13 N.J.Super. 383, 80 A.2d 473.
Loveless leans heavily upon the holding and philosophy of the Hopper case, as indeed he may, for we think his facts outweigh the considerations which prompted the court’s decision in the Hopper case. In both cases the carrier acknowledged the damages and the cause thereof. In the Hopper case, however, the extent of the damages was immediately known and nothing prevented the immediate filing of a formal claim for the complete loss. In our case the extent of the damages was not at once ascertainable, the parties agreeing that when they were the shipper would file a claim “at some future date.” Universal so notified the originating and intermediate carriers. After the damages were ascertained, a formal written claim for the amount thereof was filed, and the carrier does not now contend that it was in any manner prejudiced by the failure to receive the formal claim within the nine-month period.
In the Hopper case actual knowledge without more constituted the written claim. Here, however, we have not only a notation of the fact of damages written upon the face of the freight bill, but more important, we have an acknowledgment in writing by the carrier that damages were sustained by carelessness in transit, and that a formal claim would be filed at some future date when the damages were ascertained. Such writing is nonetheless a claim “in writing” within the purposes of Sec. 2(b) simply because it takes the form of an acknowledgment of the damages and the cause thereof in the hand of him who is to be held liable when the extent thereof is determined. Certainly it is no perversion of public policy to denominate the carrier’s acknowledgment of damages and liability a claim “in writing” to be formalized when the extent of damages is determinable. To so construe the writing leaves no doors open for abuses and discriminations which the stipulation in Sec. 2(b) was intended to prevent. And we therefore hold the written acknowledgment of damages to be a claim in writing within the meaning and purposes of Sec. 2(b) of the bill of lading. The judgment is accordingly reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_source | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
In re AIR CRASH DISASTER NEAR CHICAGO, ILLINOIS, ON MAY 25, 1979. Appeal of AMERICAN AIRLINES, INC., and In re AIR CRASH DISASTER NEAR CHICAGO, ILLINOIS, ON MAY 25, 1979. Appeal of McDONNELL DOUGLAS CORPORATION.
Nos. 80-1975, 80-1976.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 8, 1980.
Decided Feb. 17, 1981.
Thomas D. Allen, Robert E. Haley, Ruth E. Van Demark, Kathy P. Saxton, Wild-man, Harrold, Allen & Dixon, Chicago, Ill., for American Airlines, Inc.,
Norman J. Barry, Christopher G. Walsh, Jr., Rothschild, Barry & Myers, Chicago, Ill., for McDonnell Douglas,
James C. Kellogg, Dennis J. Kellogg, Chicago, Ill., for plaintiff-appellee.
John J. Kennedy, Kevin M. Forde, Chicago, Ill., for plaintiffs.
George F. Archer, Chicago, Ill., for Plesa plaintiffs.
Fred A. York, Mount Clemons, Mich., James F. Graves, East Lansing, Mich., Denis R. Leduc, Mount Clemons, Mich., for Michigan plaintiffs.
Before SPRECHER and WOOD, Circuit Judges, and BROWN, Senior District Judge.
Honorable Wesley E. Brown, Senior District Judge for the District of Kansas, is sitting by designation.
SPRECHER, Circuit Judge.
The questions before us are whether Illinois law allows a court to instruct a jury to award prejudgment interest in an action under the Illinois Wrongful Death Act, Ill. Rev.Stat. ch. 70, §§ 1, 2, and whether the award of $27,500 given here, supposedly representing prejudgment interest, can be interpreted as being part of the “fair and just compensation” for plaintiff’s pecuniary injuries.
I
This action arises out of the crash of a DC-10 jet manufactured by defendant McDonnell-Douglas Corp. (“MDC”) and operated by defendant American Airlines (“American”). The plane, which was scheduled to fly to Los Angeles as American Airlines Flight 191, crashed shortly after takeoff from O’Hare International Airport on May 25, 1979. Plaintiff’s decedent, Craig Valladares, was one of the passengers aboard the plane who died as a result of the crash.
This action was brought by Jewel Valla-dares in her capacity as widow and personal representative of the decedent and as parent and next friend of the decedent’s surviving child, Michelle Valladares. The action originally was filed in the Circuit Court of Cook County, Illinois, but was removed to the United States District Court for the Northern District of Illinois on the basis of diversity of citizenship of the parties. The action later was consolidated for pretrial purposes with other actions arising out of the same crash by order of the Judicial Panel on Multidistrict Litigation. In re Air Crash Disaster Near Chicago, 476 F.Supp. 445 (Jud.Pan.Mult.Lit.1979).
In the course of the pretrial proceeding in MDL No. 391, one of the plaintiffs moved. for a partial summary judgment order requiring the defendants to pay prejudgment interest from the date of the deaths. In_ turn, American moved to dismiss all plaintiffs’ claims for prejudgment interest for failure to state a claim for relief.
The district court issued a memorandum opinion denying both the plaintiff’s motion for summary judgment and American’s motion to dismiss. In re Air Crash Disaster Near Chicago, 480 F.Supp. 1280 (N.D.Ill.1979). The district court concluded that prejudgment interest was recoverable as a matter of law, but that the entry of summary judgment was inappropriate prior to a final determination of the damages to which the plaintiffs were entitled. The court stated, however, that it would “include prejudgment interest as an element of damages in all instructions to juries or in calculating damages in any bench trials.” 480 F.Supp. at 1288.
American and MDC filed motions to vacate the prejudgment interest order. After further briefing of the issue by the parties, the district court issued an order denying the motions to vacate.
On December 19, 1979, plaintiff Jewel Valladares entered a stipulation with American and MDC whereby plaintiff waived any claim for punitive damages in exchange for defendants’ waiver of their right to contest liability for compensatory damages, exclusive of prejudgment interest. Following the completion of pretrial discovery, a three-day trial was held before an eight-person jury. Over the defendants’ objection, the district court instructed the jury that the plaintiff was entitled to prejudgment interest from the date of death to the date of verdict on the entire amount of damages the jury calculated to be the present value of the pecuniary loss Jewel and Michelle Valladares suffered as the result of the death of Craig Valladares.
The court’s instructions required the jury to determine present cash value as of the date of death. Defendants originally had argued that Illinois law requires that present cash value be determined as of the date of trial. Defendants then waived that issue and allowed present cash value to be computed as of the date of death in order “to frame as clearly as we can the issue of prejudgment interest.”
On June 23, 1980, the jury returned the following verdict:
We, the Jury, assess the Plaintiffs’ damages for the death of decedent against the Defendants, American Airlines, Inc. and McDonnell Douglas, Inc. in the sum of $250,000.00.
We, the Jury, assess Prejudgment Interest for the period May 26, 1979 to date in the sum of $27,500.00.
Judgment was entered on the verdict. Defendants paid plaintiff $250,000 in satisfaction of that portion of the judgment awarding $250,000 in compensatory damages. None of the parties have appealed from that portion of the judgment. Defendants MDC and American appeal from the portion of the judgment allowing $27,500 in prejudgment interest.
For the reasons stated below, we agree with defendants that prejudgment interest, as such, is not allowed in Illinois unless provided by statute, and the Illinois Wrongful Death Act does not explicitly allow prejudgment interest. However, we find that, in this particular case, there actually was no prejudgment interest awarded. Rather, the district court merely allowed a proper adjustment to arrive at the “present value” of plaintiff’s loss, which is the correct measure of damages under Illinois law. Therefore, we affirm the entry of judgment on the jury’s verdict.
II
Preliminarily, we find that Illinois law applies. As the district court observed in its opinion on the subject of prejudgment interest, the availability of prejudgment interest must be determined by reference to state law. In re Air Crash Disaster Near Chicago, 480 F.Supp. 1280, 1282 (N.D.Ill.1979). In this case, the only applicable state law is that of Illinois, since the accident occurred in Illinois, and both plaintiff and decedent are and were Illinois domicili-aries.
Because we are bound to follow Illinois law, we are not free to devise a different measure of damages pursuant to our “general equitable powers,” as suggested by the district court. 480 F.Supp. at 1286-88. Plaintiffs have argued convincingly that a uniform federal law would be desirable in air crash cases involving citizens and laws of several states. But as we stated very recently in another facet of this case, In re Chicago Air Crash, 644 F.2d 594, 632 (7th Cir. 1981), achievement of uniform treatment of plaintiffs and defendants through federal law is a task for Congress, not a federal court in a diversity action. Therefore, we decline to hold that a federal rule of damages in wrongful death cases applies.
Plaintiffs also argue that other courts construing wrongful death statutes similar to Illinois’ have concluded that prejudgment interest was an essential part of plaintiff’s compensatory damages. The district court apparently was influenced by the fact that “courts in other jurisdictions faced with substantially the same language in their wrongful death statutes have concluded that prejudgment interest is an essential part of ‘fair and just compensation.’ ” 480 F.Supp. at 1286. We agree with defendants that neither another state’s interpretation of its wrongful death statute, nor a federal court’s interpretation of a federal statute, can be the sole basis of our decision here. We must decide within the bounds of Illinois law. In part IV of this opinion, however, we will use cases from other jurisdictions where useful to illustrate the types of formulas used to compute “present value” and “fair and just compensation” in wrongful death cases.
Ill
In Illinois, the general rule is that prejudgment interest cannot be awarded unless provided by statute or agreement of the parties. Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 167 N.E.2d 236, 240-41 (1960); Geohegan v. Union Elevated R.R. Co., 266 Ill. 482, 107 N.E. 786, 791 (1915). Here, there certainly was no agreement to provide prejudgment interest, so we must examine the statutes involved which possibly could justify prejudgment interest. Defendants argue that neither the Illinois interest statute, Ill.Rev.Stat. ch. 74, § 2, nor the Illinois Wrongful Death Act, Ill.Rev. Stat. ch. 70, § 2, authorizes prejudgment interest here, and that, therefore, the district court erred in allowing the jury to add the $27,500 prejudgment interest award to the $250,000 damage award.
A
First, Illinois has a prejudgment interest statute that allows prejudgment interest on bonds, bills, promissory notes or other written instruments; on money due on liquidated settlements of accounts; on money wrongfully taken; and on money withheld by “unreasonable and vexatious delay” of payment. Ill.Rev.Stat. ch. 74, § 2. The district court indicated that plaintiffs here might become entitled to prejudgment interest under the “unreasonable and vexatious delay” provision. 480 F.Supp. at 1285. But the district court made no finding of unreasonable and vexatious delay, nor did the district court’s instructions to the jury require such a finding in order to assess prejudgment interest.
In fact, it is clear that the prejudgment interest statute cited above was not the basis of the decision to allow prejudgment interest. The jury was not instructed to apply the statutory rate for prejudgment interest. Rather, the decision to allow prejudgment interest and the relevant jury instructions were based on the Illinois Wrongful Death Act, Ill.Rev.Stat. ch. 70, § 2, which provides for “fair and just compensation with reference to the pecuniary injuries resulting from such death.... ” Indeed, at oral argument plaintiffs specifically disavowed any reliance on the interest statute to support the award. Thus, the central issue here is whether the Illinois Wrongful Death Act allows an award of prejudgment interest, and, specifically, if the award here is supported by the Act.
B
The Illinois Wrongful Death Act, Ill.Rev. Stat. ch. 70, § 2, provides in relevant part:
[T]he jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.
There is no specific statutory provision detailing how the pecuniary injuries to the surviving spouse and next of kin are to be calculated. Defendants argue that in light of the Illinois presumption against prejudgment interest,. unless specifically provided by statute, prejudgment interest cannot be treated as an essential element of “fair and just compensation.”
Defendants cite only one case where an Illinois court has addressed the issue of prejudgment interest in a wrongful death case, Klepser v. Standard Service Refuse Disposal Co., No. 75 L 23749 (Circuit Court of Cook County May 8, 1980). In Klepser, the presumption of no prejudgment interest in the absence of a statute was applied in a wrongful death case. The Circuit Court of Cook County stated:
There is nothing in the Wrongful Death Statute that authorizes judicial imposition of prejudgment interest.
The statute is silent on the subject. When no claim of bad faith is made, statutory silence on the question of interest is held in this state to “disclose a legislative intent to deny it.” Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 423 [167 N.E.2d 236] (1960); People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975). Also see Russell v. Klein, 46 Ill.App.3d 660 [5 Ill.Dec. 65, 361 N.E.2d 65] (1st Dist. 1977).
This is not a case where interest has been running on a liquidated sum rightfully belonging to the plaintiff. See Morton Grove Park District v. American National Bank, 78 Ill.2d 353 [35 Ill.Dec. 767, 399 N.E.2d 1295] (1980).
Id., slip op. at 2. The court concluded that “[i]f prejudgment interest is to be awarded under circumstances such as these, the legislative branch must speak on the subject. It would be neither appropriate nor legally supportable for me to create a new element of damages in this case.” Id., slip op. at 3.
