task
stringclasses 223
values | output
stringlengths 2
5
| instruction
stringlengths 576
44.2k
|
|---|---|---|
songer_casetyp1_2-3-1 | C | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - civil rights claims by prisoners and those accused of crimes".
Johnny FORTNER, Plaintiff-Appellant, Tony Anderson, Plaintiff, Paul J. Tyner, Plaintiff-Appellant, Darrell Phillips, Johnny Sorey, and James McClendon, Plaintiffs, v. A.G. THOMAS, Warden, Thomas Byrd, Executive Assistant and Donnell Lewis, Hearing Officer, Defendants-Appellees.
No. 90-8924.
United States Court of Appeals, Eleventh Circuit.
Feb. 18, 1993.
James Elliott, Savannah, GA (court-appointed), for plaintiffs-appellants.
John C. Jones, State Law Dept., Atlanta, GA, for defendants-appellees.
Before HATCHETT, Circuit Judge, HENDERSON and ESCHBACH , Senior Circuit Judges.
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation.
HATCHETT, Circuit Judge:
As a matter of first impression in this circuit, we hold that a prisoner retains a constitutional right to bodily privacy. We remand this case to the district court for application of the test announced in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 2261-63, 96 L.Ed.2d 64 (1987), to determine whether the prison regulations unreasonably impinge on the prisoners' constitutional rights to bodily privacy.
PROCEDURAL BACKGROUND
The appellants, male inmates at Georgia State Prison, appeal the dismissal of their 42 U.S.C. § 1983 action, alleging that the appellees, several correctional officials, violated their constitutional rights of privacy and due process. For the alleged violations of their constitutional right of privacy, the appellants seek monetary damages and in-junctive relief prohibiting female correctional officers from assignments that allow the officers to view the appellants nude in their living quarters, including their use of the showers and the toilet. The appellants also seek monetary and injunctive relief for the alleged violations of their rights to due process relating to disciplinary proceedings that occur when the female correctional officers charge them with indecent exposure, obscene acts, and insubordination.
On October 20, 1989, the appellees filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(a), asserting qualified immunity. On November 14, 1989, the appellants filed a first amended complaint in response to the appellees’ motion to dismiss, seeking to add two disciplinary hearing officers as “key players” in the violation of their due process rights. On September 14, 1990, the district court adopted the report and recommendation of a magistrate judge, and dismissed the appellants’ right to privacy claims on the grounds of qualified immunity and the due process claims based on the consent orders entered in Guthrie v. Evans.
In their complaint, the appellants claim that this controversy began anew when prison authorities began assigning female correctional officers to duties in the living quarters of male inmates. The appellants claim that the female officers act unprofessionally when they view nude male inmates walking around in undershorts, showering, and using the toilet. The appellants claim that the female officers flirt, seduce, solicit, and aroused them to masturbate and otherwise exhibit their genitals for the female officers’ viewing. The appellants also claim that the female officers file false disciplinary reports for obscene acts and insubordination in order to avoid reprimand when other prison authorities discover them engaged in such unprofessional activity. The appellants describe the relevant facilities in their living quarters at the Georgia State Prison. The appellants claim that the female officers file the disciplinary reports after spying on them through a one-inch crack in their cell doors, or after looking at them in the shower through a five by ten-inch window on the shower door.
In this complaint, the appellants also complain that the appellees have violated Policy Statement 590.1, which governs inmate discipline. The appellants claim that disciplinary officers improperly punished them with severe isolation and segregation sanctions, instead of the appropriate punishments for the moderate offenses of exposure, exhibition, and obscene actions. The appellants also claim that the female officers wrongfully charged them with insubordination, a high severity charge, instead of the proper exposure, exhibition, and obscene action offenses. Additionally, the appellants claim that the female officers’ false disciplinary reports resulted in isolation and segregation sanctions being imposed ninety-nine percent of the time, even though the disciplinary proceedings occurred without the benefit of physical evidence, witness testimony, proper notice, or the presence of the charging officer. The appellants detailed the disciplinary process at the Georgia State Prison in their motion to amend the complaint, summarizing the charges in several disciplinary reports and also describing the disposition of the matters.
ISSUES AND CONTENTIONS
The appellants contend that the district court erred in denying their November 14, 1989 amendment to the complaint adding the disciplinary hearing officers as additional defendants. The appellants argue that the district court committed clear error in denying their right to amend their complaint at least once as a matter of course before the appellees filed a responsive pleading. The appellants also contend that the district court dismissed their complaint improperly based on a finding that the appellees are entitled to qualified immunity. The appellants argue that the district court erred in determining that the female officers did not violate a clearly established right, because the generalized constitutional right to privacy was clearly established at the time. In addition, the appellants contend that the district court erred in dismissing their due process claims based on the consent orders entered in Guthrie. The appellants argue that their complaint seeks both injunctive relief and monetary damages which makes a contempt proceeding under Guthrie an inadequate remedy for their claims.
The appellees respond that the district court properly denied the appellants’ motion to amend because their motion to dismiss constituted a responsive pleading within the meaning of rule 15(a); and also contend that the district court properly concluded that qualified immunity shields them from the appellants’ right to privacy claims, and that the due process claims are precluded under Guthrie. We address each of these issues separately.
DISCUSSION
This court must review de novo a district court’s order dismissing a complaint, accepting all allegations in the complaint as true and construing the facts in a light favorable to the plaintiff. Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1539 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991).
I. PRISONERS’ RETAINED PRIVACY RIGHTS
We first note that generally, the existence of an affirmative defense will not support a rule 12(b)(6) motion to dismiss for failure to state a claim. A district court, however, may dismiss a complaint on a rule 12(b)(6) motion “when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint.” Quiller v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 1993, 90 L.Ed.2d 673 (1986). In considering a defendant’s motion to dismiss based on qualified immunity, the district court must examine the complaint to determine “whether, under the most favorable version of the facts alleged, defendant’s actions violate clearly established law.” Bennett v. Parker, 898 F.2d 1530, 1535 n. 2 (11th Cir.1990) (Tjoflat, C.J., concurring), cert. denied, — U.S. -, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991). In this case, the district court granted the appellees’ motion to dismiss based on qualified immunity, after concluding that a prisoner’s constitutional right to bodily privacy is not a “clearly established right” in this circuit. As to the appellants’ claim for damages on the alleged privacy violations, we agree that facts sufficient to give rise to a consideration of qualified immunity appears on the face of the appellants’ complaint.
A. In determining whether a government official has violated a clearly established constitutional right, a court must consider whether the contours of the right were sufficiently clear that reasonable officials, at the time of their actions, would have understood that what they were doing violated that right. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). The nonexistence of a decision specifically addressing the alleged right is a significant consideration in determining whether the right is clearly established. See Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir.1987) (recognizing that a prisoner’s First Amendment right not to be disciplined when he failed to respond to his committed name is not clearly established based upon general rulings that prisoners retained limited First Amendment rights). In addition, the existence of Supreme Court cases or cases in this circuit that recognize the alleged right is particularly important in determining whether the law is sufficiently clear to a reasonable official. See Muhammad, 839 F.2d at 1424-25 & n. 7 (canvassing the cases in this circuit to determine whether an official violated clearly established law, and recognizing that the official’s awareness of a district court opinion recognizing the alleged right cannot, of itself, settle the law where the district court sits outside this circuit).
In this case, the district court properly found that neither this court nor the Supreme Court had recognized that a prisoner retains a constitutional right to bodily privacy. See generally Harris v. Thigpen, 941 F.2d 1495, 1513 n. 26 (11th Cir.1991) (recognizing that prisoners retain certain fundamental rights of privacy, even though the precise nature and scope of the privacy right is far from settled).
B. It is well established that the doctrine of qualified immunity protects government officials from civil damages liability as long as the officials could reasonably believe that their conduct did not violate clearly established statutory or constitutional rights. Anderson, 483 U.S. at 638, 107 S.Ct. at 3038; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Relying on our ruling in Muhammad, the district court concluded that this court has expanded the doctrine of qualified immunity to shield government officials from not only civil damages liability, but also to protect officials from claims for equitable relief. See Muhammad, 839 F.2d at 1424 (citing Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S.Ct. 2806, 2814, 86 L.Ed.2d 411 (1985), and concluding that “entitlement to qualified immunity means that the defendants are immune from suit rather than merely immune from liability for damages”). We reject the district court’s interpretation of Muhammad as establishing an expanded doctrine of qualified immunity in this circuit.
We first note that the language that the district court relied on is mere dicta, because the court in Muhammad reviewed only the district court’s order denying prison officials qualified immunity from personal liability in a prisoner’s section 1983 action. See Muhammad, 839 F.2d at 1423. In addition, we are convinced that the language in Muhammad stands only for the proposition that government officials may file an interlocutory appeal when a trial court denies a defense of qualified immunity from civil damages liability. For this proposition, the court in Muhammad appropriately cites Mitchell, 472 U.S. at 524, 105 S.Ct. at 2814, which addresses the issue of whether the denial of qualified immunity from civil damages liability should be immediately appealable as a collateral order because the denial would be effectively unreviewable on appeal from a final judgment. See Mitchell, 472 U.S. at 519 n. 5, 523 n. 7, 524-26, 105 S.Ct. at 2812 n. 5, 2814 n. 7, 2814-16 (noting specifically that the case does not involve a claim for injunctive relief, and also noting the continued availability of declaratory or injunctive relief as deterrence to the constitutional violations of a government official). Hence, we are persuaded that the court in Muhammad did not depart from the settled proposition that “immunity from damages does not ordinarily bar equitable relief as well.” Wood v. Strickland, 420 U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214 (1975). Accordingly, we hold that the district court erred in dismissing the appellants’ claims for injunctive relief based on qualified immunity.
C. Because on remand the district court must consider the appellants’ claim for in-junctive relief which raises an issue of first impression in this circuit, we now set forth the appropriate standards for reviewing the appellants’ claim for injunctive relief based on alleged violations of their constitutional right to bodily privacy.
As a matter of general principle, it is well established that “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979); see also Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987) (recognizing that prison walls do not separate inmates from their constitutional rights); Harris v. Thigpen, 941 F.2d at 1512 (same). It is also settled that a prisoner’s constitutional rights must be exercised with due regard for the “inordinately difficult undertaking” of modern prison administration. Turner, 482 U.S. at 85, 107 S.Ct. at 2259; see also Bell, 441 U.S. at 547, 99 S.Ct. at 1878 (recognizing that courts must give great deference to the decisions of prison officials relating to the administration of the facility). But, even though this court engages in a deferential review of the administrative decisions of prison authorities, the traditional deference does not mean that courts have abdicated their duty to protect those constitutional rights that a prisoner retains. Sheley v. Dugger, 833 F.2d 1420, 1423 (11th Cir.1987); see also Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974) (recognizing that federal courts will discharge their duty to protect constitutional rights when prison regulations or practices offend fundamental constitutional guarantees), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S.Ct. 1874, 1881-82, 104 L.Ed.2d 459 (1989).
In reviewing the appellants’ claim for injunctive relief, the district court’s first inquiry must be whether prisoners retain the right to bodily privacy. It is clear that prison inmates “ ‘retain certain fundamental rights of privacy.’ ” Harris, 941 F.2d at 1513 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 5 n. 2, 98 S.Ct. 2588, 2592 n. 2, 57 L.Ed.2d 553 (1978) and recognizing that "seropositive prisoners enjoy some significant constitutionally protected privacy interests in preventing the non-consensual disclosure of their HIV-positive diagnosis”). As stated previously, this court has declined to define the precise parameters of a prisoner’s constitutional right to privacy. See generally Harris, 941 F.2d at 1513 n. 26. Although we continue to approach the scope of the privacy right on a case-by-case basis, we now recognize that prisoners retain a constitutional right to bodily privacy.
We are persuaded to join other circuits in recognizing a prisoner’s constitutional right to bodily privacy because most people have “a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating.” Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.1981); see also Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992) (concluding that “we have little doubt that society is prepared to recognize as reasonable the retention of a limited right of bodily privacy even in the prison context”); Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir.1992) (recognizing that prison inmates retain the right to bodily privacy); Mitchenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir.1988) (same).
In determining the merits of the appellants’ claim for injunctive relief against prison officials for alleged violations of their constitutional right to bodily privacy, the district court must apply the standard of review for evaluating prisoners’ constitutional claims which the Supreme Court articulated in Turner. When a prison regulation or policy “impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261. Based on the ruling in Turner, this court in Harris identified the following four factors governing the reasonableness review of prison regulations:
(a) whether there is a ‘valid, rational connection’ between the regulation and a legitimate government interest put forward to justify it; (b) whether there are alternative means of exercising the asserted constitutional right that remain open to the inmates; (c) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, inmates and the allocation of prison resources generally; and (d) whether the regulation represents an ‘exaggerated response’ to prison concerns.
Harris, 941 F.2d at 1516 (quoting Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-63). We emphasize that the fourth Turner factor is not a “least restrictive alternative” test, but rather it allows an inmate to “point to an alternative that fully accommodates the prisoners’ rights at de minim-is cost to valid penalogical interests” as evidence that a restriction is not reasonable. Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262-63.
In sum, we affirm that part of the district court’s order dismissing the appellants’ claim for monetary damages for violations of their right to privacy, because the prisoners’ constitutional right to bodily privacy was not clearly established at the time, making the appellees immune for civil damages liability. We reverse and remand that portion of the district court’s order dismissing the appellants’ claim for injunc-tive relief, in light of our recognition that prisoners do retain a limited constitutional right to bodily privacy. Accordingly, we leave it for the district court to apply, in the first instance, the Turner “reasonableness” test in determining whether injunc-tive relief is appropriate for the alleged infringement of the appellants’ constitutional rights to bodily privacy.
II. DUE PROCESS CLAIMS
The district court dismissed the appellants’ due process claims after finding that their claims of unfair disciplinary procedures, including lack of proper notice, admission of evidence, and excessive punishments, are matters properly brought as a contempt action pursuant to the procedures set forth in Guthrie. See Guthrie v. Evans, CV No. 3068 (S.D.Ga. July 19, 1978, August 4, 1978, December 1, 1978) (orders approving consent decrees); see also Guthrie v. Evans, 815 F.2d 626, 628-29 (11th Cir.1987) (holding that the district court order approving the consent decree is a final judgment); Guthrie v. Evans, 93 F.R.D. 390 (S.D.Ga.1981) (overruling objections to a settlement of contempt proceedings, which class counsel filed on June 17, 1981, seeking compliance with the August 4, 1978 order approving a consent decree). In dismissing the appellants’ due process claims, the district court relied on this court’s ruling in Saleem v. Evans, 866 F.2d 1313 (11th Cir.1989), which held that Georgia prison complaints that parallel those addressed in Guthrie may only be filed through Guthrie class counsel. Saleem, 866 F.2d at 1314. Because we conclude that the district court erred in relying on the ruling in Saleem, we reverse and remand the district court’s order dismissing the appellants’ due process claims.
It is clear that a prisoner’s claim for monetary damages or other particularized relief is not barred if the class representative sought only declaratory and injunctive relief, even if the prisoner is a member of a pending class action. Spears v. Johnson, 859 F.2d 853, 854 (11th Cir.1985) (recognizing that a prisoner’s claim for monetary damages was not barred from federal court based on a pending prisoner class action where the class representatives sought only injunctive and declaratory relief), opinion vacated in part on other grounds, 876 F.2d 1485 (11th Cir.1989); Herron v. Beck, 693 F.2d 125, 127 (11th Cir.1982) (recognizing that a prisoner was not barred from the federal courts based on a pending class action, because the prisoner sought monetary damages and other specific relief not addressed in the class action which only sought declaratory and injunctive relief); Bogard v. Cook, 586 F.2d 399, 408-09 (5th Cir.1978) (recognizing that a prisoner class action does not bar an individual prisoner's subsequent suit for damages, where the class representatives sought only equitable relief, where prisoners had insufficient notice of their right to seek individual monetary damages, and where joinder of all individual damage claims would have made the class action unmanageable), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979).
In contrast, the court in Saleem was not faced with a prisoner’s claim for monetary damages, as well as equitable relief addressed in Guthrie. See Saleem, 866 F.2d at 1313-14 (involving a section 1983 action alleging violations of prisoner’s First and Fourteenth Amendment rights, and apparently seeking only to be provided with a Muslim minister of the appropriate sect to minister to the prisoner’s religious needs). Because the class representatives in Guthrie sought only injunctive relief for the alleged unconstitutional conditions and practices of the Georgia prison system, the district court erred in dismissing the appellants’ complaint which included a claim for monetary damages. See Spears, 859 F.2d at 855. Accordingly, we hold that the district court improperly dismissed the appellants’ complaint which seeks both injunc-tive relief and monetary damages for alleged violations of their right to due process in prison disciplinary proceedings.
We note that even though it was not appropriate for the district court to dismiss the appellants’ claims for monetary damages based on Guthrie, on remand, the district court may properly consolidate the appellants’ claims with the class litigation, stay the appellants’ action pending referral of their complaints to class counsel, or transfer their case to the Guthrie court. See Herron, 693 F.2d at 127 (recognizing that it might have been proper to consolidate the plaintiff’s claims for monetary damages with the class litigation or to stay the plaintiff's action pending referral of his complaints to class counsel, but that dismissal was not appropriate); 28 U.S.C. § 1406(a) (authorizing a district court to transfer a case to another division or district “in the interest of justice”); see also Spears, 859 F.2d at 855 (recognizing that a transfer of a prisoner’s claim for monetary damages to the court considering the prisoner class action is appropriate to avoid interference with the integrity of a consent order and also overlap between the complaints of class counsel and the individual prisoner).
III. RIGHT TO AMEND
Having concluded that the appellants’ due process claims are not precluded under Guthrie, we hold that the district court erred in denying the appellants’ motion to amend their complaint adding the two disciplinary officers as defendants. The appellees contend that their motion to dismiss was a responsive pleading for purposes of rule 15(a). We disagree. It is well established in this circuit that a motion to dismiss is not considered a responsive pleading for purposes of rule 15(a). Driscoll v. Smith Barney, Harris, Upham & Co., 815 F.2d 655, 659 (11th Cir.1987), vacated in part on other grounds 484 U.S. 909, 108 S.Ct. 253, 98 L.Ed.2d 211 (1987), cert. denied in part 484 U.S. 914, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987); Chilivis v. Securities & Exchange Comm’n, 673 F.2d 1205, 1209 (11th Cir.1982); McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir.1979). Because the appellees had only filed a motion to dismiss, not a responsive pleading, the appellants were entitled to amend their complaint at least once as a matter of course at any time before a responsive pleading was served. Fed.R.Civ.P. 15(a); McGruder, 608 F.2d at 1025. Accordingly, we reverse the district court’s denial of the appellants’ motion to amend their complaint adding the two disciplinary officers as defendants. As the action proceeds on remand, the district court may, of course, entertain any appropriate motion from the defendants regarding their presence in this case. We hold only that the district court erred in denying the appellants’ motion to amend their complaint before the appellees filed a responsive pleading.
CONCLUSION
We affirm the order of the district court dismissing the appellants’ claims for monetary damages for alleged violations of their right to bodily privacy, based on its correct conclusion that a prisoner’s constitutional right to bodily privacy was not clearly established at the time. We, however, reverse and remand the district court’s order dismissing the appellants’ claims for injunc-tive relief based on alleged violations of their constitutional rights to bodily privacy. We now recognize that a prisoner retains a constitutional right to bodily privacy. On remand, the district court must apply the “reasonableness” test articulated in Turner in reviewing whether the prison regulations unreasonably impinge on that constitutional right to bodily privacy.
In addition, we reverse and remand the district court’s order dismissing the appellants’ due process claims, because dismissal of a prisoner’s complaint which includes a claim for monetary damages is inappropriate when dismissal is based on a class action in which the class representatives sought only declaratory and injunctive relief. On remand, the district court may dispose of the appellants’ due process claims with a transfer to the Guthrie court or other appropriate means. We also reverse and remand the district court’s denial of the appellants’ motion to amend their complaint adding the two disciplinary officers as defendants.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
. We would effectively freeze the law on prisoners’ rights, as well as other individual rights, if this court accepted the district court’s interpretation of Muhammad to expand the doctrine of qualified immunity to shield officials from all claims for equitable relief whenever the law was not already clearly established.
. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981).
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
Answer: |
songer_numresp | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HURD v. HURD.
No. 10171.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 9, 1949.
Decided Dec. 27, 1949.
Messrs. Kenneth B. Hamilton and Luther E. Angle, Washington, D. C., for appellant.
No appearance for appellee.
Before McALLISTER, sitting by designation, CLARK and BAZELON, Circuit Judges.
McALLISTER, Circuit Judge.
Mary Beck Hurd, appellant, brought suit for divorce from marriage on the ground of voluntary separation from bed and board for five consecutive years without cohabitation. On the conclusion of the proofs, the district court denied a decree of divorce on the .ground that appellant’s evidence was -insufficient; and she appeals.
The proofs disclosed that the parties were married April 10, 1930. On September 2, 1938, a child was born of the marriage, who is now living with appellant, and has been continuously with her since birth. From the time of their marriage,the parties continued to reside together and cohabit as man and wife until August 15, 1941. At that time, differences arose between them, and they agreed to live apart from each other, and voluntarily separated from bed and board. About the time of this separation, the husband agreed to a property settlement, and as a result thereof, conveyed to appellant certain property including their home in the District of Columbia. However, in view of the husband’s inability to get a room due to the crowded conditions in Washington in 1941, and on account of the additional money he could contribute to the support of their infant child, it was amicably agreed between the parties that he could have a room in their former home. This room was adjacent to the bedroom occupied by appellant and her child. Appellant’s father lived in 1lie same house. The parties did not thereafter live together socially or in the home. The husband had no meals in the house after the date of separation in 1941; he was never there except between approximately midnight and 6:00 or 6:30 o’clock in the morning. He contributed $15.00 a week to the support of his daughter up to July, 1948, when the parties entered into a separation agreement relative tc the custody of the child, in which it was agreed that appellant would have such custody and that appellee would pay her $50.00 a month for the child’s support. At the time of this agreement, the husband moved from the home and appellant sold it, and with her child, moved to her father’s home, where she is now living. When the case was heard in 1948, the parties had not cohabited for seven years.
Appellant’s testimony with respect to all of the foregoing was undisputed, and the trial court stated that it did not question her veracity. In addition, her testimony was supported by two other reputable witnesses. However, the court declined to grant a decree on the ground that even though marital relations had ceased between them, such a circumstance would not lead to the conclusion that there was a voluntary separation between them; that this was only evidence of estrangement and not of separation; that a vital fact in the case was that even though all marital relations had ceased between them; the parties continued to live in adjoining bedrooms. The court, accordingly, dismissed the complaint.
Title 16, Section 403, of the District of Columbia Code, 1940, provides: “A divorce from the bond of marriage * * * may be granted for * * * voluntary separation from bed and board for five consecutive years without cohabitation, * *
That the parties to a divorce suit continue their residence in the same dwelling, is merely a fact which is evidentiary on the question whether they are living together as husband and wife; but a wife seeking a divorce under the District of Columbia Code is not required to live separate and apart from her husband further than so to segregate herself from him as to avoid condoning acts which she charges as the 'basis for divorce. “To do this, the essential thing is not separate roofs, but separated lives—that the parties so live, whether under one roof or two, as to abandon with apparent permanency of intention, the relation of husband and wife in all but the most technical legal sense.” Continued occupancy of the same house may be evidence of harmonious relations, or of compelling necessity on the part of one or both of the parties. Pedersen v. Pedersen, 71 App.D.C. 26, 107 F.2d 227. Where parties have continued to live in the same house, and' alternated in the use of the same dining table, it is held that this is not a circumstance affecting the granting of a divorce, where there had been a voluntary separation from bed and board for the statutory period without cohabitation. For, as was observed, the parties, in such a case, are actually separated as effectively as though they were living in different homes. Boyce v. Boyce, 80 U.S.App.D.C. 355, 153 F.2d 229. Acquiescence in such separation is “voluntary” within the meaning of the statute, the purpose of which is to permit termination in law of certain marriages which have ceased to exist in fact. Parks v. Parks, 73 App.D.C. 93, 116 F.2d 556.
In this case, under the law and the evidence, appellant was clearly entitled to a decree of divorce. It appears that a property settlement has’ been entered into 'between the parties and, apparently, suitable provision has been made by the husband for the support of the minor child.
In accordance with the foregoing, the judgment is set aside, and the case remanded to the district court for entry of a decree in favor of appellant in accordance with this opinion.
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_usc1sect | 841 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. Monty Edward CLAYBORNE, Jr. and George Ingram, Defendants-Appellants.
Nos. 77-1568, 77-1570.
United States Court of Appeals, Tenth Circuit.
Submitted July 12, 1978.
Decided Aug. 22, 1978.
Joseph F. Dolan, U. S. Atty., and William C. Danks, Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.
Lawrence Rotenberg, Denver, Colo., for defendant-appellant Clayborne.
Michael F. DiManna, Denver, Colo., for defendant-appellant Ingram.
Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
Clayborne and Ingram were indicted for the manufacture of a controlled substance, amphetamines, and for conspiracy to so manufacture. The substantive offense was pursuant to 21 U.S.C. § 841(a)(1), whereas the conspiracy was pursuant to 21 U.S.C. § 846 and § 841(a)(1). A third participant, one Kuck, was also indicted and convicted. That judgment has been affirmed by this court in United States v. Kuck, 573 F.2d 25 (10th Cir. 1978). Ingram was granted a mistrial, but on retrial was found guilty of conspiracy. The manufacturing count was then dismissed. We here review the convictions of Clayborne and Ingram.
The principal issue common to both defendants is whether the court erred in denying a motion to suppress certain evidence found during a warrant search of a clandestine amphetamine laboratory. It is claimed that this evidence was tainted by the illegal use of an electronic tracking device attached to a container of ether. The signal from this was located in the laboratory where the controlled substance was produced. The Federal Drug Enforcement Administration agents installed this device in a drum of chemicals purchased by Ingram.
Other points raised by Ingram herein are, first, that his Fifth Amendment right not to be placed twice in jeopardy for the same offense was violated. This, he argues, was a consequence of the granting by the court of the mistrial (on his motion). A second point on behalf of Ingram attacks the receipt by the trial court of an index card which had certain chemical formulae on it for production of amphetamines. This was for use of chemicals which are used in making methamphetamines. The defense objection to this was that it was seized after indictment and thus should have been excluded as being in violation of Rule 403 of the Federal Rules of Evidence.
* * * * * *
I.
In November 1976, Ingram ordered a quantity of ethyl ether from the Service Supply Company of Denver. At the same time he inquired about the obtaining of some phenyl-2-propanone. Both of these chemicals are used in the manufacture of methamphetamines. So following the placing of the order, the company, as a result of prearrangement, notified the Drug Enforcement Administration. On November 29, Ingram and another person picked up a 55-gallon drum of ethyl ether at Service Supply. He was observed doing this by agents of the DEA, who followed him to the home of Ruck’s parents.
A subsequent transaction is the one which is here in issue. That occurred on December 20, 1976. On that date, Ingram again put in an order for ethyl ether. The DEA agents installed an electronic tracking device or “beeper” in a 55-gallon drum and then took the drum to Service Supply, where it was filled with ether and delivered to Ingram. The electronic beeper sends out periodic radio signals, which allow its location to be established and monitored.
On the day (December 29) that Ingram picked up this drum complete with the beeper, the agents followed him to his home and observed the drum being unloaded and taken into the house. The agents then proceeded periodically to monitor its presence to be sure that the drum did not move out of Ingram’s home. However, on January 1, the beeper signal was no longer there and eventually the signal was found to emanate from 1229 South Bannock Street in Denver. These were commercial premises which had been leased by Clayborne. The agents detected the smell of ether and noted that the windows were covered so as to prevent viewing the inside. After a day’s surveillance, a search warrant was obtained and executed on January 2. The search produced methamphetamines together with materials and paraphernalia for their manufacture. This was the evidence which the defendants sought to have suppressed as being in violation of their Fourth Amendment rights. The contention was that the violation related back to the initial failure to obtain a warrant for use of the beeper.
The trial court denied the motion to suppress and did so on the basis that Ingram lacked standing to challenge the presence of the beeper inside the oil drum, it being the property of the DEA, and also because it was not a Fourth Amendment question.
II.
The starting point in solving this present problem is a consideration of the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This is a new variation which questions whether, as a consequence of failure to obtain a warrant at the outset authorizing use of the beeper, the evidence obtained through subsequent use of the beeper, including that resulting from the search of the laboratory, was illegal because it was not in accordance with the requirements of the Fourth Amendment. In Katz, the Court held that the use of an electronic bug or microphone placed on the roof of a public telephone booth violated the Fourth Amendment. The reason was that the question was not whether places or property enjoy an immunity because of the Fourth Amendment, but, rather, whether the people are entitled to protection (and not places). The Court went on to hold that when the defendant closed the door of the telephone booth he believed that he had shut out all other persons and that he had privacy which would insure that his conversation would not be heard by others. The Court also stated that that which a person exposes to the public may not be the subject of Fourth Amendment protection, but that, on the other hand, that which he seeks to preserve as private, even in an area accessible to the public, may enjoy constitutional protection.
Several circuits have considered the beeper problem in the light of Katz. See United States v. Hufford, 539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976), in which agents installed a beeper in a drum of caffeine which had been ordered by the defendants. Visual surveillance together with the beeper permitted the agents to isolate a drum of caffeine in the garage of the defendants. It was held that no reasonable expectation of privacy had been invaded, notwithstanding that the beeper was employed in a “probing, exploratory question for evidence.” The Ninth Circuit relied on the Supreme Court’s decision in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). There the Court held that the warrantless scraping of paint from the exterior of a car parked in a public lot together with the measurement of its tire tread was not a violation for the reason that the expectation by the defendant of privacy was minimal. The Ninth Circuit related Hufford to the Cardwell holding in support of its conclusion that there was little expectation of privacy in driving along a public road. The beeper was viewed as merely an aid to or substitute for visual surveillance. It was regarded as being similar to the use of binoculars or trained dogs. Cf. United States v. Venema, 563 F.2d 1003 (10th Cir. 1977), wherein we approved the use of a trained dog to detect the scent of marijuana in a locker. That opinion could see no reasonable expectation of privacy in the air space around the locker.
The First Circuit in United States v. Moore, 562 F.2d 106 (1st Cir. 1977), has also considered the question. As in the present case, federal agents installed a beeper in a container of chemicals which had been ordered by the defendants.' When delivery was taken a second beeper was attached to their van. The agents, aided in part by the beepers, followed the defendants to a house. The beeper in the container was subsequently used to monitor the presence of the chemicals inside the house. Subsequently, a search warrant was obtained and the search revealed the clandestine manufacture of methamphetamines. The court distinguished between the use of a monitoring device to track a vehicle and the use of it to monitor the continued presence of the chemicals in the house. The latter was considered to be an invasion of the privacy of the home. It was acknowledged that the beeper in the car constituted an intrusion, but that its use could be justified on the basis of the mobility of the car and the lack of reasonable expectation of privacy with respect to it. Probable cause was held to exist with respect to the monitoring of the location of the vehicle. Once the defendants left the vehicle and entered the house, the right of privacy existed free from war-rantless intrusion by the government. The court also observed that the fact that the defendant initially had no rights in the chemical boxes was not of any significance since they later obtained lawful possession, and the agents sought to use the electronic devices after this.
The court held that evidence derived from the use of the beeper while the material was in the house had to be suppressed. The court did, however, leave the door open to separation of the evidence illegally obtained while in the house and the use of evidence which derived from the beeper pri- or to its being taken into the house, e. g., while the material was being transported in a car. There was a remand to the district court to determine the part of the evidence which had to be suppressed and that which did not.
In the instant case the beeper surveillance evidence within the house and that within the laboratory do not come together as one connected transaction. The agents lost contact with the device following the movement from the house. An independent effort was necessary to reestablish contact. So the laboratory contact is not tainted by the surveillance within the house.
Our court has' recently filed an opinion which, although not factually on all fours with this case, is similar to it. We refer to United States v. Shove a, 580 F.2d 1382 (10th Cir. 1978). The beeper was there used only for the purpose of tracking the car. Federal agents arranged a delivery to the defendant and followed him to a house occupied by a codefendant, which home was in Denver. A beeper was placed on the codefendant’s car at that place and shortly thereafter agents by use of the beeper were able to trace the car to the proverbial clandestine laboratory. The court recognized that electronic tracking devices were appropriate even without prior court approval where there was probable cause or exigent circumstances. Probable cause was found to be present. Circumstances relating to probable cause were substantially the same background circumstances which are here.
Judge Barrett, writing for the panel, expounded the established truth that there was minimal expectation of privacy in an automobile along a public road, citing United States v. Frazier, 538 F.2d 1322 (8th Cir. 1976), cert. denied, 429 U.S. 1046, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977), wherein the use of a beeper on a car was approved in connection with an ongoing kidnap plot.
In the case before us it was the beeper on the inside of the drum of ether which enabled the agents to locate the laboratory. The agents in our case had to use an airplane to pick up the beeper signal and locate the building in which the clandestine laboratory was located. This was true because in the first instance they were not aware that the drum had been moved from Ingram’s house. Given the proposition that the home cannot be invaded without a warrant, does it follow that a clandestine laboratory in which amphetamines are likely to be manufactured enjoys the same protection?
Although this case is factually similar to our decision in Shove a, in the Ninth Circuit’s decision in Hufford and the First Circuit’s decision in Moore there are differences. Both Shove a and Moore held that beeper surveillance without warrants for the purpose of monitoring vehicles was valid. In all of the cited cases, and also in the present case, there is information of the agents amounting to probable cause to believe that a controlled substance was about to be made. While approving the use of the beeper for monitoring the automobile, the First Circuit in Moore distinguished the use of the beeper in the home. It held that there could not be a warrantless search inside the house. It also held that the lessened expectancy of privacy when using vehicles had no relevance; that although surveillance of the automobile could be conducted without a warrant, the same was not true of a home.
Hufford comes closest to this case since there the beeper was inside a garage. Here the beeper revealed the presence of the drum of ether inside the clandestine laboratory at 1229 South Bannock. Does the use in these circumstances constitute a per se violation of the Fourth Amendment? We conclude that it does not. The clandestine laboratory here was a commercial establishment which was susceptible not only to outside viewing, but also to ingress and egress of the public. Strict privacy as in a home was not to be properly expected here. There is a vast difference between it and Katz. The difference is found in a comparison of the size and extent of the intrusion in each case. That in Katz is great because of the wholly unexpected eavesdropping on a conversation. We say that it was proper to use the device to locate the drum of chemical in the clandestine laboratory at 1229 South Bannock Street, a new location which proved to be a commercial building with the windows covered to protect against viewing the activities and materials inside. It was also within the law for them to make every effort to ascertain what was going on within the laboratory including the testing of the odors and the observations that the windows were covered. We consider the electronic beeper as a substitute for persistent extensive visual effort. We do not say that the laboratory stands on the identical footing as the automobile, and clearly it is not the same as Ingram’s home, which the Fourth Amendment protects from invasion. We are persuaded by the fact that the intrusion of the clandestine laboratory was slight. Also, it is not to be argued that defendant-appellant had a justifiable or reasonable expectation that there would not be any disturbance of privacy. Also, the use of the beeper within the laboratory was vastly different from the use of the recording device in the telephone booth in Katz. The invasion in Katz was of great magnitude in comparison with the intrusion here.
Under these special facts, then, we must hold that the slight intrusion was not per se in violation of the Fourth Amendment and that the use of the beeper without a warrant was not invalid. The trial court did not err in denying the motion to suppress.
III.
The defendant Ingram maintains that his rights under the Double Jeopardy Clause were violated when the court granted a mistrial. He concedes that where the defendant moves for the mistrial the general rule is that retrial is not barred except in the instance in which the judicial or prosecutorial error that prompted the motion was intended to provoke the motion or was otherwise motivated by bad faith or undertaken to harass or prejudice petitioner. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) (quoting United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)).
Several of the circuits have characterized the test as to whether retrial is to be barred even though the mistrial was at the request of the defendant as whether there was gross negligence or intentional misconduct which led to the granting of the mistrial. See United States v. Martin, 561 F.2d 135 (8th Cir. 1977); United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977).
Ingram maintains that the trial judge was grossly negligent in violating his right to be present at trial by not adjourning the trial to determine whether his absence was voluntary. We disagree. The judge was talking about the fact that Ingram was late for the trial once and, finally, was absent altogether for a day due to his having been arrested and placed in jail in Aurora, a nearby community. The court had gone ahead with the trial in his absence, but once the judge found out that his absence had been involuntary, he granted the mistrial on the motion of the defendant. Under these circumstances, we fail to see that there was either invalid coercion exercised by the court or that there was negligence or other misconduct.
IV.
Ingram’s final contention is that the trial court erred in receiving Exhibit 14, an index card with some chemical formulae having to do with chemicals which could be used for making amphetamines. This was taken from Ingram’s person when he was arrested two months after the indictment. At the first trial the Exhibit was excluded because Ingram was being tried with Clay-borne. At the second trial Ingram was tried alone and the Exhibit was received. The defendant objected on the ground that it resulted from investigation subsequent to the indictment and was inadmissible under Rule 403, which declares that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion.
Defendant’s argument in reality is that the Exhibit evidenced acts subsequent to the conspiracy and thus it is contrary to the rules in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963,1 L.Ed.2d 931 (1957), and United States v. Floyd, 555 F.2d 45 (2d Cir. 1977), which concerned evidence of post-conspiracy acts or cover-up tactics which are quite different from the card in the present case. It is for the trial court to determine relevance, and we cannot agree with defendant that it is incompetent. It does not appear that the evidence was inconsistent with the indictment. Indeed it was entirely consistent with it and receipt of it was not erroneous.
The judgment of the district court is affirmed.
. We agree with this ruling and would take the same position in the case at bar if the proposition were to be seriously argued.
. The testimony of one of the agents included a description of the building.
Q Would you describe the warehouse, whatever type of building is appropriate at 1229 South Bannock?
A The building is a long one-story building with four sets of office or industrial space in it. Each space had a large overhead door and a single small door adjacent to the overhead door, both front and rear. 1229 was the space the further south on the building.
Q So there are actually several entrances in that one warehouse building?
A Yes, sir, four.
. There is no evidence which resulted from the clearly illegal monitoring of the inside of the home.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number.
Answer: |
songer_altdisp | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Henry AVILA, Defendant-Appellant.
No. 93-1063.
United States Court of Appeals, Tenth Circuit.
June 28, 1993.
Henry Avila, pro se.
James R. Allison, Interim U.S. Atty., Joseph T. Urbaniak, Jr. and John M. Hutchins, Asst. U.S. Attys., Moúntain States Drug Task Force, Denver, CO, for plaintiff-appel-lee.
Before TACHA, BALDOCK and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9, The cause therefore is ordered submitted without oral argument.
PER CURIAM.
Mr. Avila appeals from the district court’s order denying his motion for sentencing range reduction. See 28 U.S.C. § 2255; 18 U.S.C. § 3582(c)(2). We affirm.
The Sentencing Guidelines now permit a three-level downward adjustment for acceptance of responsibility in certain circumstances. See U.S.S.G. § 3E1.1(b) (Nov. 1, 1992) & app. C, amend. 459 (eff. Nov. 1, 1992). Mr. Avila contends that, under the rule of lenity and 18 U.S.C. § 3582(c)(2), the district court should reduce his sentence one level, because at the time he was sentenced, only a two-level downward adjustment was in effect.
Section 3582(c)(2) empowers a district court to reduce a term of imprisonment when a sentencing range has subsequently been lowered by the Sentencing Commission. However, such power is tethered to the factors contained in § 3553(a), including any pertinent policy statement of the Sentencing Commission. 18 U.S.C. § 3553(a)(5). The policy statements accompanying U.S.S.G. § 1B1.10 provide that if an amendment is not listed as covered, a reduction in sentence based on the amendment would not be consistent with the policy statement. U.S.S.G. § 1B1.10(a), p.s. Amendment 459, on which Mr. Avila relies, is not covered by the policy statement. See U.S.S.G. § 1B1.10(d), p.s. Thus, the amendment to § 3E1.1 cannot be applied retroactively and it may not serve as a basis on which to reduce his sentence. See United States v. Rodriguez, 989 F.2d 583, 587 (2d Cir.1993).
AFFIRMED.
Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_respond1_1_3 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
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: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_numresp | 3 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Alan F. McDONELL, M. Lee Curran; and Sally Phipps, Individually and on behalf of all others similarly situated, Appellees, v. Susan HUNTER; Jean Sebek; Russell Behrends and Harold Farrier, Appellants.
No. 85-1919.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 12, 1986.
Decided Jan. 12, 1987.
Rehearing and Rehearing En Banc Denied Feb. 24, 1987.
Mark Hunacek, Asst. Atty. Gen., Des Moines, Iowa, for appellants.
Mark W. Bennett, Des Moines, Iowa, for appellees.
Before LAY, Chief Judge, and ROSS and WOLLMAN, Circuit Judges.
ROSS, Circuit Judge.
This is a class action challenging the constitutionality of an Iowa Department of Corrections policy under 42 U.S.C. § 1983. This policy subjects the correctional institution employees to searches of their vehicles and of their persons, including urine, blood, or breath testing, upon the request of Department officials. The named plaintiffs are Alan McDonell, Lee Curran, and Sally Phipps. The certified class consists of all individuals employed by the Iowa Department of Corrections at its various institutions who are covered by the Department’s search policy.
The district court enjoined Department of Corrections officials and their agents from enforcing this search policy except in certain limited circumstances, unless the search is based upon a reasonable suspicion. We affirm the district court’s order as herein modified.
I. Facts
Plaintiff McDonell was employed as a correctional officer first at the Men’s Reformatory at Anamosa (Anamosa) and later at another correctional institution. Plaintiffs Curran and Phipps, at all times material to this action, were employed at the Iowa Correctional Institution for Women at Mitchellville (Mitchellville).
Defendant Hunter is the Superintendent and chief executive officer of Mitchellville. Defendant Sebek is the Security Director of Mitchellville, and is responsible for the implementation and enforcement of the Department’s policy. Defendant Behrends is the Acting Deputy Warden of Anamosa, and is responsible for the implementation of the Department’s policy. Defendant Farrier is Director and chief administrative officer of the Iowa Department of Corrections, and is responsible for the supervision and operations of Anamosa, Mitchellville, and other correctional institutions.
When McDonell was employed at Anamosa in 1979, he signed a consent to search form. In January 1984 the supervisory personnel at Anamosa requested McDonell to undergo urinalysis because he had been seen with individuals who were being investigated for possible drug-related activities. McDonell refused and as a result his employment was terminated. Shortly thereafter he was reinstated with loss of ten days’ pay and was transferred to another institution.