Because of several important distinctions between Klepser and the case at bar, we are unwilling to view Klepser as a definitive statement of Illinois law on prejudgment interest in wrongful death cases. First, in Klepser, the decedent lived for several days after the accident and the jury awarded damages for the decedent’s pain and suffering during this period. The jury verdict did not separate damages for the decedent’s pain and suffering from the compensation for pecuniary loss to plaintiff. Therefore, it was uncertain what the pecuniary losses were for the purpose of applying interest. Second, the claim for prejudgment interest was raised for the first time. at the post-trial stage. While the judge assumed, for purposes of that opinion, that the issue could be raised without prior pleading or contention, we cannot be sure that the result would have been the same if the issue had been raised in time to instruct the jury appropriately. Finally, we do not have the necessary information, such as jury instructions and a record of trial testimony, to determine how the $500,000 jury verdict was calculated. As discussed in part IY of this opinion, the method of damage calculation determines the appropriateness of the adjustment that has been referred to here as prejudgment interest.
Defendants have cited no cases other than Klepser that squarely hold that prejudgment interest is unavailable as an element of compensation in wrongful death actions. Rather, defendants rely on the rule, discussed above, that silence on the question of interest in the Illinois Wrongful Death Act discloses a legislative intent to deny it.
Plaintiffs’ construction of the Wrongful Death Act, like defendants’, presents no cases directly on point. Plaintiffs argue that the Wrongful Death Act has been broadly construed by Illinois courts to achieve just results, and that an Illinois court would do so here. But plaintiffs’ argument is based on cases which were not brought under the Wrongful Death Act. Illinois courts have been liberal in expanding the common law right to recover pecuniary losses not explicitly recoverable under the Wrongful Death Act. See Graul v. Adrian, 32 Ill.2d 345, 205 N.E.2d 444 (1965); Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 163 (1960) (funeral expenses). But damages under the Wrongful Death Act itself have been strictly limited to pecuniary, as opposed to punitive, damages. Consequently, we are not free to award damages that cannot be characterized as pecuniary. See In re Chicago Air Crash, 644 F.2d 594, 605-606 (7th Cir. 1981).
As discussed in Part II of this opinion, our holding here must be based on Illinois law. Despite plaintiffs’ exhaustive argument, we do not find that an Illinois court would award prejudgment interest as a separate element of damages in a wrongful death case. But, if the so-called “prejudgment interest” awarded here was not truly prejudgment interest, but was actually an element of “fair and just compensation” specifically allowed under the Wrongful Death Act, then the award here is consistent with Illinois law. Thus, before reaching any conclusion under the Wrongful Death Act, we must examine the precise nature of the damages in issue in this case and in cases which follow the general rule against prejudgment interest.
C
In cases reciting the rule against prejudgment interest, the measurement of compensatory damages does not involve a “present value” calculation. Therefore, the compensatory damages could not have included the type of interest awarded here. For example, in North Shore Marine, Inc. v. Engel, 81 Ill.App.3d 530, 36 Ill.Dec. 548, 401 N.E.2d 269 (1980), an action for wrongful conversion of a boat, the parties conceded that the proper measure of damages was “fair market value of the goods at the time of the conversion.” 36 Ill.Dec. at 552, 401 N.E.2d at 273. The court held that an award which exceeded that amount could not be supported by calling the excess prejudgment interest. This case implies only that if the correct measure of damages in a wrongful death case were present value at date of death rather than trial, any amount more than present value at date of death would have to be considered interest, rather than compensation, and therefore should not be allowed.
In addition, we find that the Illinois rule against prejudgment interest is not an absolute bar to adjustment of damages awards where appropriate. The Illinois Supreme Court recently held that despite the absence of a specific interest provision in the Eminent Domain Act, when a condemnation award is deposited with the county treasurer during the pendency of the condemnee’s appeal, and the county treasurer deposits the award in an interest bearing account, the condemnee must receive the full amount of money earned on the sum deposited with the county treasurer. Morton Grove Park District v. American National Bank, 78 Ill.2d 353, 399 N.E.2d 1295 (1980). The court distinguished Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 167 N.E.2d 236 (1960), and similar cases stating the rule against prejudgment interest as “cases in which the county had a legitimate claim to money that had been paid by the claimants, who were not entitled to a refund of the same until an adjudication of their claims had been made and a refund order entered.” 399 N.E.2d at 1300. A condemnation award is the property of the condemnee even while deposited with the county treasurer pending appeal, so the county treasurer’s keeping the interest earned constituted a taking of private property for public use. Id. Morton Grove is relevant to the case at bar because it demonstrates that the Illinois Supreme Court is willing to interpret a damage statute in order to provide fair and just compensation, even if a portion of that compensation can be labeled as “prejudgment interest,” and the statute does not specifically provide for interest.
In summary, we have concluded that Illinois law generally does not allow prejudgment interest unless provided by statute. The interest statute does not apply to.this case because it, as a general rule, provides for interest only on liquidated amounts. The Wrongful Death Act does not explicitly provide for prejudgment interest. But only one unreported and distinguishable lower state court case holds that prejudgment interest is not allowed in a wrongful death action. Other cases where prejudgment interest was not allowed give no guidance as to whether an adjustment for past losses may be included in the compensatory portion of a wrongful death award.
IV
Despite the foregoing discussion rejecting prejudgment interest as a separate element of damages, the measure of compensatory damages in wrongful death cases unquestionably does involve some form of interest in the determination of “present value.” Prejudgment interest per se is not allowable as a separate element of a wrongful death damages award, but use of interest is implicit in the calculation of the present value of plaintiff’s pecuniary loss as of the date of trial.
The question here, then, is how plaintiff’s damages ought to be calculated. If the calculation is properly computed, it is possible to resolve both plaintiff’s and defendants’ objections. Plaintiff argues that she would be harmed by delay between the accident and trial if prejudgment interest is not allowed. Defendants claim that they would be punished for asserting their right to a trial on damages if prejudgment interest is allowed. But neither plaintiffs nor defendants will be unjustly enriched if the correct formula is used to calculate wrongful death damages.
The measure of damages in a wrongful death action is set out in the Illinois Pattern Jury Instructions 2d (“IPI 2d”). The relevant IPI 2d instructions given by the court here were essentially 31.04, “Measure of Damages — Wrongful Death — Adult—Lineal Next of Kin Surviving”; 31.07, “Measure of Damages — Wrongful Death — Factors Excluded”; 34.03, “Death Case — Discount of Future Damages”; and 34.05, “Mortality Tables as Evidence of Damages — Death Case.”
Instruction 31.04 of the IPI 2d provides in part:
If you decide for the plaintiff on the question of liability you must then fix the amount of money which will reasonably and fairly compensate the [widow and lineal next of kin, e. g., daughter] of the decedent, for the pecuniary loss proved by the evidence to have resulted to [him] [her] [them] from the death of the decedent.
Instruction 34.03 tells the jury how to calculate the pecuniary loss so as to fairly compensate the plaintiff for the loss recognized in 31.04:
If you find for the plaintiff, then in assessing damages you may consider how long the [widow] [and] [next of kin] would be likely to have received pecuniary benefits from the decedent, considering how long he was likely to have lived and how long [she] [they] are likely to live.
In calculating the amount of these pecuniary benefits you must not simply multiply the life expectancies by the annual benefits. Instead, you must determine their present cash value. “Present cash value" means the sum of money needed now, which, together with what that sum will earn in the future, will equal the amounts of the pecuniary benefits at the times in the future when they would have been received.
(emphasis added) Instruction 34.05 contains the identical definition of “present cash value.”
Calculation of “present value” involves discounting future income to the date of trial. A typical explanation of this discounting is found in Baird v. Chicago, Burlington & Quincy R.R. Co., 63 Ill.2d 463, 349 N.E.2d 413 (1976), where the Illinois Supreme Court approved the admission of the testimony of an economist, who testified as an expert for plaintiffs on the subject of damages for the deaths of two teenagers. The expert testified that:
we’re not going to wait, as the circumstances clearly reflect, for someone to earn these dollars each year for the next forty years. We are going to try to have to ascertain what those earnings would have been, then discount them, or bring them back to the present and say what they would be worth now, if there was going to be a cash or a lump sum payment. loss, past and future, sustained by them on account of his death.
349 N.E.2d at 415 (emphasis added).
Similarly, in Allendorf v. Elgin, Joliet & Eastern Ry. Co., 8 Ill.2d 164, 133 N.E.2d 288 (1956), cert. denied, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53 (1956), another case dealing with an Illinois wrongful death award, the court cited with approval instructions given by the trial court concerning damages. The instructions included the following:
“The jury is instructed that if you find the.plaintiff is entitled to recover from the defendant in this action, that then the plaintiff is entitled to recover such damages as will justly and adequately compensate her and the surviving dependent children of the deceased for the pecuniary
In determining the amount of damages, if any, to be awarded for loss of future financial contribution to the widow and children, you are instructed that you are to determine the present cash value of such future lost contributions.
The present cash value of the benefits of which the widow and children have been deprived on account of the death of deceased, making adequate allowance for the earning power of money, is the proper measure of recovery.”
133 N.E.2d at 293.
These cases and instructions indicate that present cash value is to be calculated at the date of trial. But in this case, the jury was instructed to calculate present value as of the date of Craig Valladares’ death. The parties agreed to use the date of death, rather than date of trial, to calculate present value because the evidence in the trial gave life expectancy and income estimates based on the date of death. It is not surprising that the defendants readily agreed to the date of death instruction, since it gave them an extra thirteen months of discount on the decedent’s future income stream. This formulation is equivalent to actually subtracting interest from what the total award would have been if future income had been discounted to trial instead of death.
To explain this critical point, we use a simple example, where only future damages are at issue. Assume that a passenger’s life expectancy was only two years at the date of the crash and that this person was expected to contribute $10,000 to his family in each of those two years. Assume also that the trial takes place one year after death and that the interest rate is 10%, compounded annually. Furthermore, assume that the family would receive the decedent’s contribution at the end of the year in which he earned it.
If the award is discounted to the date of death, the decedent’s family should receive an amount which, had they received it on the date of death, would yield (assuming interest was earned on it from the date of death) the two yearly $10,000 contributions which decedent would have made. This amount, using a discount rate of 10%, would be $17,356. If the award is discounted to the date of the trial, the family will receive $19,091. Ten thousand dollars of that award is for the year of income that would have been received at that time (one year after death) had decedent lived. The remaining $9,091 would earn one year’s interest and yield the projected contribution of $10,000 for the second year after decedent’s death.
The way the award was calculated in the Valladares case was as if $17,356, present value at the date of death, was given to the family in our example at the date of trial. Obviously, if the family withdraws $10,000 at the trial date (for the previous year’s contribution), they will not have another $10,000 at the end of the next year if the $7,356 balance is invested at 10%. Thus, they are not adequately compensated for their loss.
The question then becomes how to adjust an award that represents “present value at date of death” when it is actually received at the date of judgment. The answer in our example is to add one year of “interest” to “present value at death” in order to reverse the extra year of discounting (assuming, as we do, that the “interest rate” and “discount rate” are the same). Adding one year of interest at 10% to $17,356 gives $19,092 — exactly the amount of the present value at the date of trial. (The $1 difference is caused by rounding.)
Of course, in this example we have made some simplifying assumptions, such as a 10% interest rate compounded annually and a 10% discount rate. But regardless of the numbers used, the end result is that in order to adequately compensate plaintiffs, the decedent’s projected stream of future earnings must be either (1) discounted to trial or (2) discounted to death, with an adjustment to bring the “death value” to “present value.”
By assuming that the family would receive decedent’s contribution at the end of each year he would have lived and by assuming trial one year after death, we have demonstrated the effect of varying the date of the “present value” calculation. We eliminated the issue of prejudgment interest on past losses by assuming that decedent would not have made any contributions until the time of trial, one year after his death. But in most cases, a decedent’s contribution to his family for the first year would have been a flow of income during the period from the crash date to the trial. Assuming such a flow of income presents the question of whether interest is due on past losses — on the amounts of decedent’s probable contributions that were not recovered between death and trial. We find that the reasons for augmenting these “past losses” are exactly the same as those for discounting “future losses.” As stated in Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir. 1961), cert. denied, 368 U.S. 989, 82 S.Ct. 606, 7 L.Ed.2d 526 (1962), an action under the Death on the High Seas Act (“DOHSA”), 46 U.S.C. §§ 761-768, “[i]f it be only fair to discount sums paid now on account of future loss which would not be due until some years in the future,..., it is, by the same token, inequitable not to make appropriate compensation for delay in discharging the obligation.” 295 F.2d at 594. In Moore-McCormack the future damages had been discounted to the trial date. Consequently, the allowance of “interest” was just a symmetrical treatment of past and future losses in order to calculate present value.
The court in Moore-McCormack explained why this type of “prejudgment interest” usually is not explicitly provided for in the jury instructions for calculation of the present value of plaintiff’s loss. The reason for this silence is that juries make allowance for delay in compensation awards:
In any event, no one would be so naive as to suppose that juries do not throw into the scales the years that a plaintiff may have had to wait before his case can be heard by a jury. The practical reason why the courts in jury cases have refused to grant moratory interest may therefore be found in the judicial recognition that a jury usually makes some allowance for loss caused by delay. Likewise judges doubtless make some allowance for loss because of the law’s delay. It would seem to us to be better to recognize this and have the computation made on a basis which is known and understood.