In August of 1983, employees at Mitchellville were presented a search consent form to sign. Plaintiffs Curran and Phipps refused to sign. While there was disputed evidence that these employees were told that if they did not sign, they would not receive their paychecks, they did in fact receive paychecks and they have not been discharged or disciplined for refusing to sign.
Plaintiffs sought declaratory and injunctive relief on behalf of themselves and the class they represented, claiming the policy violates the fourth amendment to the United States Constitution and plaintiffs’ constitutional right to privacy.
A preliminary injunction was issued in February 1984. On appeal it was affirmed. McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir.1984). In July 1985, the district court issued its final order 612 F.Supp. 1122. The district court held that searches of correctional employees, including urinalyses, and of their vehicles may be made only on the basis of reasonable suspicion, with certain specified exceptions. The district court found that the policy challenged here was designed to serve security requirements at the state’s correctional facilities, but that the employees had legitimate, although diminished, expectations of privacy while in the correctional institution. The court balanced the state’s interest in security against the infringement upon the individual employee’s right to privacy and determined that reasonable suspicion, rather than probable cause, was the appropriate standard for conducting strip searches and urinalyses of employees. The district court order allows vehicle searches within the confines of the institution to be conducted uniformly or by systematic random selection. Searches of employees’ vehicles within the institution’s confines, other than uniformly or by systematic random selection were permitted only on the basis of a reasonable suspicion.
II. Searches
The fourth amendment to the United States Constitution provides that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The basic purpose of the fourth amendment, which is enforceable against the states through the fourteenth amendment, New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 739-40, 83 L.Ed.2d 720 (1985), is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 91967). The fourth amendment imposes a “standard of ‘reasonableness’ upon the exercise of discretion by government officials.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). See also Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983); Delaware v. Prouse, supra, 440 U.S. at 654, 99 S.Ct. at 1396.
A. Strip Body Searches
Defendants argue that to maintain security and intercept contraband it is necessary that they be allowed to request strip searches of corrections officers based on mere suspicion. Defendants also argue that plaintiffs have no reasonable expectations of privacy within the institutions in light of their signing consent forms.
Correctional institutions are unique places “fraught with serious security dangers.” Bell v. Wolfish, supra, 441 U.S. at 559, 99 S.Ct. at 1884. Within the walls of the correctional institution, “a central objective of prison administrators is to safeguard institutional security.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). To achieve this goal prison administrators have the responsibility “to intercept and exclude by all reasonable means all contraband smuggled into the facility.” Id.
In analyzing the intrusion on the individual’s fourth amendment interests, there must be a legitimate expectation of privacy. To determine if an individual’s expectation of privacy is legitimate, there must be both an actual subjective expectation and, even more importantly, Hudson v. Palmer, 468 U.S. 517, 525 n. 7, 104 S.Ct. 3194, 3199-3200 n. 7, 82 L.Ed.2d 393 (1984), that expectation must be one which society will accept as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
While correction officers retain certain expectations of privacy, it is clear that, based upon their place of employment, their subjective expectations of privacy are diminished while they are within the confines of the prison. Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 202 (2d Cir.1984). We believe that society is prepared to accept this expectation of privacy as reasonable although diminished “in light of the difficult burdens of maintaining safety, order and security that our society imposes on those who staff our prisons.” Id.
The Supreme Court has held that warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz, supra, 389 U.S. at 357, 88 S.Ct. at 514. Exceptions have been made “where a legitimate governmental purpose makes the intrusion into privacy reasonable.” Carey, supra, 737 F.2d at 203.
In light of the legitimate governmental interest in maintaining security at correctional institutions, it is our view, as it is that of the Second Circuit, that a reasonable suspicion standard should be adopted for strip searches of correction officers while working in correctional facilities. Id. at 204. As this court stated in Hunter v. Auger, supra, “[w]e believe that this standard is flexible enough to afford the full measure of fourth amendment protection without posing an insuperable barrier to the exercise of all search and seizure powers.” Hunter v. Auger, supra, 672 F.2d at 674.
A reasonable suspicion standard has been upheld as the appropriate standard for conducting body searches of (1) prison visitors: Thome v. Jones, 765 F.2d 1270, 1277 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986); Hunter v. Auger, supra, 672 F.2d at 674; (2) persons at the country’s borders: United States v. Ogberaha, 771 F.2d 655, 658 (2d Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986); United States v. Asbury, 586 F.2d 973, 975-76 (2d Cir.1978); United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978); (3) arrestees: Jones v. Edwards, 770 F.2d 739, 741 (8th Cir.1985) (strip search conducted following arrest for animal leash law violation); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985) (strip search of one arrested for minor traffic offenses); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (strip search of women arrested for misdemeanor offenses, done while women were awaiting arrival of bail money); and (4) prison guards: Security & Law Enforcement Employees, District Council 82 v. Carey, supra, 737 F.2d at 203-04; accord Armstrong v. New York State Commissioner of Corrections, 545 F.Supp. 728, 731 (N.D.N.Y.1982) (requiring “articulable facts” supporting belief that employee was concealing contraband on his person; cf. Gettleman v. Werner, 377 F.Supp. 445, 452 (W.D.Pa.1974) (reasonable suspicion found, but a federal court should “be reluctant to intervene” in prison administration matters).
The reasonable suspicion standard requires officials to base strip searches on specific objective facts and rational inferences they are entitled to, draw from those facts in light of their experience. It requires individualized suspicion specifically directed to the person who is targeted for the strip search. Hunter v. Auger, supra, 672 F.2d at 674-75. Without reasonable, articulable grounds to suspect an individual employee of secreting contraband on his person, a strip search of that employee is unreasonable under the fourth amendment. We thus affirm the district court's order regarding strip searches of correctional facility employees.
B. Urinalysis
Urinalysis has been determined to be a search and seizure within the meaning of the fourth amendment. Capua v. City of Plainfield, 643 F.Supp. 1507, 1513 (D.N.J.1986); Jones v. McKenzie, 628 F.Supp. 1500, 1508-09 (D.D.C.1986); Allen v. City of Marietta, 601 F.Supp. 482, 488-89 (N.D.Ga.1985); Storms v. Coughlin, 600 F.Supp. 1214, 1217 (S.D.N.Y.1984); In re Patchogue-Medford Congress of Teachers v. Board of Education, 119 A.D.2d 35, 505 N.Y.S.2d 888, 889 (1986); City of Palm Bay v. Bauman, 475 So.2d 1322, 1325-27 (Fla.Dist.Ct.App.1985); cf. Everett v. Napper, 632 F.Supp. 1481, 1484 (N.D.Ga.1986) (no search occurred and there was no fourth amendment violation where employee refused to take urinalysis test). In addition, the Third Circuit has implicitly held that the fourth amendment applies to urinalysis. Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.1986).
In Allen v. City of Marietta, supra, and Capua, supra, the courts compared urine testing to the involuntary taking of a blood sample. “Though urine, unlike blood, is routinely discharged from the body so that no actual [physical] intrusion is required for its collection,” both can be “analyzed in a medical laboratory to discover numerous physiological facts about the person from whom it came.” Capua, supra, 643 F.Supp. at 1513. The Supreme Court has held that the involuntary administration of a blood test “plainly involves” the fourth amendment, which provides that “ ‘the right of the people to be secure in their persons * * * shall not be violated.’ ” (Emphasis added). Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) (quoting the fourth amendment in part). We agree with those courts which have held that urinalysis is a search and seizure within the meaning of the fourth amendment.
Having determined that urinalysis is a search and seizure, we look to a balancing of “the need to search against the invasion which the search entails.” Camara, supra, 387 U.S. at 537, 87 S.Ct. at 1735. Iowa Department of Corrections officials assert a strong need to see that prison guards are not working while under the influence of drugs or alcohol. Officials argue that prison security demands that those who have contact with inmates must be alert at all times. They also urge that the use of drugs by a correction officer is some positive indication that such officer may bring drugs into the prison for the use of the inmate.
Urinalysis properly administered is not as intrusive as a strip search or a blood test. While the prison officials have the same legitimate interest in maintaining prison security discussed supra, the infringement upon the privacy interest of correctional institution employees, already diminished, is lessened. Officials have a legitimate interest in assuring that the activities of those employees who come into daily contact with inmates are not inhibited by drugs or alcohol and are fully capable of performing their duties.
In Shoemaker v. Handel, supra, the Third Circuit upheld random selection by lot for urine testing of jockeys as well as daily breathalyzer testing. The court said the state had a “strong interest in assuring the public of the integrity of the persons engaged in the horse racing industry.” Shoemaker v. Handel, supra, 795 F.2d at 1142. In approving this administrative search exception to the warrant requirement, the court looked first to a strong state interest in conducting an unannounced search and second, to a reduction in the justifiable privacy expectation of the subject of the search. Id. We believe the state’s interest in safeguarding the security of its correctional institutions is at least as strong as its interest in safeguarding the integrity of, and the public confidence in, the horse racing industry. On December 1, 1986, the Supreme Court denied certiorari in this case, — U.S.-, 107 S.Ct. 577, 93 L.Ed.2d 580.
Warrantless searches of government employees have been found reasonable where the searches were directly relevant to the employee’s performance of his duties and the government’s performance of its duties. See United States v. Blok, 188 F.2d 1019, 1021 (D.C.Cir.1951); Allen v. City of Marietta, supra, 601 F.Supp. at 489-90, and cases cited therein. We agree with the Allen court that urinalyses are not unreasonable when conducted for the purpose of determining whether corrections employees are using or abusing drugs which would affect their ability to safely perform their work within the prison, “a unique place fraught with serious security dangers.” Bell v. Wolfish, supra,- 441 U.S. at 559, 99 S.Ct. at 1884. In our opinion the use of drugs by employees who come into contact with the inmates in medium or maximum security facilities on a regular day-to-day basis poses a real threat to the security of the prison. The only way this can be controlled in a satisfactory manner is to permit limited uniform and random testing. The least intrusive method of doing so is through use of urinalyses. In our opinion it is also logical to assume that employees who use the drugs, and who come into regular contact with the prisoners, are more likely to supply drugs to the inmates, although the trial court did not agree with this observation.
Because the institutional interest in prison security is a central one, because urinalyses are not nearly so intrusive as body searches, Shoemaker v. Handel, 608 F.Supp. 1151, 1158 (D.C.N.J.1985), aff'd, 795 F.2d 1136 (3d Cir.1986), and because this limited intrusion into the guards’ expectation of privacy is, we believe, one which society will accept as reasonable, we modify the district court’s order and hold that urinalyses may be performed uniformly or by systematic random selection of those employees who have regular contact with the prisoners on a day-to-day basis in medium or maximum security prisons. Selection must not be arbitrary or discriminatory.
Urinalysis testing within the institution’s confines, other than uniformly or by systematic random selection of those employees so designated, may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience that the employee is then under the influence of drugs or alcohol or that the employee has used a controlled substance within the twenty-four hour period prior to the required test. The demand for a urine, blood, or breath specimen should be made only on the express authority of the highest officer present in the institution, and the specific, objective facts should be disclosed to the employee at the time the demand is made. Strict guidelines should be established and followed to assure confidentiality of the results of urinalysis testing. Whether the testing is on the limited random basis approved above or on the basis of reasonable suspicion, the equipment and procedure to be used must provide sufficient guarantees of trustworthiness to permit the authorities to accurately determine the presence or absence of both drugs and alcohol in the urine. The equipment and procedure to be used shall conform to those described and approved by this court in Spence v. Farrier, 807 F.2d 753 (8th Cir.1986).
The trial court limited the right to test on reasonable suspicion to those employees who are “then under the influence of alcoholic beverages or controlled substances.” We do not agree with this limitation and hold that urinalyses testing should also be permitted where there is a reasonable suspicion (as defined herein) that controlled substances have been used within the twenty-four hour period prior to the required test.
There was evidence that employees may have been asked to strip before giving a urine specimen, and there was some evidence submitted as to the reason for this requirement but it was not conclusive. We hold that the search policy should not require an employee to strip in connection with giving a urine or blood specimen. Other less intrusive measures can be taken to insure the validity of the specimen. We affirm the district court’s order as to urine, blood, or breath specimens with the modifications set forth above.
C. Vehicle Searches
The motor vehicle parking lot for employees at Mitchellville is within the area where inmates are confined. The parking lots at other correctional facilities are on property outside the area within which inmates are confined. Defendants argue that they have a significant interest in assuring that inmates do not have access to contraband hidden in vehicles.
The search of a vehicle is much less intrusive than a search of one’s person. Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542-43, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). Cases involving vehicle searches have recognized that an individual’s expectation of privacy in his vehicle is less than in other property. United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); United States v. Michael, 645 F.2d 252, 257 (5th Cir.) (en banc), cert. denied, 454 U.S. 950, 102 S.Ct. 489, 70 L.Ed.2d 257 (1981). Likewise, any expecta tion of privacy as to packages or containers within a vehicle is diminished. See United States v. Ross, 456 U.S. 798, 820 n. 26, 102 S.Ct. 2157, 2170, 72 L.Ed.2d 572 (1982). By the same balancing of individual rights against the interests of the correctional institution in maintaining security, we find that it is not unreasonable to search vehicles that are parked within the institution’s confines where they are accessible to inmates. Such searches may be conducted without cause but must be done uniformly or by systematic random selection of employees whose vehicles are to be searched. It also is not unreasonable to search on a random basis, as described supra, employees’ vehicles parked outside the institution’s confines if it can be shown that inmates have unsupervised access to those vehicles. Any other vehicle search may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that the vehicle to be searched contains contraband. We believe this is reasonable in light of Hudson v. Palmer, supra, in which the Supreme Court granted prison officials “unfettered access” to prisoners’ cells as places where inmates can conceal contraband. Hudson v. Palmer, supra, 468 U.S. at 527, 104 S.Ct. at 3200. We affirm the district court’s order as to vehicle searches with the above modifications.
III. Consent Forms
Defendants argue that employees who signed consent forms have no legitimate expectation of privacy on correctional institution property.
If a search is unreasonable, a government employer cannot require that its employees consent to that search as a condition of employment. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593-94, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1926). Armstrong v. New York State Commissioner of Corrections, supra, 545 F.Supp. at 731. A legal search conducted pursuant to voluntary consent is not unreasonable and does not violate the fourth amendment. Consent must be given voluntarily and without coercion determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); United States v. Oyekan, 786 F.2d 832, 838 (8th Cir.1986). The district court here specifically made no finding as to the voluntariness of the signing of the consent forms. The district court did hold that “[ajdvance consent to future unreasonable searches is not a reasonable condition of employment.” McDonell v. Hunter, 612 F.Supp. 1122, 1131 (S.D.Ia.1985). We agree. The state may only use a consent form which delineates the rights of the employees consistent with the views of this opinion and which does not require the waiver of any of those rights.
For the above reasons, the district court’s order is affirmed as modified.
. The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.
. The policy in effect at the time of the district court's order is attached as Appendix A. The revised policy is attached as Appendix B.
. A copy of this form is attached to this opinion as Appendix C.
. A copy of this form is attached to this opinion as Appendix D.
. The district court found that there were approximately 1750 correctional institution employees of the Department who are within the certified class.
. The district court noted that, although the Department's policy as written did not expressly mention submission of blood, urine and breath samples, there was no dispute that the policy was considered to include submission of such samples. The revised version of the Department's policy does mention urinalysis and blood tests.
. The text of the district court’s order entered July 9, 1985, is included as Appendix E to this opinion.
. In describing constitutionally protected privacy interests, the Supreme Court uses the words "reasonable" and "legitimate" interchangeably. California v. Ciraolo, — U.S. -, -, 106 S.Ct. 1809, 1816 n. 4, 90 L.Ed.2d 210 (1986).
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_applfrom | E | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
ROSENBERG et al. v. McLAUGHLIN, Collector of Internal Revenue.
No. 6872.
Circuit Court of Appeals, Ninth Circuit.
June 19, 1933.
As Modified on Denial of Rehearing Sept. 6, 1933.
Adolphus E. Graupner, of San Francisco, Cal., for appellants.
I. M. Pockham, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal. (C. M. Charest, Gen. Counsel, and J. C. Swayze and Charles K. Hoover, Attys., Bureau of Internal Revenue, all of Washington, D. C., of counsel), for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and KERRIGAN, District Judge.
KERRIGAN, District Judge.
Appellants have sought by a bill in equity to enjoin the sale of an undivided interest in certain real property under distraint proceedings to collect a deficiency in federal estate tax. This interest was part of the estate of Isidore Rosenberg, deceased, the father of appellants, who will be hereafter referred to as the testator. The appeal is from the order granting the collector’s motion to dismiss the bill of complaint. If the collector has no right to proceed by distraint to collect the deficiency in question, appellants are entitled to injunctive relief. The issues are narrowed, and the only questions involved relate to the right of the Bureau of Internal Revenue to proceed by way of distraint under the state of facts alleged in the bill of complaint.
The testator died May 23, 1923, while the Revenue Act of 1921 (42 Stat. 227) was in force. Less than a year after his death his.widow, who was the executrix of his estate, filed an estate tax return showing a tax due of $7,791.04 a.nd paid the tax on the same day. Afterwards, and prior to the distribution of the estate, the executrix filed a claim for refund. While the claim for refund was pending, the estate was distributed. Shortly thereafter the executrix died. When it became apparent that a refund would be allowed, one of the appellants was appointed administrator with the will annexed of the testator’s estate. A refund in the sum of $4,-787.60 was paid to the administrator June 5, 1925, and distributed to the heirs. Subsequent to the effective date of the Revenue Act of 192-6, the commissioner determined a deficiency in tax against the estate in the sum of ■ $7,839.07, being $3,501.47 more than the refund and mailed to the administrator the notice required by section 308 (a) of the Revenue Act of 1926. (26 USCA § 1101.) The administrator appealed to the Board of Tax Appeals and the commissioner’s determination of the deficiency was upheld on February 27, 1929. Appeal of Rosenberg, 14 B. T. A. 1340. The commissioner on July 27,1929, assessed the additional estate tax in the full amount of the deficiency, notwithstanding the payment of the $3,501.47 by the administrator previous to the assessment. Thereafter the appellee mailed notice of distraint to the administrator for. the imp aid balance of the deficiency.
Appellants are the children of the testa^tor and his widow and are the sole heirs and distributees of the testator’s estate either in their own right or as distributees of their mother’s estate.
Appellants contend: First, that the only method by which the deficiency may be collected is by transferee proceedings under section 316 (a) of the Revenue Act of 1926 (26 USCA § 1119 (a), and, second, if the government is not restricted to that remedy, that there is no existing lien upon the property for the deficiency. The appellee contends that the transferee proceedings are an additional and alternative remedy for the collection of the tax and that there is a valid and subsisting lien on the property enforceable by distraint.
The collector was not restricted to the transferee proceedings provided by section 316 (a) of the Revenue Act of 1926 to collect a deficiency in tax against an estate which had been distributed before the determination of the deficiency, and might follow any. other valid procedure for collection. The use of the word “shall,” upon which great stress is laid by appellants, is not mandatory and does not confine the collector to a single method of procedure. A similar question of statutory interpretation was before this court in regard to section 280 (a) of the same act (26 USCA § 1069 (a), which provides for transferee proceedings to collect income taxes. In the case of Leighton v. U. S. (C. C. A.) 61 F.(2d) 530, affirmed by the Supreme Court on May 29, 1933, 53 S. Ct. 719, 77 L. Ed. -, it was contended that the collector was precluded from proceeding to collect the tax by suit in equity to impress the property in the hands of transferees with a trust by the new section, and fcould only enforce collection by means of transferee proceedings. In •that ease there was a deficiency in income tax determined against a corporation after its property had been distributed to its stockholders. Section 280 (a) is word for word the same as section 316 (a) except in so far as one deals with income tax and the other deals with estate tax. The word “shall” is used in exactly the same context in both statutes. It was held in that ease that the use of “shall” did not make the procedure mandatory, and that the remedy was not exclusive but cumulative on the authority of Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 610, 75 L. Ed. 1289, and U. S. v. Updike, 281 U. S. 489, 50 S. Ct. 367, 74 L. Ed. 984. Two quotations from the case of Phillips v. Commissioner, supra, may well be repeated here. “This remedy is in addition to proceedings to enforce the tax lien or actions at law and in equity.” Further in the opinion it is said, “The power of Congress to provide an additional remedy for the enforcement of existing liabilities is clear.” There is no valid reason for distinguishing between the two statutes and the decision in the Leigh-ton Case is conclusive upon this point.
The only remaining question is: Is there a valid and subsisting lien upon the property enforceable by distraint? If such a lien attached to the property it arose under section 409 of' the Revenue Act of 1921 (42 Stat. 283) which provided: “That unless the tax is sooner paid in full, it shall be a lien for ten years upon the gross estate of the decedent, except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration, allowed by any court having jurisdiction thereof, shall be divested of such lien. * * # ))
It is argued by the appellants that the clause “unless the tax is sooner paid in full” ¡refers to the due date of the tax as provided in section 407 of the same act, which is one year from the date of the decedent’s death; and that no lien arises until such due date. Appellants further argue that the tax in the instant ease having been returned, and the amount returned having been paid in full prior to such due date, no tax lien ever attached to the propert3’’. These contentions are not in accord with the law.
The language used in Page v. Skinner (C. C. A. 8) 298 F. 731, 732, though assailed as merely dicta, correctly states the law as to when the property is impressed with the tax lien.
“The imposition took effect at the time of death and the tax became at once a lien on the property of the estate, enforceable by sale, if not paid, on proceedings in court. N. Y. Trust Co. v. Eisner, 256 U. S. 345, 41 S. Ct. 506, 65 L. Ed. 963, 16 A. L. R. 660.”
One test of the accrual of a tax so that the tax is saved from the effect of repealing statutes has been whether or not a lien for the tax attached to .the property before the repeal and it has been held in a line of inheritanee tax eases commencing with Hertz v. Woodman, 218 U. S. 205, 30 S. Ct. 621, 54 L, Ed. 1001, that the tax accrued or was imposed at the decedent’s death and the estate of the decedent was impressed with a lien at the same time. U. S. v. Ayer (C. C. A. 1) 12 F.(2d) 194; Crooks v. Loose (C. C. A. 8) 36 F.(2d) 571; O’Brien v. Sturgess (D. C.) 39 F.(2d) 950, affirmed (C. C. A. 3) 45 F.(2d) 1017; Ewbank v. U. S. (D. C.) 37 F.(2d) 383, affirmed (C. C. A. 7) 50 F.(2d) 409; U. S. v. Cruiksliank et al. (D. C.) 48 F.(2d) 352. The thing’ that is taxed is the transfer of the decedent’s estate upon his death. The full amount of the tax is fixed as a liability at that time as provided by the statutes ilion in force and the gross estate of the decedent is impressed with a lien for the full amount of the tax. In the light of these, principles, it is clear that the clause of said section 409, “unless the tax is sooner paid in full,” refers to the termination of the lien by payment in full during the ten-year period-mot to the imposition of the lien on the due date of the tax.
Reliance is placed upon the language used in U. S. v. Woodward, 256 U. S. 632, 41 S. Ct. 615, 65 L. Ed. 1131, to the effect that an estate tax accrues one year after death if so provided by statute, and appellants argue therefrom that there is neither liability nor lien for the tax prior to accrual. This ease was not one concerned .with the incidence of the tax. It considered the term accrual from the standpoint of permissible deduction under an income tax provision. The effect of the decision in the Woodward Case was limited to a narrow and different proposition in the ease of U. S. v. Mitchell, 271 U. S. 9, 46 S. Ct. 418, 70 L. Ed. 799.
Applying these principles to the instant case, it follows that a lien for the full amount of the estate tax was impressed upon the gross estate of Isidore Rosenberg at the date of his death. Since the correct amount of the tax has never been paid in full, there is a present lien upon the property for the unpaid portion of the tax. The fact that the deficiency determined included the amount of the refund does not affect our conclusions. In the case of Levy v. Commissioner (C. C. A.) 48 F.(2d) 725, in this circuit it was held that the amount of a refund might properly be included in the determination of a deficiency. We are not confronted with the same situation as in the ease of Kelley v. U. S., 30 F.(2d) 193 (C. C. A. 9), where there was no deficiency determined and the only amount claimed was that of the refund. The payment of the difference between the amount of the deficiency and that of the refund after the determination of the deficiency docs not affect the existence of the tax lien.
The collector has the right to enforce the lien by distraint and sale as provided in sections 3187 and 3188 of the Revised Statutes (26 USCA §§ 116, 117). Although these sections apply to the enforcement of general liens created under Revised Statutes, § 3186, (26 USCA § 115) they also apply to the enforcement of special liens created by other statutes. Blacklock v. U. S., 208 U. S. 75, 28 S. Ct. 228, 52 L. Ed. 396. A tax lien on property may he enforced by seizure and sale under a warrant of distraint where, at the time the lion attached, the property belonged to the person liable to pay the tax. Hartman v. Bean, 99 U. S. 393, 25 L. Ed. 455; Mansfield v. Excelsior Refinery Co., 133 U. S. 326,10 S. Ct. 825, 34 L. Ed. 162; Blacklock v. U. S., supra. For estate tax purposes, the executor or ndministiator is the person liable to pay the tax. Since the estate tax lien attaches immediately upon the death of a decedent, the property at that time may be regarded as belonging to the taxpayer, that is, the administrator or executor. Property which constituted the decedent’s estate and passed into the hands of the executor or administrator was impressed with the lien and is subject to seizure and sale.
Judgment 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_r_bus | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CITY OF HIALEAH v. GROVES.
No. 8873.
Circuit Court of Appeals, Fifth Circuit.
Feb. 18, 1939.
Martin F. Whelan, Jr., and Mitchell D. Price, both of Miami, Fla., for appellant.
C. W. Peters, of Miami, Fla., for appellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
Rehearing denied April 24, 1939.
HOLMES, Circuit Judge.
This appeal is from a judgment for appellee in a suit against appellant for the principal and interest alleged to be due by the City on its bonds and coupons. The declaration was in four counts, two counts being on bonds of different issues, and the other two being on coupons alleged to have been attached to the bonds. The issues tried were those raised by appellant’s plea of non est factum.
Appellee proved the special charter act upon which it relied for the authority of the municipality to issue the bonds,- together with the ordinances authorizing the two issues involved. The ordinances complied with the charter and specified the forms and amounts of the bonds to be negotiated and the officers- to act in that behalf. Appellee then proved that the bonds and coupons complied in all respects with those provided for in the ordinances, and that the signatures appearing on the bonds were genuine; that the bonds were executed by the officers named therein; and that taxes had been duly levied to raise funds to pay both issues. The proof as to the coupons was that they corresponded to the bonds as to number, amount, etc., were in the form required by the ordinance, and bore the -facsimile signatures of the executing officers. No evidence was offered by - appellant to contradict this proof; whereupon the court found the facts as above, and adjudged the issues in favor of appellee.
Three propositions are urged as grounds for reversal. They are that the evidence was insufficient, in that it did not. show, first, that the bonds had been delivered, second, that appellee was the holder in due course, and third, that the coupons were genuine, having been detached from the bonds.
The bonds are negotiable instruments payable to bearer. As such, they are subject to the provisions of the Uniform Negotiable Instruments Act, in force in the state of Florida. The section here involved (Section 6776, Compiled General Laws of Florida 1927) provides: “And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.” Delivery of the bonds is presumed until the contrary is proved; and the proof, standing uncontradicted, made a prima facie case on this issue. S. K. S. Holding Co. v. Vans Agnew, 106 Fla. 830, 143 So. 599.
Lack or want of status as a holder in due course is not a defense to a negotiable instrument payable to bearer. Its only effect would be to let in defenses against the first holder, promisee, or obligee. Where such defenses are not asserted, no such issue is raised; and proof that the plaintiff is a holder in due course is not necessary. McCallum v. Driggs, 35 Fla. 277, 17 So. 407; Jones v. Central Hanover Bank & Trust Co., 110 Fla. 69, 147 So. 895; Durham v. Meyer, 114 Fla. 594, 154 So. 702. Under the foregoing authorities, the fact that appellee produced the bonds at the trial and surrendered them in evidence was, prima facie, sufficient to characterize him as the legal holder thereof.
However, proof that the unattached coupons corresponded to the bonds and satisfied the requirements of the charter and ordinances did not sustain the burden of proving that they were the valid obligations of appellant. If they were, they became so when negotiated along with bonds to which they were attached, each bond bearing the signatures of the executing officers. Proof of the genuineness of the bonds may be made by proving the acts of the negotiating officers pursuant to their authority, and such proof is undoubtedly sufficient for the coupons attached to the bonds. But where, the coupons do not bear the signature or signatures of the officer or officers issuing them, their validity depends entirely upon whether or not they were attached to the bonds when issued.. If the coupons were actually attached to the bonds when issued, and were not attached when produced in court, then sómeone, at some intervening time, must have detached them. Information as to who-detached the coupons is not readily available to the obligor; and, in the nature of the case, it would be unjust to indulge a presumption against it. Such information is, or should be, readily available to-a holder of the bonds; and, if the genuineness of the coupons is put in issue, it should work no unusual hardship upon' him to require proof of the one vital fact upon which it depends, that 'is, that the-coupons were detached from the bonds.
It follows that the judgment of the-district court must be affirmed in so far as-it awards recovery on the bonds and all coupons attached thereto. Since there was no proof that the unattached coupons were-attached to the bonds when issued, the-judgment must be reversed as to so much of the award as was based thereon.
The judgment of the district court is. affirmed in part and reversed in part, and the cause remanded to the district court, for further proceedings not inconsistent with this opinion. The costs of this appeal shall'be assessed against appellee.
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_appnatpr | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Kenneth GARRISON and Dorothy Garrison, Plaintiffs-Appellants, v. HEUBLEIN, INC., d/b/a Ste Pierre Smirnoff FLS, Defendant-Appellee.
No. 81-1714.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 26, 1982.
Decided March 17, 1982.
Patrick S. Moore, Walter M. Ketchum, Ltd., Chicago, Ill., for plaintiffs-appellants.
David E. Bennett, Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd., Chicago, Ill., for defendant-appellee.
Before CUMMINGS, Chief Judge, and PELL and SPRECHER, Circuit Judges.
PELL, Circuit Judge.
This is an appeal from the dismissal of a complaint filed by the plaintiffs, Kenneth and Dorothy Garrison, against the defendant, Heublein, Inc., the manufacturer and distributor of Smirnoff vodka. In that complaint, the plaintiffs alleged that Kenneth Garrison has suffered physical and mental injuries as a result of consuming the defendant’s product over a twenty-year period. They urged that the defendant is liable for those injuries on five separate theories: negligence, willful and wanton conduct, products liability, fraud, and false and misleading advertising. The crux of each of those claims is not that the product was adulterated or tainted, but rather that the defendant failed to warn the plaintiff of certain “propensities” of the product.
In response to the defendant’s motion under Fed.R.Civ.P. 12(b)(6), the court dismissed the complaint for failure to state a claim upon which relief can be granted. In its order, the court noted that each of the plaintiffs’ theories of recovery “rest[s] on the claim that defendant had a duty to disclose, by labels and advertising, that consumption of its products may be hazardous to the consumer’s health and physical and economic well-being.” The court observed that the imposition of such a duty would have to be based on the “premise that liquor poses latent risks not appreciated by users.” Rejecting that premise, the court found that, in light of common knowledge concerning alcohol and its effects, “the defendant has no duty to add, by labels or advertising, to the flow of information.”
In this appeal, the plaintiffs challenge the district court’s dismissal in two respects. First, they argue that the court did not apply the proper standard in ruling on the defendant’s Rule 12(b)(6) motion. Second, they attack the substance of the decision, arguing that the court erred in ruling, as a matter of law, that the defendant does not have a duty to warn. In support of their second argument, they assert the following points: (1) that the defendant’s product is defective because of the absence of warnings of dangers inherent in its use; (2) that the defendant has a duty to warn because the dangers of the products are not obvious; and (3) that, even if the dangers can be characterized as obvious, policy reasons dictate that a duty to warn be imposed. For the reasons noted below, we reject these arguments and affirm the judgment of the district court.
I
The proper standard for appraising the sufficiency of a complaint is “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Reichenberger v. Pritchard, 660 F.2d 280 (7th Cir. 1981). The plaintiffs’ contention that the district court misapplied that standard is mistaken. Clearly, under the standard, “ ‘want of merit may consist in an absence of law to support a claim of the sort made.’ ” 2A Moore’s Federal Practice ¶ 12.08 at 2271 (2d ed. 1981) (quoting De Loach v. Crowley's, Inc., 128 F.2d 378, 380 (5th Cir. 1942)). That was precisely the basis for the court’s dismissal. It found each of the plaintiffs’ theories of recovery premised on an alleged duty to disclose which, as a matter of law, does not exist. Because, under Illinois law, the determination of whether a duty to warn exists is a question of law, Genaust v. Illinois Power Company, 62 Ill.2d 456, 466, 343 N.E.2d 465, 471 (1976), the court’s analysis was procedurally correct. Our review, then, must focus on the soundness of the underlying substantive legal determination.
II
Although the plaintiffs allege five separate theories of recovery, their appellate argument concerning the defendant’s duty to warn relies to a great extent upon concepts developed in the field of strict liability. Because that theory involves the lowest threshold for establishing such a duty, a failure in that regard would necessarily undercut the duty component of the other counts. Thus, it is appropriate to begin our inquiry by focusing on that area of law.
The doctrine of strict products liability, as articulated in the Restatement (Second) of Torts § 402A, has been adopted as law in Illinois. Genaust v. Illinois Power Company, supra; Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). That section imposes liability upon “[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer.... ”
Initially, the plaintiffs attempt to bring themselves within the doctrine by relying on Illinois cases which hold “that a failure to warn of a product’s dangerous propensities may [itself] serve as the basis for holding a manufacturer or seller strictly liable in tort.” See Woodill v. Parke Davis & Co., 79 Ill.2d 26, 29, 37 Ill.Dec. 304, 306, 402 N.E.2d 194, 196 (1980). That move, however, is of little value to the plaintiffs. It only demonstrates that, in circumstances when a warning is necessary, the failure to give that warning may support a strict liability action. It does not answer the critical question, that is, whether a warning is necessary in this case.
In Lawson v. G. D. Searle & Company, 64 Ill.2d 543, 1 Ill.Dec. 497, 356 N.E.2d 779 (1976), the Supreme Court of Illinois provided an insight into the proper approach for reaching an answer to that more basic question. In that case, the court approved the following jury instruction:
A product faultlessly made may be deemed to be unreasonably dangerous if it is not safe for such a use that is to be expected to be made of it and no warning is given.
64 Ill.2d at 547,1 Ill.Dec. at 499, 356 N.E.2d at 781 (emphasis added). The court noted that the instruction paralleled certain comments to section 402A of the Restatement. Thus, those comments can lend to an understanding of this area of law.
Comment h restates the basic predicate of the Lawson jury instruction: “A product is not in a defective condition when it is safe for normal handling and consumption.” The comment then qualifies that general proposition by noting that “[w]here, however, [a seller] has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger (see comment j), and a product sold without such warning is in a defective condition.”
The plaintiffs rely on the latter language to support their contention that a warning is necessary in this case. They ignore, however, the fact that that qualification itself contains a caveat, the reference to comment j. That comment dealing with “directions and warning,” is most salient to our present inquiry. It states in part that:
a seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized. .. . [T]he dangers of alcoholic beverages are an example, as are also those of foods containing such substances as saturated fats, which may over a period of time have a deleterious effect upon the human heart.
This treatment of dangers “generally known and recognized” is also apparent in comment i, which describes the requirement of unreasonable dangerousness under section 402A:
The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics... .
This position is consistent with the Illinois Supreme Court’s finding in Genaust v. Illinois Power Company, 62 Ill.2d at 466, 343 N.E.2d at 471, that the determination of whether a duty to warn exists involves a question of foreseeability, which must be resolved under a standard of objective reasonableness. In that case, the court refused to impose on the manufacturer of metal antennas a duty to warn consumers of the danger of electrical arcing if the product was used in close proximity to power wires. The court found that, because “it is common knowledge that metal will conduct electricity..., it is not objectively reasonable to expect that a person . . . would attempt to install a metal tower and antenna in such close proximity to electrical wires.” Id.
Likewise, in this case, we find that even though there are dangers involved in the use of alcoholic beverages, because of the common knowledge of those dangers, the product cannot be regarded as unreasonably unsafe. See Prosser, Law of Torts 660 (4th ed. 1971). And, in light of the approach to the duty to warn approved in Lawson, a product that is not unsafe “for such a use that is to be expected to be made of it” requires no warning. Thus, we affirm the district court’s finding that the defendant in this case has no duty to warn.
The plaintiffs’ final attempt to counter this implication of the common knowledge of the dangers of alcohol by arguing that, as a matter of policy, the “manufacturer of [an] obviously defective product ought not to escape because the product was obviously a bad one,” must also be rejected. Their objection might be appropriate as a challenge to an “obvious danger doctrine” under which a manufacturer is discharged from his duty to warn merely by establishing that a defect is obvious. See Harris v. Karri-On Campers, Inc., 640 F.2d 65, 76 (7th Cir. 1981) (interpreting West Virginia law). That, however, is not our approach in this case. We are not saying that a duty to warn cannot arise simply because a defect in a product is obvious, even if that defect causes the product to remain unreasonably dangerous. Rather, we are saying that the dangers of the use of alcohol are common knowledge to such an extent that the product cannot objectively be considered to be unreasonably dangerous.
Because the district court was correct in finding that the defendant does not have a duty to warn a consumer of the common “propensities” of alcohol, and such a duty is essential to each of the plaintiffs’ theories of recovery, we affirm the judgment of the district court.
. Jurisdiction is based on diversity of citizenship. The plaintiffs are both citizens of the State of Illinois. The defendant is a citizen of the State of Connecticut. The amount in controversy exceeds $10,000, exclusive of interest and costs.
. The plaintiffs claimed that the product has propensities “to cause physical damage to the consumer;” “to cause impairment to physical and motor skills for a period of time after consumption;” “to cause impairment to mental capacity and facilities for a period of time after consumption;” to affect the personality of the consumer; to be addictive; and to create dangers in the operation of a motor vehicle. The plaintiffs also complained that the defendant failed to state the ingredients of the product and the amount of the product that can be safely consumed.
. We agree with the district court’s premise that the legal sufficiency of each of the plaintiffs’ theories of recovery, as alleged in their complaint, hinges on whether a duty to warn exists.
. Such cases characterize the “failure to warn” as the “defect” in order to conform to the language of the Restatement. See, e.g., Nelson v. Hydraulic Press Manufacturing Company, 84 Ill.App.3d 41, 45, 39 Ill.Dec. 422, 425, 404 N.E.2d 1013, 1016 (2d Dist. 1980).
. The Court referred to comments h, i, and k.
. The plaintiffs’ reliance on certain passages in the Report to the President and the Congress on Health Hazards Associated with Alcohol and Methods to Inform the General Public of these Hazards, U.S. Department of the Treasury and U.S. Department of Health and Human Services (1980), which illustrate that there are misperceptions about the use of alcohol, is not sufficient to upset the district court’s finding, with which we agree, that it is common knowledge that certain dangers, including those alleged in the plaintiffs’ complaint, are involved in the use of alcohol. See Pritchard v. Liggett & Myers Tobacco Company, 295 F.2d 292, 302 (3d Cir. 1961) (concurring opinion).
. The alternative analytical approaches suggested by the plaintiffs, see Nelson v. Hydraulic Press Manufacturing Company, supra (balancing test), and Illinois State Trust Company v. Walker Manufacturing Company, 73 Ill.App.3d 585, 29 Ill.Dec. 513, 392 N.E.2d 70 (5th Dist. 1979) (unequal knowledge), are inapposite in that they do not specifically deal with the question of the common knowledge of a product’s dangers.
. Palmer v. Massey Ferguson, Inc., 3 Wash.App. 508, 517, 476 P.2d 713, 719 (Wash.1970).
. For example, presumably a duty to warn would arise in the case of an obviously unguarded blade in a power-driven saw if the danger of injury was found to be unreasonable notwithstanding the obviousness of the defect.
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_6-3 | F | 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 "labor relations".
ROCK DRILLING, BLASTING, ROADS, SEWERS, VIADUCTS, BRIDGES, FOUNDATIONS, EXCAVATIONS AND CONCRETE WORK ON ALL CONSTRUCTION, HOD CARRIERS’, BUILDING AND COMMON LABORERS’ LOCAL UNION NO. 17, Plaintiff-Appellant, v. MASON & HANGER COMPANY, Inc., Defendant-Appellee. ROCK DRILLING, BLASTING, ROADS, SEWERS, VIADUCTS, BRIDGES, FOUNDATIONS, EXCAVATIONS AND CONCRETE WORK ON ALL CONSTRUCTION, HOD CARRIERS’, BUILDING AND COMMON LABORERS’ LOCAL UNION NO. 17, Plaintiff-Appellant, v. WALSH CONSTRUCTION COMPANY, Inc., Defendant-Appellee. ROCK DRILLING, BLASTING, ROADS, SEWERS, VIADUCTS, BRIDGES, FOUNDATIONS, EXCAVATIONS AND CONCRETE WORK ON ALL CONSTRUCTION, HOD CARRIERS’, BUILDING AND COMMON LABORERS’ LOCAL UNION NO. 17, Plaintiff-Appellant, v. B. PERINI & SONS, Inc., Defendant-Appellee. ROCK DRILLING, BLASTING, ROADS, SEWERS, VIADUCTS, BRIDGES, FOUNDATIONS, EXCAVATIONS AND CONCRETE WORK ON ALL CONSTRUCTION, HOD CARRIERS’, BUILDING AND COMMON LABORERS’ LOCAL UNION NO. 17, Plaintiff-Appellant, v. GEORGE M. BREWSTER & SON, Inc., Defendant-Appellee.
Nos. 17, 16, 18, 19, Dockets 23066, 23065, 23067, 23068.
United States Court of Appeals Second Circuit.
Argued Nov. 5, 1954.
Decided Dec. 6, 1954.
Boudin, Cohn & Glickstein, New York City, Francis Martocci and Charles De La Vergne, Kingston, N. Y. (Hyman N. Glickstein and Daniel W. Meyer, New York City, of counsel), for plaintiff-appellant.
Nevius, Brett & Kellogg, New York City, for defendent-appellee, Mason & Hanger Company, Inc. and Willkie, Owen, Farr, Gallagher & Walton, New York City, for defendants-appellees, Walsh Construction Company, Inc. and B. Perini & Sons, Inc. (Franklin Nevius, Mark F. Hughes, James E. Carroll and F. Davis Gardner, New York City, of counsel).
William H. Wurts, New York City, John J. Breshin, Hackensack, N. J., of counsel, for defendant-appellee George M. Brewster & Son, Inc.