495 F.2d at 594 (footnote omitted).
In this case, if the jury had been instructed only to discount future losses, it might have made allowance for delay in receiving past losses. But, the jury was instructed to discount plaintiff's entire loss to date of death. We must assume that the jury followed the court’s instruction. Scully v. Otis Elevator Co., 2 Ill.App.3d 185, 275 N.E.2d 905, 913 (1971); Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2, 8, 203 N.E.2d 706, 709 (1965). Thus, we must assume that the unadjusted jury award of $250,000 contained no allowance for delay.
The formula used in this case is the same as the formula used in National Airlines v. Stiles, 268 F.2d 400 (5th Cir. 1959), cert. denied, 361 U.S. 885, 80 S.Ct. 157, 4 L.Ed.2d 121 (1959), another DOHSA case. In Stiles, as in this case, the unadjusted award was based on decedent’s life and earnings expectancy at his death and was discounted to death, so there was no chance to make an implicit adjustment for delay. The court stated:
It is quite clear that with as many uncertain factors as there are for consideration by the court in arriving at the fair value of plaintiff’s pecuniary loss the length of time to the date of judgment may sometimes be taken into consideration by the court in determining the amount of its award. In such a case the court should not, of course, allow interest on such amount. Here, however, the court made plain its finding that the award was a fair measure of Mrs. Stiles’s pecuniary loss as of the date of her husband’s death, and interest on the amount was awarded to make her recovery complete.
268 F.2d at 405 (emphasis added).
The Stiles court explicitly found the “interest” given to be part of plaintiff’s “fair and just compensation,” and not an addition to that amount:
[T]he language of the statute here for construction clearly allows interest from the date of death as an element necessary to provide “fair and just compensation for the pecuniary loss sustained,” where the trial court clearly showed that no such increment was included in the principal award.
268 F.2d at 406. In this case, the “present value at death” calculation of $250,000 can be considered the unadjusted, “principal” award, and the total of $277,500 can be considered the adjusted award, compensating plaintiff in the amount of the present value of her pecuniary losses, both past and future, as contemplated by the Illinois Wrongful Death Act.
We realize that the district court characterized the adjustment award as interest rather than an adjustment of the “present value at death” calculation. But it seems clear from the instructions themselves that full compensation was what was intended. The instructions emphasized the fact that the 39V2 year figure used by the parties was an estimate of Craig Valladares’ life expectancy at the time of his death. The jury was instructed to determine “how much interest should be paid over and above the present value as of the date of his death of the compensation of which Jewel Valla-dares and her daughter were deprived by virtue of his death.” In other words, the $250,000 represents the “present value at death” of plaintiff’s compensation, and the total award of $277,500 represents the “present value at trial.” As we have discussed, this “present value at trial” represents the true compensatory damages figure. The so-called “prejudgment interest” is just an element of the formula for calculation of the compensatory damages.
Here, the “interest” adjustment was made on the entire amount calculated to be the present value of plaintiff’s loss at Craig Valladares’ death. As discussed above, the parties agreed to the use of date of death to conform to the evidence and, supposedly, to frame the issue of prejudgment interest for this court. Neither party appealed the unadjusted award of $250,000. Defendants contend that since plaintiff did not file a conditional cross appeal asking for recalculation of the unadjusted award in the event that the prejudgment interest was struck, we must strike the award of $27,500, since it was mislabeled. But under the present value instructions given by the court, it appears the proper compensatory award found by the jury was the total of $277,500. To strike the award because of a mere technical mislabeling would ignore the actual damage calculation formula used by the court. Such a decision would award plaintiff less than she would have received if the jury had been instructed to calculate the present value of damages as of the trial, which is the correct measure under Illinois law. In other words, the outcome here, after discounting to the date of death and adding prejudgment interest, is substantially the same outcome as if damages had been correctly computed by calculating present value at the date of trial.
V
Finally, the parties claim that this case is a test case on the issue of prejudgment interest for the other cases under the Illinois Wrongful Death Act arising out of this DC-10 crash. But, because the damages here were discounted to death, rather than trial, we emphasize that the instructions by the trial court in this case cannot be the model for future wrongful death actions.
In future actions, the court should instruct the jury to calculate the damages for future losses according to the IPI 2d instructions discussed in part IV. Future losses should be discounted to the date of trial. The jury should also be instructed to calculate the present value of the amounts that plaintiff would have received from decedent between death and trial. Augmenting the amount of income flow lost between death and trial is part of “fair and just compensation” just as discounting the income flow after trial is part of “fair and just compensation,” although neither calculation is mentioned in the Wrongful Death Act. The mechanism of the adjustment to present value is simply common sense and some mathematics. The difficulty comes in supplying appropriate dollar amounts for the lost income flow and an appropriate adjustment factor. This task, of course, is left to the jury, which
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer: |
songer_respond2_1_2 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "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".
RUSSELL, State Treasurer of Nevada, et al. v. DETRICK, Insurance Commissioner of California, et al.
Circuit Court of Appeals, Ninth Circuit.
December 5, 1927.
No. 5236.
1. Courts <§=493 (3) — Pending suit in state court held not to exclude jurisdiction of federal court of suit by others, not parties to state suit, relating to same subject-matter, but not affecting possession.
Makers of notes and mortgages to corporation brought suit in state court against said corporation and another, to which they had been assigned for cancellation of the securities for fraud. The assignee had deposited the instruments with the state treasurer, as required by law in its business of insurance. The state court appointed receivers for the corporations witii power to exercise control over “Their rights” in the instruments, but leaving possession in the state treasurer until further order. Held, that such suit did not exclude jurisdiction of a federal court to entertain a suit by others, not parties to the state suit, but claiming an interest in the securities, to determine their lights.
2. Courts <§=508(2) — Federal court held without jurisdiction to enjoin further prosecution of pending suit to cancel securities in state court (Jud. Code, § 265 [28 USCA § 379]).
A federal court held prohibited by Judicial Code, § 265 (28 USCA § 379), from enjoining further prosecution of a pending suit in a state court for cancellation of securities.
Appeal from the District Court- of the United States for the District of Nevada; Edward S. Barrington, Judge.
Suit in equity by Charles S." Detrick, as Insurance Commissioner of the State of California, and others, against George B. Russell, as State Treasurer of the State of Nevada, and others.. Defendants appeal from an order granting a preliminary injunction.
Reversed.
This is an appeal from an order of the court below granting a temporary injunction. The effect of the injunction was to. stay proceedings which had been begun in a state court of the state of Nevada. On November 4, 1926, the appellants, Matzdorf and wife, brought a suit in that court against the National Land Valley Guaranty Company, the National' Land Insurance Company, and the Title & Trust Company of Nevada, all corporations of that state, apd also against the state treasurer of the state of Nevada, for the cancellation of a note for $20,000, of date December 19, 1925, and the trust deed securing the same, made by the Matzdórfs in 'favor of the National Land Valley Guaranty Company, and by the latter assigned to the National Land Insurance Company, on the ground that the note and trust deed were procured through fraudulent misrepresentations made by certain . agents of the National. Land' Valley Guaranty Company. 'Upon the commencement of the suit, the state court appointed a receiver. of the property of the two lastripmed corporations. On November 18,1926, the .receiver, under order of said court, took over the custody and control of all the assets in the state of Nevada belonging to said two ebrporations, but 'the : order provided in terms that the authority of the receiver was to “include the exercise and control of .any arid all • rights 'which -said defendants may have under,' by virtue o'f, or relative to the contract, note/'mortgage, or trust deed involved in the,, action. Said .'note, mortgage, or trust deed, however, being subject, until the final determination of the action, to the custody of the state treasurer of the state of Nevada.” On 'January 11, .1927, 19 similar actions were commenced .in-said state court against the same defendants, by others’ of the appellants herein, whose notes and securities given to the National Land Valley Guaranty Company had been assigned to the insurance company.
In' the present suit, which was brought in the eou£t below, the appellees sought .to enjoin each of The appellants, who were plaintiffs ..in .the .said actions in the state court, from taking any steps or proceedings looking tó "the ‘ eariéellatiori ’ of ' said np,tes. ’ or trust deeds, and soúght tó restrain th’é strife treasurer, both as an individual and as an officer of the state of Nevada, from surrendering any of said securities to any of his eodefendants until the further order of the court.
The insurance commissioner of California, with whom joined two policy holders, were the plaintiffs. The complaint alleged that the National Land Insurance Company of Nevada was organized with authority to issue policies on land values and. receive premiums therefor; that it applied to the insurance commissioner of California for a license to issue its policies of insurance in that state, and represented to said commissioner that it had complied with the laws of Nevada by depositing securities with the secretary of state of that state, the same being the securities which are the subject of the present litigation; that, relying on such representation, the insurance commissioner granted such license to do business in and to issue policies in ’the state of California, and in pursuance thereof the said insurance company issued, various policies on land values in California -to the amount of $1,000,-000; and that in conducting said business it incurred in California a debt of $25,000, which is still unpaid. '
The complaint further alleged that the notes and securities issued by the individual appellants herein, Matzdorf and others; while they amounted in the aggregate to $205,000, had an actual value of not more than $115,000, and that the makers of said instruments now threaten to take steps to cancel all said notes and securities, and to require the state treasurer of Nevada to surrender the same for cancellation, although they were all well aware at the time thereof that the application of the insurance company to do business in California was based upon its representation to the insurance commissioner of that state that it had said securities on deposit in the office of the state treasurer of Nevada. The temporary injunction enjoined and restrained all the appellants herein from canceling any of the notes, mortgages, or securities described in the bill, and from taking any steps or proceedings looking to a cancellation of the same, until.the further order of said district court. Subsequently the appellant Russell, as state treasurer of Nevada, was substituted for Malley, who held that office at the commencement of the proceedings.
M. A. Diskin, Atty. Gen., of Nevada, for appellant Russell.
Charlés-Lee Horsey, of-Las Vegas, Nev. and Brown & Belford, and George S. Brown, all1-of - Reno; 'Nev.'j -for -other-appellants,'
U. S. Webb, Atty. Gen. of California, and. John II. Riordan, Asst. Atty. Gen. of California (Lyon, Fleming & Robbins and David R. Rubin, all of Los Angeles, Cal., of counsel), for appellees.
Before GILBERT, RUDKIN, and DIE-. TRICH, Circuit Judges.
GILBERT, Circuit Judge
(after stating the facts as above). The appellants contend that the injunction order is violative of the settled rule that the tribunal ■where jurisdiction first attaches holds it to the exclusion of all other courts until its duty is fully performed and the jurisdiction involved is exhausted, and that, where a court of competent jurisdiction has taken property into its possession through its officers, the property is withdrawn from the jurisdiction of all other ■ courts, and the latter are without power to render any judgment which invades or disturbs the possession of the property while it is in the custody of the court which has seized it. The situation presented to the court below was this: The appellants here had suits pending in the state court, the purpose of which was to cancel notes and securities held by the insurance company, and which presented controversies wholly between the plaintiffs therein, who were the makers of those instruments, and the defendants therein, who were the payees and owners thereof. Subsequently the appellees brought a suit in the court below to assert the rights which they had in those notes and securities and to prevent the cancellation thereof. They had the right to bring an original suit for that purpose, for they were not parties to the suits in the state court, nor were their rights in litigation or represented therein.
It is clear, we think, that the pendency of the suits in the state court to determine the validity of the securities and the rights of the parties in those controversies did not deprive the court below of jurisdiction to entertain a suit against those who were the parties plaintiff in those suits to determine the appellees’ rights in and to the same securities, the latter suit not being one that disturbed the custody of property of which the state court had acquired jurisdiction. It would seem from the record that the securities were not in the actual custody of the state court. They had been deposited with the state treasurer, as required by law, to qualify the holder thereof to issue policies of insurance upon land values. The corporation defendants in the suits in the state court had thereby parted' with possession and control over the same, and the order appointing the receiver, while it directed him to take possession and control of the properties of the two corporations, and gave him the exercise and control of any and all rights which they had in those instruments, ordered that, until the final determination of the suit, they should remain in the custody of the state treasurer.
“The rule that where the same matter is brought before courts of concurrent jurisdiction, the one first obtaining jurisdiction will retain it until the controversy is determined, to the entire exclusion of the other, and will maintain and protect its jurisdiction by an appropriate injunction, is confined in its operation to instances where both suits are substantially the same, that is to say, where there is substantial identity in the interests represented, in the rights asserted and in the purposes sought.” Pacific Live Stock Co. v. Oregon Water Bd., 241 U. S. 440, 447, 36 S. Ct. 637, 641 (60 L. Ed. 1084).