Before CHASE, MEDINA and HINCKS, Circuit Judges.
MEDINA, Circuit Judge.
These are four companion actions in tort by a labor union to recover damages alleged to have been sustained severally by some hundreds of employees of each defendant by reason of diminution of wages and lack of proper working conditions, said to have been caused by the operation of a conspiracy between one James Bove and each of defendants pursuant to which certain bribes were paid by each defendant to Bove. References herein are to the record in the action against Mason & Hanger Company, Inc., as the opinion below was published under the title of that action.
The original complaints were dismissed by Judge Rifkind for lack of jurisdiction of subject matter and for failure to state a claim upon which relief could be granted. Amended complaints were dismissed by Judge Samuel H. Kaufman, who found that, “notwithstanding some changes in verbiage and some additions,” the amended complaints suffered from the same infirmities as were apparent upon the face of the others. These appeals bring up for our consideration the sufficiency of both the original and the amended complaints.
The original complaint asserted jurisdiction “by virtue of the provisions of Section 301 of the Labor Management Relations Act of 1947” (the Taft-Hart-ley Act) and 28 U.S.C.A. § 1382, alleging diversity of citizenship (plaintiff and all its members being citizens of New York and defendant a West Virginia corporation), together with the usual conclu-sory statement that “the amount in controversy herein, exclusive of interest and costs, exceeds the sum or value of $3000.”
The charge was that Bove was vice-president of International Hod Carriers’, Building and Common Laborers’ Union of America, the parent international of the plaintiff local union, that Bove dominated and controlled the plaintiff and represented plaintiff and its members in collective bargaining with employers. It is alleged that, between August 28, 1939 and August 22, 1944, upwards of 400 workmen, members of the plaintiff, worked for defendant in the performance of a contract, between defendant and the Board of Water Supply of the City of New York for the construction of part of the Delaware Aqueduct Project, which provided for lower rates of pay and more dangerous and deleterious working conditions than would have been the case but for “a fraudulent, wrongful and illegal conspiracy,” formed in July, 1939, between Bove and defendant, in the operation and pursuant to the terms of which defendant paid Bove a bribe of $36,000 and Bove caused the workmen to agree and they “agreed to and did, during the aforesaid period of time, render labor and services for the defendant at the aforesaid lower rate of wages and more dangerous and deleterious working conditions,” and sustained other loss, “all to the damage of the plaintiff as the representative of its said members” in the sum of $600,000, the conspiracy not having been discovered until March 8, 1945. The parties stipulated that the “plaintiff has brought this action in a representative capacity on behalf of its members who were employed by defendant,” and that “the damages sought * * * are and are limited to the damages sustained by those members of the plaintiff who were employed by the defendant as aforesaid.”
Thus on the face of the original complaint it is clear beyond cavil that the action sounded in tort and that plaintiff had aggregated some 400 separate individual claims for damages amounting in all to $600,000, but considerably less than $3,000 apiece.
The amended complaint asserts jurisdiction on the same basis as before, re-alleges the making of the contract with the Board of Water Supply, the conspiracy with and the payment of the $36,000 bribe to Bove, and the rendition of services by the workers for lower rates of pay and under more dangerous and deleterious working conditions, with a slightly different choice of words here and there. What is claimed to be significantly new is: (1) the inclusion of allegations that the International, through Bove, negotiated with defen d-ant and executed a collective bargaining agreement fixing rates of pay and working conditions said to be lower and more dangerous and deleterious than would have been the case but for the conspiracy and the payment of the bribe, and that the collective bargaining agreement was executed “on behalf of the plaintiff and its members” and “the same was assigned by the International to the plaintiff”; (2) the inclusion of an allegation that defendant was “unjustly enriched” in the amount of the bribe of $36,000, and “the members of the plaintiff employed by the defendant as aforesaid were damaged at least in the said amount”; and (3) a prayer for relief “declaring and adjudging” that the collective bargaining agreement was made pursuant to the conspiracy and in consideration of the bribe, that “the members of the plaintiff” were damaged at least in the amount of $36,000, and “directing” that $36,000 be paid to plaintiff and that plaintiff hold the same “as trustee for its said members for distribution among them as their respective interests may ultimately appear.” The parties again stipulated that the damages sought were limited to those sustained by the members of plaintiff who were employed by defendant in the performance of the contract with the Board of Water Supply.
Every event upon which plaintiff rests its claim for relief occurred prior to the passage of the Taft-Hartley Act in 1947.
Reversing the normal order, and doing so solely for the sake of clarity and to avoid repetition, we shall discuss last the question of jurisdiction over the subject matter of the action.
At the outset it is clear that at common law no cause of action whatever would have been vested in plaintiff as a matter of substantive law. See 3 Moore’s Federal Practice (2d Ed.) pp. 1331-2. Nor did an unincorporated association such as plaintiff have any capacity to sue or be sued. Moffat Tunnel League v. United States, 1933, 289 U. S. 113, 118, 53 S.Ct. 543, 77 L.Ed. 1069. There was no such separate entity known to common law procedure; and each and every member of the association was required to join or be joined as in the case of partners. Such is still the law in many state jurisdictions today, although it is quite common, as in New York, to find code or other statutory provisions permitting actions to be maintained by or against the president or treasurer or other officers of an unincorporated association.
In addition to the limited general terms of Rule 17(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on “Capacity to Sue or Be Sued”, specific provisions are contained in Title III of the Taft-Hartley Act relative to “Suits by and against Labor Organizations.” Section 301(a) serves the dual purpose of giving the United States District Courts jurisdiction to entertain and decide suits by labor unions “for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * *, without respect to the amount in controversy or without regard to the citizenship of the parties”, and also, by necessary implication, constituted such labor unions the trustees of recoveries in such actions for the benefit of such of the employees as might be entitled to the proceeds thereof. This Section 301(a) has been held to have created “a new substantive liability,” and not applicable to breaches of contract which antedated June 23, 1947, when the Taft-Hartley Act was enacted. Schatte v. International Alliance of Theatrical Stage Employees, etc., 9 Cir., 1950, 182 F.2d 158, 164, certiorari denied, 1950, 340 U.S. 827, 71 S. Ct. 64, 95 L.Ed. 608, rehearing denied, 1950, 340 U.S. 885, 71 S.Ct. 194, 95 L.Ed. 643; Studio Carpenters Local Union No. 946 v. Loew’s, Inc., 9 Cir., 1950, 182 F.2d 168, certiorari denied, 1950, 340 U.S. 828, 71 S.Ct. 64, 95 L.Ed. 608, rehearing denied, 1950, 340 U.S. 885, 71 S.Ct. 194, 95 L.Ed. 643.
The capacity provision, applicable generally to all suits by or against labor unions, is contained in Section 301 (b), as follows: "Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States.” This is followed, in the same and subsequent subdivisions of Section 301, by certain limitations concerning the enforceability of the judgment, venue, service of process and allied procedural matters, all of which together comprise a harmonious and consistent pattern, when Section 301 is considered as a whole.
The expansion of jurisdiction and the creation of the substantive right to maintain particular suits, which we find in Section 301(a), are strictly limited to those for violation of contracts, such, for example, as the collective bargaining contract negotiated here between the International and the defendant. We need not pause to consider whether a local union, as assignee, is intended to be included.
Nor is there anything ambiguous about the expression “as an entity and in behalf of the employees”. These words merely round out and clarify the meaning of the sentence as a capacity statute and nothing more. No substantive rights whatever are affected thereby. The unincorporated association is recognized as “an entity,” despite the fact that it acts and will sue or be sued only “in behalf of the employees whom it represents”.
Plaintiff would have us construe these words as a blanket and retroactive grant of authority to unions to maintain in behalf of their members suits of any character, whether of tort or contract, and irrespective of the nature of the rights, obligations or duties involved, provided only that the litigation arises in some vague way “out of the employment relationship.” This would indeed open a Pandora’s box and the resulting evils and inconveniences would perhaps lead to unsatisfactory conditions reminiscent of those existing prior to the passage of the Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U.S.C.A. § 251 et seq. Nothing short of a clear and positive mandate by the Congress could suffice to work such a revolutionary change. Cf. Elgin, J. & E. Ry. Co. v. Burley, 1945, 325 U.S. 711, 733-734, 65 S.Ct. 1282, 89 L.Ed. 1886, on rehearing, 1946, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928.
Moreover, it seems more than passing strange that the Congress should so carefully limit the clause, subdivision (a), to suits for violation of a particular type of contracts, and then, in subdivision (b), throw the door wide open to the maintenance by unions “in the courts of the United States” of actions to recover damages for private torts committed by the employer against individual employees, in the course of the “employment relationship,” provided there were the requisite diversity of citizenship and the necessary amount in controversy. This flies in the face of common sense.
A careful appraisal of the natural and inevitable consequences of the adoption of plaintiff’s interpretation of Section 301 makes it apparent that this view of its meaning is designed not as a reasonable construction of the statute, but is merely a distortion of its meaning to make it fit this case.
If a labor union is thus authorized to sue to recover damages recoverable by individual workers for separate torts, what is to become of the phrase “may sue or be sued” ? If in the course of the “employment relationship” an employee does some private sabotage or assaults the manager or otherwise does damage to person or property, can it be intended that the union may be held liable ? Plaintiff answers no. But the phrase is “sue or be sued”; a construction which in a given category of cases favors maintenance of the suit must likewise be applicable when the shoe is on the other foot.
Furthermore, the adoption of the interpretation of Section 301(b) which plaintiff presses upon us would raise a multiplicity of other questions, the answers to which are not to be found either in the crucial sentence relied on or anywhere else in the statute. It is not disputed that each of the individual workers who suffered loss through the operation of the alleged conspiracy could sue alone to recover his damages. Must such a suit be commenced before action is taken by the union ? The claims of each of the 400 employees would seem to involve questions of law or fact common to his own claim and that of the others. Assuming that he could comply with the conditions prescribed in Rule 23(a) of the Federal Rules of Civil Procedure, and that, with diversity as here, the claim of each was in excess of $3,000, exclusive of interest and costs, one worker might choose to sue as a member of the class, for his own benefit and for the benefit of some or all of the others. Are all to be subordinated to the control of the union and thus compelled to leave the management of the litigation of their personal rights to the judgment of the attorney for the union? Suppose the union desired to press the claims of some but less than all the workers? Nothing in the views submitted for our consideration would seem to prevent the union from doing so. Nor is the operation of the doctrine of res judicata to the various phases of this problem free from serious doubt. Counsel tell us that the Congress intended that the right to sue be limited to the enforcement of obligations arising “out of the employment relationship.” But this is pure assertion. No such words of limitation are to be found in Section 301(b). If Section 301 (b) is to be construed as anything more than a simple capacity statute, we can find no basis for construing it in such fashion as to justify this particular suit but to go no further. If the Congress intended the unions to be general litigating agencies for the workers, why not go the whole hog? These doubts and perplexities merely serve to emphasize the fact that the entire subject was one which the Congress chose to leave alone, except in the case of suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce, as provided in Section 301(a), and giving to such organizations generally the capacity to sue or be sued in the federal courts as provided in Section 301 (b).
The portion of Section 301(b) relied upon by plaintiff is a capacity statute pure and simple and goes no further. Amazon Cotton Mill Co. v. Textile Workers Union, 4 Cir., 1948, 167 F.2d 183, 187-188. Moreover, nothing in the legislative history of the Taft-Hartley Act has been called to our attention, nor has our own research revealed anything to indicate that the intention of the Congress was otherwise.
Nor need we tarry long over Rule 23 of the Federal Rules of Civil Procedure, applicable to class actions, and providing: “If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right * * * is * * * (3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.” As plaintiff is not a member of the class, Rule 23 is not applicable.
So much for procedure; and we turn to the substantive law phase of the case.
The pertinent part of Rule 17 of the Federal Rules of Civil Procedure provides : “Every action shall be prosecuted in the name of the real party in interest; but * * * a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought * * *»
It is elementary that the jurisdiction of the federal courts is neither enlarged nor restricted by this Rule, and that its purport is to require that the action be prosecuted in the name of the party, who, by the substantive law, has the right sought to be enforced. 3 Moore’s Federal Practice (2d Ed.) pp. 1305, 1311.
Plaintiff claims that it has a right to sue because it is both “a party with whom or in whose name a contract has been made for the benefit of another” and “a party authorized by statute”. But we have already seen that the only statute claimed to have any relevancy to the case, Section 301(b) of the TaftHartley Act, is a mere regulation of procedure, conferring no substantive rights whatever upon the union. And a consideration of the very considerable number of cases construing Rule 17 and its counterpart in various state Codes discloses nothing to support plaintiff’s contention that the contract clause is applicable to actions to recover for torts if the suit “relates to the making of the contract or its performance.” Here the claim sought to be enforced “relates” to the collective bargaining contract only in an incidental way. The gist of the action is the wrongful conduct of defendant in conspiring with Bove and bribing him as alleged. This is neither a suit to enforce the contract nor to recover for a breach thereof.
The elaborate argument concerning suits by the promisee of a third-party beneficiary contract expends itself without affecting the matter in hand. Where an employer enters into a collective bargaining agreement with a union, followed by individual wage contracts with the employees, and then fails to pay the wages agreed upon, or otherwise commits a breach of the agreement, it may well be that the collective bargaining agreement becomes part of the terms of employment and that either the union or the employee may sue in the federal courts — the union pursuant to the provisions of Section 301(a), irrespective of diversity or amount, and the employee only upon a showing of diversity and an amount in controversy over $3,000, exclusive of interest and costs. United Protective Workers of America v. Ford Motor Co., 7 Cir., 1952, 194 F.2d 997. Even this phase of the general problem is not free from doubt, where the union sues in the federal courts, despite the fact that Section 301(a) of the Taft-Hartley Act contains “a grant of federal-question jurisdiction and thus creates a federal, substantive right.” See Association of Westinghouse Salaried Emp. v. Westinghouse Elec. Corp., 3 Cir., 1954, 210 F.2d 623, 625, certiorari granted, 1954, 347 U.S. 1010, 74 S.Ct. 868. But we are not concerned here with deciding who may sue for breach of the agreement alleged to have been wrongfully and conspiratorially negotiated by Bove, but rather with the substantive law question: in whom is vested the right to recover damages for the torts alleged to have been committed by defendant in breach of its duty to its several employees to refrain from wrongfully injuring them.
We conclude that there is nothing in Rule 17 to support plaintiff’s substantive-right to sue for the recovery of the damages sustained severally by the 400 employees.
Moreover, we must not forget that the-rights of each of the employees whom-plaintiff claims to represent came into-existence long prior to the Taft-Hartley Act. A statute conferring no more than capacity to sue or be sued is remedial' and may be given immediate effect; but plaintiff has not afforded us with any enlightenment on the subject of how the substantive law could be changed retroactively so as to vest in the union the rights claimed for it, without the plainest sort of statutory language requiring retroactive effect, Chew Heong v. United States, 1884, 112 U.S. 536, 559, 5 S.Ct.. 255, 28 L.Ed. 770, and, even then, without raising constitutional questions,, which could not lightly be brushed aside.. We have already observed that the courts-have refused to give retroactive effect to-the provisions of Section 301(a). Schatte v. International Alliance of Theatrical Stage Employees, etc., Studio Carpenters-Local Union No. 946 v. Loew’s, Inc., supra.
The foregoing discussion of the procedural and substantive aspects of the-case has left little to be said on the decisive subject of jurisdiction. As Section 301(b) merely gives unincorporated! labor organizations a status in the federal courts where commerce is affected, and as Section 301(a) confers jurisdiction, irrespective of the amount in controversy and the citizenship of the parties, only of suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce, there is no federal-question jurisdiction here; and plaintiff must fall back on diversity. But plaintiff is again confronted by an insurmountable obstacle. The claims sought to be enforced are several rather than joint, and no single claim amounts to more than a few hundred dollars. May these 400 claims be aggregated, to make up the necessary jurisdictional amount in controversy?
The controlling principles have long been settled. Whether the parties be several, or one suing in a representative capacity on behalf of others, the amounts claimed by or on behalf of each of those injured by the wrongful conduct of defendant may be aggregated only where those “having a common undivided interest, unite to enforce a single title or right”. Thomson v. Gaskill, 1942, 315 U.S. 442, 62 S.Ct. 673, 675, 86 L.Ed. 951. And this is the established law even though the several claims are derived from a single instrument or arise as the result of a negligent or wrongful act which results in loss or damage to many persons. Pinel v. Pinel, 1916, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817; Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001.
While plaintiffs argues that the theory of the amended complaint, and the additional allegations therein contained, has changed the nature of the rights sought to be asserted in this case so that there is now “a common undivided interest” and “a single title or right,” the amended complaint shows clearly on its face that this is not so. By asserting “unjust enrichment” in the amount of the bribe, reducing the ad damnum clause from $600,000 to $36,000, as “at least” the amount of the aggregate damage, and calling this a “fund” to which plaintiff is entitled “as trustee,” plaintiff has merely added verbiage. There is no fund. The claim remains one on behalf of 400 separate individuals for the damage suffered by each due to the alleged tortious conduct of defendant in entering into the alleged conspiracy with Bove and paying him the bribe of $36,-000.
Nothing to the contrary was held in Local Union No. 497 of Amalgamated Ass’n of Street & Electric Ry. Employees v. Joplin & P. Ry. Co., 8 Cir., 1923, 287 F. 473, where an action authorized by the terms of a Kansas statute was removed to the federal court and it was held that the requisite jurisdictional amount was involved because the statute authorized the maintenance of the suit “collectively” to recover the aggregate difference between the wages actually paid and those “found and determined” by the Kansas Court of Industrial Relations. As stated by Judge Sanborn, 287 F. at page 476, “The only controversy between the plaintiffs and the defendant is whether or not by reason of the order and finding of the industrial court the defendant was in legal effect adjudged to pay the plaintiffs the $7,271.47, or any of it.”
Nor does anything contained in N.Y. Penal Law, Section 439, McK.Consol. Laws, c. 40, and Donemar, Inc. v. Molloy, 1930, 252 N.Y. 360, 169 N.E. 610, which seem to have little bearing on the case, alter the fact that the claims of each of the 400 odd employees, whom plaintiff claims to represent, are for the damages individually suffered by each of them by reason of defendant’s tortious conduct. Here again, what is plainly a series of separate and distinct claims cannot be transmuted into “a single title or right” by the mere expedient of asking for less damages than each would be entitled to were he to have sued alone and casting the prayer for relief in the form of a declaratory judgment proceeding affecting the disposition of a so-called “fund.”
Accordingly, even if the plaintiff had some right to recover on behalf of each of the 400 odd employees described in the complaints, which we think not to be the case, it would still be plain on the face of the complaints that the District Court was wholly without jurisdiction of the subject matter of the action.
So much of the orders appealed from as dismisses the complaint and the amended complaint for lack of jurisdiction is' affirmedl
. “Suits By And Against Labor Organizations
“Sec. 301. (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
“(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be .enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
“(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly author,-ized officers or agents are engaged in representing or acting for employee members.
“(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in Ms capacity as such, shall constitute service upon the labor organization.
“(e) For the purposes of this section, in determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling:” 29 U.S.O.A. § 185.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer: |
songer_genstand | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the 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".
UNITED STATES v. LIVERPOOL & LONDON & GLOBE INS. CO., Limited et al.
No. 14404.
United States Court of Appeals Fifth Circuit.
Dec. 21, 1953.
Rives, Circuit Judge, dissented.
Charles S. Lyon, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst, to Atty. Gen., H. Brian Holland, Asst. Atty. Gen., Louise Foster, Washington, D. C., A. F. Prescott, John J. Kelley, Jr., Sp. Assts. to Atty. Gen., Frank B. Potter, U. S. Atty., Midland, Tex., William Cantrell, Jr., Asst. U. S. Atty., for appellant.
James R. Alexander, Will C. Thompson, Vernon Coe and R. B. Cousins, III, Dallas, Tex., Goldberg & Alexander, Dallas, Tex., Thompson & Coe, Dallas, Tex., for appellees.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
BORAH, Circuit Judge.
This is an appeal from a final judgment of the United States District Court for the Northern District of Texas holding that the appellee Sunnyland Wholesale Furniture Company had a garnishment lien upon funds of D. Ray Adams and his wife which was superior to a federal income tax lien claimed by the United States of America, appellant.
The undisputed facts are these. In the month of December, 1951, assessments were executed by the Commissioner of Internal Revenue covering withholding taxes and interests thereon which were assessed against D. Ray Adams, d/b/a Adams Furniture & Hardware Company, for the year 1951. The assessment lists were received on December 26, 1951, and February 26, 1952, respectively, by the Acting Collector of Internal Revenue for the First Collection District of Texas and on March 24, 1952, he filed a notice of tax lien in the office of the County Clerk of Bell County, Texas, in favor of the United States in the sum of $2,520.05.
On March 8, 1952, fire destroyed certain stock, furniture, and fixtures of the Adams Company in Bell County which was the community property of D. Ray Adams and Mary Martha Adams, his wife. The loss was covered by fire insurance policies in force with appellee Liverpool & London & Globe Insurance Company, Ltd., and another insurer not here involved. Adjusters for the insurance companies determined the extent of the loss to be $15,153.06, and an agreement was entered into between Adams and his wife and the insurance companies to settle for that amount, each company agreeing to share one-half of the liability or $7,576.53. On April 7, 1952, the Acting Collector issued warrants of distraint and served on insurer’s local agent a notice of levy in the amount of $2,784.56, together with copies of the warrants of distraint and notice of tax lien.
On April 8, 1952, and prior to the payment of the insurance proceeds to any party the appellee furniture company filed suit on sworn accounts against Adams in the District Court of Dallas County, Texas, to obtain a judgment in the amount of $2,329.27. At the same time a garnishment suit was brought against the appellee insurance company to establish and enforce its garnishment lien in the sum of $2,329.27 with interest and costs against the funds held by its local agent. A writ of garnishment issued and on the following day it was served on the agent, attaching these funds.
On April 18, 1952, during the pend-ency of the state court proceedings, additional assessments were executed by the Commissioner of Internal Revenue covering income taxes and interests thereon which were assessed against Adams and his wife for the years 1948 to 1950, inclusive. The assessment list was received on April 21, 1952, by the Acting Collector and on April 26, 1952, he filed a notice of tax lien in the office of the County Clerk of Bell County in favor of the United States in the sura of $10,417.57 plus interest. Thereafter, the Acting Collector served on the insurer’s local agent a copy of the notice of tax lien together with warrants of distraint and notice of levy in the amount of $10,469.96.
This suit is an outgrowth of the state court garnishment proceeding which was instituted by appellee Sunnyland Wholesale Furniture Company. By an amendment to its answer therein the appellee insurance company named the United States as an additional party defendant on the grounds, among others: (1) that it had been served with the aforementioned notices of levy and warrants of distraint notifying garnishee that all property, rights to property, monies, credits and/or bank deposits in appel-lee’s possession and belonging or owing to D. Bay Adams, Adams Furniture & Hardware Company, and Mary Martha Adams were seized and levied upon for the payment of the tax liens in the amounts of $2,784.56 and $10,469.96; ■’(2) that demand was made upon the appellee insurer for these sums or for such lesser sum as it may owe to the tax debtors; and (3) that the garnishee did not know and was unable to learn what the attitude of the United States, the Acting Collector of Internal Bevenue or the plaintiff in the garnishment proceeding would be relative to the matter of priorities as between them. The relief asked was that citation issue against the United States and the Acting Collector requiring them to answer and appear and set up their claims for lien or such other claims as they or either of them assert in connection with either of the levies above mentioned; that the garnishee be protected against liability in excess of its liability to the assured; and that it be granted a reasonable attorney’s fee. This amendment was allowed and process was issued commanding the impleaded defendant, the United States of America, to appear in the state court. The suit was thereafter removed to the United States District Court for the Northern District of Texas on petition of the United States. Subsequently, and upon the ground that it had not consented to be made a party defendant the Government moved that the action against it be dismissed and that it be allowed to intervene as a party plaintiff for the purpose of seeking foreclosure of its lien. This motion was granted and the United States filed its petition in intervention naming Adams and his wife and the two appellees herein as defendants and claiming first and prior tax liens under Section 3670 et seq. of Title 26, U.S.C., on any and all property and rights to property belonging to the taxpayers. The appellee insurance company filed responsive pleadings in which it tendered its loss draft in the sum of $7,500.39 into the registry of the court and prayed for an order directing the clerk to receive and collect this draft and place the proceeds in the registry of the court and that Adams and his wife, the United States, and the appellee furniture company be required to inter-plead setting up the rights of each of them in and to the fund. It further prayed for a discharge from any other or further liability and for a reasonable attorney’s fee in the sum of $500.00. Thereafter and on motion of the insurer the court entered an order directing the clerk to receive and collect the draft and place the proceeds thereof in the court’s, registry subject to the further order of the court. After the pleadings were closed a trial was had on the merits upon the pleadings, evidence and an agreed written stipulation of facts.
The District Court made fact findings and concluded as a matter of law-that the appellee furniture company had a fixed lien by virtue of the execution. of its writ of garnishment which was prior in point of time and superior-to the Federal income tax lien claimed by the United States. The court was. further of opinion that there was no-contest between the appellee insurance-company and any other parties to the cause and concluded that the insurer-was entitled to a reasonable attorney’s fee. Judgment was accordingly entered in favor of the appellee furniture company and against the United States for the specified amount due on its lien and it was ordered that the insurance company be allowed a $500.00 attorney’s fee and that the remaining balance of the tender into the registry of the court by the appellee insurer be paid to the United States. From this judgment the United States has appealed and the defendant garnishee below, Liverpool & London & Globe Insurance Company, Ltd., and the plaintiff, Sunnyland Wholesale Furniture Company, are appellees herein.
The tax liens asserted by the United States stem from 53 Stat. 448, 449, 26 U.S.C. (1946 ed.) §§ 3670, 3671, 3672. Section 3670 provides: “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” Section 3671 provides that unless some other date is specified by law the lien arises when the assessment lists are received by the collector, which effective dates are December 26, 1951, and February 26, 1952, as to the withholding tax liens and April 21, 1952, as to the income tax lien. Section 3672 provides that the lien shall not be valid against mortgagees, pledgees, purchasers or judgment creditors, until notice thereof has been filed in the office provided by the law of the state for such filing • — in this case, the office of the County Clerk of Bell County. The appellee furniture company does not claim to be within the classes of persons specified m § 3672, and, accordingly, that section is not material to our present inquiry. Furthermore, it was conceded during oral argument that the withholding tax liens are prior in time to the garnishment lien and it follows that the United States is entitled to a priority in payment of $2,578.55 out of the funds on deposit in the registry of the District Court. The important question here is whether at the time the Government’s income tax lien arose appellee’s garnishment lien possessed “the characteristics of a specific perfected lien which alone bars the priority of the United States.” See United States v. Knott, 298 U.S. 544, 56 S.Ct. 902, 905, 80 L.Ed. 1321. The issue thus concerns the effect of a lien in relation to a provision of federal law for the collection of debts owing the United States, which has always been considered a federal question. Hence the Supreme Court has consistently held that while a state court’s characterization of a lien as specific and perfected is entitled to weight, it is subject to reexamination by the federal courts. On the other hand, if the state court itself describes the lien as inchoate, this classification is “practically conclusive.” Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 371, 67 S.Ct. 340, 91 L.Ed. 348.
In this case the United States first argues that under the law of Texas the lien of the appellee furniture company was inchoate and that therefore we may reverse the judgment on this basis. More specifically it argues that in Texas a garnishing creditor’s rights in the property are purely potential and contingent until judgment is entered establishing the garnishment lien. We do not at all agree.
Under the law of Texas, as expressed by statute and the decisions of its highest court, a garnishment is virtually a process of attachment and the service or levy of the writ of garnishment or attachment upon personal property creates a lien from the date of the levy, giving to the creditor a paramount right to such property itself as a security for the satisfaction of his demand. Focke v. Blum, 82 Tex. 436, 17 S.W. 770; Buerger v. Wells, 110 Tex. 566, 222 S.W. 151; Kanaman v. Hubbard, 110 Tex. 560, 222 S.W. 151; United States v. Yates, Tex.Civ.App., 204 S.W.2d 399, writ refused. See also, In re Jones, D.C., 42 F.2d 269; Vol. 27, Texas Jur., Sec. 37, page 500, where the rule is announced as follows: “The levy under a valid writ of attachment or execution places the property levied on within the custody of the law. It has, generally speaking, the effect of segregating that portion of the debtor’s property which is necessary to satisfy a money judgment against him.” The United States does not claim that the appellee failed to take any step to validate its writ of garnishment in conformity with the laws of Texas. In United States v. Yates, supra, it was held that an attachment lien filed according to law was specific, perfected and fixed upon the date of its levy and took priority, as of the date the writ was served, over a lien filed by the government for withholding and social security taxes filed subsequently thereto, but before the judgment of the court established and foreclosed the attachment lien. We think this decision correctly sets forth the law of Texas, regardless of what might be the law in other jurisdictions. The authorities cited by the government are clearly distinguishable on their facts and do not. at all support its contention that in Texas, a garnishing creditor’s rights in the property at the time of garnishment are “purely potential and contingent.” On this phase of the question the appellee furniture company must prevail.
This brings us to the second phase of the main controversy, whether the liens were specific and perfected under federal law. In the most recent Supreme Court, case, United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701 the lien held by the Government under 26 U.S.C. (1946 ed.) § 3670 and an unperfected municipal tax lien which arose prior thereto were held to be “general” liens. In this situation and confronted with a lien of the same class the United States successfully claimed the benefit of another statute to give it priority,. § 3466 of the Revised Statutes, 31 U„ S.C. (1946 ed.) § 191, which provides:
"Whenever any person indebted to the United States is insolvent * * *, the debts due to the United States shall be first satisfied; * * But here the United States made no contention, so far as the record shows, that the tax debtors were insolvent and is content to refer to § 3466 as a “kindred matter.” See United States v. Security Trust & Sav. Bank, 340 U.S. 47, 71 S. Ct. 111, 113, 95 L.Ed. 53.
We do not at all agree with the Government that the Security Bank case is an authority here. The question there presented was whether a federal tax lien was prior in right to an attachment lien on property in California obtained under the California Code of Civil Procedure, where the attaching creditor had “merely a lis pendens notice that a right to perfect a lien exists” at the time when the tax liens of the United States were recorded. In that case the state court itself described the lien as inchoate and the Supreme Court accepted this classification as practically conclusive. In that sort of a situation the attachment lien is contingent, and the federal tax lien is not defeated by a contingent, inchoate lien prior in time. In the instant case a different situation is presented in that the Government here claims that its general tax lien is entitled to priority over the garnishment lien which was specific and perfected under Texas law before the second federal lien arose. If then the Security Bank case is not an authority here we think there is ample support for the District Court’s holding that “this case is ruled by the securing of the first lien [107 F.Supp. 405, 406]”. The following are but some of the many cases which recognize the universal principle of first in time, prior in right. Rankin v. Scott, 12 Wheat. 177, 179, 6 L.Ed. 592; Howard v. Railway, 101 U.S. 837, 25 L. Ed. 1081; United States v. City of Greenville, 4 Cir., 118 F.2d 963.
In Illinois ex rel. Gordon v. Campbell, supra the Supreme Court reviewed a number of its prior decisions under § 3466 and held that under the long-established rule there were three essentials which were crucial to determine whether the lien was specific and perfected, and these are “(1) the identity of the lienor, * * * (2) the amount of the lien, * * * and (3) the property to which it attaches * * It was held that the lien was not specific as to the property at the crucial time because it had not been definitely ascertained what property of the debtor was devoted to and used in his business and such property had not severed itself from the general and free assets of the owner, from which the claims of the United States were entitled to priority. We think the present case comes within the established rule. Here, the identity of the lienor was made certain, before the Government’s priority attached, by the filing of the garnishment proceeding on sworn accounts which fixed the amount of the lien. Here, there was never any question but that the property involved was definite and certain and it is clear that the levy under the writ of garnishment segregated a definite portion of the property from the debtor’s general estate. We therefore feel justified in acting on the assumption that the Supreme Court would hold that the priority set up in § 3466 supra, would not divest a specific and perfected garnishment lien, attached to specific property which indeed was in custodia legis when the federal lien arose. In a closely analogous case and in not dissimilar language we recently had occasion to discuss these selfsame principles and we adhere to the views therein expressed. United States v. Albert Holman Lumber Co., 5 Cir., 206 F.2d 685, rehearing denied 208 F.2d 133.
The only remaining issue is whether the District Court erred in allowing an attorney’s fee to the appellee insurance company. As to this little need be said, except that the allowance was authorized by the express 'terms of the applicable statute, Rule 677, Vernon’s Texas Rules of Civil Procedure (formerly Art. 4100, Vernon’s Ann.Civ.St.), and the authorities thereunder. Rosen-thal v. Frankfort Distillers Corp., 5 Cir., 193 F.2d 137; Sorenson v. City National Bank, 121 Tex. 478, 479, 49 S.W.2d 718; cf. 25 Tex.Jur., Sec. 11, page 62.
The judgment was right. It is
Affirmed.
. Art. 300, Vernon’s Ann.Giv.St., provides: “Attachment creates a lien “The execution of the writ of attachment upon any property of the defendant subject thereto, unless the writ should be quashed or otherwise vacated,
shall create a lien from the date of such levy on the real estate levied on and on snch personal property as remains in the hands of tho attaching officer, and on the proceeds of such personal property as may have been sold.”
Art. 301, Vernon’s Ann.Civ.St., provides in part:
“Judgment and foreclosure
“Should the plaintiff recover in the suit, such attachment lien shall be foreclosed as in case of other liens, and the court shall direct the proceeds of the personal property sold to be applied to the satisfaction of the judgment, and the sale of personal property remaining in the hands of the officer and of the real estate levied on, to satisfy the judgment * *
Art. 4076, Vernon’s Ann.Civ.St., provides in part:
“Who may issue and when “The clerks of the district and county courts and justices of the peace may issue writs of garnishment, returnable to their respective courts, in the following cases:
“2. Where the plaintiff sues for a debt and makes affidavit that such debt is just, due and unpaid, and that the defend-
ant has not within his knowledge property in his possession within this State, subject to execution, sufficient to satisfy such debt; and that the garnishment applied for is not sued out to injure either the defendant or the garnishee. * * * ”■
“Art. 4084, Vernon’s Ann.Civ.St., provides in part:
“Effect of service of writ
“Prom and after the service of such writ of garnishment, it shall not be lawful for the garnishee to pay to the defendant any debt or to deliver to him any effects; nor shall the garnishee, if an incorporated or joint stock company in which the defendant is alleged to be the owner of shares or to have an interest, permit or recognize any sale or transfer of such shares or interest; and any such payment or delivery, sale or transfer, shall be void and of no effect as to so-much of said debt, effect, shares, or interest as may be necessary to satisfy the plaintiff’s demand. * * * ”
329 U.S. 362, 67 S.Ct. 347.
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_r_fed | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
TRADERS’ TRUST CO. v. WAYNE. In re GEORGE R. JONES & CO., Inc.
(Circuit Court of Appeals, Fifth Circuit.
May 6, 1926.)
No. 4732.
Mortgages <S=»114 — Trust deed held Intended to secure indebtedness only to amount of $5,000.
Corporation’s trust deed, executed pursuant to resolution of board of directors, authorizing officers to establish a line of credit in the sum of $5,000, and to execute notes and renewal notes not to exceed that sum, held intended only to secure an indebtedness not to exceed $5,000, and creditor is not entitled to preferred claim in excess of that amount.
Appeal from the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge.
In the matter of the bankruptcy of Geo. R. Jones & Co., Inc. From a judgment sustaining the objection of Clarence Wayne, trustee, to the secured claim of the Traders’ Trust Company in excess of $5,000, said Traders’ Trust Company appeals.
Affirmed.
Walter McElreath and Thomas Howell Scott, both of Atlanta, Ga., for appellant.
Leonard Haas, of Atlanta, Ga. (Underwood & Haas, of Atlanta, Ga., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
This is an ap-' peal from a judgment disallowing in part a claim of appellant as a secured debt against the estate of George R. Jones & Co., Inc., bankrupt. It appears that in May, 3923, the George R. Jones Company was indebted to the Decatur Bank & Trust Company in the sum of $5,000, represented by a note, and executed a deed of trust covering certain land to secure it. The material part of the deed is as follows:
“This deed is made to secure the payment of a debt, pursuant to the laws of Georgia in such ease made and provided, or any renewal of said debt, or any part thereof, which debt is evidenced by a certain promissory note bearing even date herewith for the sum of five thousand ($5,000.00) dollars, signed by Geo. R. Jones Company, Ine., bearing interest from date at the rate of eight (8%) per cent, per annum, and providing for the payment of ten (10) per cent, as attorney’s fees. This deed is intended, not only to secure the above-described note, but any other indebtedness that may be now or hereafter owing by the said Geo. R. Jones Company, Ine., to said bank, or any renewal of such indebtedness; the purpose and object of this deed being to secure a line of credit by said Geo. R. Jones Company, Inc., from said bank, so long as the same may be mutually agreeable to the parties hereto. This deed is executed pursuant to the following resolution passed by the directors of said Geo. R. Jones Company, Inc., to wit:
“ ‘Resolution.
“ ‘Resolved, That the officers of this corporation, to wit, George R. Jones Company, Ine., be and they are hereby authorized to arrange with the Decatur Bank & Trust Company for a line of credit from said bank to this corporation in the sum of five thousand dollars ($5,000.00), and to execute from time to time such notes as may be necessary to secure such hank for said sum or any part thereof, and to renew any such note or notes, and from time to time to sign new notes for additional sums advanced by said bank for this corporation, not exceeding at any time five thousand dollars ($5,000.00), ^nd said officers are also authorized to convey to said bank as security for any note or notes that may be executed by this corporation pursuant to this resolution, the following described land, to wit.’ ”
The George R. Jones .Company was adjudicated bankrupt in September, 1925. Prior to that time the Decatur .Bank & Trust Company had transferred certain > notes charged to the bankrupt, amounting to over $15,000, and its rights under the trust deed, to appellant, and that company filed a proof of debt as a secured claim to the amount of $14,772.48. The trastee objected to the allowance of the claim as secured in any amount exceeding $5,000, and the referee entered an order maintaining the contention of the trustee, which \ order was in turn approved, by the District Court. Appellant now contends that the-deed was intended to secure any indebtedness up to $10,000.
The only question presented for review is the construction of the deed of trust by the court below. We agree with the referee and the District Court in their construction of the deed of trust. Considering the provisions above quoted, including the resolution óf the company, it seems clear that it was the intention of the grantor to secure a line of credit at all times of $5,000, but not to secure any indebtedness exceeding that amount. The testimony of Jones, president, and Andrews, treasurer,. of the bankrupt, sustains this construction. In this connection it may be noted that the proof of debt filed by appellants shows only one note of $5,000 made by the Jones Company to the Decatur Bank & Trust Company. The other notes going to make up the amount claimed are either notes to the Jones Company, indorsed and discounted by it with the bank, or notes of the Jones Company to third persons, indorsed and discounted by them. It would be stretching the provisions of the deed of trust too far to say that it was the intention of the parties, when it was executed, that notes such as these were intended to be secured by it.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
songer_genresp1 | 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 first listed respondent.
Michael Joseph FALLON, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction; Bill Clinton, Governor; W.H. Sargent, Warden, Cummins Unit; William M. Stricklin, Chairman; Jerry Gasaway; Robert Clark, ADC Publications Review Committee; James L. Mason, Chairman; Morris H. Dreher; David C. McClinton; Hezekiah D. Stewart, Jr., Rev.; Henry Oliver; Mike Gaines; Larry Morris, Arkansas Department of Correction Board, Appellees.
No. 90-2441.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 18, 1990.
Decided Nov. 26, 1990.
Michael Joseph Fallon, appellant pro se.
Appellees were not represented by counsel.
Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.
PER CURIAM.
Michael J. Fallon, an Arkansas inmate, appeals from the district court’s judgment dismissing as legally frivolous his 42 U.S.C. § 1983 action prior to service of process. Concluding that no error of law appears in the record, we affirm on the basis of the district court’s order, which adopted the magistrate’s findings and recommendation. See 8th Cir. Rule 47B.
. The Honorable Stephen M. Reasoner, United States District Judge for the Eastern District of Arkansas.
. The Honorable John F. Forster, Jr., United States Magistrate for the Eastern District of Arkansas.
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_direct2 | 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.
Joseph F. BENT, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 17700.
United States Court of Appeals Eighth Circuit.
Feb. 2, 1965.
Joseph F. Bent, Jr., pro se.
F. Russell Millin, U. S. Atty., Kansas-City, Mo., and Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., filed' brief for appellee.
Before JOHNSEN, Chief Judge, and' VOGEL and BLACKMUN, Circuit-Judges.
PER CURIAM.
Joseph F. Bent, Jr., now an inmate of Leavenworth, appeals in forma pauperis from an order denying his motion under 28 U.S.C. § 2255 “to vacate judgments,, convictions and sentences”.
The appellant’s federal judicial history must be recited:
1. In May 1946 a 3-eount indictment was returned in the Western District of' Missouri against Bent, then 18 years, of age, William Amos Jones, and Bent’s-cousin, Thomas Andrew Collins, for violations of 18 U.S.C. (1940 Ed.) § 320-(now 18 U.S.C. § 2114). Count I charged Bent and Jones with robbery of' a clerk in charge of a substation of the-Kansas City, Missouri, post office of' money belonging to the United States,. and charged Collins with aiding and abetting in that robbery. Count II charged Bent and Jones with placing the victim’s life in jeopardy by the use of ‘a dangerous weapon, and charged Collins with aiding and abetting this. Count III charged the three with unlawful conspiracy to commit the robbery and with the commission of stated overt acts pursuant to that conspiracy.
All three defendants initially entered pleas of not guilty. Each was represented by separate retained counsel. When the eases were called for trial, Bent and Jones changed their pleas on Counts I and III to guilty and, after an unsuccessful attempt to plead nolo contendere on Count II, reserved a further plea oh that charge. Collins went to trial first and separately. He waived a jury, was tried to the court, and was acquitted on all counts. Bent testified as a government witness at that trial. Upon Collins’ acquittal Bent and Jones again entered pleas of not guilty on Count II. They waived a jury and were tried to the court. Bent took the stand in his own defense. He and Jones were found guilty by the late Judge Collet. In July 1946 the court gave both Bent and Jones the mandatory 25 year sentence on Count II prescribed by § 320, and a sentence of one year and a day on each of Counts I and III. The two shorter sentences were both to run concurrently with the longer sentence. This made a total of 25 years.