But, if it were conceded that the state court acquired, by its receivership, jurisdiction over the property, so as to withdraw it from the jurisdiction of a federal court in the same territory (Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 230, 53 L. Ed. 435), it does not follow that the relief which the appellees seek in the court below is beyond the" jurisdiction of that court, or, will necessarily invade or disturb the jurisdiction of the state court. The court below had no right to abdicate its own jurisdiction. It had the power to hear and determine any question and grant any relief concerning interests in the property not conflicting with the possession, so long as the state court should retain possession. The objection on account of the receivership cannot prevail to prevent proceedings in the court below, so far as it can go without interfering with the receivership. Watson v. Jones, 15 Wall. 679, 20 L. Ed. 666; Mercantile Trust Co. v. Lamoille Val. R. Co., 16 Blatchf. 324, Fed. Cas. No. 9432.
The question remains whether the injunction was forbidden by section 265 of the Judicial Code (28 USCA § 379), which, prohibits the issuance of a writ of injunction by any court of the United States to stay proceedings in any court of a state, except in bankruptcy eases. The appellees ■contend that the present case is not governed by that section- for the reason that the injunction runs not against the state court, = but. against the plaintiffs-iii the actions in that court. But violation of the section is not thus avoided. Essanay Film Co. v. Kane, 258 U. S. 358, 42 S. Ct. 318, 66 L. Ed. 658; Peck v. Jenness, 7 How. 612, 625, 12 L. Ed. 841. It is true that the prohibition of injunction is not universal in its scope. It does not forbid a federal court to enjoin attempts to impair its own jurisdiction by proceedings in a state court (French v. Hay, 22 Wall. 250, note, 22 L. Ed. 857), or to issue injunction where there is an entire lack of jurisdiction in the state court (Simon v. Southern Railway Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492), or to enjoin the enforcement of a judgment subject to attack as having been obtained through fraud (Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62, 35 L. Ed. 870), or a judgment, the enforcement of which would be contrary to recognized principles of equity and the standards of good conscience (Wells Fargo & Co. v. Taylor, 254 U. S. 175, 183, 41 S. Ct. 93, 65 L. Ed. 205); or to enforce an unconscionable judgment fraudulently obtained (Ex parte Simon, 208 U. S. 144, 28 S. Ct. 238, 52 L. Ed. 429).
But the present case does not belong in the class of any of the recognized exceptions. It is an injunction against the plaintiffs in a state court, enjoining them against taking further steps in the prosecution of suits to cancel securities, and it is issued on behalf of plaintiffs in a federal court, not parties to the suits in the state court, to defeat cancellation of the securities and protect their own interest therein. We think the injunction comes clearly within the prohibition of section 265. Essanay Eilm Co. v. Kane, supra.
The argument that, if the suits in the state court are permitted to be prosecuted to judgment before the suit in the federal court can be adjudicated, the latter adjudication will be made futile, is answered in Kline v. Burke Const. Co., 260 U. S. 226, 233, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077, where it. is pointed out that the jurisdiction of a federal court, having been conferred by act of Congress, may be taken away in whole or in part hy a later act of Congress, such as the prohibition of injunction expressed in section 265. But that section does not deprive a District Court of jurisdiction otherwise conferred by the federal statutes. It merely goes to the question of equity in the particular ease presented, leaving the eourt to determine whether the ease is one in which injunctive relief is prohibited. ' Woodmen of the World v. O’Neill, 266 U. S. 292, 298, 45 S. Ct. 49, 69 L. Ed. 293; Smith v. Apple, 264 U. S. 274, 277, 44 S. Ct. 311, 68 L. Ed. 678.
We hold that it is prohibited here. The injunction order is reversed.
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_genresp2 | 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.
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.
LAMB’S CHAPEL and John Steigerwald, Plaintiffs-Appellants, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT and Louise Tramontano, in her official capacity as president of the Board of Education for Center Moriches Schools, Defendants-Appellees, New York State Attorney General’s Office, Intervenor.
No. 470, Docket 91-7718.
United States Court of Appeals, Second Circuit.
Argued Nov. 4, 1991.
Decided March 18, 1992.
Mark N. Troobnick, Washington, D.C. (Jordan W. Lorence, Concerned Women for America Legal Foundation, Jay A. Seku-low, Walter M. Weber, Free Speech Advocates, of counsel), for plaintiffs-appellants.
Harold G. Trabold, Patchogue, N.Y. (Dranitzke, Lechtrecker & Trabold, Pat-chogue, N.Y., August H. Englert, Fiedel-man & Hoefling, Jericho, N.Y., of counsel) for defendants-appellees Center Moriches Union Free School Dist. and Louise Tra-montano.
Jeffrey I. Slonim, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Lawrence S. Kahn, Deputy Sol. Gen., Atty. Gem’s Office, State of N.Y., of counsel), for intervenor New York State Atty. Gen.
Jay Worona, Albany, N.Y. (Cynthia P. Fletcher, New York State School Boards Ass’n, Inc., of counsel) for amicus curiae New York State School Boards Ass’n, Inc.
Before CARDAMONE, PIERCE and MINER, Circuit Judges.
MINER, Circuit Judge:
Plaintiffs-appellants Lamb’s Chapel and John Steigerwald appeal from a summary judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.) in favor of defendants-appellees Center Moriches Union Free School District and Louise Tramontano, as President of the Board of Education of the School District. Lamb’s Chapel is an Evangelical Christian church, incorporated under the New York not-for-profit corporation law, located at Center Moriches, Suffolk County, New York. John Steigerwald is the Pastor of Lamb’s Chapel. The School District is a subdivision of the State of New York duly organized to provide public education in Suffolk County. This action was brought to secure declaratory and injunctive relief as redress for the refusal of the School District to allow the use of School District facilities, during non-school hours, for the showing of a series of religious films. The School District relied on a New York statute as well as a local rule in denying use of the facilities.
In granting summary judgment, the district court determined that the School District’s facilities were “limited public forums,” which had not been opened to religious groups by policy or practice. Accordingly, the court concluded that the facilities properly were barred to the plaintiffs in accordance with the New York Education Law and the School District’s own Local Rules.
On appeal, appellants contend that the School District, having created public forums by policy and practice, has excluded speech from the forum on the basis of content. This, they urge, is violative of the First Amendment. Appellants also contend that the denial to them of equal access to the School District’s facilities, based on the religious content of their speech, is a violation of the Establishment Clause. Finally, they contend that a prior decision of this Court upholding the New York statute that allows the exclusion of religious groups from school district facilities in the absence of a practice of opening the facilities to other religious organizations is erroneous and should not be followed. Finding no merit in any of these contentions, we affirm the judgment of the district court.
BACKGROUND
By application dated November 19, 1988, Pastor Steigerwald sought the use of rooms in the Center Moriches High School for Lamb’s Chapel Sunday morning services and for Sunday School. The hours specified were 9:00 A.M. to 1:00 P.M., and the time period indicated was one year, beginning in December of 1988. The application was made on a form provided by the School District and entitled “Application For Use of School District Facilities.” Attached to the application form was a sheet entitled “Rules and Regulations for Community Use of School Facilities.” Rule No. 7 was set out as follows: “The school premises shall not be used by any group for religious purposes.” Above his signature on the application form, Pastor Steigerwald indicated that he had read the Rules and Regulations and agreed to comply fully with them “excluding #7.”
Accompanying the application, and dated November 21, 1988, was a letter to Alice Schoener, School District Clerk, from the Pastor. In the letter, Pastor Steigerwald introduced himself and his Church and noted that their “paramount objective [was] to share the love of Christ in very real and practical ways.” He also indicated that he had taken a tour of the Center Moriches High School to “see if the school had adequate facilities for a movie series on the family that will be free of charge and open for the community to attend.” Pastor Steigerwald stated in his letter that he had met with the high school principal, who was concerned that the content of the film be nonsectarian in view of the constitutional requirement for the “separation of church and state.” The letter continued: “Those who espouse such a ... view are seriously misinformed. Enclosed you will find several articles that correctly interpret the law that is presently being upheld by the Supreme Court of the United States of America.”
By letter dated November 23, 1988 on behalf of the School District, Ms. Schoener advised Pastor Steigerwald that the application “requesting the use of the high school for your Sunday services” was denied, citing Local Rule No. 7 as well as the State Education law. Referring to scheduling problems, Ms. Schoener further advised that she was “very much afraid that, even without the prohibited religious activity aspect, your request would have to be denied.” Undeterred, Pastor Steigerwald pressed forward on December 16, 1988 with another application for use of the high school facilities, the second application being limited to one evening per week for five weeks. The hours designated were 7:00 P.M. to 10:00 P.M. and the activity specified was “Family emphasis & Movie presentation by Dr. James Dobson.” The purpose set forth was “To open up the film to share some pracital [sic] insights about the family.” The facilities requested were the auditorium or gymnasium.
In response to the second application Ms. Schoener wrote to Pastor Steigerwald on January 18, 1989 to request “a more detailed description of your proposed use (including a brochure describing the film),” noting that she was “hard pressed to determine from your description, what the five-part movie would represent” but “suspected] that it would certainly have religious connotations.” In the letter requesting additional information, Ms. Schoener observed that “[t]he district has not, in the past, allowed the high school auditorium to be used by any group primarily for its own purposes.”
A brochure describing the film, “Turn Your Heart Toward Home,” was forwarded by Pastor Steigerwald to Ms. Schoener on February 2, 1989. According to the brochure, the film comes in a 6-part series “every parent should see.” In the film, Dr. James Dobson, said to be an expert on family life, “reminds parents of society’s slide toward humanism — the undermining influences of radio, television, films and the press — which can only be counterbalanced by a loving home where Christian values are instilled from an early age.” In her response dated February 8, 1989, Ms. Schoener advised Pastor Steigerwald as follows: “This film does appear to be church related and therefore your request must be refused.” Additionally, Ms. Schoener denied a request made by Pastor Steigerwald on February 2,1989, for use of the elementary or high school on Friday or Saturday evenings “for ‘non-religious purposes’ such as volley ball.” The reason given was: “We do not schedule outside organizations to use the facilities on Fridays and Saturdays.”
Pastor Steigerwald continued to press his petition. On October 11, 1989, he submitted yet another application for the use of Center Moriches School District facilities to show the same film series, described in this application as a “Family oriented movie from a Christian perspective.” The stated purpose of Lamb’s Chapel was “To invite community of Center Moriches to view this very practical movie for family raising.” Once again, the use of an auditorium for five week days over a five-week period was sought. This last application met with a terse response by Ms. Schoener: “This film does appear to be church related and therefore your request must be refused.”
The complaint in this action was filed on February 9, 1990 and includes four causes of action: violation of the Freedom of Speech and Assembly Clauses; violation of the Equal Protection Clause; violation of the Free Exercise Clause; and violation of the Establishment Clause. As to each cause, the plaintiffs allege that the defendants’ actions were taken under color of state law and in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1983. The injunctive relief sought was an order permitting plaintiffs the use of the auditorium of the high school or elementary school to show the film series and to allow religious groups use of the facilities without discrimination because of the religious content of their speech. Also sought was a judgment declaratory of plaintiffs’ rights to use the facilities in question in accordance with constitutional protections guaranteed by the First and Fourteenth Amendments, including the Free Speech, Freedom of Assembly, Free Exercise, Establishment and Equal Protection Clauses of the Constitution. Plaintiffs also sought a declaration of the unconstitutionality of section 414 of the New York Education Law to the extent it bars the use of school district facilities for purposes of religious speech.
Plaintiffs’ motion for a preliminary injunction to compel the School District to allow the use of the District’s facilities was denied by the district court in a Memorandum and Order dated May 16, 1990. The court reviewed the facts presented on the motion as well as the applicable legal and constitutional principles and concluded that plaintiffs had “not shown either a substantial likelihood of success on the merits or sufficiently serious questions going to the merits.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 736 F.Supp. 1247, 1254 (E.D.N.Y.1990). An appeal to this Court from the Order denying the preliminary injunction was withdrawn, and the matter was returned to the district court for further proceedings. Thereafter, the plaintiffs moved for summary judgment and the School District cross-moved for the same relief. After hearing testimony as well as considering exhibits and affidavits, the district court granted the School District’s motion and denied the plaintiffs’ motion in a Memorandum and Order dated July 15, 1991, giving rise to this appeal.
In granting summary judgment, the district court found “that if the intended use of school facilities is not required or authorized by statute, there is no constitutional right to such use where a school district has not, by policy or practice, permitted a similar use in the past.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 770 F.Supp. 91, 98 (E.D.N.Y.1991). Although it determined that the Center Mo-riches School District facilities are limited public forums, the court concluded that the “District ha[d] not, by policy or practice, opened its doors to groups akin to Lamb’s Chapel,” and therefore held “that the School District’s denial of plaintiffs’ applications to show the film series [was] viewpoint-neutral and, hence, constitutional.” Id. at 99. We agree with the conclusion reached by the district court.
DISCUSSION
According to the Supreme Court, the extent of permissible governmental regulation of expressive activity on publicly owned property is dependent upon the character of the public property in question. See Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The Court has identified three categories of publicly owned property and has defined what regulatory power, consistent with the First Amendment, may be exercised in each category. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985).