2. In September 1948, after the shorter sentences had been served, Bent, with different counsel, filed a motion under Rule 35, F.R.Cr.P., for the correction of the sentence on Count II. This was directed primarily to the claimed insufficiency of that count. The motion was sustained by the district court and both Bent and Jones were discharged from custody in December. The government appealed. This court, while recognizing that Count II was somewhat defective in its language, reversed and directed the district court to order the apprehension of Bent and Jones and their restoration to proper custody. United States v. Bent, 175 F.2d 397 (8 Cir. 1949), cert. denied 338 U.S. 829, 70 S. Ct. 79, 94 L.Ed. 504.
3. Almost four years elapsed from his release before Bent was finally apprehended in October 1952.
4. In December 1961 Bent on his own behalf filed a § 2255 motion to vacate and set aside his sentence. This was on the theory that Count II was defective because it failed to provide him with information essential to the preparation of his defense and thereby deprived him of Sixth Amendment rights. The district court denied this motion. We affirmed. Bent v. United States, 308 F.2d 585 (8 Cir.1962), cert. denied 373 U.S. 917, 83 S.Ct. 1307, 10 L.Ed.2d 416.
5. In October 1963 Bent, by retained counsel, filed his current § 2255 motion. By this he now seeks to set aside his guilty pleas on Counts I and III of the 1946 indictment and the convictions on all three counts on a number of grounds: (a) that these pleas were involuntary, were made without knowledge of their consequences and “were treated by the Court as abandoned, since merged in Count 2”; (b) that he and his counsel did not know that his pleas of guilty to Counts I and III would “piece out the fatal defects in pleading and proof in Count 2, as later was declared in the opinion of the United States Court of Appeals”; (c) that he did not know that they included an admission that he had robbed the clerk of government money; (d) that, without these pleas, Count II stated no offense; and (e) that Count II recited no offense and was supported by no evidence “involving jeopardy”.
Judge Duncan held a full hearing in January 1964. Bent was produced and testified but presented no other evidence. His motion was then denied. Thereafter Bent’s counsel, at Bent’s request, was permitted to withdraw.
Appellant’s contention that he did not know that his pleas of guilty to Counts I and III constituted an admission that he robbed the clerk of government money is untenable. First of all, these counts, which are reproduced in full in the footnote on pp. 398-99 of 175 F.2d, clearly specified robbery of the named clerk of “lawful money belonging to the United States”. What Bent is saying here, basically, is that he intended to rob only a drug store and not a postal substation, even though the drug store contained the substation. He has consistently admitted — by his testimony at Collins’ trial, by his briefs, and by his testimony at the hearing on the present motion — that he intended to rob the drug store and did rob it, that he used a gun on the clerk in effecting that robbery, and that he forced the clerk to open his safe’s inner drawer from which he took two paper sacks. The clerk testified at Collins’ trial that the currency which was in one of those sacks and which was taken was government property and that he told Bent so during the robbery. And at the hearing below it was conceded that whether Bent knew that the establishment he intended to rob was a post office was immaterial. This court pointed out in Lockhart v. United States, 293 F.2d 314, 316 (8 Cir.1961), cert. denied 368 U.S. 1003, 82 S.Ct. 636, 7 L.Ed.2d 541, that the statute is concerned with a robbery committed against “any person having lawful charge, control or custody” of government property, and that it was even immaterial in what task the clerk might have been engaged at the time the defendant entered the store. Bent’s protestations of restricted intent as to drug store property, as distinguished from government property, are unconvincing and of no legal consequence in any event, and serve to make this particular contention legally frivolous.
The appellant’s argument that Count II recited nothing involving jeopardy is equally frivolous and for the same reasons. And his contention that Count II stated no offense is repetitive of his 1948 motion. We pointed out in Bent’s own case, p. 586 of 308 F.2d, supra, as we so often must do, that “Under the express provisions of § 2255, the sentencing court is not required to entertain successive motions for similar relief”. This issue was decided in 1949 and is at rest.
Bent’s remaining contentions, while perhaps of some theoretical appeal to him, and possibly a little ingenious, possess no merit. These, after the ever-recurring preliminary general comments as to incompetency of trial counsel, youth and lack of education, the absence of jury trial, and the like, come down to the proposition that he and his trial counsel could not have known that his guilty pleas on Counts I and III would be utilized by this court to remedy a defect in the language of Count II, that those pleas were therefore involuntary in that they were made without full knowledge of this consequence, and that the entire case against him collapses accordingly.
All this may well amount to nothing more than saying in a different way what Bent has already said before and unsucessfully. In any event, it is completely answered by an observant reading of our opinion at 175 F.2d 397. We there recognized that Count II was poorly drafted because it failed to include the statute’s provision that the jeopardizing of the clerk’s life by a dangerous weapon be “in effecting * * * such robbery”. But we definitely did not hold that that omission in the charging language of Count II was cured by the self-convictions effected by the pleas to Counts I and III. What we held was that the subject matter of the entire indictment was the carefully specified Kansas City robbery and that Bent, therefore, could have had no possible misapprehension about the fact that he was being charged with that robbery and with effecting the required jeopardy in committing that robbery. We said, pp. 401-02:
“[T]he indictment in controversy gave to Bent and Jones all the information they needed and much more than they wanted. They, of course, knew what the indictment meant. * * *
“Despite its defects, we think that count II of the indictment was sufficiently informative, when read in the light of the applicable statute to which the indictment referred, the subject matter of the other counts, and the indictment as a whole, to support the sentences imposed upon the defendants. * * * The second count should be construed to mean what the defendants, their counsel, and the trial court construed it to mean when Bent and Jones entered their pleas of not guilty, were tried, and were sentenced. There is, we think, no logic or justification in punishing poor, but non-prejudicial, criminal pleading by releasing a guilty defendant.”
There is nothing in this language which constitutes a use of the pleas to fill a pleading gap in Count II. We used the indictment, but not the pleas. Those pleas had nothing to do with our decision as to Count II. If the final pleas to Counts I and III had been not guilty, the result as to Count II still would have been the same, namely, that it sufficiently stated an offense. See Wheeler v. United States, 317 F.2d 615, 616 (8 Cir. 1963).
Finally, Bent’s comments about abandonment and merger necessarily fall with the rest of his argument. The sentences under Counts I and III have long since been served and are not now subject to collateral attack under § 2255. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Kistner v. United States, 332 F.2d 978, 979 (8 Cir.1964); Redfield v. United States, 315 F.2d 76, 80 (9 Cir. 1963), cert. denied 369 U.S. 803, 82 S.Ct. 642, 7 L.Ed.2d 550.
We note for the record that the transcript of the 1946 trial was before the district court at the 1964 hearing. We, too, have carefully reviewed it. It demonstrates the absence of misapprehension on Bent’s part and serves conclusively to buttress our decision here.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_judgdisc | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
GREAT AMERICAN INSURANCE COMPANY, a Corporation, Appellant, v. BANK OF BELLEVUE and American Home Assurance Company, Appellees.
No. 18226.
United States Court of Appeals Eighth Circuit.
Sept. 27, 1966.
Benjamin M. Wall, of Haney, Walsh & Wall, Omaha, Neb., for appellant.
L. R. Brodkey, Omaha, Neb., for appellee Bank of Bellevue. Charles S. Reed, Omaha, Neb., with him on the brief.
Before VAN OOSTERHOUT, BLACKMUN and GIBSON, Circuit Judges.
GIBSON, Circuit Judge.
This is an appeal from the judgment of the United States District Court for the District of Nebraska, rendered in an interpleader action commenced by plaintiff, Great American Insurance Company, a corporation of New York, against numerous defendants of diverse citizen,ship^_pursuant to 28 U.S.C. § 1335.
Plaintiff (appellant herein), Great American Insurance Company, issued and was surety on a used car dealer’s bond required by Nebraska law to cover the 1962 business activities of one Harry Layne, d/b/a Layne Motor Company of Bellevue, Nebraska. This bond, which is the subject matter of this interpleader action, had a face penalty of $10,000 and was effective from January 1, 1962 through December 31, 1962. In addition to this bond it appears that plaintiff was surety on at least one other bond which was issued to cover the business activities of Layne for the year 1961. This second bond, however, was not mentioned in the interpleader complaint nor in any of plaintiff’s supporting papers.
During the years 1961 and 1962, Layne engaged in numerous fraudulent transactions relating to the sale and financing of automobiles. As the result of Layne’s fraudulent activities, plaintiff was beset with numerous claims, the total of which exceeded $10,000. One of the claimants was defendant Bank of Bellevue. American Home Assurance Company is an insurer of the Bank of Bellevue and is a claimant in this suit by virtue of its right of subrogation on amounts it paid to the Bank of Bellevue because of the Bank’s losses on some of Layne’s activities. At this juncture, plaintiff interpleaded all of the known and unknown claimants, admitted liability under the 1962 bond and paid the face amount of the single $10,000 bond into court. The answers to this bill of interpleader set forth the various claims the defendants had against Layne. Plaintiff presented the affidavit of Ronald Hartman, State Agent for plaintiff, which stated that his Company, “has not issued any bond other than the one referred to * * Thereafter, plaintiff’s motion for summary judgment was granted and plaintiff’s liability on this bond in the order of summary judgment was specifically limited to the $10,000 amount deposited with the Court.
After the summary judgment, the individual claimants began to resolve their individual claims to the deposited fund. In the course of the discussion it was discovered that two of the transactions between Layne and the Bank of Bellevue actually originated in 1961 and would, therefore, not be covered in the pleaded bond for 1962. The parties defendant, being all of the claimants to the fund, therefore stipulated, amongst themselves but not with the plaintiff, that the two claims arising from the 1961 transaction be dismissed without prejudice to seek relief under “any bond other than the one named in plaintiff’s complaint.” This stipulation was approved by the District Court and incorporated in its final judgment. Plaintiff objected to the dismissal without prejudice of the two claims here in issue, and appeals from that portion of the District Court’s judgment.
Plaintiff’s first argument on appeal is that since its interpleader complaint alleged the 1962 bond and set forth the transactions in question, the failure of appellees to deny that the transactions fell under the coverage of the 1962 bond constituted a judicial admission binding them to seek satisfaction only under the 1962 bond. Therefore, according to plaintiff, the subsequent dismissal without prejudice to these claims was error.
We cannot agree with appellant’s interpretation of these pleadings. Plaintiff pleaded the single 1962 bond and tendered the $10,000 penalty into court. In filing its interpleader, plaintiff set forth the various claims being made against it. It did not attempt to contest the validity of the claims asserted. Plaintiff pleaded, moreover, that it was not concerned as to the disposition of these claims so long as the recovery against the 1962 bond did not exceed the amount paid into court, and that it was merely “a disinterested stakeholder, * * * indifferent to the respective claims thereto of the defendants.” In granting the summary judgment, the Court afforded plaintiff the exact relief it sought. Nowhere did plaintiff indicate that should relief be denied on these claims under the 1962 bond, it was not to be held liable under any other bond issued for another year.
Likewise, the various answers set forth claims which defendants believed to be covered by the pleaded bond. They no doubt recognized the possibility that these claims may or may not be allowable under the terms of the bond pleaded. In alleging these claims, nowhere did the defendants intimate that should these claims fail because they originated outside the life span of the pleaded bond, no further relief on other non-pleaded bonds could be sought. Plaintiff’s interpleader related solely to the 1962 bond, and plaintiff expressly maintained its neutrality in the settlement of the claims. The answers to this complaint merely set forth the claims under the bond and did not indicate that the pleaded bond was the sole source of relief. Therefore, we do not believe these pleadings should be construed to indicate admissions of coverage that would preclude the dismissing of the claims without prejudice to seek relief from other funds not deposited under the 1962 bond.
Even were we to assume, arguendo, that the face of these pleadings indicated an admission on the part of the defendants that their loss occurred in 1962, we do not believe plaintiff should be granted the relief it is seeking.
The primary step in an inter-pleader proceeding concerns the determination of a fundholder’s right to compel claimants to litigate their numerous claims in one proceeding and to confine total recovery to an amount not exceeding the deposited fund. Standard Surety & Casualty Company, of New York v. Baker, 105 F.2d 578 (8 Cir. 1939): As far as the plaintiff is concerned, the sole purpose of this interpleader is to protect it from multiple litigation which may result in losses in excess of the face penalty on the bond. Douglas-Guardian Warehouse Corporation v. Ramy Seed Company, 271 F.2d 24 (8 Cir. 1959); Barron & Holtzoff, 2 Federal Practice and Procedure, § 551 at page 227 (Wright Ed. 1961).
Interpleader is an equitable action controlled by equitable principles, Burchfield v. Bevans, 242 F.2d 239 (10 Cir. 1957); Brinson v. Brinson, 334 F.2d 155 (4 Cir. 1964), and the equitable doctrine that one seeking equitable relief must do equity and come into court with clean hands is applicable. Austin v. Texas-Ohio Gas Company, 218 F.2d 739 (5 Cir. 1955). Plaintiff has not complied with these doctrines. The affidavit of plaintiff’s agent, Ronald Hartman, stating that the plaintiff, “has not issued any bond other than the one referred to under the terms and provisions of Section 60-619, R.R.S.Nebraska, 1943,” is not only misleading but appears to constitute an outright falsehood. A full and fair disclosure by the plaintiff, as is required of one seeking the exercise of the equitable powers of a court would have disclosed the full fund held by the plaintiff and the maximum coverage on all bonds issued by the plaintiff that could be applicable to Layne’s activities. The various claimants to the fund could then be compelled to respond thereto and plaintiff could be accorded complete protection to the full extent requested.
Interpleader being a remedy solely for the protection of the stakeholder, it may not be used by the stakeholder as a weapon to defeat recovery from funds other than the one before the court. Nonetheless, plaintiff is seeking to do just that.
Plaintiff is the only party in a position to know the exact bonding arrangement between itself and Layne. No mention, however, is made of the existence of other bonds or the possibility of its liability outside the time limits of the single pleaded bond. If there are other bonds to which claims might be made, the benefit to plaintiff of limiting recovery to the single bond through skillful use of the interpleader is obvious. In attempting to do just that, an interpleader complaint can be worded in such a way that a normal responsive pleading thereto from a claimant unaware of the existence of other funds would arm the plaintiff with an argument that the claimants had committed themselves to seeking relief only under the single pleaded fund. Certainly, a procedure which permits the virtual “trapping” of a claimant is not a proper use of this equitable remedy.
Furthermore, we observe that the Bank and American Home Assurance Company are holding claims that arose from transactions taking place partly in the year that the pleaded bond was in force and partly in a prior year. Not knowing the existence of other bonds and not being able to accurately conclude to which year their claim was applicable, these claimants were faced with a real danger of losing satisfaction on their claims unless they responded, alleging coverage of the pleaded bond and then litigating the issues. If we were to accept plaintiff’s position, we would be holding that defendants must assert their claim under the peril that should they be disallowed as not arising in 1962 they will forever be barred from seeking relief under a 1961 bond, if and when such bond is discovered. We do not believe the proper use of an interpleader bill should place claimants in such an inequitable dilemma.
Plaintiff is arguing herein that defendants should have pleaded the 1961 bond in answer to the bill brought by plaintiff in order to avoid limiting their claims to the 1962 bond. Plaintiff has not explained how the claimants were supposed to learn of the existence of the 1961 bond. Plaintiff was the only party with knowledge of its existence, and its papers certainly did nothing to disclose this fact. Even if we assume defendants, in fact, knew of the other bond, the burden should not be placed on them to bring this additional fund into the dispute. As between plaintiff and the fund claimants, the only issue is the right to interplead, while, as between the claimants, the issue is, who is entitled to the fund and in what proportions. The only litigious issue presented between the plaintiff and claimants is the right to compel interpleader. This was done as to the 1962 fund. The plaintiff under its pleadings stands impartial between claimants and cannot urge the claims of certain impleaded defendants against others. As set out in 48 C.J.S. Inter-pleader § 37, page 89:
“Claims of defendants against plaintiff cannot be put in issue in the inter-pleader suit; the amount of the fund or matter in the hands of the complainant, on which hostile claims are alleged to.have been made, must be taken to be as stated by the complainant, and cannot be controverted by the answers for the purpose of having it adjudicated * *
If plaintiff desired its liability under the other bond settled in this one suit, the burden was upon it to so petition the Court, and deposit the appropriate amount. Plaintiff only demanded litigation of the claims against the 1962 bond, and that is all it is entitled to receive. The law will not allow an interpleader to avoid its liability on funds not pleaded and not before the court by the back door method here urged. Austin v. Texas-Ohio Gas Company, 218 F.2d 789, 745-746 (5 Cir. 1955).
The trial court followed the proper course when it discovered that these transactions actually transpired a few days prior to the effective date of the pleaded bond. In all fairness to the other claimants these two claims had to be dismissed. Likewise, in all fairness to the defendants, The Bank of Bellevue and American Home Assurance Company, the claims had to be dismissed without prejudice to their seeking relief from other sources available.
Plaintiff’s second allegation of error is closely tied with the above discussion. Plaintiff contends the judgment of the District Court deprived it of the benefit of its interpleader. Again, we must disagree. The bill only alleged the 1962 bond of $10,000. The liability and the claim against the bond have been completely settled. Plaintiff is protected by the judgment against any more claims being presented against this particular bond. Plaintiff received all the relief prayed for, as it did not plead bonds other than the 1962 bond and pay into court funds for other years as it is required to do in order to discharge its liability for other years.
As we said above, if plaintiff wanted to resolve all its liability it should have presented the other bond and forced the litigants to resolve their differences concerning the additional bond. Having chosen not to do this, plaintiff must abide by that choice and, therefore, cannot demand protection from suits against these unpleaded funds.
The District Court’s order of summary judgment in favor of the plaintiff, accepting the interpleader action and discharging plaintiff from further liability under the policy pleaded, was interlocutory under Rule 54(b), Fed.R.Civ.P. Republic of China v. American Express Co., Inc., 190 F.2d 334, 338-339 (2 Cir. 1951). The experienced Trial Judge correctly, in the interest of justice, confined the final judgment to losses applicable to the 1962 bond, giving plaintiff full protection on all losses properly applied against that bond, but allowing these defendantappellees who had losses which originated in a prior year free to pursue whatever remedies that might be available to them.
The judgment in all respects is affirmed.
. Pertinent part of § 1335 reads: “Interpleader
“(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of inter-pleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, * * *
“(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, * * *.” See also Rule 22, Fed.R.Civ.P.
. The Bank’s claim was on a promissory note made by Layne on December 4, 1961, secured by a chattel mortgage, which note was subsequently extended to March 17, 1962 and May 4, 1962. Layne promised to deliver title to the mortgaged automobiles but, in fact, never had title.
The American Home Assurance Company claim was based on a promissory note of Layne’s, dated December 21, 1961 and made payable to the Bank and secured by a chattel mortgage on two automobiles. Partial payment was made on this note and subsequent extension notes were issued under date of March 17, 1962 and May 4, 1962, secured by one of the two automobiles originally mortgaged. Layne delivered title to the mortgaged automobile to the Bank but the chattel mortgage was not recorded. Layne disposed of the mortgaged automobile after securing a duplicate title. The Bank’s resulting loss was covered by a non-filing or chattel lien policy issued by the American Home Assurance Company, which Company, upon the payment of this loss, became subrogated to the Bank’s rights against Layne on this particular transaction.
. We recognize that plaintiff under the statutory interpleader provided by § 1335 of Title 28, U.S.C. and Rule 22, Fed.R.Civ.P. may have an interest in the fund and may oppose the contention of claimants to the fund. Here, however, the plaintiff has filed its action as a strict bill of interpleader, alleging that it is merely a stakeholder and has no interest in the distribution of the fund, though it could have filed an action in the nature of a bill of interpleader alleging its interest in the distribution of the fund and in attempting to confine all claimants to a recovery under the 1962 bond. If this latter procedure were followed, however, it would be essential that plaintiff make full disclosure of the entire fund in its hands and assert its interest in the fund that might be hostile to the impleaded claimants. Although the strict requirements of an equitable interpleader would not be fully applicable to a bill in the nature of an interpleader, both actions are still equitable in nature and require that the plaintiff make full disclosure of all relevant facts. For a discussion of the origin and development of interpleader actions, see Klaber v. Maryland Casualty Co., 69 F.2d 934, 106 A.L.R. 617 (8 Cir. 1934); Standard Surety and Casualty Company of New York v. Baker, 105 F.2d 578 (8 Cir. 1939).
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_r_stid | 10 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Alvin Bernard FORD, Petitioner, v. Charles G. STRICKLAND, Jr., Warden, Florida State Prison; Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida; Jim Smith, Attorney General, State of Florida, Respondents.
No. 81-6200.
United States Court of Appeals, Eleventh Circuit.
April 15, 1982.
Rehearing Granted April 28, 1982.
Richard H. Burr, III, Nashville, Tenn., Marvin E. Frankel, New York City, for petitioner.
Joy B. Shearer, Asst. Atty. Gen., W. Palm Beach, Fla., for respondents.
Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN, District Judge.
Honorable Virgil Pittman, U. S. District Judge for the Southern District of Alabama, sitting by designation.
Judge Hatchett is recused and did not participate in this decision.
RONEY, Circuit Judge:
Alvin Bernard Ford was charged with shooting a wounded policeman in the back of the head at close range while fleeing from an armed robbery. Convicted of murder, Ford was sentenced to death in Florida. He appeals the denial of a petition for writ of habeas corpus alleging essentially seven contentions: (1) improper admission of an oral confession; (2) failure of the Florida Supreme Court to require resentencing when it found three of the statutory aggravating circumstances unsupported by the evidence; (3) improper state trial court instructions on mitigating circumstances; (4) failure of the Florida death law to require a finding that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt; (5) failure of the Florida Supreme Court to apply a consistent standard of reviewing the aggravating and mitigating circumstances in the case; (6) ineffective assistance of counsel at sentencing; and (7) review by the Florida Supreme Court of nonrecord materials in death cases, the so-called Brown issue. After examining each of these contentions carefully, we affirm the denial of the writ of habeas corpus.
Briefly, the facts giving rise to petitioner’s conviction and sentence are as follows. On the morning of July 21, 1974, Ford and three accomplices entered a Red Lobster Restaurant in Fort Lauderdale, Florida, to commit an armed robbery. During the course of the robbery, two people escaped from the restaurant. Fearing police would soon arrive, petitioner’s accomplices fled. Ford remained to complete the theft of approximately $7,000 from the restaurant’s vault.
Officer Dimitri Walter Ilyankoff arrived on the scene. Petitioner allegedly shot him twice in the abdomen and, apparently realizing his accomplices had abandoned him, ran to the parked police car. Because there were no keys in the car, Ford ran back to the struggling, wounded officer. Petitioner asked Officer Uyankoff for the keys and then allegedly shot him in the back of the head at close range. Ford took the keys and made a high speed escape.
Petitioner was convicted in Circuit Court, Broward County, Florida, of first degree murder. In accordance with the jury’s recommendation, the trial judge sentenced him to death. On direct appeal, both the conviction and sentence were affirmed. Ford v. State, 374 So.2d 496 (Fla.1979). The United States Supreme Court denied Ford’s petition for writ of certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).
Petitioner thereafter joined with 122 other death row inmates in filing an application for extraordinary relief and petition for writ of habeas corpus in the Florida Supreme Court. The petitioners challenged the court’s practice of receiving nonrecord information in connection with review of capital cases. The Florida Supreme Court dismissed the petition, Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), and the United States Supreme Court denied certiorari, Brown v. Wainwright, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).
Ford then filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure and applied for a stay of execution. Relief was denied. Ford v. State, 407 So.2d 907 (Fla. 1981).
Finally, petitioner filed a petition for writ of habeas corpus under 28 U.S.C.A. § 2254 in the United States District Court for the Southern District of Florida. The district court denied relief, and we granted a stay of execution so that the issues raised could be reviewed on appeal.
I.
Admission of Ford's Oral Confession
Ford was arrested in Gainesville, Florida on the day of the murder. He refused to talk with Gainesville police officers, indicating he first wanted to consult a lawyer. He was given an opportunity to talk to a public defender, but refused to accept that representation. He was Unable to reach his private attorney.
Fort Lauderdale police officers came to return Ford to Fort Lauderdale. The Miranda warnings were given and petitioner “wanted” to talk but would not give a written statement until he had contacted his lawyer. Petitioner’s only statement at the time was “I didn’t shoot that cop.” On a small plane from Gainesville to Fort Lauderdale, another officer gave Ford Miranda warnings. Ford said he was willing to talk but would give no written statement until he had talked with his lawyer. After informing a Fort Lauderdale officer of his earlier unsuccessful effort to contact his attorney and his refusal of representation by the public defender, petitioner admitted participating in the Red Lobster robbery. Although denying participation in the killing, he admitted being left behind at the Red Lobster by his accomplices, seeing a police officer lying on the ground as he left the restaurant, and escaping in the police car which he abandoned for a green Volkswagen.
Ford claims admission of the above statement in his trial violated the Fifth, Sixth and Fourteenth Amendments and was contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, including United States v. Priest, 409 F.2d 491 (5th Cir. 1969), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). He argues that having invoked without waiving his right to counsel, his responses to subsequent police-initiated custodial interrogation without an attorney should not have been admitted into evidence.
Petitioner moved to suppress his confession, but failed to appeal the trial court’s denial of his motion on direct appeal to the Florida Supreme Court. Based on Wain wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the district court held Ford’s failure to raise the issue on direct state appeal forecloses its consideration in this habeas corpus proceeding.
The Florida procedural law is clear. A criminal defendant’s failure to raise an issue which could be asserted on direct appeal precludes consideration of the issue on a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Hargrave v. State, 396 So.2d 1127 (Fla. 1981). Accordingly, the state courts refused to consider this contention concerning the confession.
In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court held a state prisoner who knowingly and deliberately bypasses state procedures intentionally relinquishes known rights and can be denied habeas corpus relief on that basis. Recognizing Fay left open the possibility of “sandbagging” by defense lawyers, the Supreme Court narrowed its sweeping rule in Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594 (1977). The Court held that absent a showing of both cause for noncompliance and actual prejudice, habeas corpus relief is barred where a state prisoner has failed to comply with a state contemporaneous objection rule. 433 U.S. at 87, 97 S.Ct. at 2506.
While Sykes arose in the context of a procedural default at the trial level, we have applied its rationale in cases involving a procedural default during the course of a direct appeal from a state court conviction. See Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir. 1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981). Applying Sykes in this setting accrues the dual advantage of discouraging defense attorneys from omitting arguments in preparing appeals with the intent of saving issues for federal habeas corpus consideration and encouraging state appellate courts to strictly enforce procedural rules, thereby reducing the possibility the federal court will decide the constitutional issue without the benefit of the state’s views. Gibson v. Spalding, 665 F.2d at 866; Wainwright v. Sykes, 433 U.S. at 90, 97 S.Ct. at 2508. Additionally, application of Sykes to the forfeiture of specific claims on appeal promotes the goals of comity and accuracy identified by the Sykes Court. Forman v. Smith, 633 F.2d at 639.
Thus, in this Circuit a state prisoner can forego the opportunity to raise constitutional issues in habeas corpus proceedings by deliberately bypassing state appellate procedural rules or by merely failing to follow them without showing both cause for the default and prejudice resulting from it. Because this record does not reveal Ford’s procedural default was the result of an intentional bypass within the meaning of Fay, we turn to the cause and prejudice exception of Sykes.
Cause and prejudice are sometimes interrelated. Huffman v. Wainwright, 651 F.2d at 351. While the Supreme Court has not explicitly defined cause and prejudice, our precedents have defined “cause” sufficient to excuse a procedural default in light of the determination to avoid “a miscarriage of justice.” Id. Prejudice means “actual prejudice” which in this case must result from the failure to appeal the trial court’s admission of petitioner’s statement. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Buckelew v. United States, 575 F.2d 515, 519 (5th Cir. 1978).
A careful review of the record reveals the Sykes exception does not apply in this case. Ford’s argument that the procedural default is excused because of the position of Florida courts at the time on the issue must fail. The claim was perceived and asserted in the trial court, and therefore could have been asserted on appeal. Engle v. Isaac, - U.S. -, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes.
- U.S. at -, 102 S.Ct. at 1572 (footnotes omitted).
Even addressed in terms of manifest injustice, see Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981), under the circumstances of this case, imposition of the Sykes forfeiture rule does not constitute a miscarriage of justice. Petitioner does not contest the accuracy of the statement made to the Fort Lauderdale police. The statement admitted only presence and participation in the robbery; it denied participation in the shooting. The Florida Supreme Court, in discussing effectiveness of counsel, concluded and we agree that “[tjhere was abundant evidence apart from the confession, some by eyewitnesses, to place him at the scene as a participant.” Ford v. State, 407 So.2d at 909.
II.
Failure to Require Resentencing When Evidence Insufficient on Some Aggravating Circumstances
After receiving instructions on the eight aggravating circumstances under Fla.Stat. § 921.141, Ford’s jury recommended the death penalty. Finding evidentiary support for all eight aggravating circumstances, the judge sentenced petitioner to death. On appeal, the Florida Supreme Court ruled three of the eight did not apply because two lacked evidentiary support and one was based on the same aspect of the crime as another circumstance. Ford v. State, 374 So.2d 496, 501-03 (Fla.1979). The court upheld the five other aggravating circumstances, specifically finding the killing “especially heinous, atrocious, or cruel.” Id. at 503. In the absence of any mitigating circumstances, death was presumed the appropriate penalty and the sentence was affirmed. Id.
Petitioner argues that Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981), and Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), reh. denied and modified, 648 F.2d 446 (5th Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 90, 71 L.Ed.2d 82 (1981), require resentencing under the above circumstances.
In Stephens the Georgia Supreme Court had held unconstitutional one of the statutory aggravating circumstances presented to the jury. We held that the death sentence must be set aside because it was impossible to tell from the record the extent to which the Georgia jury had relied on an unconstitutional statutory aggravating factor in imposing the death penalty. Stephens v. Zant, 631 F.2d at 406. In Henry, we held the trial court committed constitutional error in admitting into evidence and permitting the jury to consider evidence of nonstatutory aggravating circumstances. Henry v. Wainwright, 661 F.2d at 60. These two cases are inapposite to the case at bar.
The instant case involves consideration of neither unconstitutional nor nonstatutory aggravating factors. That evidence was insufficient to support two circumstances and one circumstance was based on the same aspect of the crime as another does not compel the conclusion that the death sentence was unconstitutionally infected by consideration of extraneous evidence. The sentencing jury and judge considered only evidence of factors which could properly be considered by them. Where, as here, there were no statutory mitigating circumstances and the sentencer has considered only constitutional statutory aggravating circumstances, we perceive no reversible error where properly found statutory aggravating circumstances sufficiently support the sentence. The Florida Supreme Court’s review has achieved the goals of rationality, consistency and fairness required under Proffitt v. Florida, 428 U.S. 242, 258-60, 96 S.Ct. 2960, 2969-70, 49 L.Ed.2d 913 (1976), and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
Neither did the trial court commit constitutional error in instructing the jury as to all aggravating and mitigating circumstances permitted by the statute. To assure the jury understands the structure of the law as required by Proffitt, it seems appropriate that they be charged fully on the Florida statute, provided proper instructions on the burden of proof and the standard of evidence required to prove the factors are given.
III.
Instructions on Mitigating Circumstances
Instructing the jury on aggravating circumstances, the trial judge stated, “you shall consider only the following...,” and read the statutory language. With regard to mitigating circumstances, he said, “you shall consider the following...,” again reading the appropriate statutory language. Ford neither objected to the instruction at trial nor raised it on direct appeal.
Relying primarily on Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981), petitioner argues the above instructions improperly limited the jury’s consideration to statutory mitigating factors and precluded consideration of nonstatutory mitigating factors contrary to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Lockett held “the sentencer... [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2964.
With reference to aggravating circumstances, the Mississippi trial court in Washington instructed the jury to “consider only the following elements.... ” As to mitigating circumstances, the judge stated, “consider the following elements.... ” Washington v. Watkins, 655 F.2d at 1367. The state court concluded:
If you unanimously find from the testimony that one or more of the preceding elements of mitigation exist[s], then you must consider whether it outweighs the aggravating circumstances you previously found and you must return one of the following verdicts....
Id. at 1368 (emphasis added).
Reasoning that in determining whether aggravating outweighed mitigating factors jurors might have believed it was their sworn duty to consider only the two statutory mitigating circumstances enumerated in the charge, the Fifth Circuit reversed Washington’s death sentence.
In evaluating the state court’s instructions, we must pay careful attention to the words actually spoken to the jury to determine the interpretation a reasonable juror might give the instruction in question. Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). The entire charge must be examined as a whole to discern whether the issues and law presented to the jury were adequate. Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir. 1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409. Where some deficiency exists in the language of the charge taken as a whole, it must be shown that it so infected the entire trial process that a due process violation occurred. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Washington v. Watkins, 655 F.2d at 1369.
Evaluating the jury charge in this case under the foregoing standard, we reject Ford’s contention. While the instructions in Washington and the instant case involve similar use of the term “only,” there are significant differences. Petitioner’s jury was read the entire list of statutory mitigating circumstances and was not confined to two “preceding elements of mitigation,” an important factor to the court’s decision in Washington. 655 F.2d at 1370. More importantly, the sentencing judge’s order which stated “[t]here are no mitigating circumstances existing — either statutory or otherwise — which outweigh any aggravating circumstances” reflects his consideration of the nonstatutory mitigating evidence offered by Ford. The Florida statute does not restrict a jury’s consideration of mitigating circumstances to those listed in the statute. It is reasonable to conclude the state trial judge’s perception that nonstatutory mitigating factors could be considered was conveyed to the advisory jury. The language about which petitioner complains did not so “infect” the entire sentencing process as to present a due process violation.
IV.
Standard by Which Aggravating Circumstances Must Outweigh Mitigating Factors
Florida Statute § 921.141(3)(b) requires the sentencing court, in imposing the death penalty, to state in writing its finding “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” Petitioner contends that because the statute, case law and jury instructions do not require the state to prove that aggravating factors outweigh mitigating factors “beyond a reasonable doubt,” Florida’s death penalty statute, on its face and as applied in this case, denies convicted capital defendants due process. Ford argues that the crime of capital murder in Florida includes the element of mitigating circumstances not outweighing aggravating circumstances, and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment. Since the element is part of the crime, he asserts that the beyond a reasonable doubt standard is required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and its progeny. We reject this argument for several reasons.
First, that the aggravating must outweigh mitigating factors for imposition of the death penalty under the Florida statute is not an element of the crime of capital murder in Florida. Under the Florida bifurcated death penalty statute, the sentencing proceeding is entirely separate from trial on the capital offense. Indeed, in certain circumstances the state judge can summon different jurors for the latter phase. Fla.Stat. § 921.141(1). Guilt of the capital offense having already been decided, the sentencing jury’s sole function is to render an advisory sentence aiding the state judge in determining whether the defendant should be sentenced to death or life imprisonment. Id. Thus, that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072 (emphasis added), is irrelevant to deciding under the Florida statute whether there are insufficient mitigating circumstances to outweigh aggravating circumstances. The aggravating and mitigating circumstances are not facts or elements of the crime. Rather, they channel and restrict the sentencer’s discretion in a structured way after guilt has been fixed. As the Supreme Court explained:
While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.
Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976).
Second, the United States Supreme Court has declared constitutional on its face Florida’s capital sentencing procedure, including its weighing of aggravating and mitigating circumstances. The Supreme Court stated: Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. The statute, facially constitutional, was strictly applied according to its terms.
The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.
Third, Ford’s argument under In re Winship seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla.1973), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party. Petitioner’s contrary suggestion is based on a misunderstanding of the weighing process, the statute and the guiding and channeling function identified in Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. Indeed, it appears no case has applied In re Winship in the manner Ford urges. The North Carolina and Utah cases cited by him which imposed a reasonable doubt standard in this situation turned on construction of state statutes rather than the due process rationale of In re Winship. See State v. Johnson, 257 S.E.2d at 617, and State v. Woods, 648 P.2d 71 (1981) [Utah 1981],
Ford’s alternate argument, raised for the first time in his reply brief, is that the Florida capital sentencing proceeding involves new findings of fact significantly affecting punishment to which the full panoply of due process rights should be extended, including the requirement that the state prove beyond a reasonable doubt that mitigating factors outweigh aggravating factors. Again petitioner confuses proof of facts with the weighing process undertaken by the sentencing jury and judge. Because the latter process is not a fact susceptible of proof under any standard, we reject this contention.
V.
Florida Supreme Court’s Standard of Review
Ford claims the Florida Supreme Court, in reviewing the evidence of aggravating and mitigating circumstances, violated the Eighth Amendment by failing to apply in his case the same standard of review applied in other capital cases. Specifically, he contends that under Florida case law, the court should have set aside two aggravating circumstances, collapsed two aggravating circumstances into one, and found the existence of one statutory mitigating circumstance and nonstatutory mitigating circumstances.
While petitioner characterizes this contention as the Florida Supreme Court’s failure to apply a consistent standard of review, the district court correctly discerned that he is simply “quarreling” with the state court. Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969, federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court. Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir. 1978). This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, “we may at times reach results different from those reached in the Florida state courts.” Id. at 605.
The Supreme Court of Florida is the ultimate authority on Florida law and we do not sit to question its interpretation of that State’s statutes. See Stephens v. Zant, 631 F.2d at 405-06. Ford has not cited and we have not found any habeas corpus decision in which this Court has reversed a death sentence due to the state court’s incorrect decision as to the existence or absence of aggravating and mitigating circumstances.
Moreover, examination of. the relevant Florida Supreme Court decisions reveals that its review of petitioner’s death sentence was not arbitrary, capricious or in disaccord with the constitutional principles relating to sentencing in capital cases. Under 28 U.S.C.A. § 2254(d), we presume correct facts properly found by the state courts. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, - U.S. -, 102 S.Ct. 1303, 71. L.Ed.2d 480 (1982). There is nothing in this record to show the Florida Supreme Court failed to apply the standard of review mandated by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny.
VI.
Assistance of Counsel at Sentencing
Petitioner contends he received ineffective assistance of counsel at sentencing. Specifically he claims that although counsel called character witnesses and a psychiatrist to testify in mitigation, he “failed to focus the trial judge’s and jury’s attention on the critical factors relevant to the sentence determination.” Careful review of the record and Ford’s specific arguments reveals this contention is nothing more than an attack on the reasoned tactics and strategy of experienced trial counsel.
On reviewing ineffective assistance of counsel claims, we do not sit to second guess considered professional judgments with the benefit of 20/20 hindsight. Washington v. Watkins, 655 F.2d at 1355; Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980). We have consistently held that counsel will not be regarded constitutionally deficient merely because of tactical decisions. See United States v. Guerra, 628 F.2d 410 (5th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981); Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978); United States v. Beasley, 479 F.2d 1124, 1129 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). That an attorney’s strategy may appear wrong in retrospect does not automatically mandate constitutionally ineffective representation. Baty v. Balkcom, 661 F.2d 391, 395 n.8 (5th Cir. 1981); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir. 1981).
That counsel for a criminal defendant has not pursued every conceivable line of inquiry in a case does not constitute ineffective assistance of counsel. Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980). This is not a case in which counsel allegedly failed to adequately prepare and investigate. See Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982). Ford’s counsel was reasonably likely to render and did render reasonably effective assistance. Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974). Because the record reveals counsel’s representation was constitutionally adequate and there resulted no prejudice to petitioner by any action or inaction of counsel, see Washington v. Watkins, 655 F.2d at 1362, Ford has not carried his burden of proving ineffective assistance of counsel. United States v. Killian, 639 F.2d 206, 210 (5th Cir. 1981).
VII.
The Brown Issue: Nonrecord Material Before the Florida Supreme Court
Petitioner alleges the Florida Supreme Court had a practice of receiving nonrecord materials concerning death row inmates during the pendency of the appeal of his death sentence. Ford specifically claims that in his case the Florida Supreme Court reviewed ex parte psychiatric evaluations or contact notes, psychological screening reports, post-sentence investigation reports and state prison classification and admission summaries. This practice, he contends, precluded adversarial testing of the information in violation of his rights to due process of law, effective assistance of counsel, confrontation and reliability and proportionality of capital sentencing. Additionally, he argues the court’s receipt of results of psychiatric examinations which were conducted without first informing him of his Fifth Amendment rights violated his privilege against self-incrimination and his right to confer with his attorney before determining whether to submit to them.
This issue first surfaced in a petition for writ of habeas corpus directed to the Florida Supreme Court brought on behalf of 122 Florida death row inmates, of which Ford was one. The Court denied the petition with a full opinion. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 542, 71 L.Ed.2d 407 (1981).
We reject the contention both generally and specifically as made for Ford. The function of the Supreme Court of Florida in these cases is to review sentences for procedural regularity and proportionality. The court does not “impose” sentence, and for that reason there cannot exist a due process violation under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1980). As the Florida Supreme Court aptly stated:
The record of each proceeding, and precedent, necessarily frame our determinations in sentence review. Our opinions, of course, then expound our analysis. Factors or information outside the record play no part in our sentence review role. Indeed, our role is neither more nor less, but precisely the same as that employed by the United States Supreme Court in its review of capital punishment cases. Illustrative of the Court’s exercise of the review function is Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
******
It is evident, once our dual roles in the capital punishment scheme are fully appreciated, that non-record information we may have seen, even though never presented to or considered by the judge, the jury, or counsel, plays no role in capital sentence “review.” That fact is obviously appreciated by the United States Supreme Court, for it very carefully differentiated the sentence “review” process of appellate courts from the sentence “imposition” function of trial judges in Proffitt and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
Brown v. Wainwright, 392 So.2
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_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.
Delbert PIXLEY, Appellant, v. UNITED STATES of America, Appellee.
No. 5061.
United States Court of Appeals, Tenth Circuit.
March 30, 1955.
Robert Fullerton, Denver, Colo., (L. W. Wiley, Muskogee, Okl., was with him on the brief), for appellant,
Harry G. Fender, Asst. U. S. Atty., Muskogee, Okl. (Frank D. McSherry, U. S. Atty., Muskogee, Okl., and Paul M. Brewer, Asst. U. S. Atty., Wewoka, Okl., were with him on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
PER CURIAM.
Tried to the court without a jury, appellant was found guilty and sentenced to imprisonment for the offense of transporting a stolen automobile in interstate commerce, knowing it to have been stolen.
The contention urged for reversal of the judgment is that under the rule of law enunciated in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L. Ed. 819; United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48, and other kindred cases, the court erred in admitting in evidence certain oral statements of appellant in the nature of a confession made while being detained and before being taken before a federal judge or committing magistrate. Considered in their totality, these cases do not render inadmissible in evidence every confession made by an accused person while being detained and before being taken before a committing magistrate. They bring into focus and strike only at confessions made while the accused is being unreasonably or inexcusably detained before being taken before a committing magistrate for the purpose of extracting evidence from him, or confessions obtained with attending circumstances which constitute physical or psychological coercion. Ruhl v. United States, 10 Cir., 148 F.2d 173; Blood v. Hunter, 10 Cir., 150 F.2d 640; Tarkington v. United States, 4 Cir., 194 F.2d 63.
A special agent for the Bureau of Investigation and the chief of police of the town of Van Burén, Arkansas, took appellant into custody in Van Burén sometime Saturday morning. The special agent had been advised by long distance telephone that a warrant had been issued at Muskogee, Oklahoma, for the arrest of appellant upon the charge of transporting the automobile from Arkansas into Oklahoma, but the special agent did not have the warrant in his possession At the time of the arrest appellant was suffering from the effects of a gun shot wound suffered in the course of a family altercation. The special agent and the chief of police took appellant to the office of a physician for the purpose of having his wounds examined and treated if necessary. From the office of the physician, the officers took him to the office of the chief of police. After arriving there, the special agent called on long distance telephone the United States Commissioner at Forth Smith, Arkansas, to arrange for a hearing for appellant. The Commissioner advised the special agent that he was leaving town; that he would be back Monday; and that he would then hold the hearing. Immediately thereafter, the special agent advised appellant that he did not have to make a statement; that any statement he might make could be used against him; and that he was entitled to an attorney. After so advising appellant, the officers began to interrogate him. The interrogation lasted about an hour. At about noon, appellant made oral statements which constituted a confession of the offense. While testifying, appellant denied that he transported the automobile but he did not deny making the statements to the officers; and it is not contended that the statements were obtained through coercive means. Cases involving the question whether a confession is inadmissible under the so-called McNabb doctrine do not lend themselves to any fixed and unyielding pattern. Each case depends upon its own peculiar facts and circumstances. Appellant was-taken into custody Saturday morning. An effort was made almost immediately to take him before the United States Commissioner in Fort Smith. That was impossible, due to the impending absence of the Commissioner from the city over the weekend. No effort was made to take appellant before the United States District Judge in Fort Smith during the remainder of Saturday. But there was no showing that the judge was at home or that his other judicial engagements made it feasible to hear the matter that day. Similarly, no effort was made to take appellant before some other committing magistrate during Saturday, but there was no showing that any magistrate with the requisite legal authority was available in Van Burén. The Commissioner with whom the special agent talked on the telephone returned to Fort Smith and appellant was taken before him Monday morning. There was no unreasonable or inexcusable delay in taking appellant before a committing magistrate, and no coercive methods were employed to obtain from him the confession in question. In these circumstances, the evidence relating to the statements made in the nature of a confession was admissible. Garner v. United States, 84 U.S. App.D.C. 361, 174 F.2d 499, certiorari denied, 337 U.S. 945, 69 S.Ct. 1502, 93 L.Ed. 1748; United States v. Walker, 2 Cir., 176 F.2d 564, certiorari denied, 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547; Symons v. United States, 9 Cir., 70 S.Ct. 1006, 94 L.Ed. 1388; Haines v. United States, 9 Cir., 188 F.2d 546, certiorari denied, 342 U.S. 888, 72 S.Ct. 172, 96 L.Ed. 666; United States v. Hymowitz, 2 Cir., 196 F.2d 819; Pierce v. United States, 91 U.S.App.D.C. 19, 197 F.2d 189, certiorari denied, 344 U.S. 846, 73 S.Ct. 62, 97 L.Ed. 658; Allen v. United States, 91 U.S.App.D.C. 197, 202 F.2d 329, certiorari denied, 344 U.S. 869, 73 S.Ct. 112, 97 L.Ed. 674.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_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".
The ENGINEERS CLUB OF SAN FRANCISCO, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
No. 85-1964.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 13, 1986.
Decided June 6, 1986.
Lawrence V. Brookes, Valentin Brookes, Brookes & Brookes, San Francisco, Cal., for plaintiff-appellee.
Robert Pomerance, U.S. Dept, of Justice, Washington, D.C., for defendant-appellant.
Before BROWNING, TANG, and BEEZER, Circuit Judges.
TANG, Circuit Judge:
Plaintiff/Appellee, the Engineers Club of San Francisco, filed suit in federal district court seeking reclassification as a business league under IRC § 501(c)(6), 26 U.S.C. § 501(c)(6). A business league classification would entitle Engineers Club to income tax refunds on its unrelated business income for the years 1978-81. The district court held that Engineers Club met the requirements of § 501(c)(6) and qualified as a business league, 609 F.Supp. 519. We reverse.
FACTS
Engineers Club is a nonprofit corporation formed in 1912. According to its amended articles of incorporation, Engineers Club’s purpose is:
to provide an organization in which Engineers of all branches of the Profession may come together, and through which they may cooperate and foster the development of the Engineer Profession as a whole in California and incidentally and in aid of such main purpose to acquire by purchase, lease or otherwise and conduct suitable quarters for a meeting place for carrying out such purpose.
Membership is open to and composed primarily of professional engineers.
Engineers Club leases space on the top two floors in an office building in downtown San Francisco. The facility consists of a large kitchen, meeting and dining rooms, a bar, a combination game-grill room, and a library-reading room. Administrative offices and storage rooms are located on other floors. The Club is open daily and serves lunch to its members and their guests.
The Club serves its members, and the professional societies to which they belong, by providing meetings and meeting space, logistical support, a location for operations, mailing service, telephone service, storage of records, and other facilities and services. Members of the Club may reserve Club facilities for their own purposes. Club facilities are mostly reserved for meetings and seminars conducted by the professional societies to which members belong. The professional societies are not charged a fee for the use of the facilities but only for the food, liquor or tobacco furnished. The entire membership of a professional society, including non-Club members, is invited to attend such events.
During the years in question, the Club was used by over twenty engineering societies and other organizations associated with the engineering profession. The meetings of the professional organizations are conducted primarily for the purpose of providing professional education and training to their members, and to disseminate information for the benefit of the profession as a whole. Toward this end many of the meetings are held outside normal business hours, or are specially scheduled when the members of the professional societies are in the San Francisco area. A significant number of meetings occur during the lunch hour or at dinner time and include the service of meals and beverages.
Since 1935, the Internal Revenue Service has classified Engineers Club as a “social club,” exempt under IRC § 501(c)(7), 26 U.S.C. § 501(c)(7), from some income tax. In November 1981, Engineers Club filed a written request with the IRS seeking reclassification as a business league retroactively to include fiscal years 1978-80. The IRS issued a ruling denying the exempt status in July 1982. The denial was timely protested and hearings took place in January 1983. The IRS issued a letter affirming its denial of the requested status in March 1983. Timely claims for refunds were filed with and denied by the IRS. Engineers Club filed suit in district court for reclassification and income tax refunds.
DISCUSSION
COLLATERAL ESTOPPEL
At trial, Engineers Club first raised the bar of collateral estoppel. The district court rejected this claim and the Club renews it on appeal.
Engineers Club asserts that the government is collaterally estopped from claiming that the Club is a social club by virtue of United States v. Engineers Club of San Francisco, 325 F.2d 204 (9th Cir.1963). We there affirmed the ruling of the district court that Engineers Club was not a “social club” within the meaning of § 4241 of the 1954 Code with respect to excise taxes on its dues and initiation fees.
The government argues that the issue on appeal is not factual, but legal. The government submits that the appeal turns on the correct application of the statute and regulations, as illuminated by the case law, to the facts found by the district court.
Essentially, Engineers Club argues that since it is not a social club, it must then be a business league. This argument is without merit.
The issue before us is whether Engineers Club qualifies under § 501(c)(6) as a business league, thus entitling it to a tax exemption on its unrelated business income. Our 1963 decision did not address or interpret Internal Revenue Code § 501(c)(6). Section 501(c)(6), unlike Section 4241 (now repealed), imposes specific restrictions on the manner in which a qualifying business league promotes the business interests of its members. Since the 1963 decision addressed a distinctly different issue under another section of the Tax Code, that decision has no collateral estoppel implications for the instant case.
SECTION 501(c)(6)
Organizations designated business leagues under IRC § 501(c)(6) are exempt from the payment of tax on such organization’s unrelated business income, including investment income. The government argues that the district court incorrectly characterized Engineers Club as a business league.
STANDARD OF REVIEW
Engineers Club argues on appeal that the district court’s conclusion that Engineers Club qualifies as a business league is a finding of fact that may not be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a).
We believe the inquiry presented most resembles a mixed question of fact and law, which we review de novo. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) (“if ... a question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles ... the question should be classified as one of law and reviewed de novo.”). Accord MIB, Inc, v. Commissioner, 734 F.2d 71, 76 (1st Cir.1984) (reviewing “business league” classification de novo).
ANALYSIS
IRC § 501(c)(6) provides an unrelated business income exemption for:
Business leagues, chambers of commerce, real estate boards, boards of trade, or professional football leagues ... not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.
According to the long-accepted regulatory definition, a “business league” is:
[A]n association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit. It is an organization of the same general class as a chamber of commerce or board of trade. Thus, its activities should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons. An organization whose purpose is to engage in a regular business of a kind ordinarily carried on for profit, even though the business is conducted on a cooperative basis or produces only sufficient income to be self-sustaining, is not a business league.
Treas.Reg. § 1.501(c)(6)-l (1983). Having been left undisturbed despite numerous reenactments of identically-worded predecessors to I.R.C. § 501(c)(6), this definition is deemed to have been given the imprimatur of Congress and is thus entitled to the effect of law. North Carolina Association of Insurance Agents, Inc. v. United States, 739 F.2d 949, 954 (4th Cir.1984); Underwriters’ Laboratories v. Commissioner, 135 F.2d 371 (7th Cir.1943).
Thus, for an organization to achieve business league status, the requirements as stated in Treas.Reg. § 1.501(c)(6) must be met. Section 1.501(c)(6) requires a business league to be an association (1) of persons having a common business interest; (2) whose purpose is to promote the common business interest; (3) not organized for profit; (4) that does not engage in a business ordinarily conducted for profit; (5) whose activities are directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons; (6) of the same general class as a chamber of commerce or a board of trade. The government concedes that Engineers Club is: (1) an association of persons having a common business interest; (2) one purpose of which is to promote that common business interest; and (3) the club is not organized for profit. Thus, Engineers Club meets requirements (IMS).
The district court based its determination that Engineers Club qualifies as a business league by applying a functional analysis to the “incidentalness” exception of requirement (4), the ‘Business Ordinarily Conducted for Profit’ prohibition. Although a business league should not be engaged in a regular business of a kind ordinarily conducted for a profit, a business activity will not cost an organization its exemption as a business league if the activity is merely incidental to the main purpose of the organization. Retailers Credit Association v. Commissioner, 90 F.2d 47, 51 (9th Cir.1937).
We assume, without deciding, that the district court was not clearly erroneous in determining that the Engineers Club food and beverage service was incidental to the main purpose of the organization. We find, however, that the district court’s “functional” test did not adequately address requirements (5) and (6). Our examination of these latter requirements leads us to conclude that Engineers Club fails to qualify for business league classification.
Particular Services for Individual Persons
Section 1.501(c)(6) requires that a business league be “directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons.” The district court failed to address this requirement.
In fact the club did and does provide particular services, chiefly food and beverage service, to its individual members. Although we recognize that the food and beverage service also confers a general benefit on the engineering profession, the food and beverage service, and particularly the luncheon trade, is a service performed for individual persons and organizations rather than the engineering profession as a whole.
Organizations frequently fail to qualify for business league status even though their activities confer collective benefits. For example, in MIB, Inc. v. Commissioner, 734 F.2d 71 (1st Cir.1984), an insurance industry established non-profit corporation operated a computer storage and retrieval bank from which each member company could obtain, for a fee, data relevant to insurance sales. This service, the court said, may “confer[ ] a general benefit upon all members and act[] in the collective interest,” id. at 78, chiefly as a deterrent to applicant fraud. Nevertheless, the court ruled that the organization failed to qualify as a business league. The collective benefit, although real, did not alter the fact that the rendered services were in form and substance “particular services for individual persons.” Id. at 78. See also, Contracting Plumbers Cooperative Restoration Corp. v. United States, 488 F.2d 684, 688 (2d Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974) (repair of city streets, although of benefit to entire trade and to public, nevertheless the “performance of particular service for individual members”); Steamship Trade Association of Baltimore, Inc. v. Commissioner, 757 F.2d 1494, 1498 (4th Cir.1985) (incidental synergy not sufficient to overcome “performance of particular service for individual members" prohibition).
Same General Class as a Chamber of Commerce or a Board of Trade
Section 1.501(c)(6) also states that a business league “is an organization as the same general class as a chamber of commerce or a board of trade.” Again, the district court failed to discuss this requirement.
In MIB, Inc. v. Commissioner, 734 F.2d at 78 n. 5, the court noted:
In National Muffler Dealers Ass’n v. United States, 440 U.S. [472,] 480-82, 99 S.Ct. [1304] at 1308-09 [59 L.Ed.2d 519] [1979], the Supreme Court traced the genesis, and confirmed the significance, of the sentence in the regulation that a business league “is an organization of the same general class as a chamber of commerce or board of trade.” (Emphasis supplied.) Reference to these organizations is meant, under the principle of noscitur a sociis, to limit business league classification to organizations which share the same general characteristics. 440 U.S. at 481, 99 S.Ct. at 1309.
The fact that an organization conducts professional programming of its own has long been an important consideration. Rev.Rul. 67-295; Rev.Rul. 70-244; Rev. Rui. 70-641; Rev.Rul. 71-504; Rev.Rul. 70-505. Engineers Club does not itself conduct professional programming; rather, it hosts the professional societies and groups to which its members belong. The absence of Club conducted professional programming suggests that any resemblance to a chamber of commerce or a board of trade is, at best, weak.
CONCLUSION
The district court’s functional test ignores important language of treasury regulation 1.501(c)(6). In order to qualify for a business league classification, each and every requirement of 1.105(c)(6) must be met. On the facts before us, Engineers Club fails to qualify for business league status. The judgment of the district court is therefore
REVERSED.
. Section 501(c)(7) confers tax exempt status but requires tax to be paid on unrelated business income.
. The Club’s performance of particular services for its members further distinguishes it from a board of trade or chamber of commerce. “Prominent among the characteristics of boards of trade and chambers of commerce is the emphasis on improving trade and commerce by activities which serve business people and members of the community in common, not individually.” MIB, Inc., 734 F.2d at 78, n. 5; see also Nat'l. Muffler Dealers Ass’n, 440 U.S. at 478, 99 S.Ct. at 1307.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_appel1_1_3 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
O’BRYAN, O’BRYAN & O’BRYAN v. Wm. M. HARRISON, Successor Trustee.
No. 6262.
United States Court of Appeals Tenth Circuit.
Dec. 2, 1959.
W. H. Pat O’Bryan, Oklahoma City, Okl., for appellant.
Luther Bohanon, and James D. Fellers, Oklahoma City, Okl., for appellee.
Before LEWIS and BREITENSTEIN, Circuit Judges, and CHRISTENSON, District Judge.
PER CURIAM.
Appeal dismissed on motion of appellee on ground that the notice of appeal was not timely filed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_genresp2 | 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 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.
UNITED STATES of America and Bradley P. Whites, Special Agent of the Internal Revenue Service, Appellees, v. NORTHWESTERN NATIONAL BANK, through Wallace B. Hanson, Vice-President; and First Baltic Branch, First National Bank of Sioux Falls, through Lynn Aspaas, Vice-President, Respondents, v. Robert A. LARSEN, Intervenor-Appellant.
No. 80-1559.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 11, 1980.
Decided Nov. 14, 1980.
Robert A. Larsen, appellant-without counsel.
M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup, Daniel F. Ross, Philip I. Brennan, Attys., Tax Division, Dept, of Justice, Washington, D.C., filed brief, for appellees; Terry L. Pechota, U.S. Atty., of counsel.
Before BRIGHT, ROSS and McMILLIAN, Circuit Judges.
PER CURIAM.
Appellant, Robert A. Larsen (Taxpayer), appeals from an order of the district court enforcing two IRS summonses for the purpose of determining his income tax liability for 1977-78. Taxpayer in his pro se appeal asserts three principal challenges to the enforcement of the summonses: (1) the constitutionality of the IRS to issue the summonses and of the district court to enforce them; (2) the authority of the IRS and the jurisdiction of the district court on the basis that Federal Reserve notes are not legal tender and that only dollars containing gold or a mixture of gold and silver are constitutionally taxable; and (3) the issuance of the summonses was not in good faith. We affirm and dissolve the stay pending appeal.
Taxpayer’s constitutional challenge to the authority of the IRS to issue summonses and of the district court to enforce them is in reality a constitutional attack on the underlying statutory authority of the IRS, 26 U.S.C. § 7602, and of the district court, 26 U.S.C. §§ 7402(b) and 7604(a). Taxpayer’s constitutional attack on these statutes is without merit. Our court upheld the constitutionality of the challenged statutes in United States v. National Bank of South Dakota, 620 F.2d 193 (8th Cir. 1980). In addition, Taxpayer’s arguments that Federal Reserve notes are not taxable dollars and that the only “legal tender dollars” are those which contain a mixture of gold and silver have been consistently rejected by this court. United States v. Moon, 616 F.2d 1043, 1047-48 (8th Cir. 1980).
Finally, Taxpayer has also failed to overcome the government’s prima facie showing of good faith. Through the testimony of its agent, Bradley P. Whites, at the show cause hearing, the IRS made a prima facie showing that (1) the investigation was being conducted for a legitimate purpose; (2) the inquiry was relevant to that purpose; (3) the information sought was not already in the Commissioner’s possession; and (4) the administrative steps required by the Internal Revenue Code have been properly followed. United States v. LaSalle National Bank, 437 U.S. 298, 313-14, 98 S.Ct. 2357, 2365-66, 57 L.Ed.2d 221 (1978).
Taxpayer asserts that the sole purpose of the investigation was criminal. In support of this assertion, he points to the testimony of Special Agent Bradley P. Whites that the investigation was conducted through the Criminal Investigation Division of the IRS, and to a letter dated March 3, 1980, which he received from the group manager of the Criminal Investigation Division notifying Taxpayer that he was being investigated for possible criminal violations and for a determination of his income tax liability for 1977-78. The letter also reminded Taxpayer of his fifth amendment rights and warned him that any information or documents that he may turn over to the IRS might be used against him if a criminal proceeding would ever be undertaken. This evidence only proves that a joint criminal and civil investigation was undertaken. It does not prove bad faith, especially in the light of the additional testimony of Agent Whites that the investigation was carried on in cooperation with the Examination Division and that the IRS had not recommended a criminal prosecution of Taxpayer to the Department of Justice. Noting the inseparability of criminal and civil goals in an IRS investigation, the courts have been extremely reluctant to find bad faith in the absence of a recommendation of a criminal prosecution to the Department of Justice. See, e. g., United States v. First National Bank of New Jersey, 616 F.2d 668, 671 (3d Cir. 1980). While there might be some extraordinary circumstances with which a taxpayer might prove bad faith in the absence of a recommendation to prosecute, Taxpayer has failed to prove any such extraordinary circumstance. See United States v. Garden State National Bank, 607 F.2d 61, 66-70 (3d Cir. 1979); United States v. Genser, 595 F.2d 146 (3d Cir. 1979) (Genser II).
We conclude that the district court properly ordered the summonses enforced. The order of the district court enforcing the summonses is affirmed and the stay pending appeal is dissolved.
. The Honorable Fred J. Nichol, United States Senior District Judge for the District of South Dakota.
. The relevant parts of the letter read:
As you know, you are being investigated for possible criminal violations of the Internal Revenue Code for 1977 and 1978. This includes a determination of your correct income tax liability for those years. On January 8, 1980 Mr. Whites attempted to talk to you about this in Sioux Falls; however, you refused to talk to him.
******
This letter does not constitute your solicitation for corrected or amended tax returns from you. You are still under investigation for possible criminal violations of the Internal Revenue laws, and as such you should be aware of your rights under the 5th Amendment to the U. S. Constitution. Thus, any information or documents you may send to us could be used against you in any criminal proceedings which may be undertaken. In this regard, you may wish to seek the assistance of an attorney before responding in the future.
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_district | H | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
McREYNOLDS v. NATIONAL WOODWORKING CO., Inc.
Court of Appeals of District of Columbia.
Submitted March 8, 1928.
Decided May 7, 1928.
No. 4582.
1. Contracts @=205 — Guaranty to lay linoleum on concrete floor in satisfactory workmanlike manner, after recommending such covering, constituted guaranty to lay it under existing conditions.
Where person making estimate for remodeling automobile showroom recommended laying of linoleum on concrete floor, he was, in absence of fraud or concealment, charged with notice of conditions present, and guaranty to lay linoleum in a satisfactory workmanlike manner constituted guaranty to lay it under conditions then existing.
2. Contracts @=83 — Failure to complete contract In accordance with guaranty constitutes failure of consideration for note conditioned on guaranty.
A failure to complete contract to lay linoleum in a satisfactory workmanlike manner under existing conditions constitutes a failure of consideration for note executed on condition of continuance of such original guaranty.
3. Evidence @=508 — Expert testimony to establish fact that linoleum could not be laid successfully under circumstances in accordance with guaranty held erroneously excluded.
In action to recover on note executed in consideration of completion of contract to lay linoleum in satisfactory workmanlike manner, refusal to admit expert testimony to establish fact that linoleum could not be successfully laid on concrete floor resting on ground and without ventilation held erroneous, since, if it appeared as a fact that such a condition was present and plaintiff could have discovered it, plaintiff would be charged with notice of its existence.
4. Bills and notes @=451(1) — Promissory note at suit of original payee is subject to defenses available against enforcement of written contracts (Code, § 1332).
No particular sanctity attaches to a promis- ' sory note, and it is subject at suit of original payee to any of defenses available against enforcement of written contracts in accordance with provisions of Code, § 1332.
Appeal from the Supreme Court of the District of Columbia.
Suit by the National Woodworking Company, Incorporated, against William E. Mc-Reynolds. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.
W. J. Lambert, R. H. Yeatman, A. M. Schwartz, and W. N. Tobriner, all of Washington, D. C., for appellant.
D. T. Wright and Philip Ershler, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
Appellee, National Woodworking Company, •brought suit against appellant in the Supreme Court of the District of Columbia to recover on a note for the sum of $1,500, with interest, alleging that the note was overdue and unpaid.
Defendant filed three pleas, substantially as follows:
(1) That he was not indebted in manner and form alleged.
(2) That plaintiff contracted with defendant to remodel his automobile showroom vfor a consideration of $4,200, which included the laying of linoleum on the concrete floor; that plaintiff had recommended to defend•ant the use of linoleum, and agreed to lay it in a first-class workmanlike manner; that defendant paid plaintiff various sums on account of the contract until it was reduced to $1,500, represented by the note sued upon; that plaintiff failed to perform his contract in respect of laying the linoleum as agreed, in that the linoleum, after being laid, broke away from the concrete; that plaintiff then agreed that defendant should withhold the sum of $1,500, the cost of laying the linoleum, and defendant should deliver to plaintiff his promissory not? in that amount, payable one month after date, in consideration of which defendant agreed to immediately proceed to lay said linoleum as agreed upon, to the full satisfaction of the defendant; that the note was given by defendant on the assurance of plaintiff that the linoleum would be laid “in a first-class workmanlike manner, and in such a way as to fully satisfy” defendant; and that defendant failed to carry out his agreement in this respect.
(3) A set-off in the sum of $2,000 as damages for failure to lay the floor in the manner called for by the original contract.
To the plea of set-off plaintiff pleaded a general denial.
It appears from the reeord that plaintiff company, entered into a contract with defendant to remodel defendant’s automobile showroom for the sum of $4,200, which, among other things, included the laying of linoleum over a concrete floor; that when the work was completed the linoleum would not adhere to the floor, but crumpled up, overlapped, and was unsightly, and of no use to the defendant; that plaintiff company made repeated efforts to put the floor in condition, meeting with failure in each instance; that it was during these proceedings, and while plaintiff was attempting to complete the work, that a settlement was had, resulting in the giving of the $1,500 note, upon the alleged condition that it should only be paid in the event that the work was completed in a satisfactory workmanlike manner.
It appears from the testimony of the defendant that, when the plans for the improvements were completed, plaintiff company requested that it be given an opportunity to submit a bid upon the work. This was granted. When Mr. Beetham, president of the company, was inspecting the premises, preliminary to submitting an estimate for the work, he suggested that the concrete floor in the building could be covered with linoleum, assuring defendant “that they could lay linoleum over the witness’ floor; that they have laid it in different places and that it has always been satisfactory; that witness said that he was a little leery of linoleum, and Mr. Beetham replied that he need not be leery of it, because the plaintiff would stand behind it, and that is why the witness accepted the estimate.” This testimony of the defendant was not denied by Mr. Beetham, though he appeared as a witness in the case. We think the case centers around this recommendation and guaranty, made by Mr. Beetham as president of plaintiff company.
It is now contended on the part of the plaintiff that the reason for. the failure to satisfactorily lay the linoleum was due to the collection under it of moisture from the concrete, disintegrating and loosening the cement used to hold the linoleum in place; that the collection of the moisture was due to the fact that the cement was laid upon the ground, with no ventilation under it, and to the collection of moisture through seepage from the alley adjacent to the building; and that the guaranty of the plaintiff company did not contemplate or take into consideration these unforeseen conditions.
Objection was interposed, and sustained, to defendant’s offer to prove by an expert witness that dampness would collect on a concrete floor covered with linoleum, when the floor is laid upon the ground with no air sid ace under it. The court, sustaining the objection to this evidence, said: “In my view of the case, I do not believe that these contractors were obliged to know anything about the configuration of the ground over there in that neighborhood. It is not a part of their job. ‘There is a floor. Lay linoleum on it.’ That is all they are concerned with, unless, as I say, something sticks right out and hits them in the face, that they ought to pay attention to.”
It is urged by counsel for plaintiff, and was so held by the court below, that the defense of failure of consideration of the note is not available under defendant’s second plea. The court submitted the case to the jury upon the sole ground of whether or not the linoleum was laid in a first-class workmanlike manner, instructing the jury that,1 if they so found, then they could not allow any set-off, “and must return a verdict for the full $1,500, the amount of the note, with interest at 6 per cent, from April 8, 1925. The plaintiff was not responsible for the floor on which the linoleum was laid; and if you And that the linoleum was laid in a first-class workmanlike manner, and became unsatisfactory because moisture came through the floor, then you cannot allow a set-off.” The court summarized its charge in the following language: “The plaintiffs are entitled to recover on this note. So, when you come to consider the matter, you have got to start out with the proposition that, so far as the note itself is concerned, the plaintiff is entitled to $1,500, with interest. Then you come to the question of whether or not this linoleum was laid in a first-class workmanlike manner, and whether the only reason why it buckled, and did these other things, was due to this water. If it was due to the water, then that is something the plaintiffs are not responsible for.”
We are of opinion that the whole theory upon which the case was submitted to the jury is erroneous, both on the law and the evidence. When Beetham, the president of the company, as a basis of plaintiff’s estimate on the work, recommended to defendant the laying of the linoleum on the concrete floor, and defendant expressed, a doubt as to whether this could be successfully done, plaintiff, in the absence of fraud or concealment by defendant, was charged with notice of the conditions present — whether the floor was laid on the ground or was ventilated under, and whether the topographical conditions outside were such as to probably produce moisture when the linoleum was laid. These were conditions of which plaintiff company was charged with' notice on taking the contract; and its conceded, guaranty to lay the linoleum in a satisfactory workmanlike manner was a guaranty to so lay it under the conditions there existing; and the failure to complete the contract as so made, if the original guaranty be found to have been continued as a condition of giving the note, constitutes a failure of consideration for the note.
In this view of the ease, it was error to refuse to admit expert testimony to establish the fact that linoleum cannot be laid successfully upon a concrete floor that rests on the ground, and without ventilation under it. If it should appear as a fact that such a condition was present in this ease, and plaintiff’s agent by proper, inspection could have discovered it, plaintiff would be charged with notice of its existence. It was upon the recommendation of Mr. Beetham, president of plaintiff company, that defendant was induced to use linoleum. He had the right to assume that plaintiff’s president and contracting agent possessed full knowledge of the business in which plaintiff was engaged, and which held itself out to the public as a concern capable of performing work of the character defendant desired done in a satisfactory, skillful, and workmanlike manner.
No particular sanctity attaches to a promissory note. It is subject, at the suit of the original payee, to any of the defenses available against the enforcement of written contracts. Section 1332 of the District Code provides: “Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”
Tyler v. Mutual District Messenger Co., 17 App. D. C. 85, was an action on quantum meruit for work performed, in which the defendant interposed the plea of not indebted as alleged, and also pleaded a special contract and the failure of plaintiff to perform the contract as agreed, resulting in damage to defendant. The court, considering the evidence admissible under this plea, said: “As will be observed, the terms of the contract are not set forth, nor is it made apparent by the plea whether the alleged, breach of the contract is set up by way of set-off, or by way of recoupment or deduction. The plaintiff, however, joined issue upon all three of the pleas; and under the issue thus formed upon the third plea, or even under the general issue plea of not indebted as alleged, it was competent to the defendant to show by proof that the work and labor and services declared for by the plaintiff were done and supplied under a special contract, and that such work and services were so negligently and unskillfully done and performed as to be of little or no value to the defendant, or that the contract had been violated by the plaintiff to the injury of the defendant, and therefore the latter was entitled to a deduction of the damages thus occasioned by the breach by the plaintiff. This is now the settled principle, both in the English and American courts.”
In Durant v. Murdock, 3 App. D. C. 114, defendant pleaded both failure of consideration and set-off to a declaration on a promissory note, and, while the plea of set-off was held barred by the statute of limitations, the court in its opinion said: “The failure of consideration, and the set-off pleaded by the appellant in defense of the suit, are entitled to more consideration from us. Failure of consideration is, of course, a good defense as against the payee in a promissory note; and a proper set-off is always, under existing law, properly pleadable in bar of a plaintiff’s demand.”
In Withers v. Greene, 9 How. 220, 230, 13 L. Ed. 109, the court, reviewing a judgment on demurrer to a plea of failure of consideration said: “Where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied pn in defense by a party, when sued upon such contracts, and that he shall not be driven to assert them, either for protection, or as a ground for compensation in a cross-action. * * * In the ease of Sill v. Rood, 15 Johns. [N. Y.], 230, which was an action on a promissory note given for the price of a chattel, the defendant was allowed, under the general issue, to show deceit in the sale. And it was holden, further, that a promissory note given for the price of a chattel represented to be valuable, when in truth it was of no value, is without consideration and void.”
No objection was made by counsel for plaintiff by way of demurrer to the second plea, nor to the introduction of proof by defendant in support of the failure of consideration for the note. We think the plea is sufficient to raise this issue, and the case should have been submitted to the jury upon that theory. Nor are we concerned with the suggestion that the contract, upon which the alleged consideration for the note is based, is not binding on the company. It was made by an officer of the company, and we consider it immaterial whether it was made with or without direct authority from the company itself. The company was engaged in the contracting business. It held itself out as prepared to do this sort of business. It transacted its business through its officers, and defendant had the right to assume that the officer, the secretary of the company, with whom he dealt when the note was given, was authorized to act in the premises. Sueh authority will be presumed.
The whole issue here is one of faet for the jury, under proper submission by the court, as to whether or not on the issue raised by defendant’s second plea, or indeed by the. plea of not indebted, there was a lack of .consideration for the note, and, if so, ■whether or not there was a total or partial lack of consideration. If, on retrial, the second plea should be regarded as insufficient to sustain the proof interposed in support of defendant’s case, it may be amended.
The judgment is reversed, with costs, and the ease is remanded for a new trial.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_initiate | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Evelyn COTTO and Edwin Torres, etc., et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
No. 92-2440
United States Court of Appeals, First Circuit.
Heard May 4, 1993.
Decided May 19, 1993.
Peter John Porrata, Hato Rey, PR, for plaintiffs, appellants.
Fidel A. Sevillano del Rio, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, PR, was on brief, for defendant, appellee.
Before SELYA, Circuit Judge, FEINBERG, Senior Circuit Judge, and STAHL, Circuit Judge.
Of the Second Circuit, sitting by designation.
SELYA, Circuit Judge.
This appeal arises out of an action brought against the United States by family members and personal representatives of an injured minor under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1990). Long after the district court dismissed the case, plaintiffs sought to revivify it but failed. Believing, as we do, that the district court appropriately rebuffed the attempted resurrection, we affirm the judgment below.
I. BACKGROUND
The incident that sparked this case occurred on December 13, 1987, when a small child, Alexis Agosto, caught his hand in a conveyer belt operated by an employee of the United States Department of Agriculture (DOA). On February 24,1989, Agosto’s parents and grandparents filed FTCA claims on Agosto’s and their own behalf. On April 21, DOA responded, requesting medical records, itemized bills, and other details. Plaintiffs retained counsel. On November 29, 1989, their attorney notified DOA that he would supply pictures of Agosto’s injured hand, apparently believing that the photographs would satisfy DOA’s curiosity anent the extent of injury. He was wrong. DOA, unmol-lified, wrote to the lawyer on March 5, 1990, reiterating its need for the information previously requested and mentioning that plaintiffs’ claim forms were incomplete. The letter also stated:
Please bear in mind that the claims must be substantiated and that we must have the information requested before a determination can be made by [the appropriate official]. No further action will be taken on these claims until the information requested has been received (emphasis in original).
Instead of submitting further particulars, plaintiffs brought suit. They alleged, inter alia, that “[n]o affirmative action as to any settlement or responsibility has been taken by [DOA], although a copy of the medical record has been provided to them [sic].” This allegation was seemingly an endeavor to show that, despite the lack of an explicit denial, DOA had implicitly denied plaintiffs’ claim, thus satisfying the FTCA’s exhaustion requirement. See 28 U.S.C. § 2675(a).
The government answered the complaint, asserting inter alia that plaintiffs had yet to file a substantiated, completed administrative claim, and, therefore, had not exhausted their administrative remedy. On August 27, 1990, a magistrate judge stayed proceedings for ninety days to allow plaintiffs a final opportunity “to provide defendant’s claim specialist with the necessary documentation so that defendant may either accept or reject the claim.” The stay proved unproductive. On November 28, 1990, the magistrate convened the next scheduled conference, noted plaintiffs’ counsel’s absence, and reported to the district judge that “the government will shortly move to dismiss the complaint for failure to exhaust administrative remedy.” Even so, some settlement negotiations continued.
To make a tedious tale tolerably terse, the government, prodded by the district judge, moved for dismissal on May 15, 1991. The motion papers averred that plaintiffs had failed to prosecute their claims diligently at either the administrative or judicial levels. Among other things, the government proffered the affidavit of a local DOA staffer attesting to plaintiffs’ failure to perfect their administrative claims. Without waiting for plaintiffs’ objection, the district court dismissed the ease with prejudice under Fed. R.Civ.P. 41(b). Judgment entered on May 28, 1991.
At that point, plaintiffs and their lawyer, figuratively speaking, played the ostrich, burying their heads in the sand and ignoring the adverse judgment. They did not ask that the dismissal be vacated so that their opposition, see supra note 1, might be more fully considered; they did not move for reconsideration of the order; they did not take an appeal; they did not seasonably seek post-judgment relief. Withal, plaintiffs suggest that they continued to pursue negotiations, eventually reaching what plaintiffs’ counsel describes as a tentative agreement (ironically, with the same DOA representative who had executed the aforementioned affidavit) for a $60,000 settlement. They concede, however, that the United States Attorney’s office declined to approve any settlement, presumably because the lawsuit had been dismissed with prejudice. They also concede that they never asked the district court to enforce the supposed settlement. Rather, plaintiffs resumed their struthionine pose. It was not until September 28, 1992 — sixteen months to the day after judgment entered— that they filed a motion under Fed.R.Civ.P. 60(b)(6). The court below denied the motion without fanfare. This appeal followed.
II. ANALYSIS
District courts enjoy considerable discretion in deciding motions brought under Civil Rule 60(b). We review such rulings only for abuse of that wide discretion. See Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir.1992); Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir.1988).
In this case, plaintiffs’ theory seems to be that, because DOA’s representative continued to negotiate after judgment entered, the lower court should have excused plaintiffs’ failure to appeal or otherwise contest the dismissal. This contention has a variety of flaws. Without endeavoring to cover the waterfront, we offer four reasons why plaintiffs’ theory is unavailing. In the course of that recital, we assume the truth of the fact-specific statements contained in plaintiffs’ motion, but do not credit “bald assertions, unsubstantiated conclusions, periphrastic circumlocutions, or hyperbolic rodomontade.” Superline, 953 F.2d at 18.
First: Rule 60(b) seeks to balance the importance of finality against the desirability of resolving disputes on the merits. See id. at 19. The rule’s first five subsee-tions delineate specific grounds for relief. In keeping with the policy that “there must be an end to litigation someday,” Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211-212, 95 L.Ed. 207 (1950), the rule imposes a one-year limit on motions that invoke clauses (1) — (3). While this limit does not apply in haec verba to clause (6) — as the rule states, motions invoking clauses (4) — (6) must only “be made within a reasonable time” — clause (6) is designed as a catchall, and a motion thereunder is only appropriate when none of the first five subsections pertain. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 & n. 11, 108 S.Ct. 2194, 2204 & n. 11, 100 L.Ed.2d 855 (1988); Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 389, 93 L.Ed. 266 (1949); Lubben v. Selective Serv. Sys. Local Bd., 453 F.2d 645, 651 (1st Cir.1972).
Here, plaintiffs’ attempt to garb their motion in the raiment of clause (6) runs aground on the bedrock principle that clause (6)may not be used as a vehicle for circumventing clauses (1) through (5). The essence of plaintiffs’ argument is that, under all the circumstances, their failure to contest the dismissal constituted understandable, ergo, excusable, neglect. On its face, that theory falls squarely within the encincture of Rule 60(b)(1) and, as such, plaintiffs’ motion, filed more than one year after the entry of judgment, was time-barred. See Pioneer Inv. Servs. Co. v. Brunswick Assoc., — U.S. -, -, 113 S.Ct. 1489, 1497, 123 L.Ed.2d 74 (1993) (explaining that, where “a party is partly to blame for the delay,” post-judgment relief “must be sought within one year under subsection (1)”).
Second: Plaintiffs’ belated effort to set aside the adverse judgment also runs afoul of the admonition that Rule 60(b)(6) may not be used to escape the consequences of failure to take a timely appeal. See Ackermann, 340 U.S. at 197-200, 71 S.Ct. at 211-212; Mitchell v. Hobbs, 951 F.2d 417, 420 (1st Cir.1991); Lubben, 453 F.2d at 651; see also Ojedar-Toro, 853 F.2d at 28-29 (collecting cases). In our adversary system of justice, each litigant remains under an abiding duty to take the legal steps that are necessary to protect his or her own interests. See Ackermann, 340 U.S. at 197, 71 S.Ct. at 211. Thus, Rule 60(b)(6) may not be used as a back-door substitute for an omitted appeal, and, in all but the most exceptional circumstances, a party’s neglect to prosecute a ti-meous appeal will bar relief under the rule. See Ackermann, 340 U.S. at 197-202, 71 S.Ct. at 211-213; Mitchell, 951 F.2d at 420; United States v. Parcel of Land, Etc. (Woburn City Athletic Club, Inc.), 928 F.2d 1, 5 (1st Cir.1991); Lubben, 453 F.2d at 651.
There are no sufficiently exceptional circumstances here. To be sure, plaintiffs strive to show the contrary. Citing United States v. Baus, 834 F.2d 1114 (1st Cir.1987), they argue that DOA acted in a Svengali-like manner, lulling them to sleep with settlement songs while the sands of time drained and the appeal period expired. This deception, they say, justifies relief under Rule 60(b)(6). The district court did not agree. Nor do we.
Baus is readily distinguishable. There, defendants (the guarantors of a debt owed to a federal agency) moved, long after the fact, for relief from a judgment entered pursuant to a settlement agreement they had made with the United States. Id. at 1115— 16. We determined that the government had been dilatory in performing its side of the bargain and had probably breached its obligations under the settlement agreement. Id. at 1124-25. We also noted that three Assistant United States Attorneys had assured the defendants that a further judicial determination of indebtedness was necessary before the United States could collect on the guarantees, and that the defendants relied on these assurances. Id. at 1117. In such straitened circumstances, we ruled that the government, by virtue of a combination of dilatory practices, disregard of contractual obligations, and repeated assurances, had so muddied the waters that it “would result in manifest unfairness to deny relief’ under Rule 60(b)(6). Id. at 1128.
The case at bar is far removed from Bans. The plaintiffs’ Rule 60(b)(6) motion makes no claim that, but for some misleading conduct attributable to the government, plaintiffs would have prosecuted a timely appeal. There is nothing in the present record to demonstrate that the government stalled the processing of the claims, breached any promise, or otherwise acted in bad faith; even in this court, plaintiffs do not suggest that the government ever said it would waive the exhaustion requirement or overlook the judgment’s legal effect. There is, moreover, nothing to indicate any kind of impediment to plaintiffs’ ability to protect their legal interests in a timely manner. Unlike in Bans, the plaintiffs instigated the litigation. They knew the status of their claims at all stages. They could have appealed from the entry of judgment, but did not. And, finally, the plaintiffs appreciated the significance of the judgment.
Because plaintiffs advance neither an objectively reasonable basis for not challenging the judgment in a timely manner nor evidence indicating a pattern of affirmative action on the government’s part which would have led a reasonably prudent person to believe that the dismissal order was something other than it was, Bans does not assist their cause. Rather, we think that plaintiffs’ situation is much more akin to Ackermann. After suffering an adverse judgment in denaturalization proceedings and failing to prosecute a timely appeal, Ackermann sought relief under Rule 60(b)(6). 340 U.S. at 194-95, 71 S.Ct. at 209-210. He alleged, inter alia, that he relied upon advice from a government official who assured him there was no need to appeal as he would ultimately be released. See id. at 196, 71 S.Ct. at 210. In affirming the denial of Ackermann’s Rule 60(b)(6) motion, the Court stated:
It is not enough for petitioner to allege that he had confidence in [the government official] ... [A]nything said by [the government official] could not be used to relieve petitioner of his duty to take legal steps to protect his interest in litigation in which the United States was a party adverse to him.
Id. at 197, 71 S.Ct. at 211 (citations omitted). In language which appears patently pertinent to the pitiful predicament of the present plaintiffs, the Court concluded that, since Ackermann had made “a considered choice not to appeal,” he “cannot not be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the [final] outcome.” Id. at 198, 71 S.Ct. at 212. So here. Even if plaintiffs reasonably believed that DOA’s representative had authority to negotiate a settlement, this belief in no way gave them an indeterminate carte blanche to ignore the district judge’s entry of a final judgment. See, e.g., Lubben, 453 F.2d at 652 (suggesting that, so long as the decision not to take an appeal was one of unfettered choice and free will, courts should refrain from speculating on the reasons why a laggard party did not seasonably pursue an attack on an adverse judgment).