The power of the State to regulate expression is most limited in regard to the category of public property designated “traditional public forum.” Streets, parks and similar locales, said to “have immemorially been held in trust for the use of the public and [which], time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939), fall within this classification. In such a forum, a regulation providing a content-based exclusion may be enforced only when “necessary to serve a compelling state interest” and must be “narrowly drawn” to serve that purpose. Perry, 460 U.S. at 45, 103 S.Ct. at 955. Also, narrowly tailored, content-neutral regulations pertaining to the time, place and manner of expression in a traditional public forum may be enforced, if they “serve a significant government interest, and leave open ample alternative channels of communication.” Id. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989).
The second category of public property pertinent to this analysis is made up of property purposefully opened for use by the public for expressive activity. Although government is not required to open this sort of forum or to keep it open indefinitely, the regulation of expression in a locale encompassed within the second category must meet the same standards as are applicable to a traditional public forum. Perry, 460 U.S. at 46, 103 S.Ct. at 955. Places opened specifically for the use of certain speakers or for the discussion of certain subjects are referred to as “limited” or “designated” fora. See Longo v. U.S. Postal Service, 953 F.2d 790, 793-94 (2d Cir.1992); Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 692 (2d Cir.1991). As to these fora, “the first amendment protections provided to traditional public forums only apply to entities of a character similar to those the government admits to the forum.” Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986).
Least restricted is the power of government to regulate expression in the third category of public property — the nonpublic forum. Included in this category is property that is not open for communicative purposes either by tradition or designation. Perry, 460 U.S. at 46, 103 S.Ct. at 955. With respect to such property, where governmental control is analogous to that of a private owner, see United States Postal Service v. Council of Greenburgh, 453 U.S. 114, 129-30, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981), a reasonableness standard prevails, see International Soc’y For Krishna Consciousness v. Lee, 925 F.2d 576, 580 (2d Cir.1991), cert. granted, — U.S. -, 112 S.Ct. 855, 116 L.Ed.2d 764 (1992). The standard is met when the applicable restrictions “reflect a legitimate government concern and do not suppress expression merely because public officials oppose the speaker’s view.” See Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.1991).
The Center Moriches School District facilities appellants sought to use do not fall within the categories of “traditional public forum” or “non-public forum,” and appellants do not contend that they do. What appellants do contend is that the school authorities in the Center Moriches School District by policy and practice have opened the facilities for the use of the general public and that the exclusion of religious speech is prohibited under the standards governing the second category. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988). An examination of pertinent policy and actual practices, however, convinces us that the school property in question falls within the subcategory of “limited public forum,” the classification that allows it to remain non-public except as to specified uses. See Deeper Life Christian Fellowship v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988) (Deeper Life I).
In the matter of School District policy, the District is governed by section 414 of the New York Education Law and its own Local Rule No. 7. Section 414 sets out ten purposes for which the use of schoolhouse facilities may be granted throughout the State of New York: instruction; public library purposes; social, civic and recreational meetings; events for which admission fees are charged, if the fees are to be applied to educational and charitable (but not religious) purposes; elections and political meetings; civic forums and community centers; classes for mentally retarded minors; recreation and athletics; child care services during non-school hours; and graduation exercisés held by not-for-profit elementary and secondary schools, provided no religious service is performed. N.Y.Educ.Law § 414[l](a)-(j) (McKinney 1988 & Supp.1992). Religious uses are nowhere permitted in this enumeration. All the uses specified are subject to such regulations as may be adopted by boards of education in the various school districts of the state, but the regulations must not conflict with the state law. See id. As previously noted, the Board of Education of the Center Moriches Union Free School District has provided in its Local Rule No. 7 that “[t]he school premises shall not be used by any group for religious purposes.”
In Deeper Life I we adopted a state court interpretation of section 414 that the use of New York school facilities is confined to nonreligious purposes, see Trietley v. Board of Educ., 65 A.D.2d 1, 5-6, 409 N.Y.S.2d 912, 915 (4th Dep’t 1978), and thereby ascertained the state’s intent to create a limited public forum from which religious uses would be excluded. See Deeper Life I, 852 F.2d at 680. We determined in that case that under the statute and applicable New York City Board of Education regulations, the School Board had no discretion with respect to the granting of use permits to religious groups. See Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83 (2d Cir.1991) (Deeper Life II).
Appellants argue, in effect, that once the school district facilities are opened as a public forum for one purpose, they are opened for all purposes. They take issue with our view that “property remains a nonpublic forum as to all unspecified uses ..., and exclusion of uses — even if based upon subject matter or the speaker’s identity — need only be reasonable and viewpoint-neutral to pass constitutional muster,” Deeper Life I, 852 F.2d at 679-80 (citations omitted), and contend that our view does not represent a proper interpretation of Supreme Court precedent. That challenge is barred by the rule of stare decisis, not only as a consequence of the Deeper Life cases but also as a consequence of our decision in Travis, where we held that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” 927 F.2d at 692.
In Travis, the school district was constrained to open its facilities to a religiously-oriented, fund-raising entertainment event benefitting a pregnancy counselling organization affiliated with an organization that promoted Christian gospel evangelism, having previously opened the facilities to a religious Christmas program involving the collection of toys for needy children. “The Christmas program .., created at least a limited public forum for fund-raisers with religious themes.” Id. at 693. In Deeper Ufe I, we sustained a preliminary injunction in a case in which a church sought the temporary use of an elementary school building, finding as a fair ground for litigation that “the School Board ha[d] opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” 852 F.2d at 680. Whether Center Moriches has opened its facilities to religious uses and purposes presents a close question here.
On appeal, appellants principally rely upon three prior uses of school district facilities to demonstrate a prior practice of opening Center Moriches public schools to outside of school religious uses: a Salvation Army Band Benefit Concert; a Gospel Music Concert; and a lecture series entitled “Psychology and the Unknown,” given by Jerry Huck. The Band Benefit Concert involved performances by the Center Mo-riches High School Band as well as the Salvation Army Greater New York Youth Band. The money raised at this concert was used to provide a scholarship for a high school band member and to provide funds for children to go to summer camp. The only religious connotations found in the Joint Band Program were the invocation, the performance of a piece called “Jericho Revisited” and the finale, “God Bless America.” Although appellants adduced evidence that “the Salvation Army is a church or a quasi-church,” the Joint Band Program hardly can be described as any kind of a religious use of school district property. The theme of the Program was not religious and any reference to religion was incidental at best.
The Gospel Music Concert was performed by a group called the “Southern Harmonizers Gospel Singers.” The purpose of the program was to raise money for the school’s black student scholarship fund. The program consisted in the main of gospel and spiritual music. The business manager of the Singers defined gospel music as “the good news of God.” Included in the program were such well-known religious songs as “Amazing Grace!” and “The Lord is my Shepherd” from the Twenty-Third Psalm of the Old Testament. The business manager responded in the affirmative when asked if the concert could be enjoyed for the music itself. Obviously, this is so. Much of the world’s greatest music has some religious connotation but can be enjoyed by people of all religious beliefs as well as people of no religious beliefs. The performance by the Southern Harmonizers was not a religious service or event but a musical and cultural one. It took place in a non-religious context and had a non-religious purpose.
The lecture series, “Psychology and The Unknown,” by Jerry Huck, was sponsored by the Center Moriches Free Public Library. The library’s newsletter characterized Mr. Huck as a psychotherapist who would discuss such topics as parapsychology, transpersonal psychology, physics and metaphysics in his 4-night series of lectures. Mr. Huck testified that he lectured principally on parapsychology, which he defined by “reference to the human unconscious, the mind, the unconscious emotional system or the body system.” When asked whether his lecture involved matters of both a spiritual and a scientific nature, Mr. Huck responded: “It was all science. Anything I speak on based on parapsychology, analytic, quantum physicists [sic].” Although some incidental reference to religious matters apparently was made in the lectures, Mr. Huck himself characterized such matters as “a fascinating sideline” and “not the purpose of the [lecture].”
As is apparent from the foregoing, none of the prior uses pointed to by the appellants were for religious purposes. Nor are we able to discern any previous uses of any school district property for religious purposes upon an examination of the record. Incidental references to religion or religious figures, the occasional use of religious terms, and the performance of music with religious overtones do not convert a secular program into a religious one. The programs cited as examples did not carry out religious themes nor were they presented in a religious context. We simply have not been able to identify any prior use of Center Moriches School District facilities for purposes that are religious in any meaningful way. We therefore conclude that the facilities were limited forums not opened to religious uses by policy or practice and that there was no constitutional violation in the failure of the School District to afford access to appellants.
Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) and Board of Educ. of the Westside Community Schs. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), relied upon appellants, do not dictate a contrary result. In Widmar, the Court held that a state university could not deny access to university facilities to students who wished to conduct religious meetings on campus. Widmar, 454 U.S. at 273, 102 S.Ct. at 276. The Court found in that case that “[t]hrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups,” noting that “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Id. at 267 & n. 5, 102 S.Ct. at 273 & n. 5. In Mergens, the Court held that the Equal Access Act, 20 U.S.C. § 4071(b) prohibited a high school from “discriminating, based on the content of the students’ speech, against students who wish to meet on school premises during noninstructional time.” 496 U.S. at 247, 110 S.Ct. at 2370. The high school had created a limited open forum- by allowing noncurriculum-related student groups to use the school facilities. The denial of a request to form a Christian club, under the circumstances revealed, constituted a denial of equal access under- the Equal Access Act.
Although appellants contend that our Deeper Life opinions are incompatible with these Supreme Court decisions and that the decisions compel a reversal of the district court in the case at bar, the contention is baseless. Widmar involved the use of university property by student groups in a situation where a number of such groups had been afforded access, to the point where, as to the students, a “generally open forum” was created. 454 U.S. at 267, 102 S.Ct. at 273. Similarly, in Mergens, the religious use of school property was sought by students, who have a greater claim on the use of school property than outsiders, especially when the property generally is open to student groups. The Supreme Court decided Mergens purely on statutory grounds, noting that it did not need to decide whether the First Amendment requires the same result. In the Deeper Life cases, as in the case at bar, we are presented with outside organizations seeking access where access has been limited and all religious use has been barred by policy and practice.
The appellants argue that denial of access somehow violated the Establishment Clause of the First Amendment as well as the Freedom of Speech Clause. It is difficult to see how this is so. If anything, a claim of a violation of the Free Exercise Clause would be expected. Nevertheless, there is no basis for any claim of First Amendment violation here. We have considered all of the arguments advanced by the appellants and find them meritless.
CONCLUSION
The judgment of the district court is affirmed in all respects.
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_weightev | 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 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 BLUE COMPANY, Incorporated, Appellant, v. DEMPSTER MILL MFG. CO., Appellee.
No. 16179.
United States Court of Appeals Eighth Circuit.
March 15, 1960.
David E. Varner, Washington, D. C. (C. Willard Hayes, Washington, D. C., E. G. Garvey, Omaha, Neb., and Cushman Darby & Cushman, Washington, D. C., and Crawford, Garvey, Comstock & Nye, Omaha, Neb., on the brief) for appellant.
Ferd Bing and Thomas F. McWilliams, Chicago, Ill. (Mann, Brown & McWilliams, Chicago, Ill., on the brief), for appellee.
Before GARDNER and VOGEL, Circuit Judges, and MICKELSON, District Judge.
MICKELSON, District Judge.
This is a patent infringement action brought by the plaintiff, John Blue Company, Inc., an Alabama Corporation, against the defendant, Dempster Mill Mfg. Co., a Nebraska Corporation, alleging the infringement of Patents No. 2,696,785 and No. 2,771,846. The trial court held both patents invalid but no appeal was taken from the trial court’s ruling regarding Patent No. 2,771,846. This appeal is from the judgment and findings of the trial court that plaintiff’s Patent No. 2,696,785 (hereinafter called the Blue and Johnston Patent) is invalid on two grounds: (1) That the joinder of Johnston as a joint inventor after the original issue of the patent here in question was not proper under Title 35 U.S. C.A. § 256; and, (2) That the Blue and Johnston Patent did not involve invention. The trial court’s memorandum opinion is reported in D.C.Neb.1958, 172 F. Supp. 23. The parties will be referred to as they were designated in the trial court. The question of infringement is not involved in this appeal because of the findings and judgment of the trial court that the Blue and Johnston Patent was invalid. The Blue and Johnston Patent relates to a device for the metering and regulation of the flow of anhydrous (liquefied gas) ammonia as it is applied to the soil for fertilizing purposes.
The findings of the trial court will not be set aside unless clearly erroneous, and due regard will be given to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 52(a) F.R.Civ.P. 28 U.S.C.A. A finding of fact by a district court is not “clearly erroneous” so as to justify this court in setting it aside unless it is unsupported by substantial evidence, contrary to the clear weight of the evidence, or induced by an erroneous view of the law. Sbicca-Del Mac, Inc. v. Milius Shoe Co., 8 Cir., 1944, 145 F.2d 389; Sears, Roebuck & Co. v. Talge, 8 Cir., 1944, 140 F.2d 395; Gasifier Mfg. Co. v. General Motors Corp., 8 Cir., 1943, 138 F.2d 197.