We will not paint the lily. “[T]o justify relief under subsection (6), a party must show extraordinary circumstances suggesting that the party is faultless in the delay.” Pioneer, — U.S. at -, 113 S.Ct. at 1497. The instant plaintiffs do not qualify under so rigorous a standard. Their unilateral assumption that they could negotiate and settle their claims notwithstanding the court’s decree falls woefully short of establishing either their own lack of fault or the kind of exceptional circumstances necessary for relief under Rule 60(b)(6).
Third: Assuming, for argument’s sake, that plaintiffs’ motion was otherwise within the rule’s purview, it would nevertheless fail on temporal grounds. We explain briefly.
A Rule 60(b)(6) motion “must be made within a reasonable time.” What is “reasonable” depends on the circumstances. Cf, e.g., Sierra Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir.1987) (explaining that “reasonableness is a mutable cloud, which is always and never the same”) (paraphrasing Emerson). Thus, a reasonable time for purposes of Rule 60(b)(6) may be more or less than the one-year period established for filing motions under Rule 60(b)(1) — (3). See Planet Corp. v. Sullivan, 702 F.2d 123, 125-26 (7th Cir.1983) (“The reasonableness requirement of Rule 60(b) applies to all grounds; the one year limit on the first three grounds enumerated merely specifies an outer boundary.”).
Here, plaintiffs waited sixteen months before filing their motion. This delay — overlong in virtually any event — must be juxtaposed in this case against plaintiffs’ bold assertion that the supposed $60,000 settlement figure was agreed upon “within two months of the entry of the order of dismissal.” Appellants’ Brief at 7. If, as plaintiffs allege, they achieved so prompt a meeting of the minds, there is no valid excuse for having dawdled an additional fourteen months before alerting the district court to the changed circumstances. Such protracted delay scuttles any claim that plaintiffs’ motion was “made within a reasonable time.” See, e.g., Planet Corp., 702 F.2d at 126 (holding, on particular facts, that a six-month delay in making a Rule 60(b)(6) motion was unreasonably dilatory); Central Operating Co. v. Utility Workers of America, AFL-CIO, 491 F.2d 245, 253 (4th Cir.1974) (similar; four-month delay after notice of default judgment). Having failed to move for relief from the judgment within a reasonable time, plaintiffs’ attempt to bootstrap the alleged settlement agreement onto their “exceptional circumstance” argument is futile.
Fourth: An additional precondition to relief under Rule 60(b)(6) is that the movent make a suitable showing that he or she has a meritorious claim or defense. See Superline, 953 F.2d at 20; Woburn City Athletic Club, 928 F.2d at 5. The plaintiffs stumble over this hurdle. Their motion for relief from judgment is utterly silent on the exhaustion issue and the record is devoid of any indication that they, to this day, have ever complied with the FTCA’s administrative claim requirements. Exhaustion of plaintiffs’ administrative remedies is a jurisdictional prerequisite to the prosecution of their FTCA claims. See 28 U.S.C. § 2675(a); see also Swift v. United States, 614 F.2d 812, 814-15 (1st Cir.1980). Thus, notwithstanding plaintiffs’ assertion that they received some settlement offer from DOA, the district court was entitled to conclude “that vacating the judgment [would] be an empty exercise.” Superline, 953 F.2d at 20.
III. CONCLUSION
We are not unsympathetic to plaintiffs’ plight. It appears that a young boy suffered severe injuries; that at least one federal official believes the boy’s claim should be compensated; and that, as matters stand, plaintiffs have quite likely been victimized by a series of blunders on their lawyer’s part (for which they may have a claim against him). But in our adversary system, the acts and omissions of counsel are customarily visited upon the client in a civil case, see, e.g., Link v. Wabash R.R., 370 U.S. 626, 632-34, 82 S.Ct. 1386, 1389-90, 8 L.Ed.2d 734 (1962); United States v. $25,721. 938 F.2d 1417, 1422 (1st Cir.1991); Woburn City Athletic Chib, 928 F.2d at 6; United States v. 3,888 Pounds of Atlantic Sea Scallops, 857 F.2d 46, 49 (1st Cir.1988), and we see no legally cognizable basis for departing from this well-established principle here. On this poorly cultivated record, we cannot say that the district court abused its discretion in refusing to reopen the final judgment.
We do not believe, however, that the lawyer’s conduct should go unremarked. A judge has an abiding obligation to take or initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which the judge becomes aware. See ABA Code of 'Judicial Conduct Canon 3(D)(2) (1990). We are of the opinion that plaintiffs’ counsel’s handling of this matter before the lower court raises serious questions from start to finish. We therefore direct the district judge to review the record, conduct such further inquiry as he may deem appropriate, and take or initiate such disciplinary action, if any, as is meet and proper, the circumstances considered. The clerk of the district court shall also mail a copy of this opinion (translated into the Spanish language if the district judge believes such translation would be advisable) to each of the plaintiffs, at their respective home addresses. See, e.g., Doyle v. Shubs, 905 F.2d 1, 3 (1st Cir.1990) (per curiam).
Affirmed. Remanded to the district court, with instructions, for consideration of a collateral matter.
. Plaintiffs filed an opposition to the dismissal motion one day after the judge granted the government’s motion but five days before final judgment entered.
. It is transparently clear that the DOA staffer had no authority to settle the claim without the approval of an appropriate Justice Department official or, perhaps, the Secretary of Agriculture. See 28 U.S.C. § 2672 (providing that FTCA settlements in excess of $25,000 may only be effected with the prior written approval of the Attorney General or his designee; providing further that, apart from Justice Department personnel, only "the head of the agency" may serve as the Attorney General’s delegee).
.Plaintiffs’ motion for relief from judgment mentioned the negotiations, but contained no substantiation for the claimed settlement: no confirmatory correspondence, no affidavit from the DOA official who allegedly participated in the negotiations, no affidavit from plaintiffs’ lawyer.
. The rule states:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application, or
(6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment order or proceeding was entered or taken.
Fed.R.Civ.P. 60(b).
. Furthermore, the judgment in Bans entered pursuant to a stipulation; thus, the defendants had no right of direct appeal. After all, a party who has agreed to the entry of a judgment without any reservation may not thereafter seek to upset the judgment, save for lack of actual consent or a failure of subject matter jurisdiction. See Dorse v. Armstrong World Indus., Inc., 798 F.2d 1372, 1375 (11th Cir.1986); 9 James W. Moore et al., Moore's Federal Practice ¶ 203.06 (2d ed. 1993) (“A party that consents to entry of a judgment waives the right to appeal from it.”).
. The motion papers contain no allegation either that the DOA official who ostensibly conducted the negotiations knew about the entry of judgment or that plaintiffs' counsel discussed that subject with DOA personnel.
.'It is beyond peradventure that plaintiffs recognized the import of the order dismissing the case with prejudice. It was for this very reason that plaintiffs, in their opposition to the Rule 41 motion, argued vociferously that they should be allowed to take a voluntary dismissal without prejudice under Rule 41(a)(1) rather than having their case dismissed with prejudice under Rule 41(b). In support of this position, plaintiffs claimed that negotiations were ongoing and settlement was "imminent.” Given these contemporaneous statements, it is disingenuous of plaintiffs’ counsel to suggest that the continuation of settlement negotiations led him to forgo an appeal, thinking that the judgment could not block the realization of a negotiated settlement.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_r_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.
Charles W. MABRA, Petitioner-Appellant, v. Ramon L. GRAY, Respondent-Appellee.
No. 74-1690.
United States Court of Appeals, Seventh Circuit.
Argued April 25, 1975.
Decided July 3, 1975.
Rehearing Denied Aug. 11, 1975.
Charles F. Crutchfield, Dennis Mulshine, law student, Notre Dame Law School, Notre Dame, Ind., Joseph P. Bauer, Notre Dame, Ind., for petitioner-appellant.
William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.
Before CUMMINGS, STEVENS and TONE, Circuit Judges.
STEVENS, Circuit Judge.
The question presented is whether appellant’s Fourth Amendment rights were violated by a custodial search of his wife’s purse and person. Currency, identified as the proceeds of a tavern holdup allegedly committed by appellant Mabra, was obtained during the search.
The appeal is from the denial of a petition for a writ of habeas corpus; appellant’s conviction of armed robbery while masked and first degree murder had previously been affirmed by the Wisconsin Supreme Court. State v. Mabra, 61 Wis.2d 613, 213 N.W.2d 545 (1974). Mabra and his wife were apprehended about four hours after the crime, the police investigation having revealed that Mrs. Mabra had borrowed the getaway car from her brother that morning and had not yet returned it. After what was apparently a cursory search for weapons at the time of arrest, Mr. and Mrs. Mabra were taken to the police station in separate vehicles. Thereafter a custodial search of Mrs. Mabra’s purse revealed $40.20, including sixteen $1 bills and the balance in change; a search of her person disclosed an additional $539 in currency; this evidence was admitted over objection at Mabra’s trial. On appeal from the denial of a motion for a new trial, the state Supreme Court held that Mabra had standing to challenge the validity of the search but that since Mrs. Mabra’s arrest was supported by probable cause, the search was proper.
As a matter of federal law, appellant may not assert an alleged violation of his wife’s Fourth Amendment rights as a basis for suppressing the evidence taken from her person. Alderman v. United States, 394 U.S. 165, 171-175, 89 S.Ct. 961, 22 L.Ed.2d 176; Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697. Appellant argues that his rights were violated because the search of his wife was intended to uncover evidence that could be used against him; therefore, in the language used by Mr. Justice Frankfurter for the Court in Jones, he was “one against whom the search was directed.” 362 U.S. at 261, 80 S.Ct. at 731.
We may assume, even though the record is unclear on the point, that the police hoped to find evidence tending to incriminate Mabra when they searched his wife. Nevertheless, apart from that hope, they had two legitimate reasons for searching her that did not concern him. First, in connection with temporary incarceration at the police station, routine procedure includes a search to determine whether weapons or other dangerous instrumentalities are being brought inside. Second, since the police knew that Mrs. Mabra had procured the getaway car, they had reason to believe that she was involved in the robbery herself. Thus, if the search was designed to obtain evidence relating to the robbery, it was reasonable to expect that such evidence would be used against her. It is not accurate, therefore, to characterize the search as directed against her husband.
This is not a case in which Mabra can argue that there was an illegal invasion of his wife’s privacy for the sole purpose of obtaining evidence against him. We therefore need not squarely hold that he would not have standing to challenge the search in such circumstances, although we note respectable authority for a reading of the phrase “one against whom the search was directed” as merely another way of describing “a victim of a search or seizure,” rather than as an additional category of persons having standing to make the Fourth Amendment objection. See especially Chief Judge Murrah’s opinion in Sumrall v. United States, 382 F.2d 651, 654-655 (10th Cir. 1967), cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853, a case remarkably similar to this one on its facts. See also W. White & R. Greenspan, “Standing to Object to Search and Seizure,” 118 U.Pa.L.Rev. 333, 346-348 & n. 81 (1970). But see Judge Swygert’s concurring opinion in United States v. Lisk, No. 75-1033, 522 F.2d 228 (7th Cir. 1975).
M Neither the custodial search of Mrs. Mabra, nor the seizure from her person of the proceeds of the armed robbery violated Mabra’s Fourth Amendment rights. Cf. United States v. Lisk, No. 75-1033, 522 F.2d 228 (7th Cir. 1975). Accordingly, as a matter of federal law, he had no right to object to the admissibility of that evidence.
. Appellant’s counsel has correctly pointed out that a number of states have held that the deterrent purpose of the exclusionary rule justifies a defendant’s vicarious reliance on a violation of another person’s Fourth Amendment rights as a basis for objecting to the admissibility of illegally seized evidence. The leading case is Judge Traynor’s opinion in People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (1955). See also Wing v. State, 490 P.2d 1376 (Okl.Cr.App.1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1772, 32 L.Ed.2d 119. The Wisconsin Supreme Court also noted that the Model Code of PreArraignment Procedure, Official Draft No. 1, recommended by the American Law Institute on July 15, 1972, has recommended that the existing standing rules be relaxed to accord standing to a spouse of the person searched. See 61 Wis.2d at 621-622 n. 4, 213 N.W.2d 545. However, we are, of course, bound by the decisions of the United States Supreme Court; and it is perfectly clear that in a collateral attack on a state conviction, a federal court may only consider alleged violations of the petitioner’s federal constitutional rights as a basis for relief.
. The relevant sentence in Mr. Justice Frankfurter’s opinion reads as follows:
“In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.”
362 U.S. at 261, 80 S.Ct. at 731. The descriptions of (1) “a victim of a search”, and (2) “one against whom the search was directed” may be read as appositive.
. Nor do we believe there is any merit to Ma-bra’s contention that he was denied due process by the failure of the prosecutor to specify in the information which of the three paragraphs in Wis.Stat. § 939.05(2) (Parties to Crime) he was relying upon. State v. Cydzik, 60 Wis.2d 683, 688, 211 N.W.2d 421, 425 (1973).
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_casetyp1_7-2 | C | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Paul T. BERNARD; Charles W. Pannhorst, Jr.; Keith D. Mutschler; and Arthur Aliperti, Plaintiffs-Appellants, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee.
No. 87-4154.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 28, 1988.
Decided March 10, 1989.
Rankin M. Gibson (argued), Lucas, Pren-dergast, Albright, Gibson & Newman, Columbus, Ohio, for plaintiffs-appellants.
Thomas V. Williams, Porter, Wright, Morris & Arthur, Columbus, Ohio, Wayne A. Schrader (argued), Gibson, Dunn & Crutcher, Washington, D.C., for defendant-appellee.
Before KENNEDY, GUY and RYAN, Circuit Judges.
RYAN, Circuit Judge.
Plaintiffs-appellants appeal a district court order granting partial summary judgment dismissing several consolidated claims they brought against their former employer, Rockwell International Corporation (“Rockwell”). Appellants claimed that Rockwell 1) terminated their employment in breach of their employment contracts, 2) fraudulently induced them to enter into those contracts, and 3) owed them vacation pay. We conclude that the material facts considered by the district court in granting the defendant’s motion for summary judgment would not have allowed a jury reasonably to find for the plaintiffs on any of the foregoing claims. Accordingly, the district court’s order granting summary judgment is affirmed.
I.
Paul T. Bernard, Charles W. Pannhorst, Jr., Keith D. Mutschler, and Arthur Aliper-ti were formerly employed by Rockwell at its Columbus, Ohio facility. When they were hired from other companies, each was issued, and signed, a “Report for Work Notice and Employment Agreement.” That agreement provided, in pertinent part:
1. Employment Certification. I realize that it is my duty to perform my job faithfully and agree that my employment shall be in accordance with Com pany policies, rules and regulations, that may be posted or published at any time. I understand that changes in the type of work, hours, rates of pay, shifts, days off and total hours worked each day or week may be made at the discretion of the Company; and are not within the control of the Employment Section. I also realize that all employees except those reinstated are subject to a probationary period following hire. [Plaintiffs’ emphasis].
* * * * * *
5. Agreement Regarding Employment. It is agreed that the employment of the undersigned by Rockwell is at the will of either party and may be terminated on notice to the other as prescribed by applicable Rockwell procedures. Other arrangements, agreements or understandings, if any, regarding the period of the undersigned’s employment, except any letter agreement regarding relocation expenses, are hereby cancelled and superseded. [Defendant’s emphasis].
Each plaintiff later participated in an orientation session at which Rockwell gave each a copy of its Employee Handbook, a copy of the Plant Rules, and information concerning its Standard Operating Manual. In relevant part, the handbook provided:
Standards of Conduct
All organizations have guidelines of personal conduct to maintain and safeguard the interests of all members of the group.
The Company’s Plant Rule System provides for a standard of business conduct with rules that are designed to be both manageable and equitable. The administration of employee discipline is a management responsibility and your supervisor will apply these Company rules in a manner that is fair, consistent, and in accordance with the Company's discipline philosophy. This philosophy emphasizes progressive discipline, with the objective of being corrective rather than punitive. Under the Plant Rule System, discipline for rule violations is assessed in proportion to seriousness of the infraction. Repetitive violations bring stiffer penalties including disciplinary time off and/or possible discharge action. The system includes a method whereby good behavior reduces an employee’s previous discipline charges. Specific rule violations are documented by the issuance of either a Warning Notice or a Supervisor’s Personnel Memorandum.
The rules of personal conduct are posted throughout the Company’s premises or are available from your supervisor.
Attendance and Job Performance
The profitable operation of the company depends to a great extent on the regular attendance of our employees. A serious burden is placed on the supervisor in planning work operations and schedules when the supervisor has no assurance that the employees will regularly report to work and with disruptions caused by having to shift employees around to cover absentees. Therefore, attendance is an essential element of job performance and is an important factor in continuing your employment with the Company. All employees are required to report unplanned absences from work, including tardiness of absence for an entire work-shift. If you know you will be absent, make the necessary arrangement with your supervisor in advance. This will make planning easier and reduce the pressures on your fellow employees. If you do not know in advance, call your supervisor at the beginning of the work shift.
Ernest L. Sullivan, Manager of Employee Relations at the Columbus, Ohio facility stated in a sworn declaration that while Rockwell intended to follow these policies set out in the employee manuals, it did not intend the policies to modify the express contract provisions to which both parties had assented. Sullivan stated that Rockwell published the handbook several years before any of the plaintiffs began their employment with the company.
Plaintiffs-appellants also based their claims for pro rata vacation pay on the company policies. The Employee Handbook stated:
You are encouraged to take advantage of your earned vacation by taking time off from work. Vacations are of value to you and the company in terms of morale, health, and efficiency. You are eligible for 80 hours of vacation after completion of your first year of employment. This vacation is increased to 120 hours following the completion of 10 years of continuous service, and to 160 hours following the completion of 20 years of continuous service. Every attempt is made to accommodate company requirements and production schedules in the scheduling of vacations — the company may reschedule vacation time if your skills are needed on a critical operation. Vacations may be taken in various forms, either continuous, in partial weeks, or a day at a time, as long as it does not unduly disrupt the continuity of your work function. You are required to take the full amount of vacation within your current anniversary year unless, in special situations only, approval is granted to carry earned vacation hours beyond your anniversary date.
Rockwell asserted, however, that employees earn paid vacation, not pro rata, but “upon completion of each year.” Sullivan stated that according to the applicable provision of the company’s Standard Operating Manual, F-4.02.1, also available to the employees, “[vjacation benefits for partial years of service are not paid upon termination of employment on a pro rata basis if the employee is terminated for any reason other than inability to meet company medical standards or resigns other than to enter active service in the armed forces or retire under the provisions of a company retirement plan.”
Rockwell fired Aliperti, Mutschler, and Pannhorst on January 24, 1985 because they failed to attend a management status meeting on January 18, 1985. Bernard submitted a letter of resignation on January 17, 1985, intending it to take effect April, 1985. Rockwell, however, accelerated his termination date making it effective immediately. On March 12, 1985, the four men initiated a lawsuit in Ohio state court, each seeking in excess of $450,000, alleging wrongful discharge, breach of promise to pay overtime, failure to pay accrued vacation time, and misrepresentation by Rockwell. Rockwell properly removed the suit to federal court in April and answered the complaint in May. Approximately one year later, on March 31, 1986, Rockwell moved for summary judgment based upon the complaint, depositions, answers to interrogatories, employment contracts, and employee handbooks. On October 8, 1987, the trial court granted summary judgment on all claims except those for unpaid overtime. The plaintiffs dismissed their claims for overtime pay in order to appeal the granting of summary judgment with respect to their other claims.
II.
Employment at-will
Each plaintiff, at time of hire, signed a written “Employment Agreement” which expressly provided that it was “agreed that the employment of the undersigned by Rockwell is at the will of either party and may be terminated on notice to the other as prescribed by Rockwell procedures.” Absent a statutory restriction, Ohio law recognizes no exceptions to the rule that an employment contract terminable at will may be terminated at any time, for any reason, or for no reason. See Peterson v. Scott Constr. Co., 5 Ohio App.3d 203, 205, 451 N.E.2d 1236 (1982), and cases cited therein. It is difficult to imagine how the plaintiffs and Rockwell could have stated any more clearly that their agreement was for a contract of employment terminable at will, and plaintiffs offered no evidence to indicate that they did not understand the terms of their express contract. Rather, they urge that an implied-in-fact contract should prevail over the express “at-will” employment contract.
Ohio law and an increasing number of jurisdictions have indicated that in employment-at-will cases:
[T]he employer’s promulgation of employment manuals or employer handbooks, or other writings styled “personnel policies and practices,” can create contractual rights which the employer may not abridge without incurring liability.
When such oral or written modifications of the original employment contract satisfy the paradigm elements essential to contract formation — ie., offer, acceptance, consideration — binding obligations arise.
Helle v. Landmark, Inc., 15 Ohio App.3d 1, 8, 472 N.E.2d 765 (1984) (citations omitted).
But, the specific issue in Helle was not the ability to terminate at-will, but the existence of a severance pay policy. That court found that through both conversation and a written policy the employer had stated to employees that they should not quit the troubled company because they would be eligible for substantial severance pay if they remained longer. Based on these representations the plaintiffs stayed with the company, thereby binding it to a new contract. That case did not involve the ability to terminate.
Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), is Michigan law and therefore not binding in this Ohio case. But plaintiffs argued Toussaint and Helle relied on its reasoning, so we address it. Whatever can be said for Toussaint as the doctrinal progenitor of today’s burgeoning volume of employment rights litigation in this circuit, it is clear that it did not involve, as this case does, an express written employment contract; rather, in that case, Blue Cross and Blue Shield of Michigan hired Mr. Toussaint in an oral agreement for an indefinite duration. Michigan law would normally have interpreted this as an employment at-will situation. But a company officer indicated through oral representations at the time of hiring that the employees would not be fired if they were performing satisfactorily. In addition, a supervisor’s manual, which was given to Mr. Toussáint at the time of hiring, indicated that company policy was “to treat employees leaving Blue Cross in a fair and consistent manner and to release employees for just cause only.” 408 Mich, at 617, 292 N.W.2d 880. Based on those representations and finding no inconsistent representations Toussaint concluded that a jury could reasonably have found that employment only terminable for cause. But Tous-saint does not indicate that employers are always contractually bound by employee manuals. For example, if employers seek to defeat claims by employees that an at-will employment relationship evolved into one terminable only for cause, they may “requir[e] prospective employees to acknowledge that they serve[] at the will or pleasure of the company____” 408 Mich. at 612, 292 N.W.2d 880.
Requiring such acknowledgement is exactly what Rockwell did in this case. The express employment at-will language of paragraph 5 of its contract, entitled “Agreement Regarding Employment,” distinguishes this case from those appellant cites. Moreover, the language in paragraph 1 of the “Report for Work Notice and Employment Agreement” that appellants emphasize in support of their argument that the contract incorporated all Rockwell policies, rules, and regulations does not purport to bind Rockwell to those policies, only the employee. In all events, a jury could not reasonably have concluded that the parties intended a three-year-old handbook of company policies and goals to modify an express provision of a written employment contract signed by the parties, indicating that employment was at-will. In Reid v. Sears, Roebuck & Co., 790 F.2d 453 (6th Cir.1986), this court, applying common law principles, concluded that Michigan courts would not imply a contract that would directly conflict with an express contract absent a showing that the parties intended contractual modification. More recently, in Nora v. Carrier Corp., 861 F.2d 457 (6th Cir.1988), this court affirmed summary judgment that permitted at-will discharge pursuant to the express terms of an employment agreement despite allegations that “ ‘the statements contained in Defendant’s policy, procedures, standard practice, appraisals, and past history of operation create[d] express contracts of employment.’ ” Id. at 459. Appellants cited authorities do not indicate that on these very similar facts Ohio courts would rule differently.
Pro rata vacation pay
The provision upon which plaintiffs rely for their claim that Rockwell owes them pro rata vacation pay indicates that eligibility exists “after completion” of one year of employment. In other words, no one is entitled to a paid vacation during the first year of employment but is entitled, during the second year, to take the 80 hours they previously accrued. Upon starting a third year employees would be entitled to the 80 hours accrued as a result of successful completion of their second year. The evidence before the district court indicated that Rockwell always interpreted its policy in that fashion. Because the policy is not ambiguous and was not rendered ambiguous by the company’s consistent interpretation, plaintiffs cannot now claim that, having failed to complete their second year, they are entitled to vacation pay pro rata.
Misrepresentation, Promissory Estoppel
Klott v. Associates Real Estate, 41 Ohio App.2d 118, 120-21, 322 N.E.2d 690, 692 (1974), indicates that in Ohio recovery for fraud requires:
actual or implied representations or concealment of a matter of fact which relates to the present or past, and which is material to the transaction, made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; with the intent of misleading another into relying upon it; and reliance upon it by the other person with a right to so rely; with resulting injury as the consequence of such reliance.
In this case, the district judge found that:
The plaintiffs have not produced any evidence showing that Rockwell intended to mislead them. Additionally, it is undisputed that plaintiffs did not learn of the vacation and discipline policies until they received their employee handbooks, which was after they arrived in Ohio. Therefore, they could not have relied on these representations on deciding to move to the Columbus area. Since plaintiffs have failed to produce evidence in support of these essential elements of their claim, defendant is entitled to summary judgment on these counts.
These findings were not disputed. They indicate that the plaintiffs’ fraud claims are legally insufficient.
On appeal, although not in their complaint, appellants raise the issue of promissory estoppel. They cite Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150 (1985), apparently for the proposition that under an estoppel theory it matters not that the employees learned of the policies after they agreed to employment. That would be a novel estoppel theory indeed; unfortunately Mers is nothing but a traditional estoppel case. Promissory estoppel theory requires detrimental reliance. Mers, 483 N.E.2d at 154; 1 Restatement of Contracts 2d, § 90. Appellants’ offer no evidence that they forewent other employment opportunities or anything else after learning of the “promises” they allege Rockwell made through its Benefits Handbook. Certainly Rockwell gained their services, but services for which it previously contracted with them, and for which it compensated them. Con-cededly, each of the plaintiffs left another job to go to Rockwell, but none of them left a job based on the alleged misrepresentations made in the Employee Handbook, because they discovered the handbook only after leaving their prior jobs, agreeing to Rockwell’s employment contract, and moving to Columbus, Ohio.
AFFIRMED.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
songer_appel1_1_3 | J | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
OREGON-WASHINGTON BRIDGE CO. v. THE LEW RUSSELL, Sr. et al.
No. 13051.
United States Court of Appeals Ninth Circuit.
May 6, 1952.
Gray & Lister and H. Lawrence Lister, Portland, Or., for appellant.
Wood, Matthiessen & Wood, Erskine Wood and Lofton L. Tatum, Portland, Or., for appellees, The Lew Russell, Sr. and her owner, Russell Towboat & Moorage Co.
Thomas J. White, and William F. White, Portland, Or., for appellees, Crane Barge Ño. 25, and her owner, Russell Family, Inc.
Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.
DENMAN, Chief Judge.
This appeal is taken by the libelant, Oregon-Washington Bridge Company, from a decree in admiralty that its libel against the respondents, Russell Towboat and Moorage Company and Russell Family, Inc., be dismissed and that the respondent, Russell Family, Inc., which had filed an intervening libel, recover from the libelant the sum of $3,306.11 for injury to a crane belonging to Russell Family, Inc. The libelant is owner of a bridge crossing the Columbia River at Hood River, Oregon; the respondent Russell Towboat and Moor-age Company is claimant of the tug, “Lew Russell, Sr.”; and the respondent Russell Family, Inc. is claimant of Crane Barge No: 25 and intervening libelant against the Bridge Company. The appellant contends that the district court erred in holding that libelant’s negligence was the cause of the damage resulting from the collision of the tug and barge with the bridge, and that the respondents were not negligent.
The Hood River bridge was opened in 1924. It had no lift span originally, but when Bonneville Dam was built a few miles downstream, the level of the Columbia River was raised to such an extent that it became necessary to have a lift span. Such was built in 1940 under the direction of the War Department and at federal expense. At the center of this span was a light which turned red when the span started to lift and which- turned green when the span readied its maximum height. An air whistle operated by electric motor was also installed on the bridge. The bridge tender’s house was just north of the lift span and about 25 feet above the roadway.
Regulations of the War Department required twelve hours’ notice to the bridge tender from any river craft which could not pass under the bridge at its normal position. The call for the opening of the span when the craft was in position to pass was one long, two short and one long blast. The twelve hours’ notice for an 8:30 A. M. passage was given by the tug; but the tug did not arrive at the appointed hour. Three hours later, the bridge tender spotted it moving upstream, called an electrician to stand by, and proceeded to raise the span without a signal from the tug.
When the span had risen 13% feet from the roadway, the electric power supplied by a Public Utility District failed through no fault of the bridge. The air whistle supplied from this same source of electric energy also failed as did the red light at the center of the span. The bridge tender rushed out of his control tower 25 feet above the roadway and shouted and waved to the tug which by this time had begun to approach the bridge on the assumption that the lift span had been raised to the correct height by the tender. The warning was not observed by the pilot of the tug.
As the tug approached the bridge, it was pushing a gravel barge directly ahead of it and Crane Barge No. 25 forward and starboard of the tug. The crane barge was 200 feet long and it was carrying a crane welded to its deck about 50 feet from the stern. A boom 110 feet long extended upward and forward from the crane and it was loaded with a small L.C.M. When the tip of the boom was about 25 feet from the bridge, the pilot realized that it was about 3 feet short of clearance under the lift span. He reversed his engine, too late to prevent the impact, and it is alleged that the bridge was damaged to the extent of some $30,000.
The district court held that the bridge was negligent in not maintaining an emergency or auxiliary signaling device which would operate independently of the power source which supplied the lift span itself. We agree with the court’s conclusion. The bridge is required to exercise due care under the circumstances; and it is undisputed that the electric power supply to the bridge had failed at least twice in the preceding one and one-half years. The district court found that it had failed at least three times previously. With this experience in mind, a prudent bridge owner would have realized that his signaling whistle would fail if power to the lift span failed and would have taken steps to secure an auxiliary device.
The libelant makes several attacks on this conclusion that the standard of due care required an auxiliary signal. The first is that there is no proof that a whistle would have been heard if one were available. This is the same kind of problem that faced the court in The T. J. Hooper, 2 Cir., 60 F.2d 737, where Judge Learned Hand held that ocean-going tugs would have to be ■equipped with wireless receiving sets in order to discharge their duty of seaworthiness. It was guesswork to some extent for him to say that if tire tugs in that case had carried wireless, the damage caused by storm could have been averted. The wireless might have failed, as • indeed private radio receiving sets aboard the tugs 'had, or the tug masters might not have believed weather warnings received on the wireless. ■In our case, it was shown that other bridges crossing the Willamette River had auxiliary warning devices which were commonly used. Since it was also testified that the tug could have stopped in one-half the length of its tow, or about 100 feet, a warning whistle at rather short quarters would have turned the trick. In any event, there is no reason to suppose that the district court specifically required a whistle as the auxiliary warning. It did not say so; and the regulations of the War Department applied to this bridge subsequent to the accident have specified a red flag as the auxiliary warning device, rather than a whistle.
No provision was made in the regulations by the War Department for auxiliary warning devices at the time of the collision. Complete fulfillment of these regulations by the bridge operator does not meet the standard of care in this case, however. The regulations of the War Department do not purport to set the ultimate standard of care in civil actions; and in the absence of a preemption of this function by the department, the courts must determine the standard of care in this civil action. The emphasis of the regulations is upon the action of the bridge operator in preventing the bridge from being an obstruction to navigation.
The lift span was seldom required to be raised for the passage of river craft and the libelant argues that the possibility of a power failure during the raising of the lift span was remote. This is true as a matter of probability; but it cannot be gainsaid that such an occurrence was shown to be a foreseeable event because of the past experience with power failures on this particular bridge. Sine© a slight act on the part of the bridge operator was necessary to prepare for this forseeable although improbable happening, the bridge operator was negligent in not doing that act.
The libelant argues that neglect of the tug and barge also contributed to the damage because the tug (1) should not have proceeded after the lift span stopped on the assumption that it was high enough, but should have awaited -the bridge’s affirmative signal to proceed, and (2) should -have had a lookout other than the pilot.
The tug did not give the signal to open which was prescribed by the regulations, but this was immaterial here since the lift span was raised without a signal. Having observed the raising of the lift span and its stopping, the tug pilot was entitled to assume that the bridge was ready for the tug’s passage, in the absence of any circumstances to warn him of the danger. The Louise Rugge, 3 Cir., 234 F. 768; The Kard, 3 Cir., 38 F.2d 844, 848. This is like the case where a tug has given a signal to open and may then assume in the absence of a warning to the contrary that the draw bridge will be timely opened. Clement v. Metropolitan West Side El. R. Co., 7 Cir., 123 F. 271. The rule is not changed here because the bridge was in the custom of giving a blast to proceed. The testimony on the existence of this custom on the part of the bridge is in the record; but in any event there is no evidence that the custom was communicated to the Columbia River craft and indeed there is testimony by the libelant’s witness that he had no knowledge of any notice of the custom being given to the Columbia River craft. Consequently, the tug was not required to wait for an affirmative signal to proceed.
The captain of the tug was standing alongside and 7 feet below the pilot watching the approach to the bridge. The appellant charges negligence in failing to have a lookout at the bow of the barge carrying the uplifted crane. If a lookout at the bow could have observed the danger sooner than the pilot and the tug’s captain, then the tug would probably be at fault. As the Supreme Court said in British Columbia v. Mylroie, 259 U.S. 1, 7, 42 S.Ct. 430, 432, 66 L.Ed. 807, “The duty of'the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend.” That case also involved the striking of a fixed thing, land, and is more apposite to our case than other cases cited to us which deal with navigation on the open sea or collision between moving vessels. In the Mylroie case, the tug was proceeding through foul weather and off its course without a lookout, and it is clear that a lookout in the bow would have sighted land sooner than the pilot whose vision was obscured by a dirty coal smoke. Furthermore, the vessel was apprised of danger and knew that it was faced with an emergency situation.
In our case, we have no caution bom of danger brought home to the crew of the tug. Their approach to this bridge was like dozens of others previously made. The pilot was in the pilot house in the bow of the tug about 25 feet above the level of the water. Directly ahead of the tug was a loaded gravel barge and to the starboard and forward of the tug was Crane Barge 25. The total length of the tug and tow was about 265 feet. The pilot of the tug testified that to bring them to- a dead stop, it required half the length of the tow. The end of the crane was 3 feet above the lower side of the lift and a few feet ahead of and 70 feet above the bow of the barge. A lookout could not have determined the 3-foot difference until just before the moment of impact, certainly not until nearly the end of the 100 feet of stopping distance. A lookout would not have improved the situation. The Catalina, D.C.S.D.Cal., 18 F.Supp. 461; cf. The Blue Jacket v. Tacoma Mill Co., 144 U.S. 371, 12 S.Ct. 711, 36 L.Ed. 469; The Nacoochee, 137 U.S. 330, 11 S.Ct. 122, 34 L.Ed. 687.
The decree is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_casetyp1_7-3-5 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
UNITED STATES v. SMITH.
No. 6484.
Circuit Court of Appeals, Ninth Circuit.
Jan. 18, 1932.
Rehearing Denied Feb. 23, 1932.
Anthony Savage, U. S. Atty., and Cameron Sherwood, Asst. U. S. Atty., both of Seattle, Wash. (William Wolff Smith, Sp. Counsel, and Bayless L. Guffy, Atty. Veterans’ Administration, both of Washington, D. C., and Lester E. Pope, Atty. Veterans’ Administration, of Seattle, Wash., of counsel), for the United States.
Graham K. Betts, of Seattle, Wash., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.
WILBUR, Circuit Judge.
This is an appeal from a judgment against the government on a war risk insurance policy for $10,000 predicated upon the allegation and proof that the insured was totally and permanently disabled from the date of his discharge, which was during the life of the policy.
The evidence shows that the insured enlisted in the Army in July, 1918, and that he was honorably discharged November 20, 1918, the record of his discharge stating that he was suffering from a nervous disease. Shortly after his enlistment he was given the usual typhus inoculation, and following such inoculation, insured was confined to the hospital where he received a spinal puncture, and remained in the hospital until his discharge. The medical history of the insured shows that he was treated for syphilis soon after his enlistment, and the medical testimony introduced at the trial shows that he was suffering from paresis. .One of the medical experts, Dr. Royal B. Tracy, testified that in his opinion appellee was suffering from general paresis at time of his discharge.
- After his discharge, the evidence shows, he was nervous, that he mumbled in his speech and could not hold a conversation, that he had lost weight, that he tried to drive a truck for his brother but was not able to do the work. He was employed by the Great Northern Railway Company as a switchman in November, 1918, the job he had held before his enlistment, and worked ■ there until November, 1920, not always full time, but the greater part of the time, receiving the same wages as other men who were doing the same work. However, the witnesses who had worked with him testified that he made many mistakes, some very serious ones; that he was unreliable and aeted like a man who was demented. These co-workers testified that they overlooked his mistakes, relieved him from some of his work, and carried him along because he belonged to the Union, and never made any eomplaint to the officers of the company, because they did not want him to lose his position. In short, that he was not able to do the work.
He was committed to Steilaeoom Hospital for the feeble-minded in July, 1921, where he remained until his death on September 30, ,1921.
In plaintiff’s amended complaint there are two causes of action set forth, the first, based upon allegations that the insured was totally and permanently disabled from the date of his discharge and during the period the policy was effective from payment of monthly premiums. The second cause of action is based upon allegations that the Medical Board of Review and Board of Appeals of the United States Veterans’ Bureau had made a compensation rating in favor of the deceased from a date prior to the lapse of his policy, to wit, from the date of his discharge, which rating was sufficient to pay premiums on his policy to and including the date of his recognized total and permanent disability to wit, July 27, 1921, which compensation was due and uncollected on said date. That, by reason of the foregoing, the said policy of insurance sued upon did not lapse, but was kept in full force and effect until the date of recognized total and permanent disability and thereafter until the date of his death, to wit, September 30, 1921, by reason of and under the terms of section 305 of the World War Veterans’ Act as amended (38 USCA § 516). The District Court having found for the plaintiff on the first cause of action, it was unnecessary to consider the second cause of action set out in the eomplaint, and it was accordingly disregarded. It will be considered here only in disposing of appellant’s first assignment of error, which is that the lower court erred in overruling its objection to the introduction of bureau ratings, on the ground that they were immaterial.' This evidence was clearly admissible in proof of the second cause of action set forth in the complaint and, even though mot competent to show total and permanent disability, it was not error to admit such bureau ratings. Silberschein v. U. S., 266 U. S. 221, 45 S. Ct. 69, 69 L. Ed. 256; Armstrong v. United States (C. C. A.) 16 F.(2d) 387; Maddox v. United States (C. C. A.) 16 F.(2d) 390.
The second assignment of error is that the court erred in overruling appellant’s objection to the introduction of bureau reports of physical examinations of plaintiff on the ground that they were not properly identified, and on the further ground that the government had no opportunity to cross-examine the physicians who made the reports. The first ground of objection, namely, that the reports were not properly identified, is not open to the appellant here because not urged in the court below. Noonan v. Caledonia Min. Co., 121 U. S. 393, 400, 7 S. Ct. 911, 30 L. Ed. 1061. The other ground of objection to the bureau reports is without merit, as it has been held in numerous eases that reports of physical examinations made by the Veterans’ Bureau may be admitted in evidence, in war risk insurance cases. Runkle v. U. S. (C. C. A.) 42 F.(2d) 804; United States v. Cole (C. C. A.) 45 F.(2d) 339; United States v. Stamey et al, 48 F.(2d) 150 (C. C. A. 9). The ground of objection urged in appellant’s brief that this report is inadmissible as containing hearsay statements and self-serving declarations of the appellee to the Veterans’ Bureau was not included in the assignments of error, and therefore is not before this court for review (Wight v. Washoe County Bank, 251 F. 819 [C. C. A. 9]), nor is the position tenable.
The third point raised by the appellant is covered by the following additional assignment of error: “1. That the trial court erred in entering judgment in favor of the ' plaintiff in violation of the provisions of § 300 of the World War Veterans’ Act and United Stales Code Annotated, Title 38, § 511, in that Lilly Gladys Whitehead was the only beneficiary designated in the policy of insurance herein- sued upon.”
Assuming that the wife, Lilly Gladys Whitehead, had been named by the veteran as the beneficiary of his insurance, she would he entitled to the monthly payments accruing after his death, and because of such death, so long as she survived, until the total number of payments covered by the policy had been made. The estate of the decedent would be entitled to all monthly payments accruing before his death, and, "in the event the beneficiary died before she had received the total number of payments called for by the poliey, the estate would be entitled to the remaining payments. (Section 303 World War Veterans’ Act, 43 Stat. 1310 [38 USCA § 514]).
We will first consider the relative rights of the plaintiff and of the beneficiary. In regard to the rights of the beneficiary, the record is somewhat confusing, both in the trial court and on appeal. Before adverting to this situation, we would call attention to the elaims made by the respective parties in their briefs in this court in reference thereto. The appellant claims that the court erred in awarding judgment for the installments aecruing subsequent to the death of the insured? In support of this contention, it is said: “Plaintiff adduced no proof that no person within the permitted class was designated as beneficiary of the contract sued on, or that such person was designated and did not survive tlie insured, or survived him, but died prior to receiving all the installments due under the contract. Therefore, the court erred in rendering judgment for plaintiff for all the installments accruing subsequent to the death of- insured” — citing, in support of the right of the divorced wife, our decision in United States v. Conklin, 27 P.(2d) 45. The appellee answers this contention as follows: “This alleged error appears to have been an afterthought on the part of the defendant, It was not made the basis of any objection at „ . . , ,, ,, the tnal, nor was the matter apparently considered of any moment during the course of tbe tnal. Tbe judgment was O.K/d by tbe „ i 5 , . ,, , attorney for tbe defendant as well as by tbe J n tt •> -> i tt x , -r> attorney for the united ¡States veterans7 Bu- , ream No amendment was ever proposed and it was not urged or suggested as ground ■ for a new triaI and at the ,time,this appeal was taken no error was assigned on account thereof.