The facts as found by the trial court and as supported by substantial evidence in the record, insofar as they are pertinent to this appeal, are as follows:
Prior to the year 1948, plaintiff was a well established manufacturer of wheel-driven distributors for dry or solid fertilizers. This machinery could be pulled by tractor or animals, and plaintiff found most of its business in the cotton fields.
During 1947 and the early part of 1948, interest in the use of anhydrous ammonia as a fertilizer was running high due to a shortage of solid fertilizers. Early experimentation in the use of anhydrous ammonia as a fertilizer and particularly on how to apply it to the soil in known and accurate amounts was carried on by Mississippi State College at its Delta Experimental Station.
In February of 1948, John Blue, president of the plaintiff company, together with his son, James, and W. D. Tucker, Jr., general manager of plaintiff, made a trip to the experiment station, and on this trip Blue conceived a metering apparatus for applying anhydrous ammonia to the soil as a fertilizer. This original conception resulted in Patent No. 2,594,-284, application filed December 21, 1948, issued April 29, 1952 (hereinafter referred to as the Blue Patent). The Blue Patent is not involved in this action except as defense material upon the basis of which lack of invention in the Blue and Johnston Patent is urged. On the occasion of this trip to the experiment station, Blue made sketches showing his conception of a tractor-mounted adjustable stroke metering pump driven from the wheel of a tractor, acting to meter the anhydrous ammonia and to feed the same to ground tools for application to the soil. Upon his return to plaintiff’s plant at Huntsville, Alabama, Blue turned the sketches over to his son, who made drawings thereof, and these drawings formed a good representation of the Blue concept. No pump was ever built in conformity with these drawings; however, the concept was subsequently used as the basis for the Blue and Johnston Patent here in suit. The Blue concept therefore established the threshold upon which the work of Blue and Johnston began.
After Blue and Tucker returned from the experiment station, it was decided that plaintiff would make an attempt to build a mechanical metering device for anhydrous ammonia. Plaintiff then had no skilled engineers in its employ and did not possess any precision manufacturing equipment necessary for the development and production of an accurate pump-type metering device for anhydrous ammonia.
There existed in Huntsville, Alabama, at that time the General Fluid Machinery Corporation (hereinafter referred to as General Fluid), which had been organized in 1945 for the manufacture of domestic water pumping systems for deep wells, and they had also gone into the manufacture of hydraulic jacks and related equipment. Douglas Johnston, a highly educated engineer of wide experience in high pressure hydraulic work, and in the design and manufacture of pumps, was the president and chief engineer of this corporation. The corporation was equipped with both engineering and precision manufacturing facilities, but due to serious financial difficulties was looking for contract or job work.
It was decided that the plaintiff would secure the services of General Fluid to do further design work on a metering device for anhydrous ammonia. Blue, Tucker and Johnston made another trip to the experiment station primarily to enable Johnston to become acquainted with the problems involved in the handling and use of anhydrous ammonia. As a result of this trip and by agreement between Johnston and Tucker, as general manager of the plaintiff, the design work that was to be done by General Fluid was undertaken. Work progressed rapidly, and after preparation of certain drawings under the supervision of Johnston, a pump was made and subsequently tested at the experiment station in August of 1948. It was found that the pump “had some bugs” and changes were thereafter made. The rebuilt pump was demonstrated at the experiment station the following month. In this rebuilt pump, jointly designed and built by Blue and Johnston during the spring and summer of 1948, the original Blue concept of a wheel-driven, adjustable stroke metering pump had been changed in the following respects; (1) A pressure balanced valve had been substituted as the outlet valve in place of the spring-biased type of valve usually employed in pumps; (2) A vent had been added for discharging the accumulated ammonia from the pump cylinder to allow the pump cylinder to fill with liquid ammonia; and (3) A heat exchanger had been added to cool the incoming liquid ammonia and minimize the possibilities of flashing or bubbling. This was essentially the pump described in plaintiff’s Patent No. 2,696,-785, the Blue and Johnston Patent.
The application for a patent on the Blue and Johnston built pump was originally prepared by plaintiff’s attorneys naming Blue and Johnston as joint inventors. The name of Johnston was stricken from the patent application by Mr. Tucker, and the application submitted to The United States Patent Office on March 11, 1949, by Blue as the sole inventor. Letters Patent No. 2,696,785 were issued on December 14, 1954, to plaintiff, Blue having assigned his rights therein shortly after the application was filed.
After the patent was issued, and after the defendant had been charged with infringement, but before this case was filed, application was made under the provisions of Title 35 U.S.C.A. § 256 to the Commissioner of Patents, and a certificate was issued adding the name of Johnston as a joint inventor with Blue. At the same time Johnston assigned all of his rights in the patent to plaintiff.
Plaintiff’s first assignment of error on this appeal is the finding and conclusion by the trial court that the omission of Johnston’s name as a joint inventor was not such an error as could be corrected under the provisions of Title 35 U.S.C.A. § 256. In view of our conclusion hereinafter expressed that the judgment of the trial court should be affirmed on the ground that the Blue and Johnston Patent did not involve invention and was therefore invalid, we do not deem it necessary to decide this point.
We therefore pass to the second point involved on this appeal, namely, the decision of the trial court that the Blue and Johnston Patent in suit is invalid because it lacked patentable invention. As hereinbefore stated, the original concept of a tractor-mounted adjustable stroke metering pump driven from the wheel of a tractor, acting to meter anhydrous ammonia and to feed the same through ground tools for application to the soil as a fertilizer, was that of Blue. Johnston had no part in this original conception, and the conception was reduced to drawings before Johnston became associated with Blue. The trial court found that the Blue and Johnston Patent was merely the basic pump conceived solely by Blue modified by the addition of three components, namely, (1) a pressure balanced valve, (2) a venting device, and (3) a heat exchanger. The court concluded that the assembly of these well known components to “iron out the bugs” in the pump described in Blue’s earlier Patent was not a patentable invention; that Blue and Johnston had merely brought together segments of prior art; that nothing had been added to the stock of knowledge, and to allow a monopoly on this aggregation would diminish the resources available to skillful men.
In applying 35 U.S.C.A. § 103, this court follows the standards of patentability set out by the United States Supreme Court in Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. There, 340 U.S. at pages 152, 153, 71 S.Ct. at page 130, the Court said:
“Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. The function of a patent is to add to the sum of useful knowledge. Patents cannot be sustained when, on the contrary, their effect is to subtract from former resources freely available to skilled artisans. A patent for a combination which only unites old elements with no change in their respective functions, such as is presented here, obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. This patentee has added nothing to the total stock of knowledge, but has merely brought together segments of prior art and claims them in congregation as a monopoly.”
If a trial court has failed to apply proper legal standards in determining the presence or absence of invention, its finding upon that issue will be reversed on appeal as clearly erroneous. Caldwell v. Kirk Mfg. Co., 8 Cir., 1959, 269 F.2d 506; Koochook Co. v. Barrett, 8 Cir., 1946, 158 F.2d 463, 465; Frank Adam Electric Co. v. Colt’s Patent Fire Arms Mfg. Co., 8 Cir., 1945, 148 F.2d 497, 502-503. We do not find error in the trial court’s findings or application of legal standards.
We next discuss the utility of the three components and the prior knowledge of their respective arts.
The Pressure Balanced Valve
This valve is a bypass line from the pumping chamber to a chamber behind the outlet valve. Thus, the pressure from the ammonia is the same on both sides of the outlet valve. With the pressure equalized, a relatively light spring holds the valve shut until hit by the piston. If a balanced valve were not used, a much more powerful spring would be necessary to hold the valve shut when the ammonia pressure built up, and a much more powerful piston thrust would be needed to open the valve. A spring, without this equalized pressure, was contemplated in the Blue concept, and it appears undisputed that it was a substitute for the spring-biased outlet valve of the Blue Patent. Johnston was familiar with a balanced valve and its operation (Johnston’s own Patent No. 2,508,609), and using it for the first time as an outlet valve does not involve invention. An explanation of a pressure balanced valve appears in a 1941 engineering encyclopedia, and in a mechanical dictionary published in 1882, which dealt with steam pressure. We agree with the finding of the trial court that the utilization of this valve involved nothing more than the ordinary skill in the art.
The Venting Device
The venting device is merely a device to let the air or gaseous ammonia out of the pump chamber, to avoid the problem of vapor lock or gas lock. It also serves to prime the pump with liquid and starts the cooling action of the heat exchanger, so that the pump will meter accurately at the beginning of a fertilizer run. We agree with the findings of the trial court that there was nothing new or novel in this venting device, either in the principle or its application.
The Heat Exchanger
The idea of a heat exchanger was not new when Blue and Johnston began their work together. A heat exchanger on an anhydrous ammonia applicator was known as early as 1948 and was on the device manufactured by the New Holland Company, Baggette Patent, et al., No. 2,612,760, application filed December 9, 1948. The Kniskern Patent, No. 2,007,-251, application dated April 14,1934, had a heat exchanger. Other patents are cited by the defendant showing prior knowledge and art, but we see no reason for prolonging this opinion with a discussion of them. The heat exchanger was not new to Blue and Johnston and there was no inventive genius in the application they made of it. Nothing was added to the total stock of knowledge by them either in its use or by its construction. See, Boston Metals Co. v. Air Products, Inc., 4 Cir., 1951, 193 F.2d 535, holding Anderson Patent, No. 2,480,093 cited here as prior art invalid for lack of invention.
The plaintiff argues that the trial court erred in considering the Blue Patent as an anticipation of the Blue and Johnston Patent and as prior art, because the Blue Patent was not issued until subsequent to the filing of the application for the Blue and Johnston Patent. These two applications were co-pending. It is true that the application for the Blue Patent cannot be considered as prior art in the technical sense, but it is a widely recognized rule that the application for such patent can nevertheless be used as defense material to prove that Blue and Johnston were not the original and first inventors or discoverers of the metering pump described in their patent. Permo, Inc. v. Hudson-Ross, Inc., 7 Cir., 1950, 179 F.2d 386; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 1943, 138 F.2d 197. And such appears to be the way the trial court considered it.
The plaintiff further contends that the Blue and Johnston pump was reduced to practice prior to the filing of the application for the Blue Patent and that therefore the Blue application cannot be considered as defense material against the Blue and Johnston Patent. We think it can be stated, based upon the findings and conclusions of the trial court, and upon our review of the record in this case, that the pump described in the Blue Patent and the pump described in the Blue and Johnston Patent were reduced to practice simultaneously. The Blue and Johnston pump was nothing more than the original Blue pump modified by the addition of the three components hereinbefore discussed, and this modification did not constitute patentable invention. The mere aggregation of these components which in the aggregation perform or produce no new or different function or operation than that theretofore performed or produced by them is not patentable invention. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 151, 71 S.Ct. 127, 95 L.Ed. 162.
The trial court had before it a large volume of documentary and expert evidence introduced by the defendant to show prior knowledge and art, which we do not deem necessary to refer to in detail. Suffice it to say that such evidence constituted a sufficient evidentiary basis for the findings that the Blue and Johnston Patent was invalid for lack of invention. The credibility of expert witnesses and the weight of expert testimony is ordinarily for the trier of the facts to determine. Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 1943, 138 F.2d 197.
The judgment of the trial court is affirmed.
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_appel1_7_2 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America, Plaintiff-Appellee, v. Brian Patrick Spenser PERCEVAL, Defendant-Appellant.
No. 85-2690.
United States Court of Appeals, Tenth Circuit.
Oct. 17, 1986.
Robert E. Mydans (William S. Price, U.S. Atty., with him on brief), Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.
Kenneth C. Watson, Oklahoma City, Okl., for defendant-appellant.
Before BARRETT, SETH and ANDERSON, Circuit Judges.
BARRETT, Circuit Judge.
Brian Patrick Spenser Perceval (Perceval), appeals his conviction of possessing a weapon or object that could be used as a weapon while a federal inmate in violation of 18 U.S.C. § 1791(a)(2).
On July 9, 1985, Perceval, who is incarcerated at the Federal Correctional Institution in El Reno, Oklahoma, was working in the machine shop of the prison where he had been assigned the position of welder. The machine shop supervisor stepped out of the shop for a moment and when he returned he observed Perceval sawing an unauthorized piece of steel on the band saw. Perceval noticed the supervisor looking at him, and he attempted to hide the piece of steel in a slot in the saw table. The supervisor approached the table and removed the object, which was eight inches long, had a four inch blade, and was sharpened to a point.
Perceval admitted that he made the object and that it looked like a knife, but contended that it was to be used as a tool to assist him in the shop. In spite of Perceval’s assertions, there were standard tools in the shop that could have been used for the same purposes for which he claimed he was sharpening the steel. He did not attempt to use any of these other tools, however. Perceval knew that making or possessing such an object was forbidden by prison regulations. Under the regulations, Perceval was permitted to make use of only, a limited number of tools unless he was granted special authorization. He had no special authorization to make this “tool.”