It is further stated that the additional assignment of error has been departed from in the brief, in that the assignment of error was based upon a violation of section 300 of the World War Veterans’ Act (38 USCA § 511) and appellant’s brief claims a violation of section 303 of the World War Veterans’ Act (38 USCA § 514). Appellee calls attention to the rules of this circuit with regard to the assignments of error, and claims that under this rule the error complained of is not available to the defendant. It is also claimed that the assignment is without merit because of the provision of the World War Veterans’ Aet permitting the brihging into a suit upon the policy “all persons having or claiming to have an interest in such insurance.” 38 US CA § 445. The brief continues: “Under this provision the named beneficiary was duly and regularly served with summons and complaint by publication and upon her fail-are to appear default was entered against hf\ It eertarnly was not within the contem?latl0I> C^’es® ^ a dec?ased ”d be foreclosed» from receiving benefits of the insurance where a possiWe named beneficiary has long since disapP*ared and ls+ *ot ,be f °™d- Thm court ta^ notl.e® of the fact that sec-tion 19 aforesaid was intended to accomplish fme ParP°se Md must have been intended fora saf as bas arisen If Bef 303 “ *> 19 °f *be act> tbls Gom* mast coastra® two together aad §fe to the interpretation rea, soaab ? to b? gathered^ therefrom, and the logical interpretation is that^ where a beneficiary has disappeared, ber rights can be adjudicated under section 19, providing b°w adverse claimants might be brought into court, and the failure of this beneficiary to appear and defend her claim, if any, in aecordanee with the summons lawfully served upon her, in accordance with directions eon-tained in section 19 of the act, forecloses her from further claim in the premises; other-wise there could never be any determination of claims arising under this act.”
_ ., , . We will now consider these respective contentions wia referene6 to the issues in the but ba£ore stating the iss«ues M raised , ,, 7 n by tbe complaint and answer we would call r, n « , ,, attention to tbe record witb reference to tbe ... e¡ T *n m j vxn i z joining of Lilly Gladys Whitehead as a par-to ^ liti tion. After issue joined mment ñled a vei,ified titioa ^ whiflh it is stated that in the policy of war risk in-suranee the veteran procured his wife, Lilly Gladys Whitehead, to be designated as the beneficiary; that she was divorced from her husband August 1,1921; that she was a benefieiary within the permitted class at the time she was designated as a beneficiary in the policy, and that she was the designated benefieiary at the time of the maturity of the in-suranee stated in the complaint, to wit, at the time of the death of the veteran on September 30, 1921. The petitioner prayed that an order should be entered “requiring plain-tiff herein to join as an additional party defendant in this action Lilly Gladys White-head.” The motion was brought on for hear-ing and was granted July 22, 1929. Thereafter, on April 15, Graham K. Betts, one of the attorneys for the plaintiff, filed an affidavit stating, among other things, “that upon motion of the defendant, one Lilly Gladys Whitehead, who was designated as beneficiary in the said policy, was ordered to be joined as party defendant in lie said canse by order of this court; that the said Lilly Gladys Whitehead has not been located to effect service of summons and complaint upon her, and that her whereabouts are unknown.” It is further stated that the United States marshal made a return “Not found,” and therefore it would be necessary to effect service of summons by publication. The court thereupon made an order based upon said affidavit, staging, among other things: That Lilly Gladys Whitehead was by order of court made a party defendant; that she could not be located; and that summons should be served by publication for six weeks. This summons was published in the Daily Journal of Commerce once a week for five weeks. The summons was signed by the attorneys. It was entitled, Jessie Smith, Administratrix of the Estate of James W. Whitehead, deceased, Plaintiff, v. United States of America, and Lilly Gladys Whitehead, Dófendants. It was addressed to Lilly Gladys Whitehead and she was directed to “defend the above entitled action in the above entitled court and answer the complaint of the plaintiff and serve a copy of your answer upon the undersigned attorneys * * * and in case' of your failure so to do, judgment will be'rendered against you according to the demand of the complaint, which has been filed -with the clerk of said court. The object of this action is to determine the rights of this plaintiff on a policy of war risk insurance issued to the deceased.”
Thereafter, the default of Lilly Gladys Whitehead was entered. The case was tried without a jury in accordance with the written stipulation of parties. At the conclusion of the trial, the court made its findings of fact and conclusions of la,w. With reference to the defendant Lilly Gladys Whitehead, the court found as follows: “That the defendant, Lilly Gladys Whitehead, was duly and regularly served in this action by publication made in the manner provided by order of this court made and entered in the 15th day of April, 1930.”
It will thus be observed that it was apparently assumed by the parties in the trial court that, upon the entry of the default of the beneficiary, she thereby forfeited her rights in the policy. This, of course, is not true. Moreover, in this connection it should be stated that she was not made a party by any amended pleading, and that no claim is asserted in the complaint adverse to her. However, although the bringing in of Lilly Gladys Whitehead was proper, it was entirely unnecessary. The rights of the administratrix were separate and distinct from those of the beneficiary and the action could have proceeded to judgment without the presence of the beneficiary. Sec decision by Judge Cavanah in Gordon v. United States (D. C.) 37 F.(2d) 925. In view of that fact, we will further examine the record upon the assumption that the beneficiary was not a party to the action to determine the question at issue between the appellant and appellee. In paragraph III of the amended complaint, it is alleged as follows: “That immediately upon enlisting, desiring to bo insured against the risks of war, the said James W. Whitehead applied for a policy of War Risk Insurance in the sum of $10,000 designating no authorized person as beneficiary on said policy; (1) that thereafter, there was deducted from his monthly pay as premium for said insurance, the sum of $6.60 per month, and a policy of insurance was duly issued to him, by the terms whereof, the defendant agreed to pay said James W. Whitehead, the sum of $57.50 per month in the event he suffered total and permanent disability, or in the event of Ms death to make 240 such payments to his estate.”
The defendant answered this paragraph as follows: “.For answer to paragraph III of the first cause of action of plaintiffs amended complaint, defendant admits that on July 30, 1918 James William Whitehead applied for war risk insurance in the amount of $10,-000 payable in monthly installments of $57.50 each, in the event of his death or permanent and total disability while the contract of insurance was in force and effect, and admits that the premiums were paid thereon through November, 1918, but denies each, every a.nd singular the remaining allegations therein contained.”
While the contention made by the appellant is that the appellee failed to prove that there was no designation by the insured of a beneficiary, a more serious difficulty, one arising from the face of the record., is that there- is no sufficient allegation in the complaint that there was no such beneficiary. The statement in paragraph III of the complaint above quoted “designating no authorized person as beneficiary on said policy,” is a mere recital, and therefore not sufficient to show that the plaintiff was entitled to recover monthly installments accruing after the death of the veteran. Even if wo assume that the recital above mentioned amounted to an allegation that the veteran designated no person as-beneficiary, the allegation relates to the application for a policy of war risk insurance made upon enlisting, and is entirely consistent with the fact that he subsequently made such a designation. The allegation that by the terms of the policy the government agreed to pay 240 installments of $57.50 to his estate must be read in the light of the fact that the veteran could at any time designate a beneficiary who, in the event of his death, would receive these payments.
The allegations of the complaint, therefore, are insufficient to show that the administratrix of the estate of the veteran was entitled to receive monthly payments accruing after the death and because of the death of the veteran or to sustain a judgment therefor.
In order to avoid the inference that we have overlooked the rule that, where the parties have treated the pleadings as raising an issue/ and have offered proof thereon, they thereby waive informalities in the pleadings, we should have added that it fairly appears from the record that it was conceded that the veteran had named his wife as a beneficiary, and that such beneficiary was alive at the time of the death of the veteran and at the time of the trial. There is no possible excuse in the record for an attempt to vest in- the veteran's estate property belonging to the beneficiary.
The decision of the trial judge as to the total and, permanent disability is sustained. It is ordered that the judgment be amended by the trial court by striking therefrom all payments accruing after the death of the veteran, awarding to the appellee only payments which had accrued at the time of the death of the veteran. Attorney fees will be reduced to one-tenth of this latter amount.
So modified, the judgment is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer: |
songer_diverse | D | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the parties were truly diverse? 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".
COMMERCIAL UNION INSURANCE COMPANY, Defendant, Appellant, v. Jose GONZALEZ RIVERA et al., Plaintiffs, Appellees.
No. 6613.
United States Court of Appeals First Circuit.
March 25, 1966.
C. A. Romero Barcelo, San Juan, P. R., with whom Seguróla, Romero & Toledo, San Juan, P. R., was on brief, for appellant.
P. Fernandez Cuyar, San Juan, P. R., with whom Rafael A. Gonzalez, J. Cor-dova Rivera and J. Cordova Mercado, Arecibo, P. R., were on brief, for appel-lees.
Before ALDRICH, Chief Judge, and MARIS and McENTEE, Circuit Judges.
Sitting by designation.
McENTEE, Circuit Judge.
This is a diversity suit for damages based on negligence of the defendant’s insured as a result of which plaintiff, Don Jose Gonzalez Rivera, was injured. The evidence shows that on December 27, 1963, Don Jose, while walking along a certain sidewalk in Arecíba, Puerto Rico, slipped and fell on a greasy and slippery substance which the defendant’s insured had negligently deposited on or had allowed to flow and accumulate on said sidewalk. The foreign substance consisted of used lard and other greasy residues from insured’s nearby hamburger and hot dog stand, which -insured’s employees had deposited on a vacant lot near that part of the sidewalk where Don Jose slipped and fell.
Plaintiff, Don Jose, claims that the negligence of the defendant’s insured was the proximate cause of his fall; that as a result of this fall he sustained serious permanent injuries, including brain damage which required extensive surgery, severe pain and suffering, and also sustained a substantial loss of earnings and the loss of his business.
In the same action his wife made claim against the defendant for loss of companionship and consortion and for mental pain and suffering. Plaintiff Don Jose’s four children, Luz Selenia, Rafael, Jose and Gladys Gonzalez, all of legal age at the time of trial, also joined in the suit, making claim for their mental pain and suffering as a result of their father’s injuries. None of these children lived with or were dependent upon the plaintiff Don Jose, for support.
The court originally assigned this case for trial by a jury to July 20, 1965, but on April 9, 1965, advanced the trial date to May 4, 1965. A few days before trial the defendant moved for a continuance on the ground that it did not have sufficient time to prepare its case properly for trial on May 4th. The court denied the motion. This motion was renewed on the opening day of the trial and was again denied. After a trial on the merits, the jury returned a verdict for the plaintiffs and assessed their damages as follows: $37,'500 for Don Jose; $15,-000 for his wife; $12,500 for Luz Se-lenia and $7,500 each for the other three children.
Defendant’s first assignment of error is that the trial court erred in denying its motion for a continuance. Such motions are addressed to the sound discretion of the court and a trial court’s refusal to grant a continuance will not be disturbed on appeal unless abuse of discretion is shown. Grunewald v. Missouri Pacific Railroad Company, 331 F. 2d 983, 986 (8th Cir. 1964); McDonnell v. Tabah, 297 F.2d 731, 733 (2d Cir. 1961).
As to defendant’s contention that it did not have enough time to prepare properly for trial on May 4, 1965, we note that the complaint in this case was filed on August 5, 1964, and answered on October 16, 1964. Defendant then waited nearly five months before initiating its discovery process. Thereafter, more than forty days elapsed before the defendant filed its interrogatories. It is apparent, therefore, that the defendant had ample time to prepare properly for trial on May 4, 1965, and we cannot say the trial court abused its discretion in denying defendant’s motions for a continuance.
The primary question raised by this appeal is whether the children of the injured plaintiff have a cause of action under Puerto Rican law to recover damages for their mental or moral suffering as a result of the injuries sustained by their father. It is well settled that the legal source of tort liability in Puerto Rico is Section 1802 of the Civil Code which, insofar as it is applicable to this case, reads as follows: “A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. * * * ” 31 L.P.R.A. § 5141.
It-is undisputed that children may recover damages for mental suffering and anguish in cases involving the wrongful death of a parent. See Matilde Colon vda. Davila et al. v. P. R. Water Resources Authority, No. R-62-93, Supreme Court of Puerto Rico, May 7, 1964 (not yet officially reported in English). The defendant claims that such damages are not recoverable hi personal injury cases where death has not resulted, However, in a recent case decided by the Supreme Court of Puerto Rico, Santiago Perez Gonzalez et al. v. Manuel Vazqueztell Perez et al., No. 443, September 28, 1962 (not yet officially reported in English), the court affirmed judgments in favor of a father, his wife and two sons and a daughter in circumstances identical to those in the instant case, where the father had suffered personal injuries but not death. See also Ramon Merced et al. v. Government of The Capital of Puerto Rico et al., 85 P.R.R. 530 (1962), where the Supreme Court permitted parents to recover damages for mental suffering caused by injuries to their child.
Moreover, we do, not accept the distinction made by the defendant between wrongful death cases and personal injury cases insofar as resultant mental suffering and anguish of sons and daughters are concerned. It is- obvious that a severe personal injury to a father, resulting in lifetime disability such as paralysis or brain- damage, can often cause more intense and enduring mental anguish and suffering to his son or daughter than would his death. Neither Section 1802 nor the Puerto Rico decisions appear to limit the right to recover damages for mental suffering to death cases only. Under the broad, general language of Section 1802, (“A person who * * * causes damage to another,’’) it is for the Puerto Rican courts to determine on a case to case basis what interests are entitled to juridical protection. The case law in this regard “has already assumed a sufficiently clear and definite position which follows the more 'liberal and at the same time the more just aspects of the doctrine.” Correa v. P. R. Water Resources Authority, 83 P.R.R. 139, 143 (1961). The court went on to say at p. 153: “ * * * we are not inclined to establish as a general rule of law — with complete abstraction of the facts and circumstances involved in each case — a re-strictual and exclusive criterion as to who may claim within the juridical scope of said section.” [1802]
From a review of the Correa decision and the other cases cited herein, it is clear that under Puerto Rican law the sons and daughters of the plaintiff, Don Jose, who was injured as a result of the wrongful act of the defendant, have a right of action for mental suffering, anguish and anxiety caused to them by reason of their father’s injuries. In other words, sons and daughters have a sufficiently close relationship to . their injured father to come within the scope of the term “another” as used in Section 1802; and their resulting mental pain, suffering and anguish are recognized as an element of damages. Correa v. P. R. Water Resources Authority, supra, at 148; Vazquez v. People, 76 P.R.R. 556 (1954); Travieso v. Del Toro, 74 P.R.R. 940 (1953).
As a further argument in support of their contention that these sons and daughters cannot recover, defendant claims that such awards are contrary to the specific terms of its insurance policy. The obligation of the insurer here is to pay ail sums the insured shall become legally obligated to pay as damages. It is admitted that the insured is legally obligated to pay compensation to the plaintiff, Don Jose, and to his wife for injuries suffered by said plaintiff, and under our holding in this case and the cases cited herein, is also legally obligated to pay compensation to the sons and daughters as well. It has been held that an insurance policy obligating the insurer to pay any loss for liability for bodily injuries also includes liability for consequential damages. See 8 Apple-man, Insurance Law and Practice, § 4893 (1962); United States Fidelity & Guaranty Co. v. Shrigley, 26 F.Supp. 625, 628 (W.D.Ark.1939).
Nor do we find any merit in the defendant’s claim that the damages awarded to the sons and daughters were excessive. The reasonableness of these awards was challenged before the trial court in defendant’s motion for a new trial which was denied. It is well settled that “the question of excessiveness of a verdict is primarily for the trial court, and its determination thereof will not be reversed on appeal except for manifest abuse of discretion.” Dubrock v. Interstate Motor Freight System, 143 F.2d 304, 307 (3d Cir. 1944). We are reluctant to overturn jury verdicts on the ground of excessiveness, since the trial court has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and also knows the community and its standards. Solomon Dehydrating Company v. Guyton, 294 F.2d 439, 447 (8th Cir. 1961). The record indicates that the sons and daughters here suffered much more than mere transient or passing sorrow as eon-tended "by the defendant. We cannot say the trial court abused its discretion in upholding the verdicts in their favor.
Defendant also contends that the trial court erred in instructing the jury to make an award for loss of earnings. It claims that there is not sufficient evidence to warrant any award to Don Jose for such loss. The record does not support this contention. The plaintiff, Don Jose, testified that prior to the accident he was an established merchant in Arecibo, where he operated a profitable vegetable and grocery business for more than twenty-five years; that just before the accident his gross income was about $175 to $200 per week; that he has been.junable to return to work and could not continue his business because of the accident; that in his absence so much money was lost that the business had to be liquidated; and that at the time of the trial his only income was derived from social security payments. His wife also testified that prior to the accident, Don Jose paid all the expenses •of the household and that his business establishment had to be sold while he was in the hospital. Finally, there was medical testimony that Don Jose was in good health before the accident and that his complaints of headaches, dizzy spells and inability to concentrate and pursue his occupation after the accident were justified. Such being the state of the record, the district court properly instructed the jury to consider the plaintiff’s loss of earnings and future loss of earnings in making an award. We do not agree wtih the defendant’s contention that the evidence enumerated above was insufficient and that absent more precise data on plaintiff’s earnings, the jury could only speculate.
The plaintiff was not required to offer his books and records into evidence to prove loss, Christian v. The Hertz Corporation, 313 F.2d 174, 175 (7th Cir. 1963), and his loss of wages, although an approximation thereof, was competent evidence to aid the jury in arriving at a fair and just award. Cf. Phoenix Indemnity Co. v. Givens, 263 F.2d 858, 863 (5th Cir. 1959).
All other points raised by the defendant have been considered and have been found to be without merit.
Affirmed.
. As a result of his accident, Don Jose incurred medical, special nursing, and hospital expenses of $4,220.80, which were paid by his daughter, Luz Selenia.
. Defendant claims it did not learn of a second fall sustained by the plaintiff on February 4, 1964 in his doctor’s office, until after it received plaintiff’s answers to its interrogatories a few days before the trial and did not have sufficient time to investigate the causal relationship of said fall to the alleged injuries. Also that it did not have sufficient time before trial to have certain psychometric tests performed on the plaintiff in order to properly evaluate his condition after the accident.
. In wrongful death eases the Supreme Court of Puerto Rico has extended recovery under Section 1802' to other persons who are not as closely related to the deceased. See Correa v. P. R. Water Resources Authority, 83 P.R.R. 139 (1961) (concubines); Andres Cirino etc. v. P. R. Water Resources Authority, R-63-70 December 29, 1964 (not yet officially reported in English) (brothers and sisters).
. “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.”
. Dr. de Ohoudens, who performed the brain surgery on the plaintiff, testified that in spite of all surgery and treatments the plaintiff’s dizziness, headaches, poor memory and nervousness had not disappeared and his physical activity and tolerance for emotional stress was very low.
. It should be noted here that the trial court specifically instructed the jury that they were not permitted to award speculative damages.
Question: Did the court conclude that the parties were truly diverse?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_appel1_8_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 "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Robert L. VANDYGRIFT, Plaintiff-Appellant, v. HOME RULE CHARTER COMMISSION, HILLSBOROUGH COUNTY, FLORIDA, Defendant-Appellee.
No. 28812
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 15, 1970.
Robert L. Vandygrift, pro se.
John R. Lawson, Jr., Tampa, Fla., for defendant-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM.
This is an appeal from a final order of the District Court dismissing appellant’s complaint which seeks the empanelling of a three-judge court to declare unconstitutional a Florida statute creating the Hillsborough Home Rule Charter Commission, and to restrain the Commission from carrying out any provisions of the statute.
We agree that the District Court properly dismissed the complaint for lack of jurisdiction. The statute in question is a special act of the Florida Legislature and is of local application affecting Hillsborough County, Florida, only. Consequently, a three-judge federal court is not required. 28 U.S.C. § 2281; Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Rorick v. Board of Com’rs, etc., 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242 (1939); Ex Parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928); Mansell v. Saunders, 5 Cir., 1967, 372 F.2d 573.
Affirmed.
. Referred to by the parties as House Bill No. 2694, Laws of Florida, Acts of 1969 (to be promulgated as 69-1148; Vol. 2, Part 1, of Special Laws).
. Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Co., 5 Cir., 1969, 417 F.2d 526, Part I.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer: |
songer_counsel | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Alice GREENE, Widow of John Pierschbacher, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
No. 88-2815.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 9, 1989.
Decided Nov. 21, 1989.
Order Amending Judgment Jan. 24, 1990.
John A. Jarvis, Chariton, Iowa, for petitioner.
Ronald G. Ray, Washington, D.C., for respondent.
Before LAY, Chief Judge, SNEED, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
See 892 F.2d 1385.
The HONORABLE JOSEPH T. SNEED, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.
LAY, Chief Judge.
Alice Greene appeals the Benefits Review Board’s decision overturning the Administrative Law Judge’s determination that she was entitled to survivor’s benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. (1982 & Supp. V 1987) (the Act). The primary issue is whether Greene, a miner’s widow, presented sufficient evidence to benefit from a presumption under the Act that her husband died of a respiratory disease related to his employment in a coal mine.
John Pierschbacher, a coal miner for more than ten years, died on April 9, 1972. His widow, who took the name Greene upon a second marriage, first applied for benefits under the Black Lung Benefits Act in 1973. Her claim was denied. Following amendments to the Act in 1977, she elected to have her claim reviewed by the Social Security Administration (SSA). SSA denied her claim in 1979. SSA then forwarded her claim to the U.S. Department of Labor for subsequent review. The Department’s Office of Workers’ Compensation Programs denied her claim once again in 1980, and forwarded the claim to the Office of Administrative Law Judges. In 1985 the administrative law judge (AU) awarded her benefits, and in 1988 the Benefits Review Board (BRB) reversed. We reverse the BRB because we find the AU’s decision supported by substantial evidence in the record.
The Act awards benefits to the survivors of miners who died from pneumoconiosis, or black lung disease, arising from coal mine employment. Under regulations applicable to Greene’s case, the survivor is entitled to a rebuttable presumption of total disability due to black lung disease if the survivor establishes at least ten years of coal mine employment, and satisfies one of five medical criteria. 20 C.F.R. § 727.203(a) (1989). In a case where there is no medical evidence, the regulations provide that the presumption still may apply if affidavits of the survivor or other people with knowledge of the miner’s physical condition demonstrate “the presence of a totally disabling respiratory or pulmonary impairment.” 20 C.F.R. § 727.203(a)(5).
The present case was completely devoid of medical evidence concerning the miner’s cause of death. Although the record contained a medical certification of death, the AU found that the certificate was merely a recording of the fact of death, and that the physician making the record performed no autopsy and had insufficient knowledge to determine the actual cause of death.
With no medical evidence, Greene sought application of the presumption based on affidavits and testimony by the miner’s close friends and relatives. Greene testified that for years her husband “had a hacking cough.” She said he “would cough at times so he’d just gasp for air and would have [trouble] catching his breath.” She stated that near the time of his death, “he was weakening,” and “the cough had gotten worse. * * * * He would cough until he couldn’t get his breath. You wondered if he was going to be able to catch his breath at all and then he just finally gasped for air and be real weak after he had one of these coughing spells.”
When not working at the mine, her husband had liked to work in the fields helping relatives and neighbors, and to pursue a woodworking hobby. In the several months before his death he had been unable to do this work, due to “a remarkable shortness of breath.” Greene explained that on the day before his death her husband “was extremely tired” and “just couldn’t hardly lift his arms even.” He got a flat tire on his way home and was unable to change it himself. He sought help from his nephew to change it for him.
The widow also testified that her husband’s job at the mine was physically demanding and that he continued regular full-time work at the mine up until the Friday before the Sunday he died. He had never gone to a doctor except for a foot injury on the job and he did not complain about his physical condition.
Three other witnesses also testified, including the miner’s nephew, his brother, and a long-time friend. Their testimony corroborated the widow’s. Each stated that the miner experienced terrible debilitating coughing fits that worsened near his death. They confirmed he had been unable to help with farm work or even change a tire in the days before his death. They also stated that his work at the mine took place under conditions exposing him to large amounts of coal dust, but that he continued to perform his physically demanding job without complaint up until his death.
Based on the evidence that the miner continued working up until the weekend of his death, the Secretary of Labor argued that the lay testimony could not support a conclusion that the miner was “totally” disabled, as required for invocation of the presumption. The AU, however, found that
the affidavits and testimony in the record amply demonstrate that the decedent’s continued coal mine employment up to the week-end before he died was carried on only by his extraordinary effort, and that in any reasonable sense he was racked by a totally disabling respiratory or pulmonary impairment sufficient to invoke [the presumption].
The Benefits Review Board reversed, holding that the AU’s award was not supported by substantial evidence. In essence the BRB stated that if the miner continued working in his regular and physically strenuous job, without need of assistance, then he could not have been totally disabled. The BRB stated that even accepting all the lay testimony that the miner had difficulty breathing and experienced coughing fits, and that he was unable to change a tire on the day of his death, the evidence still was not sufficient to support a presumption of total disability.
Consistent with our recent decision in Mikels v. Director, Office of Workers’ Compensation Programs, 870 F.2d 1407 (8th Cir.1989), we reverse. In Mikels, as in the present ease, the miner’s widow had no medical evidence on which to base her claim. She offered only her own testimony and that of her daughter. The two testified that the miner coughed frequently, was short of breath, and was too tired to perform any work around the house. They also testified as to their perception, the community’s perception, and the miner’s perception that his symptoms had affected his occupational functioning. As in the instant case, however, the miner worked full time up until his death, and the record contained no evidence from the miner’s employer or co-workers that the miner’s breathing problem impaired his job performance.
The AU in Mikels, as in this case, found that taken as a whole the evidence was sufficient to establish the presence of a totally disabling respiratory impairment for the purposes of the presumption of 20 C.F.R. § 727.203(a)(5). The BRB reversed, holding that the evidence was insufficient to support the AU’s decision because the evidence provided no basis to compare the miner’s physical impairments with the demands of his coal mine work. This court reversed the BRB. We held that despite the lack of evidence to show the miner could not meet the demands of his job, the record as a whole contained substantial evidence to support the AU’s finding. Mikels, 870 F.2d at 1410-11.
The facts of these two cases are quite similar, although Mikels presents a somewhat stronger case for total occupational disability. However, we do not find the distinction to be significant. Contrary to the holdings of the Fourth and Seventh Circuits, we do not require direct evidence of impaired work functioning, such as testimony of poor job performance or absenteeism, for a finding of total disability.
Although the record in this case suggested that the miner continued to perform a physically strenuous job up until his death, such evidence is not conclusive. The AU found that only the miner’s herculean efforts allowed him to continue on the job, and that he was totally disabled by any reasonable interpretation of the phrase. Substantial evidence clearly underlay this finding, and the BRB erred by placing conclusive weight on the miner's continued coal mine work.
The determination of the BRB is reversed, and the AU’s award reinstated with retroactive payments plus interest for the period between the BRB’s decision and the date of this judgment.
. Specifically, Mrs. Mikels testified that the year before his death, the miner had quit his job as a road grader because he was short of breath. Mikels, 870 F.2d at 1408. She reported that her husband had trouble finding work afterwards and was unemployed for awhile, “[bjecause people knew he had a breathing problem." Id. at 1409. In addition, Mrs. Mikels and her daughter testified that they and the miner believed that he had been unable to perform adequately the coal mine job in which he was employed when he died. Id.
. In Pendleton v. Director, Office of Workers’ Compensation Programs, 882 F.2d 101, 104 (4th Cir.1989) and Dempsey v. Director, Office of Workers' Compensation Programs, 811 F.2d 1154, 1160-61 (7th Cir.1987), the Fourth and Seventh Circuits upheld denials of benefits where the miners continued their usual coal mine jobs until their deaths and their widows failed to produce evidence of attendance and performance problems.
.20 C.F.R. § 727.205(a) (1989) plainly states that "[a] deceased miner’s employment in a mine at the time of death shall not be used as conclusive evidence that the miner was not totally disabled."
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_typeiss | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
James M. GILROY, Plaintiff-Appellant, v. ERIE LACKAWANNA RAILROAD COMPANY, Defendant-Appellee.
Dockets 34384, 34386.
United States Court of Appeals, Second Circuit.
Argued Jan. 5, 1970.
Decided Jan. 29, 1970.
Theodore H. Friedman, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for appellant.
Donald M. Dunn, Alexander & Green, New York City, for appellee.
Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and JUDD, District Judge.
Sitting by designation.
LUMBARD, Chief Judge:
On December 19, 1967, James M. Gil-roy, an employee of the Erie Lackawan-na Railroad, was awarded $80,000 by jury verdict in the Southern District of New York after a trial of his suit against the Railroad under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq., for injuries suffered in June 1962 during the operation of a railroad turntable in Syracuse, New York. Thereafter Gilroy sought a new trial on the ground that numerous claimed errors during the trial had resulted in a grossly inadequate verdict. From Judge Tyler’s denial of this motion, and of a motion for leave to interview the jurors, 279 F.Supp. 139 (S.D.N.Y.1968), notice of appeal was filed on February 19, 1968. From Judge Tyler’s denial of a later motion for pre-judgment interest, 44 F.R.D. 3 (S.D.N.Y.1968), notice of appeal was filed on April 2, 1968. Accordingly, the record on these appeals was due to be docketed within forty days after the notices were filed on March 31, 1968, and May 12, 1968, respectively. Rule 11(a) Federal Rules of Appellate Procedure. See also Rule 12(a)-(c), Federal Rules of Appellate Procedure.
No steps having been taken to prosecute these appeals taken in February and April 1968, the defendant-appellee moved on December 23, 1969, to dismiss the appeals.
The failure of plaintiff’s counsel diligently to prosecute the appeals according to the rules is clear enough. Although there were some conversations between counsel after the appeals were noticed in early 1968 regarding possible settlement, these were fruitless and did not continue beyond a few months. After these conversations had terminated the parties never stipulated or agreed regarding any extension of time to prosecute the appeals. The appellee’s counsel’s last inquiry on January 10, 1969, regarding the appeals went unanswered for almost one year until appellant’s counsel served answering papers to this motion on January 2,1970.
Plaintiff’s counsel’s excuses for twenty months of inaction are wholly inadequate and unpersuasive. Although the trial lasted from December 6 to 19, 1967, resulting in stenographic minutes of 1276 pages, the issues in this FELA suit were not complex or difficult. The labor of preparing the docket list and paginating the papers, and the trial engagements of counsel during the fall of 1969, fall far short of excusing complete disregard of the Federal Rules of Appellate Procedure. Appellant here was represented by a law firm with a staff of more than 50 attorneys and the engagement of one partner of such a firm is hardly an explanation for inaction.
At the very least, in civil cases where counsel in good faith is doing his best to prosecute an appeal but finds that other pressing engagements make it impossible to meet the deadlines of the Rules, an attempt should first be made to secure a stipulation from opposing counsel. Failing agreement of counsel, motion papers should be timely filed so that the application may be considered by one of the judges of this Court before the time period has expired. Appellant’s counsel never made application of any kind to this Court until response was made to the motion to dismiss when, by affidavit dated December 31, 1969, Mr. Friedman asked for an additional 60 days “to complete the appeal by filing and serving the printed brief and appendix.” ' The affidavit also asserted that he had “devoted the Christmas season to working on the draft brief,” and upon the return of this motion on January 5, 1970, the Court was furnished with Xerox copies of a rough draft of more than 120 pages. Such a belated effort, apparently produced only in response to a motion to dismiss after 20 months of inaction, is not excusable even in the absence of a showing of special prejudice to the appellee.
But in this case we have the additional circumstance that Dr. McLaughlin, a treating physician and the defendant’s one and only medical witness on the all-important question of damages, died just before the motion was heard. While it is true that his testimony could be read to the jury in the event a retrial were ordered, the inability to produce Dr. McLaughlin would be a very real prejudice to the appellee.
The orderly and fair administration of justice requires a firm enforcement of the Rules of Appellate Procedure and the speedy prosecution of appeals. In civil cases, where the parties are agreed to a slower pace we accept their agreements within reason provided they are filed with the clerk before the case is calendared for argument. But failing agreement, the burden is on the appellant to apply, before his time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee. Any dereliction the result of which is to place on the appellee the burden of moving to dismiss the appeal is evidence of a lack of good faith on the part of an appellant. Unless such application for extended time is made so that it may be considered before the allotted time has expired, it is evidence of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused.
Henceforth, on facts showing such inexcusable neglect as we find here, an appeal will be dismissed. If the party whose appeal is thus dismissed is thereby aggrieved, his remedy will be against his attorney.
If any appellee is required to move for the dismissal of an appeal in a civil case, the cost of his doing so will be assessed against the appellant or, in the proper case, against appellant’s attorney.
We deny the motion to dismiss the appeal, but we award $500 in costs to compensate the appellee for being compelled to make this motion in place of the appellant’s motion for an extension of time which should have been made many months ago in 1968. In addition, inasmuch as appellant’s inexcusable delay may cause additional expense to appellee, we direct appellant’s counsel, Theodore H. Friedman, personally to pay to the appellee any costs which appellee may incur to secure medical testimony and the attendance of witnesses on the question of injuries, should any retrial be required as a result of the prosecution of the appeal. Appellant’s counsel has himself suggested that we assess penalties on him personally rather than visiting on his client the extreme penalty of dismissal. See Rule 46(c), Federal Rules of Appellate Procedure.
The appellant’s application for an additional. 60 days within which to docket the record and file his brief and appendix is denied; the time of the appellant to docket the record and file brief and appendix is extended to 30 days from the date this opinion is filed, failing which the clerk is directed forthwith to dismiss the appeal.
. Rule 46(c) provides:
Disciplinary Power of the Court over Attorneys. A court of appeals may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court.
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_genapel2 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Suzanne E. TIDLER, et al., Appellants, and Helene Mankowitz, et al. v. ELI LILLY AND COMPANY.
No. 85-5981.
United States Court of Appeals, District of Columbia Circuit.
Argued March 4, 1988.
Decided July 12, 1988.
Aaron M. Levine, Washington, D.C., for appellants.
Kenneth Cohen, with whom James A. Hourihan, Washington, D.C., was on the brief, for appellees. Gail L. Heriot, Washington, D.C., also entered an appearance for appellees.
Before RUTH BADER GINSBURG, BUCKLEY and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
D.H. GINSBURG, Circuit Judge:
Plaintiffs are seven of the many so-called “DES daughters” who have sued various drug companies, alleging that they suffer from malformations of their reproductive tracts because they were exposed, in úte-ro, to DES, which was prescribed for their mothers in order to prevent miscarriages. Appellee is Eli Lilly and Co., the only one of nine original defendants that plaintiffs did not voluntarily dismiss. Plaintiffs, who are residents of Maryland and of the District of Columbia, invoked the diversity jurisdiction of the District Court. That court granted Lilly’s motion for summary judgment because it determined that the plaintiffs had no competent evidence that the defendant manufactured the DES ingested by their mothers, and under the laws of both the District of Columbia and of Maryland, plaintiffs cannot recover without proof that the defendant proximately caused their injuries. Plaintiffs brought this appeal and thereafter also moved this court to refer controlling questions of law to the highest court in each of those jurisdictions. We deny that motion and affirm the judgment of the District Court.
I. BaCKGRound
In 1938, British researcher Dr. E.C. Dodds developed a synthetic form of the female hormone estrogen, the drug diethyl-stilbestrol, or DES. Estrogen is essential to a female’s sexual development and to her ability to carry a pregnancy to term. Unlike its natural counterpart, however, DES is relatively inexpensive to produce and is effective in oral doses. Dodds’ research was accordingly regarded as a revolutionary breakthrough in biomedical science.
Dr. Dodds did not, however, patent DES. A dozen American pharmaceutical houses, including Lilly, submitted New Drug Applications (NDAs) to the Food and Drug Administration, proposing to market DES for a variety of medical conditions not involving pregnancy.
Because of the large number of NDAs, the FDA ordered all applicants to pool their supporting data in a single file. The applicants then formed a committee (the “Small Committee”), composing representatives of four companies, including Lilly, to collate and submit the various clinical studies. The FDA thereafter analyzed and supplemented the companies’ submission, and determined that DES was safe in the uses for which they proposed to market it. The Small Committee was dissolved. In 1941, the FDA approved the individual companies’ initial NDAs, under which DES has been marketed ever since for a variety of indications not occurring in pregnant women.
By 1947, researchers discovered a link between miscarriages and a deficiency of natural estrogen in pregnant women, which could be corrected either by injection with natural estrogen or by oral administration of DES. In 1947, the FDA approved the applications of several drug manufacturers, including Lilly, to market DES as a miscarriage preventative. After the FDA determined in 1952 that DES was no longer a “new drug” within the meaning of the Food and Drug Act, and thus, did not require further agency approval for any company to market it for use in recognized indications and in recognized dosages, hundreds of manufacturers entered the market.
DES was widely prescribed for use by pregnant women in the 1950’s and 1960’s. In 1971, however, when medical researchers discovered a rare form of vaginal cancer in some young women who had been exposed to DES while in útero, the FDA disapproved its continued marketing for use by pregnant women.
This case was filed in the district court in 1980 by 21 women, each of whom alleged that the various noncancerous injuries from which she suffers are attributable to her mother’s ingestion of DES. Most of the original plaintiffs voluntarily withdrew their complaints, and of the nine major drug companies originally named as defendants, the remaining plaintiffs dismissed all but Lilly. On motion, the district court granted summary judgment in favor of Lilly against eight of the nine remaining plaintiffs who could not produce competent evidence that Lilly manufactured the DES that allegedly caused their injuries. Seven of those eight have pursued this appeal.
II. Plaintiffs’ Theories of Liability and the District Court’s Disposition
The district court did not decide which jurisdiction’s law governed appellants’ claims. The court made no findings indicating the jurisdiction in which either their mothers were resident when they took DES or where the plaintiffs’ injuries occurred. Instead, because it was exercising its diversity jurisdiction, and because all the plaintiffs are residents of either Maryland or of the District of Columbia, the court analyzed the plaintiffs’ claims under the laws of both jurisdictions. Tidler v. Eli Lilly & Co., C.A. No. 80-2795, Mem.Op. at 19 n. 2 (D.D.C. Aug. 23, 1985). As neither party has argued that the law of a jurisdiction other than the District of Columbia or Maryland applies, we join the district court in assuming that the law of one or both of these jurisdictions is applicable to this case.
The seven appellants concede that, after consulting parents and their physicians and pharmacists, they are unable to identify the firm that manufactured the DES product to which they were allegedly exposed. Plaintiffs, therefore, cannot adduce evidence from which a jury could reasonably conclude that Lilly’s product proximately caused their injuries. Because they lack an essential element of a traditional products liability claim, see generally Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 840-48 (1966), they urged the district court, and now urge this court, to adopt any one or more of several so-called “non-identification” theories of liability that have been allowed in DES cases in a few states. Alternatively, the plaintiffs argue that liability may be predicated on a “bulk supply” theory, holding Lilly responsible as the manufacturer of DES powder later table-tized by an unidentified intermediary in the chain of production.
Plaintiffs’ first theory of liability is an extension of the “concert of action theory,” under which
those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoer’s acts done for their benefit, are equally liable.
PROSSER and Keeton on Torts, § 46, at 323 (5th ed. 1984) (footnotes omitted). Of course, the premise for liability under this head is that the defendant, either expressly or tacitly, agreed with another to pursue “a common plan or design to commit a tor-tious act,” see id., which plaintiffs cannot show in this case.
Under the plaintiffs’ extension of this theory, however, recovery could be predicated upon either “conscious parallelism” among manufacturers — for example, in negligently failing to test DES — or upon independent actions of the defendant “halving] the effect of substantially aiding or encouraging” negligent or intentionally tortious activity on the part of others. In Bichler v. Eli Lilly & Co., 79 A.D.2d 317, 436 N.Y.S.2d 625, 631 (1981), aff'd on other grounds, 55 N.Y.2d 571, 436 N.E.2d 182, 450 N.Y.S.2d 776 (1982), a DES case was sent to the jury on this basis.
The district court rejected the theory, holding that “Bichler would not be applied in the District of Columbia or Maryland, because these jurisdictions retain the requirement of an agreement ... which the facts surrounding the marketing of DES as a miscarriage preventive [sic] do not support.” See Stevens v. Hall, 391 A.2d 792, 795 (D.C.1978); Walker v. Hall, 34 Md. App. 571, 369 A.2d 105, 112 (1977).
Plaintiffs’ second theory, commonly referred to as “market share” liability, requires only that they prove that their injuries were caused by a defective or unreasonably dangerous product, and that they join enough manufacturers as defendants to ensure that those that produced a “substantial share” of the relevant product market are present before the court. Each defendant is then presumed to be liable for damages in accordance with its respective share of the product market, and in order to avoid judgment must introduce evidence tending to prove that its product could not have caused the plaintiff’s injuries. Thus, plaintiffs are completely relieved of the burden of establishing some causal connection between their injuries and the actions of any particular manufacturer. As stated by the California Supreme Court, which accepted the theory in a DES case, its premise is that “as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury.” Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 936, 163 Cal.Rptr. 132 (1980); accord George v. Parke-Davis, 107 Wash.2d 584, 733 P.2d 507 (1987).
The district court questioned whether this theory had been properly presented by the plaintiffs. Noting, however, that Sin-dell “is inconsistent with traditional principles of comparative negligence, which require that the defendant be causally connected with the actionable allegations, before he is liable,” the court held that “Sin-dell will not be applied in the District of Columbia and Maryland, which require proof of causation.” The court here cited Bowman v. Redding & Co., 449 F.2d 956 (D.C.Cir.1971), and Robin Express Transfer, Inc. v. Canton R.R., 26 Md.App. 321, 338 A.2d 335, 343 (Ct.Sp.App.1975). The court also noted that other courts have rejected the Sindell approach as unworkable because of the difficulty of determining market percentages and making an appropriate apportionment of damages. See Collins v. Eli Lilly & Co., 116 Wis.2d 166, 342 N.W.2d 37, 48-49 (1984); Ryan v. Eli Lilly & Co., 514 F.Supp. 1004, 1016 (D.S.C. 1981). Indeed, plaintiffs candidly report that Sindell is still in litigation “seven years after the California Supreme Court’s decision.”
Plaintiffs’ third theory, which they refer to as “alternative market share” liability or “risk contribution” liability, would require only that they prove they were injured by DES in útero, and “that the defendant marketed the type of DES involved”; unless Lilly can prove that it did not manufacture the particular DES ingested by the plaintiffs’ mothers, it would be liable. This approach has been accepted upon the premises that:
Each [manufacturer of DES] contributed to the risk of injury to the public and, consequently, the risk of injury to individual plaintiffs. Thus, each defendant shares in some measure, a degree of culpabality in producing or marketing DES.
and that
justice [requires] that the victims of this tragedy should not be denied compensation because of the impossibility of identifying the individual manufacturer....
Martin v. Abbott Laboratories, 102 Wash. 2d 581, 689 P.2d 368, 381, 382 (1984) (“market share alternate liability”); see Collins v. Eli Lilly & Co., 116 Wis.2d 166, 342 N.W.2d 37, 49 (1984). The cited cases differ only in regard to the apportionment of damages. The Martin court held that all liable defendants are
initially presumed to have equal shares of the market and are liable for only the percentage of plaintiff’s judgment that represents their presumptive share of the market. These defendants are entitled to rebut this presumption and thereby reduce their potential liability by establishing their respective market share of DES in the plaintiff’s particular geographic market.... To the extent that ... defendants fail to establish their actual market share, their presumed market share is adjusted so that 100 percent of the market is accounted for.