On appeal, Perceval raises the following issues: (1) the trial court erred in refusing to grant his motion to dismiss because the evidence was insufficient to sustain a conviction on the grounds that there was no intent; (2) what intent, if any, is required by one violating 18 U.S.C. § 1791; (3) the jury must be instructed that it must find beyond a reasonable doubt that the object in question was made by the appellant with the purpose of being used as a weapon or as a means of facilitating escape; and (4) whether the statute is vague and overly broad because there is no requirement of intent.
I.
All of Perceval’s arguments are variations on the question of intent. Perceval first contends that a purpose to use an object as a weapon is a required element of a § 1791(a)(2) violation. He argues he never intended to use the object he was sawing as a weapon and therefore he did not violate the statute which provides in pertinent part:
(a) Offense. —A person commits an offense if, in violation of a statute, or a regulation, rule, or order issued pursuant thereto—
(1) he provides, or attempts to provide, to an inmate of a federal penal or correctional facility—
******
(B) any other weapon or object that may be used as a weapon or as a means of facilitating escape;
******
(2) being an inmate of a Federal penal or correctional facility, he makes, possesses, procures, or otherwise provides himself with, or attempts to make, possess, procure, or otherwise provide himself with, anything described in paragraph (1).
18 U.S.C. § 1791 (as amended Oct. 12,1984, Pub.L. 98-473, Title II, § 1109(a), 98 Stat. 2147).
Perceval argues that the Government must prove beyond a reasonable doubt that he intended to use the object he was sharpening as a weapon. The statute itself requires less. It requires that Perceval possess or provide himself with an object that may be used as a weapon. “[B]eing an inmate of a Federal penal or correctional facility, he makes, possesses, procures, or otherwise provides himself with, or attempts to make, possess, procure, or otherwise provide himself with, anything described in paragraph (1).” 18 U.S.C. § 1791(a)(2) (emphasis added).
Perceval did admit to possessing and making an object that resembled a knife which, of course, may be used as a weapon. There was sufficient evidence presented by the Government at trial to prove that Perceval’s conduct violated the statute.
II.
In the alternative to his contention that intent is required by the statute, Perceval argues that it is unclear whether any intent must be shown because the statute is silent with respect to an intent requirement. Perceval is correct that the statute does not expressly contain an intent requirement. However, criminal statutes are generally to be construed to include an intent element. In the seminal case of Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249-50, 96 L.Ed. 288 (1952), the Court held “mere omission [from the statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced.” See also, Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (“the failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law”). Supportive of the general proposition that the intent element has not been eliminated even though the statute is silent, are the legislative history of the statute and the legal precedents established under section 1791’s statutory predecessor.
Congress enacted the present version of section 1791 in 1984. The former statute and the present statute are not identical, but the provisions are essentially directed at the same conduct. Section 1791’s predecessor prohibited:
[Conveying] into such [federal penal or correctional] institution or from place to place therein, any firearm, weapon, explosive, or any lethal or poisonous gas or any other substance or thing designed to kill, injure, or disable any officer, agent, employee, inmate thereof, or [conspiring] so to do____ (18 U.S.C. § 1792 (current version at 18 U.S.C. § 1791).)
Although it was not expressly required, the previous statute had been construed to include an intent element. See e.g., United States v. Swindler, 476 F.2d 167, 169 (10th Cir.), cert. denied, 414 U.S. 837, 94 S.Ct. 183, 38 L.Ed.2d 72 (1973), (“The statute is silent on intent, but obviously criminal intent is an essential element.”). It is presumed that Congress was aware of and adopted prior case law upholding the mental state element that had been read into the statute by reviewing courts, when it enacted the new version of the statute. Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978), (“where ... Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.”).
Even though Perceval professes confusion about an intent requirement, he acknowledges that some type of intent must be required under the statute when he argues that intent can only be established if his purpose in making the object was to use it as a weapon. Other than pointing out that there can be no such thing as a weapon per se and that the Model Penal Code suggests purpose as one of several general levels of intent, (in substitution for the old concepts of general and specific intent), Perceval provides no support as to why this court should hold that the “purpose standard” was the standard intended by Congress. He makes no attempt to refute the evidence indicating that Congress contemplated a “knowing standard”.
The “knowing standard” is clearly identified in the legislative history. Thus, we conclude that this was the standard Congress intended to be applied. Old section 1792 was revised and became the current section 1791. The legislative history indicates that Congress adopted the committee’s report on proposed section 1791. 130 Cong.Rec. No. 4, S. 264-65 (daily ed. Jan. 26, 1984) (statement of Sen. Laxalt). That report explains that a knowing state of mind requirement will be read into the statute. “[T]he conduct, [provides, introduces, makes, possesses, procures, or otherwise provides] must, at a minimum, be committed knowingly.72” Criminal Code Reform Act of 1981, Senate Report No. 97-307, 1st Sess., p. 332. Footnote 72 elaborates, “No state of mind is specified in the section with respect to these elements [of the crime]. Accordingly, under the rule of construction in section 303(b), the state of mind read into the statute for the conduct elements is ‘knowing.’ ” Id. p. 332 n. 72.
In reliance on prior case law and the legislative history, we conclude that a violation of section 1791 must be committed “knowingly.” The trial court instructed the jury on the applicable definition of that term. Perceval admitted that he made the object, that it resembled a knife, and that he had possessed it for two weeks prior to being caught by the shop supervisor. The jury properly found that he knowingly possessed this weapon-like piece of steel.
III.
Perceval challenges 18 U.S.C. § 1791 as unconstitutionally vague and overbroad because there is no requirement of intent in the statute. We have held that a knowing standard of intent is a statutory element. Under Perceval’s reasoning, criminal statutes without an express requirement of intent are per se unconstitutional. This is inconsistent with our system of criminal law in which many codifications of common-law crimes do not mention an intent requirement but have been construed to include intent. Morissette, supra. Moreover, Perceval may not challenge the statute when his conduct is clearly covered by it. Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561-62, 41 L.Ed.2d 439 (1974).
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)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_appnatpr | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Stanley Mills STANERT, Defendant-Appellant.
No. 84-5128.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 4, 1984.
Decided June 5, 1985.
Roger W. Haines, Jr., Maria T. Arroryo-Tabin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Craig E. Weinerman, San Diego, Cal., for defendant-appellant.
Before GOODWIN, POOLE, and BOOCHEVER, Circuit Judges.
POOLE, Circuit Judge:
Stanley Mills Stanert appeals his conviction for conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. He contends that the district court improperly denied his pretrial motion to suppress evidence found at his residence and challenges the sufficiency and accuracy of the affidavit used to obtain the search warrant. We agree with appellant that he is entitled to an evidentiary hearing to challenge the validity of the search warrant.
I. Facts
On 7 December 1983, a California Municipal Court Judge issued a telephonic search warrant permitting police to search Stanert’s residence in Cardiff-by-the-Sea, California. In her oral affidavit in support of the warrant, Agent Hanlon, a San Diego Sheriffs officer assigned to the Narcotics Task Force, stated that she believed there to be a clandestine laboratory in the residence. Her information was largely based on information received by Drug Enforcement Administration (DEA) Agent Black-lock. Blacklock was standing next to Hanlon when she delivered her oral affidavit, and the affidavit related the following facts.
The day before, an anonymous male had phoned Blacklock to inform him that the occupants of 2476 Newcastle Drive were using ether either to free-base cocaine or to manufacture some type of drug. The caller stated that he was a biochemist familiar with the smell of ether and that this smell was very strong in the evening hours throughout the neighborhood. The next day a different anonymous male phoned Blacklock also to complain of a strong ether smell emanating from the residence. The second caller stated that he had walked by the residence and observed the doors on each side of the house open as if ventilating the residence. In addition, the caller informed Blacklock that the occupant of the house drove a white Mercedes Benz automobile with California license plates ORZ 572 and had identified himself to the caller as “Stan.” Blacklock checked with the California Department of Motor Vehicles and discovered that the license number was listed to a 1964 Mercedes Benz registered to defendant at the residence in question. He also checked DEA records and discovered that Stanert was suspected of being involved in marijuana and cocaine smuggling and that in 1980, Stanert had been arrested in Panama with approximately 14 pounds,of cocaine.
Blacklock then contacted Agent Nielsen of the Internal Revenue Service (IRS). Nielsen informed Blacklock that as part of a continuing investigation being conducted by the IRS, a confidential informant had identified Stanert as an individual who was allegedly manufacturing cocaine. Black-lock knew the informant, and from his own personal participation in several investigations, knew the informant to be reliable. Blacklock advised Hanlon that he had never known the informant to give false or misleading information.
Based on the complaints by the anonymous callers of the strong ether smell, Hanlon and another agent went to the vicinity of Stanert’s residence whereupon they also detected the overwhelming odor of ether. When the agents arrived at the residence, the doors to the house were closed, and the officers observed a vehicle that appeared to be a Mercedes Benz. The previous year, Hanlon had investigated a clandestine laboratory at the residence which had blown up due to the ignition of ether fumes.
Hanlon set forth the foregoing facts in an oral affidavit to a judge of the Municipal Court of San Diego County. The judge of that court thereupon issued a search warrant for Stanert’s residence. Agents executed the warrant and seized cocaine, scales, $3,650 in cash and drug paraphernalia. Neither laboratory equipment nor ether was found on the premises. Stanert was arrested, and soon after, a federal grand jury returned a one-count indictment charging him with a violation of 21 U.S.C. § 841(a)(1) (possession of a controlled substance with intent to distribute).
Stanert sought suppression of all items seized during the search of the residence. He challenged both the sufficiency and veracity of Hanlon’s affidavit. Stanert requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claiming that the affidavit contained the following material misrepresentations and omissions: (1) Hanlon misrepresented the information given by the 6 December 1983 anonymous caller because that caller never stated that the occupants of the house were using ether to manufacture some type of drug and only told Blacklock that it was the caller’s opinion that the occupants were probably free-basing cocaine; (2) Hanlon’s representations concerning the smell of ether were fabricated and untrue; (3) Hanlon misrepresented by omission Stanert’s Panama arrest by failing to inform the judge that the government’s records indicated that Stanert apparently had not been convicted of any offense; (4) Hanlon misrepresented the earlier explosion at Stanert’s residence by failing to tell the judge that Stanert had purchased and moved onto the property some time after this explosion; and (5) Hanlon neglected to advise the judge that the agents had unsuccessfully sought a search warrant from another judge. Stanert also contended that the confidential informant was Louis Villar and that Villar could not have told Nielsen that defendant was involved in the manufacturing of synthetic cocaine because such a substance does not exist. Stanert asked the court to conduct an in camera hearing on the informant’s identity pursuant to United States v. Kiser, 716 F.2d 1268 (9th Cir.1983).
The district court found that Stanert had not established “enough of a position in order to suppress the warrant.” Thus, Stanert’s motion for an evidentiary hearing was denied because Stanert had failed to present evidence sufficient to justify suppression. Stanert was convicted on stipulated facts of a new charge of violating 21 U.S.C. § 846 (conspiracy to possess with intent to distribute a controlled substance) brought in a superceding information. The district court sentenced him to a three-year term. This appeal followed.
II. Sufficiency of the Affidavit.
A search warrant, to be valid, must be supported by an affidavit establishing probable cause. In reviewing the validity of a search warrant, a court is limited to the information and circumstances contained within the four corners of the underlying affidavit. United States v. Taylor, 716 F.2d 701 (9th Cir.1983). Stanert argues that the Hanlon affidavit failed to support the necessary determination of probable cause to believe that his residence housed an illicit laboratory. We disagree.
Probable cause determinations are to be made by viewing the “totality of the circumstances” set forth in the affidavit. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Because probable cause is a fluid concept not readily, or even usefully, reduced to a neat set of legal rules,
[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. 462 U.S. at 238, 103 S.Ct. at 2332.
We apply a narrow standard of review to a magistrate’s decision to issue a search warrant. United States v. Estrada, 733 F.2d 683, 684 (9th Cir.1984). “[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” Gates, 462 U.S. at 238,103 S.Ct. at 2332. We may not reverse such a conclusion unless the magistrate’s decision is clearly erroneous. United States v. Estrada, 733 F.2d at 684; United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984).
The judge in this case issued the search warrant on the basis of the Hanlon oral affidavit. We find that the totality of circumstances as set forth in the affidavit provided the judge with a substantial basis for concluding that probable cause existed to search Stanert’s residence.
A confidential informant had identified Stanert as an individual who was allegedly manufacturing cocaine. “To credit a confidential source’s information in making a probable cause determination, the affidavit should support an inference that the source was trustworthy and that the source’s accusation of criminal activity was made on the basis of information obtained in a reliable way.” United States v. Landis, 726 F.2d 540, 543 (9th Cir.), cert. denied, — U.S. -, 104 S.Ct. 2688, 81 L.Ed.2d 882 (1984). Although the tip in this case came from an informant who had demonstrated reliability, the information reported represents a bare conclusión which fails to reveal the informant’s basis of knowledge, i.e., whether the informant was relying on something more substantial than casual rumor. In addition, the statement does not purport to reveal the location of the alleged laboratory and certainly does not locate it at 2476 Newcastle Drive.
These deficiencies, however, do not foreclose a finding of probable cause. Under a totality of the circumstances analysis, “a deficiency in one [area] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Gates, 462 U.S. at 233, 103 S.Ct. at 2329. In this case, the judge was presented with other information which, when combined with the tip of the confidential informant, enabled him to conclude that there was “a fair probability that contraband or evidence of crime” would be found in Stanert’s house. Id. at 238, 103 S.Ct. at 2332.
Two citizens had phoned Blacklock to report that Stanert’s residence emitted a strong odor of ether, and this odor was corroborated by Hanlon and another agent. One of the callers had advised Blacklock that the occupants of the house were using the ether to free-base cocaine or manufacture drugs. Hanlon informed the judge that she had received instruction that ether is a solvent used in the preparation of several illicit substances, including cocaine. See United States v. Willis, 633 F.2d 930 (10th Cir.1980), cert. denied, 449 U.S. 1129, 101 S.Ct. 950, 67 L.Ed.2d 117 (1981) (affiant stated that based on his personal experiences of seven and a half years as a drug agent, he knew ether was a necessary precursor in the manufacture of amphetamines); United States v. Park, 531 F.2d 754 (5th Cir.1976) (smell of ether supported probable cause to believe that suspect was illegally manufacturing drugs).
Moreover, Hanlon had investigated an illicit lab at the residence that had exploded the year before due to the ignition of ether fumes. This explosion indicates that Stanert had previously been engaged in the illegal manufacture of controlled substances. See United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723 (1971) (prior seizure of a sizable stash of illicit whiskey in an abandoned house under the defendant’s control indicated that the defendant had previously trafficked in this contraband). Such prior behavior “made the charge against [Stanert] much less subject to scepticism than would be such a charge against one without such a history.” Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). Besides the laboratory explosion at the residence, Stanert’s “history” also included a 1980 arrest in Panama for possession of approximately 14 pounds of cocaine. The large amount of cocaine involved in this arrest suggests that Stanert was close to the source of the drug, thereby giving added weight to the present charge that Stanert was in fact manufacturing the drug.
Although no single piece of evidence by itself is conclusive, viewed together the “totality of the circumstances” was sufficient to establish probable cause to believe that evidence of drug-related activity would be found at Stanert’s residence.
III. Omissions or misrepresentations
Stanert argues that the warrant affidavit contains material omissions and false statements that negate its facial showing of probable cause. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
In Franks, the Supreme Court held that a defendant could challenge a facially valid affidavit by making a substantial preliminary showing that “(1) the affidavit contains intentionally or recklessly false statements, and (2) the affidavit purged of its falsities would not be sufficient to support a finding of probable cause.” United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980). Where the defendant makes such a showing, the Fourth Amendment requires that a hearing be held at the defendant’s request. Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. If after the limited evidentiary hearing the court concludes that the magistrate or judge in issuing the warrant was misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth, then suppression is an appropriate remedy. United States v. Leon, — U.S.-, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677 (1984).
In his motion for an evidentiary hearing before the district judge, Stanert raised six alleged misrepresentations or omissions. The court denied the motion. Because we find that Stanert has made a sufficient showing with respect to four inaccuracies or omissions which were material to the finding of probable cause, we reverse and remand for a limited evidentiary hearing.
In her affidavit, Hanlon informed the judge that one of the callers reported to Blacklock that the occupants of 2476 Newcastle Drive were using ether either to free-base cocaine or to manufacture drugs. Stanert contends that this statement is inaccurate in two respects and points to Blacklock’s investigative report for support. In that report which appellant submitted to the district court, Blacklock writes that the caller “opined that the resident of 2476 Newcastle was probably free basing cocaine.” Thus, according to the report, the caller never suggested that appellant was operating a clandestine laboratory, and furthermore, his statement concerning appellant’s alleged cocaine use was but an opinion apparently based on speculation. The misstatement by Hanlon in the affidavit, however, implies that the caller had personally observed drug activity at the residence.
Second, Hanlon failed to inform the judge that while appellant had been arrested in Panama back in 1980, it appeared that he had not been convicted of any offense. The Government, however, contends that Hanlon’s failure to inform the judge of the apparent disposition of appellant’s Panamanian arrest was not intentional or reckless. It argues that Hanlon did not know whether appellant had been convicted of possessing cocaine, and that since the affidavit spoke only in terms of an arrest, the reasonable reader would conclude that no disposition was known.
In Lefkowitz, 618 F.2d at 1317 n. 3, this court assumed without deciding, that the Franks rationale permits an attack on search warrants obtained by affidavits marred by omissions of facts. Today, we expressly hold that the Fourth Amendment mandates that a defendant be permitted to challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of facts that tend to mislead. See United States v. Williams, 737 F.2d 594, 604 (7th Cir.1984).
The Supreme Court in Franks noted that the Warrant Clause of the Fourth Amendment takes the affiant’s good faith as its premise. 438 U.S. at 164, 98 S.Ct. at 2680. Moreover, “[b]ecause it is the magistrate who must determine independently whether there is probable cause, ... it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment.” Id. at 165, 98 S.Ct. at 2681. The use of deliberately falsified information is not the only way by which police officers can mislead a magistrate when making a probable cause determination. By reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning. See id. at 168, 98 S.Ct. at 2682.
Clear proof of deliberate or reckless omission is not required. See United States v. Chesher, 678 F.2d 1353, 1362 (9th Cir.1982). Such proof is reserved for the evidentiary hearing. Id. At this stage, all that is required is that the defendant make a substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading-
Although Hanlon might not have known precisely what the disposition of Stanert’s 1980 arrest was, it appears that she was aware that DEA records suggested that Stanert had not been convicted of any charge. Blacklock’s investigative report clearly states that according to DEA records it appeared that Stanert had not been convicted. As Stanert points out, Blackloek was the agent who informed Hanlon of the Panamanian arrest, and he was standing next to Hanlon when she submitted her oral affidavit to the judge via telephone. It is therefore reasonable to conclude that Hanlon was informed of the fact that Stanert had apparently not been convicted of any charge stemming from his 1980 arrest in Panama. Moreover, the mere fact that the affidavit spoke only in terms of an arrest does not mean that failure to inform the judge of the apparent disposition of the charge was not misleading. Inclusion of the information serves to weaken the significance of Stanert’s arrest for possession of 14 pounds of cocaine because the apparent absence of a conviction would raise doubts as to whether Stanert had any connection with the cocaine which was seized.
Finally, Stanert contends that Hanlon misrepresented the earlier explosion at Stanert’s residence by failing to tell the judge that Stanert purchased and moved onto the property after the explosion. The Government argues that the omission was not intentional or reckless because Hanlon reported the explosion for the limited purpose of illustrating the danger which ether fumes pose. We find this argument untenable.
The fact that Hanlon reported the site of the explosion to be Stanert’s address would clearly leave a judge reviewing the affidavit with the impression that Stanert was residing at the house when the explosion occurred. When this impression is coupled with the fact that the cause of the explosion was the ignition of ether fumes escaping from an illicit laboratory, the logical and reasonable inference is that Stanert was the operator of the lab. Such an inference is quite damaging considering the current suspicion being leveled at the defendant. Thus, we conclude that Stanert has made a sufficient showing that Hanlon’s nondisclosure of the previous ownership of the residence caused the information actually reported to be misleading, and that this nondisclosure was at least reckless.
Standing alone, Stanert’s substantial preliminary showing that the affidavit contained reckless or deliberate falsities and omissions is insufficient to warrant a Franks hearing. A defendant challenging an affidavit must also show that the affidavit purged of those falsities and supplemented by the omissions would not be sufficient to support a finding of probable cause. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684. The effect of the misrepresentations and omissions on the existence of probable cause is considered cumulatively. United States v. Esparza, 546 F.2d 841, 844 (9th Cir.1976). We must determine, therefore, whether the affidavit, once corrected and supplemented, would provide a, magistrate with a substantial basis for concluding that probable cause existed.
The confidential informant had identified Stanert as an individual allegedly manufacturing cocaine. As we have previously stated, this tip standing alone does not provide the basis for a magistrate’s determination that there was probable cause to search Stanert’s residence. The only additional material in the affidavit suggesting criminal activity at the residence was (1) the reports of two anonymous citizens that.-Stanert’s residence was emitting ether fumes, (2) the corroboration of the odor by Hanlon and another agent, and (3) the statement by Hanlon that ether is a solvent used in the preparation of several illicit substances, including cocaine. Ether, however, is a noncontraband substance having a number of legitimate uses. United States v. Tate, 694 F.2d 1217, 1221 (9th Cir.1982), vacated on other grounds, — U.S. -, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984). It is a very common solvent, and is also used to start engines. Id.
The confidential informant did state that Stanert was manufacturing cocaine; however, we have no indication of the basis for the informant’s conclusion. The informant could very well have been reporting a casual rumor generated from the neighbors’ olfactory perception that Stanert’s residence was emitting a strong ether smell. In fact, one of the anonymous citizens speculated that Stanert was probably using the ether not to manufacture drugs but to free-base cocaine.
Although we are mindful that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause,” Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969), we also recognize that “[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Gates, 462 U.S. at 239, 103 S.Ct. at 2332. “In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.” Id. Upon reviewing the sufficiency of the modified affidavit, we conclude that it fails to provide a substantial basis for concluding that probable cause existed to search defendant’s residence. Thus, Stanert has met the second prong of the Franks test and is entitled to an evidentiary hearing on his allegations.
IV. In Camera hearing
Stanert also contends that he is entitled to either an in camera or evidentiary hearing, or both, since he made a sufficient showing that the affidavit misrepresented or invented information supplied by a confidential informant. See United States v. Kiser, 716 F.2d 1268 (9th Cir.1983). Stanert’s offer of proof, however, falls short of the substantial preliminary showing required by Kiser.
In Kiser, this court held that a defendant who claims a warrant affidavit misrepresents or invents information supplied by a confidential informant is, in some instances, entitled to a Franks hearing. Id. at 1271. We noted, however, that the public interest imposes unique procedural requirements and evidentiary burdens on a defendant who advances such a claim. Id.
In Kiser, the defendant’s offer of proof consisted primarily of the affidavit of one Ericson who the defendant alleged was in fact the confidential informant. Ericson’s affidavit was factually similar to the warrant affidavit thus providing preliminary evidence that Ericson was indeed the affiant’s informant. However, Ericson’s affidavit also differed in significant respects with the warrant affidavit so as to cast doubt on the affiant’s veracity. The court found that because defendant’s offer of proof constituted a substantial preliminary showing that Ericson was the informant and that the warrant affidavit misstated important facts reported by Ericson, an ex parte, in camera hearing was called for to determine whether the defendant’s suspicion was, in fact, correct. Id. at 1273. If during the hearing, the court concluded that Kiser had correctly identified the informant, the hearing would be extended for the purpose of determining if the defendant is entitled to a Franks hearing under the traditional test. 716 F.2d at 1273.
Here, Stanert has alleged that Louis Villar is the confidential informant. Unlike Kiser, however, Stanert does not offer any proof to support his claim. Furthermore, Stanert claims that the affiant must have misrepresented or invented the information from Villar because the substance synthetic cocaine does not exist and has never been manufactured. Even assuming that Stanert is correct about the nonexistence of synthetic cocaine, his assertion does not in any way constitute a showing that (1) the informant did not in fact tell the agents that Stanert was manufacturing such a substance, or (2) the affiant knowing this information to be an impossibility reported it to the judge in an effort to mislead him.
Stanert has not supplied any evidence that Louis Villar, the alleged informant, knew or believed that synthetic cocaine does not exist. Neither has he supplied any evidence that it is generally known or believed by the public that there is no such thing as synthetic cocaine. Furthermore, even if the informant knew that synthetic cocaine did not exist and made up the story to the police, this would not warrant suppression. “The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” Franks, 438 U.S. at 171, 98 S.Ct. at 2684.
In addition, Stanert has not shown that the agents misled the judge by reporting information that they knew was false. As defense counsel admits in his affidavit, two of the five defense attorneys he contacted and who regularly handle cases involving controlled substances have heard of the term synthetic cocaine as it relates to theory. During the hearing before the district court, counsel for the Government stated that she has heard of cases involving synthetic cocaine and that it is something that exists. Thus, it is quite reasonable that the affiant in this case reported the informant’s tip in good faith without any reckless disregard.
V. Conclusion
We vacate Stanert’s conviction and remand to the district court for a limited evidentiary hearing on the warrant affidavit. The district court should determine whether the affidavit was tainted with false or recklessly inaccurate information from the officer and, if so, whether the affidavit can be purged without destroying the foundation for the warrant.
AFFIRMED IN PART, AND VACATED AND REMANDED IN PART.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.