689 P.2d at 383. By contrast, the Collins court held that a defendant may implead other potentially liable manufacturers, with damages to be apportioned among them pursuant to Wisconsin’s “comparative negligence” doctrine. 342 N.W.2d at 53.
The district court rejected this burden-switching approach to liability because the relevant authorities show that both the District of Columbia and Maryland “require the plaintiff to prove by a preponderance of the evidence that the defendant’s conduct was the proximate cause of her injuries.” The court also noted certain incentive problems with the theory, and observed that
it appears that this theory ... is not merely an extension of established legal principles, but an act of wholesale judicial legislation abrogating longstanding rules of law_ [I]t is beyond the province of this federal Court, sitting in diversity, to effect such sweeping change in local jurisprudence.
Plaintiffs do not shrink from the district court’s characterization; on appeal they frankly “ask this Court to construct [a] market share approach” by which a diligent plaintiff, unable to identify the particular manufacturer that caused her injury, could recover from defendants representing “in excess of 51 per cent” [sic] of the market who “could [not] prove that their drug does not fit the situation.”
Plaintiffs’ last theory of liability — not strictly a “non-identification” theory — is that because Lilly manufactured 90 to 95 percent of the bulk powder DES sold in the Washington metropolitan area, it may be held liable for their injuries, even though another firm may have tabletized, packaged, and marketed the final product (without altering or adding to the active ingredient). Plaintiffs point to the Restatement (Second) of Torts, section 388, which provides:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel.
Additionally, the plaintiffs rely on section 402A and Comment 1 of the Restatement, which state:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer....
# % s¡e * * ¡{c
In order for the rule stated in this section to apply, it is not necessary that the ultimate user or consumer have acquired the product from the seller, although the rule applies equally if he does so. He may have acquired it through one or more intermediate dealers_ The liability stated is one in tort and does not require a contractual relation or privity of contract between the plaintiff and the defendant.
The district court rejected the proposition that Lilly is liable in its capacity as a bulk manufacturer of DES, for two reasons. First, the court held that Lilly was not liable as a matter of law. Quoting Lyons v. Premo Pharmaceutical Lab, Inc., 170 N.J.Super. 183, 406 A.2d 185, 191-92 (1979), the court noted:
“[I]t is not DES which is defective, ... it is only DES when used by pregnant women.” Accord, Doe v. Eli Lilly & Co., [C.A. No. 82-3515, (D.D.C. Apr. 6, 1984)]. The bulk manufacturer of a drug is not liable if it is in a non-defective condition at the time it leaves its control. Id. Rather, it is the intervening, independent tablet manufacturer that has the duty to warn the consumer of any known or forseeable [sic] harmful effects of the dosage and purpose for which it is sold.
The court also held that the evidence adduced by the plaintiffs purporting to establish that Lilly manufactured 95% of the DES sold in the greater Washington metropolitan area during the relevant period of time was incompetent and insufficient to withstand the defendant’s motion for summary judgment. The evidence consisted of the “expert” testimony of three pharmacists, who had surveyed others by telephone. The court found the survey, which was informal to say the least, “untrustworthy because it is unscientific, it was prepared with an eye towards this litigation, ... and it questions persons who may not have been qualified to answer.”
III. Analysis
Plaintiffs do not dispute the district court’s conclusion that neither Maryland nor the District of Columbia has recognized any of the “non-identification” theories of liability that they have advanced. Nor have they cited cases from these jurisdictions that could, in the aggregate, be said to mark a trend toward a more relaxed treatment of the causation requirement in products liability cases. Indeed, the Maryland Court of Appeals is generally indisposed to create new tort theories without the sanction of the representative branches of government:
[I]n considering whether a long-established common law rule — unchanged by the legislature and thus reflective of this State’s public policy — is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly; that body, by Article 5 of the Maryland Declaration of Rights, is expressly empowered to revise the common law of Maryland by legislative enactment_ The Court, therefore has been reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State.
Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 456 A.2d 894, 908 (1983) (refusing to adopt comparative negligence) (citations omitted).
Plaintiffs nonetheless ask this court “to construct [a] market share approach” for DES daughter cases out of whole cloth, using for a pattern only bits and pieces of the decisions of courts in remote states. Judicial pioneers must no doubt make bold forays into terra incognita in order to chart the way to justice, but that is not the office of a federal court exercising diversity jurisdiction. Ours is the more modest challenge, faithfully to apply the law of the state that the courts of the jurisdiction in which we sit, the District of Columbia, would apply had the case been filed with them. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). As the Supreme Court has made clear, “A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.” Day and Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4, 96 S.Ct. 167, 168, 46 L.Ed.2d 3 (1975); see also Steorts v. American Airlines, Inc., 647 F.2d 194, 197 n. 32 (D.C.Cir.1981).
Thus, we take the law of the appropriate jurisdiction as we find it; and we leave it undisturbed. See Cantwell v. University of Massachusetts, 551 F.2d 879, 880 (1st Cir.1977). As the First Circuit aptly expressed this fundamental rule of federal diversity jurisdiction:
Absent some authoritative signal from the legislature or the [state courts], we see no basis for even considering the pros and cons of innovative theories.... We must apply the law of the forum as we infer it presently to be, not as it might come to be_ [W]e see no basis for applying any rule other than the traditional one.
Dayton v. Peck, Stow & Wilcox Co., 739 F.2d 690, 694-95 (1st Cir.1984) (footnotes omitted); see also Answering Service, Inc. v. Egan, 728 F.2d 1500, 1504 & n. * (D.C. Cir.1984). That said, what is the state of the law?
A. Applying the Law of Maryland or the Law of the District of Columbia
Neither the highest court of Maryland nor that of the District of Columbia has explicitly rejected the specific theories advanced by the plaintiffs. Judging from the difficulties DES daughters face in adducing reliable evidence with which to identify the product manufacturer, and the creativity that some state courts have shown in overcoming them, moreover, we think it quite possible that if the courts of either jurisdiction were to discard their settled principles they would choose such a case as this to do so. It remains clear, however, that the theory that plaintiffs would have us “construct” requires that we build on a new foundation, not on the structural underpinnings of the traditional common law of torts. See, e.g., Jensen v. American Motors Corp., 50 Md.App. 226, 437 A.2d 242, 247 (1981) (requiring “the attribution of the defect to the seller and ... a causal relation between the defect and the injury”); District of Columbia v. Frick, 291 A.2d 83, 84 (D.C.1972) (“It is elementary that an essential element in any negligence action is causation, i.e., a reasonable causal connection between the act or omission of the defendant and the plaintiffs injury.”) A common law decision having such a marked effect on the known public policy of the jurisdictions concerned, even if it is within the power of a state court, is surely beyond the authority of a federal court applying state law. Accordingly, we conclude that the plaintiffs’ non-identification theories are not viable in this case. As a result, we need not address the plaintiffs’ claim that they were prevented by the district court from pursuing the requisite discovery to adduce evidence in support of a modified concert of action theory.
We must also reject the plaintiffs’ “bulk supply” theory of liability. Even if such a theory were viable under established law, and even if the evidence adduced by the plaintiffs supported the proposition they would infer from it, viz. that Lilly manufactured 95 percent of the bulk DES sold in the Washington area during the relevant period, that evidence would not indicate that Lilly produced the powder consumed by the plaintiffs’ mothers. (In fact, however, their evidence demonstrates, at most, that the defendant had some share of the market for bulk powder DES. Lilly’s actual market share could be quite modest or almost 100 percent as far as one can tell from plaintiffs’ proffer.) The bulk powder theory thus suffers from the same infirmity under Maryland and District of Columbia law as do the plaintiffs’ other non-identification theories; plaintiffs cannot demonstrate that any product manufactured by Eli Lilly caused the injuries of which they complain. They have cited no case from either of the jurisdictions that suggests that a substantial share of the product market, even as much as 95% of that market, is a sufficient basis from which a jury reasonably may conclude that the defendant caused the plaintiff’s injury. Indeed, Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181, 195 A.2d 717, 719 (1963), suggests just the opposite:
The [plaintiff’s] burden [to establish causation] is not met by proof adduced by the plaintiff to the effect that defendant’s negligence may have caused the injuries, or even that it probably did cause them, if it also appears from plaintiff’s evidence that the injuries may have resulted from some other cause for which the defendant is not responsible.
As the district court stated, “the jury in this case is left with no competent evidence from which it could reasonably conclude that the plaintiffs ... have hailed [sic] the right defendant into court. At best, a verdict on liability would be based on speculation.”
The plight of all DES daughters is a difficult one. Some state courts have therefore devised novel methods to ensure these innocent individuals, who through no shortcoming of their own have not been able to identify the responsible manufacturer, recover nonetheless. See Collins, 342 N.W.2d at 49; see generally Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va.L.Rev. 713 (1982). The plaintiffs in this case, however, are in a particularly poor position to urge such novelty upon a federal court, which by reason of diversity between the parties, exercises only a derivative jurisdiction. The plaintiffs had a choice of where to litigate their claims — in the appropriate state courts or in a federal court. If the relevant state authorities do not indicate any particular receptiveness to innovative theories upon which the plaintiffs’ claims vitally depend, plaintiffs’ recourse is not to proceed directly to federal court, there to urge the tribunal to adopt such theories because the equities of the case or fundamental notions of justice require that they recover. On the contrary. If state law is inhospitable to their claims, then they must face up to that fact before the appropriate authorities — judicial or legislative — of the state. It is decidedly not the business of the federal courts to alter or augment state law to meet the felt necessities of the case; to suggest otherwise is to ignore fundamental principles of comity inherent in our federal system of government.
B. Certifying Questions of Law to the Maryland Court of Appeals and the District of Columbia Court of Appeals
On appeal, plaintiffs have for the first time requested that questions of law be certified to the Maryland Court of Appeals and to the District of Columbia Court of Appeals, for those courts to determine after all whether the law of those jurisdictions recognize any of the plaintiffs’ non-identification theories.
Both Maryland and the District of Columbia have enacted legislation providing for such a procedure where there is presented a determinative question of state law “as to which it appears to the certifying court there is no controlling precedent” in the decisions of the highest court of the jurisdiction. Ann.Code of Md., Courts and Judicial PROCEEDINGS § 12-601 (Michie 1984); D.C.Code ANN. § 11-723 (Michie 1987 Cum.Supp.). The decision of a federal court to certify questions of law pursuant to state-established procedures of this type rests with the sound discretion of the court. Lehman Brothers v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974). The most important consideration guiding the exercise of this discretion, which happens to be embodied in both the relevant statutes as well, is whether the reviewing court finds itself genuinely uncertain about a question of state law that is vital to a correct disposition of the case before it. See Lee v. Wheeler, 810 F.2d 303, 306 (D.C.Cir.1987); Eli Lilly and Co. v. Home Ins. Co., 764 F.2d 876, 883-84 (D.C.Cir.1985); Walko Corp. v. Burger Chef Systems, Inc., 554 F.2d 1165, 1172-73 (D.C.Cir.1977). Where the applicable state law is clear, certification is inappropriate; it is not a procedure by which federal courts may abdicate their responsibility to decide a legal issue when the relevant sources of state law available to it provide a discernible path for the court to follow. See Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 276 (5th Cir.1976) (“[W]ith the law on this issue fairly clear, we find the price of certainty too high, in terms of delay which may prejudice the [parties’] rights to a speedy resolution of the merits.”); see also Bi-Rite Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440, 443 n. 3 (1st Cir.1985); Harris v. Karri-On Campers, Inc., 640 F.2d 65, 68 (7th Cir.1981); see generally 17A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4248, at 173 (2d ed. 1988).
The law of both Maryland and the District of Columbia is not lacking in clarity, as far as is relevant here. Of course, we cannot predict with certainty that either jurisdiction would not view the theories proposed by the plaintiffs as compelling in these circumstances and adopt a markedly different view of liability — and perhaps an equally novel idea of their own role in making public policy — than that which they have heretofore held. As we have explained above, however, that is not the relevant consideration; federal courts, sitting in diversity, are obligated to apply, not to amend, existing state law.
In addition to the condition of existing state law, which is a sufficient ground in itself, there are other reasons for our refusing to exercise our discretion to certify questions in this case. First, the plaintiffs chose to litigate these claims before the district court, fully aware that neither of the relevant jurisdictions recognize the theories they were advancing. Obviously, their choice of forum is not helpful to their request for certification. See Cantwell, 551 F.2d at 880 (“[0]ne who chooses the federal courts in diversity actions is in a peculiarly poor position to seek certification.”); C. Wright, A. Miller, & E. Cooper, suyra, § 4248, at 176. To compound matters, plaintiffs inexplicably failed to request certification before the district court, even though the Maryland certification statute specifically allows the district court to avail itself of this procedure, and the question of District law might have been certified to this court, which might, in turn, have certified it to the District of Columbia Court of Appeals, a possibility upon which we do not pass today, but which would commend itself the more if the same question had been transmitted to the Maryland Court of Appeals in the same case. Instead, plaintiffs pursued discovery and pretrial motions for several years, filed and opposed dispositive motions grounded upon Maryland and District of Columbia law, and when they saw the result, thought better of the state after all. The plaintiffs’ request for certification could hardly have been made less compelling. See Karri-On Campers, 640 F.2d at 68; Turner v. Smalis, Inc., 622 F.Supp. 248, 249-50 (D.Md. 1985); cf. Rubins Contractors, Inc. v. Lumbermens Mutual Ins. Co., 821 F.2d 671, 677 (D.C.Cir.1987) (declining to certify questions of law where “the posture of the ease mandates prompt resolution of [the] issue”).
Second, the record before us is so lacking in concreteness that to certify plaintiffs’ questions of law would merely be to invite our state court colleagues to an exercise in speculation. It has not even been determined whether the law of either of these jurisdictions certainly applies to the case. It would be a wholly pointless waste of judicial (as well as the parties’) resources, for an already overworked state court to consider the complex questions of law propounded by the plaintiffs, if it were only to find in the end that its efforts were irrelevant because the law of another jurisdiction is controlling.
Nor does the record in other respects display the necessary factual clarity to pose a well-framed, concrete question of law. See Ann.Code of Md„ Courts and Judicial Proceedings § 12-603(a)(2) (Mi-chie 1984) (“A certification order shall set forth ... [a] statement of all facts relevant to the question certified showing fully the nature of the controversy in which the question arose.”); Florida ex rel. Shevin, 526 F.2d at 275 (noting that one factor to be considered in determining whether to certify is the “possible inability to frame the issue so as to produce a helpful response on the part of the state court”). The evidence that might arguably be applicable to any of the plaintiffs’ theories is sketchy, at best; at worst, it is, as the district court concluded, unredeemed by circumstantial indicia of trustworthiness, and inadmissible at trial. Given the marked departure from traditional tort principles that the plaintiffs are advocating, the absence of a concrete record upon which to decide these issues would make their request even more daunting to the courts that would receive it. Even if either of these courts would accept a certified question of law informed only by the sketchy record before us, which is by no means a foregone conclusion, see e.g., Wood v. Old Security Life Ins. Co., 643 F.2d 1209, 1216 (5th Cir.1981), any answer provided by these courts would of necessity be cast in abstract terms. A due regard for the utility of the certification procedure suggests we ought not to put into motion such a cumbersome, and possibly fruitless, course of proceedings.
IV. Conclusion
The district court correctly held that the defendant was entitled to summary judgment, inasmuch as the plaintiffs cannot, by their own admission, prove that the conduct of the defendant proximately caused their injuries, as required by the law of both the District of Columbia and of Maryland. We find it would be inappropriate to prolong this litigation by granting plaintiffs’ afterthought motion to certify questions of law to the Maryland Court of Appeals and the District of Columbia Court of Appeals. Accordingly, the judgment of the district court is
Affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_respond1_3_3 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
SANBORN v. HELVERING, Com’r of Internal Revenue.
No. 11550.
Circuit Court of Appeals, Eighth Circuit.
Jan. 5, 1940.
Rehearing Denied Jan. 23, 1940.
Charles E. Whittaker, of Kansas City, Mo. (Henry N. Ess and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for petitioner.
Harry Marselli, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before STONE, SANBORN, and THOMAS, Circuit Judges.
SANBORN, Circuit Judge.
This is a proceeding to review a decision of the Board of Tax Appeals (39 B.T.A. 721) sustaining the liability asserted against Marie Minor Sanborn, “as transferee and/or fiduciary”, for a deficiency in income taxes of the estate of her father, William E. Minor, for the year 1929, which she contends is barred by the" statute of limitations.
The facts are stipulated. William E. Minor, a resident of Kansas City, Missouri, died December 15, 1928. The petitioner and J. A. Minor were appointed executrix and executor of his estate January 2, 1929, by the Probate Court of Jackson County, Missouri. On March 4, 1930, the petitioner, as executrix, was granted an extension of time to May 15, 1930, within which to file the income tax return of the estate for 1929. On March 31, 1930, the petitioner, as executrix, and J. A. Minor, as executor, received their discharge from the Probate Court. On April 9, 1930, “Mrs. Marie M. Sanborn, Executrix, Estate of Dr W. E. Minor, Deceased,” filed an income tax return of the estate for the year 1929. The return was verified on April 8, 1930, by the petitioner and J. A. Minor as “Executors”. April 8, 1932, the Commissioner, by letter, proposed a deficiency in income taxes of the estate for 1929 of $34,543.16. On May 27, 1932, the petitioner and J. A. Minor, as “former executrix and executor” of the estate, filed with the Board a petition for redetermination of the proposed deficiency. In their petition they recited that they “were the executrix and executor of the Estate of Dr. William E. Minor, Deceased, under the will, until discharged upon the closing of the estate March 31, 1930.” The petition was served upon the Commissioner the day it was filed. In his answer thereto, he admitted the discharge of the executors on March 31, 1930, as alleged in the petition. The proceeding before the Board was entitled, “Marie Minor Sanborn and J. A. Minor, former executrix and executor of the Estate of Dr. William E. Minor, Petitioners, v. Commissioner of Internal Revenue, Respondent.” Thereafter the Board determined that .the amount of the deficiency in income taxes of the estate for the year 1929 was $22,295.50. On June 25, 1936, the petitioner and J. A. Minor, “as former executrix and executor” of the estate, filed a petition with this Court for a review of the decision of the Board. This Court affirmed. 8 Cir., 88 F.2d 134. A petition for certiorari was denied, 301 U.S. 700, 57 S.Ct. 930, 81 L.Ed. 1355, on May 24, 1937.
On July 17, 1936, the Commissioner assessed the amount of the deficiency as determined by the Board, together with interest, against the estate of William E. Minor. A warrant of distraint against the estate was issued on August 10, 1936, and was returned unsatisfied, with the statement that the estate had been distributed and there were no assets out of which the tax could be satisfied. The petitioner had received from the estate property worth approximately $500,000. On September 22, 1937, the Commissioner sent a notice to the petitioner proposing to assess against her, as a transferee of assets of the estate “and/or as fiduciary of the estate of William E. Minor, deceased,” the tax which had been assessed against the estate, with interest. She appealed to the Board, asserting that her liability, as transferee and fiduciary, for the tax against the estate was barred by limitations. The Board ruled against her.
The applicable Revenue Act is that of 1928, c. 852, 45 Stat. 791. Section 275(a) of that Act, 26 U.S.C.A. § 275 note, provides : “The amount of income taxes imposed by this title shall be assessed within two years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period.” Section 276(a), 26 U.S.C.A. § 276 (a) provides: “In the case of * * * a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.” Section 276 (c) provides: “Where the assessment of any income tax imposed by this title [chapter] has been made within the period of limitation properly applicable thereto, such tax may be collected by distraint or by a proceeding in court, but only if begun (1) within six years after the assessment of the tax, * * * .” Section 277, 26 U.S.C.A. § 277, provides: “The running of the statute of limitations provided in section 275 or 276 * * * shall (after the mailing of a notice under section 272(a)) be suspended for the period during which the Commissioner is prohibited from making the assessment or beginning distraint or a proceeding in court (and in any event, if a proceeding in respect of the deficiency is placed on the docket of the Board, until the decision of the Board becomes final), and for sixty days thereafter.” Section 272(h), 26 U.S.C.A. § 272(h), provides that the date on which a decision of the Board of Tax Appeals becomes final shall be determined according to the provisions of Section 1005 of the Revenue Act of 1926. Section 1005(a) (3) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 110, 26 U.S.C.A. § 640 (a, b), provides that a decision of the Board becomes final upon denial of a petition for certiorari by the Supreme Court. Section 311 of the Revenue Act of 1928,. 26 U.S.C.A. § 311, provides that the liability of an initial transferee shall be assessed not later than one year after the expiration of the period for assessment against the taxpayer; that the liability of a fiduciary shall be assessed not later than, one year after it arises or not later than the expiration of the period for collection of the tax, whichever is later; and that if the taxpayer is deceased the period of limitation for assessment shall be the samo as would be in effect had death not occurred.'
Section 312(a) and (c) of the Revenue-Act of 1928, 26 U.S.C.A. § 312(a, c), provides :
“(a) Fiduciary of taxpayer. Upon notice to the Commissioner that any person is acting in a fiduciary capacity such fiduciary shall assume the powers, rights, duties, and privileges of the taxpayer in respect of a tax imposed by this title [chapter] (except as otherwise specifically provided and except that the tax shall be collected from the estate of the taxpayer), until notice is given that the fiduciary capacity has terminated.
******
“(c) Manner of notice. Notice under subsection (a) or (b) shall be given in accordance with regulations prescribed by the Commissioner with the approval of the Secretary [of the Treasury].”
Treasury. Regulations 74, Art. 1241, provides that the notice of termination of fiduciary capacity referred to in Section 312 shall be a written notice signed by the fiduciary and filed with the Commissioner, and that “when the fiduciary capacity has terminated, the fiduciary in order to be relieved of any further duty or liability as such, must file with the Commissioner written notice that the fiduciary capacity has terminated as to him, accompanied by satisfactory evidence of the termination of the fiduciary -capacity.”
The petitioner’s argument is, in substance, as follows: That the executors on March 31, 1930, when they were discharged, became functi officio and were without capacity to represent the estate, but, because they had given to the Commissioner no notice of their discharge, they were, by virtue of Section 312(a), clothed with the power and duty to file an income tax return for the estate, which was done on April 9, 1930; that the filing of this return was therefore effective to start the statute of limitations running against the assessment and collection of the income tax owed by the estate; that the petition which the discharged executors filed with the Board on May 27, 1932, for a redetermination of the deficiency proposed by the Commissioner against the estate, did not suspend the running of the statute of limitations because it contained notice to the Commissioner of their discharge and he conceded their discharge in his answer; that, having notice of the termination of their fiduciary capacity, the Commissioner was not disabled by the proceeding with respect to the deficiency from assessing it against the estate and against transferees “and/or” fiduciaries, and the proceeding did not extend* the time within which the assessment and collection of tax could be made; and that, the time having run from April 9, 1930, without interruption, the proposed assessment of the tax against the petitioner came too late.
It is to be noted that, while the petitioner invokes the aid of Section 312(a) in order to demonstrate that the executors had authority to file a return for the estate on April 9, 1930, she fails to give that statute full effect when she deals with the petition filed with the Board on May 27, 1932. It is'certain that if Section 312(a) empowered the executors to file a return for the estate after, their discharge, it also empowered them to initiate the proceeding with respect to the deficiency in income tax of the estate proposed by the Commissioner. Having been properly initiated, that proceeding, until finally terminated, suspended the running of the statute of limitations. Since the executors never gave the notice required by Section 312(a) and (c) to divest themselves of the powers and duties of the taxpayer with respect to the tax, they were clothed with such powers and duties at all times during the pendency of the proceeding initiated by them before the Board and thereafter. The statute clearly provides for the continuation of the powers and duties of a fiduciary with respect to a tax until a specified notice is given. It does not provide that notice of termination of fiduciary capacity contained in a petition filed with the Board shall be deemed the equivalent of the statutory notice. It does not authorize the Commissioner to waive the statutory notice. His admission that a fiduciary has been discharged is not an admission that the statutory responsibility of that fiduciary with respect to a tax has been terminated.
We are satisfied that the proceeding before the Board initiated May 27, 1932, suspended the running of the statute and that the liability of the petitioner for the tax against the estate is not barred by limitations.
The order of the Board is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer: |
songer_genapel1 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Raymond C. PRICE and Control Sciences, Inc., Plaintiffs-Appellees, v. LAKE SALES SUPPLY R. M., INC., Defendant-Appellant.
No. 74-1038.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 9, 1974.
Decided Oct. 16, 1974.
Rehearing Denied Dec. 5, 1974.
Richard D. Law, Denver, Colo. (James E. Pittenger, Denver, Colo., on the brief), for plaintiffs-appellees.
John M. Evans of Fuller & Evans, Denver, Colo. (Richard T. Laughlin, Kearny, N. J., and Clyde A. Faatz, Jr., Denver, Colo., on the brief), for defendant-appellant.
Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
This is a patent case which presents issues as to the validity of a patent (U. S. Patent No. 3,528,560) on a sample display rack. It was issued September 15, 1970 and is known as the Price Patent. Appellant Lake Sales Supply is shown to be a California corporation which had headquarters in Denver from January 1971 to March 1972, but subsequently ceased to do business in Colorado.
In addition to the validity issue it is contended by appellant that the Price Patent was not infringed: (a) that is, that the device did not infringe the patent, and (b) that there is a dearth of proof to establish an act of infringement.
Trial was to the court. The judge entered his memorandum opinion order and judgment on October 16, 1973. This contained the court’s findings of fact and conclusions of law. The patent was held to be valid and infringed. The court enjoined appellant from making, using or selling the carpet display rack and granted appellees the right to a further hearing to determine damages from the infringement. This had been delayed pending the present disposition.
In 1968 the plaintiffs-appellees Raymond C. Price and Control Sciences, Inc. conceived the idea of a carpet display rack which would display carpet and at the same time would be hidden by the display and, in addition, would fold up for convenient storage and shipping. In his first attempt to obtain a patent Price described a device which had two elongated frame sections, similar in size, which rotated about the pivotal axes and which flattened out to permit easy storage and shipping and which could be moved into a transverse position in which the sections stand in an upright position to form a stable display position with fasteners along the upright portions of the frame capable of supporting samples.
Price made a total of 13 claims originally, all of which were similar to the one which is noted in the footnote. All of these were rejected by the Examiner for obviousness defined in 35 U.S.C. § 103. Price proceeded to amend his claims by clarifying that the samples were to be hung on the outside of the elongated frame sections with supports for the samples intermediate to the sides of the U-shaped channel tubing which was used in the frame. Thereby, the samples would extend throughout substantially all the vertical extent of the structure concealing the frame itself.
The patent was issued on an invention consisting of two frames connected by a permanent pivot which allowed the two frames to close and to flatten out for storage and to readily open out into perpendicular intersecting planes for purposes of displaying sample binders of carpet on hangers or fasteners located on the sides of the frame so that the frame itself was substantially hidden.
The Examiner approved Claims 17, 18 and 19 which are set forth in an appendix to this opinion. Also in the appendix are pictorial reproductions which show the device in some detail. The infringing device also consisted of two intersecting- rectangle frames connected in their middles but which did not rotate in the same manner as the Price Patent described above. The two intersecting rectangles were connected by nuts and bolts together with a removable metal strip at the bottom of the frames secured in an open position perpendicular to one another. The infringing device also contained four removable headers, one located each at the top corners of the two rectangles. These were used for advertising purposes. The headers and the metal strip prevented the intersecting frames from being rotated into a closed position on a single plane. The display hangers were wrapped around the tubing, being secured by the nuts and bolts in the back of the tubing.
As noted, the trial court upheld the patent and ruled that it was infringed.
The contentions on appeal are, first, that the trial court erred in upholding the patent and, second, that the patentable aspects were first disclosed in the amended patent application and thus were made more than one year after the first sale of the invention to the public. Third, it is contended that the patent was not infringed.
In addition to the obviousness contention, the plaintiffs asserted at trial that the patent was lacking in invention. 35 U.S.C. § 102(a). This latter was a major issue at the trial, and the trial judge made a thorough analysis and upheld the patent. The thoroughness may account for the abandonment of the contention on appeal. It was recognized by the trial court that a device may satisfy 35 U.S.C. § 102 with a novel combination of old elements and at the same time not fulfill the requirements of non-obviousness in 35 U.S.C. § 103. This invention admittedly consisted of a combination of old elements and hence the obviousness question pertained to the differences between the defendant’s invention and the prior art, whereby the subject matter in its entirety would have been obvious to a person having ordinary skill in the art to which the subject matter pertains. The tests for determining obviousness are set forth in Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). These tests are:
1. The scope and content of the prior art are to be determined.
2. Differences between the prior art and the claims of the patent in suit are to be ascertained.
3. The level of ordinary skill in the pertinent art needs to be resolved.
Having examined this background (pursuant to the John Deere decision), the obviousness or non-obviousness of the subject matter is to be determined. Ascertainment of the scope of the prior art and determination of the difference between the prior art and the claims in suit together with the level of skill in the art are all questions of fact. Whether in the light of these factual matters the patent is obvious then becomes a question of law.
Explicit findings in accordance with these criteria are to be made in every case according to dicta in opinions of the Supreme Court. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 62, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969). It is noteworthy that there is law to the effect that failure of the trial court to make explicit findings in the John Deere categories is fatal. Use of broad conclusionary terms is forbidden in these decisions. See Waldon, Inc. v. Alexander Mfg. Co., 423 F.2d 91 (5th Cir. 1970). See also Van Corp Mfg., Inc. v. Townley Industrial Plastics, Inc., 464 F.2d 16 (5th Cir. 1972). Cf. Antici v. KBH Corp., 324 F.Supp. 236 (N.D.Miss.1971). Other cases have not demanded this strict categorical approach. So long as it is clear that the court has grappled with the problems presented it is accepted. As far as we were able to ascertain, this circuit follows this latter approach. See Black, Sivalls & Bryson, Inc. v. National Tank Company, 445 F.2d 922 (10th Cir. 1971). The leading case for this proposition from our Circuit is Eimco Corporation v. Peterson Filters and Engineering Co., 406 F.2d 431 (10th Cir. 1969). Other circuits also follow this less stringent approach. See Trio Process Corp. v. L. Goldstein’s Sons, Inc., 461 F.2d 66 (3d Cir. 1972), cert. denied 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972) and Frantz Mfg. Co. v. Phenix Mfg. Co., 457 F.2d 314, 322-323 (7th Cir. 1972). In Frantz the district court did not even discuss § 103 or John Deere. Nonetheless, the circuit court held that the district court had implicitly fulfilled the John Deere requirements. The trial court here did not use the “broad conclusionary terms” condemned in the Waldon case. In our view its findings were sufficient to provide the appellate court with a clear understanding of the trial court’s reasons so as to present an adequate review. National Lead Co. v. Western Lead Products Co., 291 F.2d 447 (9th Cir. 1961).
We doubt that the Supreme Court intended that mere failure to use numbered paragraphs for the John Deere findings called for automatic reversal. The trial court in our case did indeed, however, consider carefully the scope and content of the prior art in relation to the patent in suit. While it noted that it was unnecessary to consider the numerous citations of prior art, it nevertheless considered all of the material presented.
In the case at bar the trial court did not limit the scope and content of the prior art. It broadly considered the prior art to include all of the citations brought to its attention by the parties.
Appellant’s further complaint is that the trial court failed to compel plaintiffs-appellees to produce the original of a document, a copy of which had been introduced as an exhibit. The problem stems from the trial court’s reference to the copy which was somewhat illegible and its remark that it might have been the most cogent citation. Appellant says that the court should have compelled production of the original and its failure to do so violated its constitutional rights (due process). We see no error based on the Constitution or other law. The copy reveals sufficient information to allow a ruling as to pertinence of the depiction.
The trial court did not cite each and all items of prior art. It selected for citation the most relevant and it made the requisite comparisons with the claims in dispute. We find no error in this procedure. In holding as the trial court did that the display rack would not have been obvious to a person having ordinary skill in the art, the court was commenting on the basis of its analysis of the prior art. Taking into account the elements and common use and the kinds of things that persons have been creating and utilizing, we see no deficiency in not enunciating a measuring device for evaluation of the pertinent art.
Finally, the court’s conclusion of non-obviousness, in the light of prior art, was rationally reached. The court’s determination that the Price Patent “does not appear to have been a development obvious to a person having ordinary skill in the art” is indeed a conclusory holding, but as we have observed, this issue is more in the nature of a conclusion of law than a finding of fact. We are not then disposed to rule that it is thereby deficient.
The simplicity of this device does suggest to the uninitiated that it is obvious. This is not, however, a reliable test of obviousness. The inquiry tends instead to be whether the new combination of elements reflects something more than mechanical skill. See Oliver United Filters v. Silver, 206 F.2d 658, 663 (10th Cir. 1953) cert. denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416 (1953). Perhaps everything seems obvious with the advantage of hindsight. See Erie Technological Products, Inc. v. Diecraft Metal Products, Inc., 461 F.2d 5 (7th Cir. 1972).
Plaintiffs’ invention consists of five essential elements. All but one of these have some manifestation in the cited prior art and yet none of the cited prior art contains the combination of elements which is found in the Price Patent. We must conclude that this combination would not have been obvious to one of ordinary skill in the art so that he could have created from scratch a display rack having the five essential elements of this patent and could have done so in the manner in which it was accomplished by the plaintiffs. While it is possibly obvious to add each of the five elements to a composite of the other four, this would not be obvious to a person of ordinary skill in the art to allow him to successfully put all of the five elements together at one time. It is this synthesis in the Price invention which justifies the conclusion that it is not obvious and that it is thus entitled to be protected.
II.
Was the appellee disqualified for a patent on the basis that his invention was offered, was sold, was on sale or in use in excess of one year prior to the date of the patent application? 35 U. S.C. § 102(b) provides that a person is not entitled to a patent if the invention was on sale or in use for more than a year prior to the date of application in the United States. The time of tender of the amendment creates this problem. Appellee here did not obtain a patent until he offered the amendment to the Patent Office. Because of this he is confronted with the possibility of being barred if the patentability aspect of the invention was first disclosed by an amendment. Such was the holding of the Supreme Court in Muncie Gear Works, Inc. v. Outboard Marine & Mfg. Corp., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942). Appellee Price made the initial application less than a year after the invention went on sale. But the time of the amendment was more than one year after the invention went on sale. Appellant contends that the Muncie Gear ruling is fatal to the plaintiffs’ patent. The Muncie Gear rule recognizes, however, that where the amendment “only makes express what would have been regarded as the equivalent of earlier claims or where it merely incorporates into one claim [that which could] be gathered from the perusual of all, if read together, it [must] be allowed.” Autogiro Company of America v. United States, 384 F.2d 391, 410 (Ct.Cl.1967). If, on the other hand, the amendment is something more than a clarification, Muncie Gear applies. See Monroe Auto Equip. Co. v. Heckethorn Mfg. & Supply Co., 332 F.2d 406 (6th Cir. 1964), which says “the question is whether there is anything in the prior disclosures which will support the subsequent claim, or does the claim broaden or change the original invention.” Id. 332 F.2d at 417.
The trial court considered the amendment not to be in conflict with the rule of Muncie Gear. The Examiner reached the same conclusion. The opinion of the Examiner (and that of the court too) is to be given great weight in determining what is “new matter.” See Technicon Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391 (7th Cir. 1967). The question is, of course, a factual evaluation. To us also the amendment is clarifying in its form and effect rather than new matter.
III.
Does the evidence show that the appellant infringed the patent within the meaning of 35 U.S.C. § 271 which defines infringement as follows: “whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.”
Appellant argues, first, that the device is not infringed, but even if it is the evidence fails to show that appellant committed an act constituting an infringement. The question we consider first is whether the accused device falls within the patent. See Graver Tank and Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097 (1950).
As is ordinarily true, the accused device is not exactly like the patented one. One marked difference is that the patented device is pivotally secured in the middle of the two rectangles to allow them to be folded into an open position for display or into a closed position for other purposes. The two rectangular frames in the accused device are secured with nuts and bolts together with the removable strap and removable headers to maintain the open position at all times. And a second difference is that the patent has channels to hold sample binders that are intermediate to the sides of the U-shaped tubing of which the frames are composed, whereas the accused device provides for sample binders with channels which wrap around the tubing of which the frames are composed.
The trial court held that although the accused device was not precisely identical, nevertheless the two devices do the same work in substantially the same way, accomplishing substantially the same result.
In McCullough this court recognized that a patent which constitutes a marked improvement in the art is entitled to a substantial range of equivalents, and every element or its functional equivalent must be found in the accused device in order to have an infringement.
Consistent with McCullough and the other decisions, we agree with the trial court that the presence of the nuts and bolts rather than the pivot does not result in the accused device being outside the range of equivalents. It would seem that since the loosening of the nuts and bolts and the removal of the strap and headers accomplishes the same result as the pivot, the obviousness of this change brings the accused device within the scope of the equivalence doctrine.
The same is true of the method for holding the sample binders. These are also similar and thus within the scope of the equivalence doctrine. The wraparound channels are functionally equivalent to the channels on the patent in suit located intermediate to the sides of the U-shaped tubing.
Whether there is infringement and applicability of equivalents are both factual questions. See Graver Tank and Mfg. Co. v. Linde Air Products Co., supra. The ruling is therefore not to be disturbed unless clearly erroneous. It is not.
Were acts of infringement established? Evidence of appellee to establish acts of infringement was meager. There was evidence that the defendant used the infringing device on its own premises to display carpet. This, however, was stricken. The fact that the trial court nevertheless referred to it is harmless error in view of proof of another act of infringement. The other was sale of an infringing display rack to Montview Interiors, a carpet retailer. Appellant would have us disregard this evidence because it was not brought to his attention by supplementing the appellant’s interrogatory as is required by Rule 26(e). The court received it to prevent manifest injustice.
It is quite true that parties are under a continuing duty to supplement their responses. See 4 J. Moore, Moore’s Federal Practice § 26.81 (1970). Rule 26 clearly requires this. There is no indication, however, that the trial court believed that this failure to amend was a knowing concealment. In any event, it is questionable whether exclusion is the only proper penalty for failing to comply with the requirement. Surely the trial judge has some discretion in selecting the sanctions and it does not appear that the court abused its discretion in this instance.
* * *
In sum, then, it is concluded that the plaintiff had a valid patent; that the defendant infringed that patent; and that the record is free from serious error.
The judgment of the district court is affirmed.
APPENDIX A
The three claims that the Patent Examiner finally approved are as follows:
17. A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat superposed relation for storage and shipping and rotatable to a second substantially transverse position in which the sections are adapted to stand in an upright crossing position, support members disposed in circumferentially spaced arrangement at the base of the crossed upright frame sections for establishing a stable display position for the fixture on a supporting surface, and lengthwise adjustable means at intervals along the upright portions of the frame sections intermediate their sides for supporting sample binders of varying sizes and shapes in a hanging rectangular display at selective elevations with an upper binder covering a portion of the binder next below whereby said rectangular display conceals most of the frame sections.
18. A fixture as defined in Claim 17, in which the binder supporting means are arranged to dispose the hanging binders in substantially rectangular arrangement and' in a position substantially perpendicular to the frame section in which they are supported.
19. A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat superposed relation for storage and shipping and rotatable to a second substantially transverse position in which the sections are adapted to stand in an upright crossing position, support members disposed in circumferentially spaced arrangement at the base of the crossed upright frame sections for establishing a stable display position for the fixture on a supporting surface, and horizontally disposed channels at intervals along the outer faces of the upright portions of the frame sections for supporting sample binders of varying sizes and shapes in a hanging rectangular display extending throughout substantially the vertical extent of the fixture and concealing most of the frame sections.
. The original claim shows the general nature of the device:
A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat, superposed relation for storage and shipping and movable to a second substantially transverse position in which the secitions are adapted to stand in an upright position, support members disposed in circumferentially spaced arrangement at the base of the respective upright frame sections for establishing a stable display position for the fixture on a supporting surface, and means at intervals along the upright portions of the frame sections for supporting sample binders of varying sizes and shapes.
. The full text of the trial court’s conaments on the obviousness question is as follows:
B. Obviousness
It is well established that a combination of old elements may be novel within the meaning of 35 U.S.C. § 102 (1970) and yet fail to satisfy the requirement of non-obviousness established by 35 U.S.C. § 103 (1970). See, e. g., Ohio Citizens Trust Company v. Lear Jet Corporation, 403 F.2d 956, 957 (10th Cir. 1968) cert. denied 394 U.S. 960, 89 S.Ct. 1308, 22 L.Ed.2d 561 (1968). The Supreme Court has spoken to the process by which the § 103 obviousness inquiry is to be resolved:
While the ultimate question of patent validity is one of law, . . . the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined.
Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) (citation omitted).
Defendant has failed to convince us that the Price patent is obvious in light of the prior art. The Kamenstein patent, No. 1,518,148, is a display rack designed to display merchandise on the inside of the rack, rather than on the outside, as is the case with the Price rack. The Miamo patent, No. 1,322,596, is a book-like display rack with numerous vertical pivotal axes, all of which are attached to stationary, wall-hung brackets. It has no supporting feet and does not teach exterior hangers even remotely similar to the Price hangers. The White patent, No. 410,226, is an easel showing two frame sections, pivotal connections, and supporting' feet. The use to which these elements are put in White, however, lias only the most remote resemblance to their use in the Price patent. The Whitman Candy Rack (Defendant’s Exhibit T), while suitable, apparently, for display of boxed candy and ladies’ purses, discloses nothing in the manner of hangers on the outside of the frame; indeed, decorative fringes on the exterior edges of the shelves would seem to preclude any such hanging of merchandise. While we could continue at great length to discuss the numerous citations of prior art brought to our attention by both parties, no useful end would be served by such a discussion. It will be sufficient simply to state that on the basis of a careful review of the prior art, the Price display rack does not appear to have been a development obvious to a person having ordinary skill in the art. . We find that the Price Patent, No. 3,528,560, is not obvious within the meaning of 35 U.S.C. § 103 (1970).
. Defendant complains in relationship to the consideration of the prior art of the court’s refusal to allow its expert to testify as to the Sugden patent as an example of the prior art, because a copy had not been timely furnished to the plaintiffs. Defendant argues that this was error because such prior notice is not always required by the courts. But the trial court did consider this patent as part of the prior art, and we are unable, in view of the circumstances, to perceive error in the court’s denial of the expert testimony.
. The five essential elements referred to are: (1) intersecting rectangular frames; (2) permanent pivots; (3) samples located on the outnide faces of the frames; (4) sample holders intermediate the sides of the U-shaped tubing; and (5) overlapping samples that substantially hide the supporting frames.
. Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 27 L.Ed. 935 (1878). See McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965) cert. denied, 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1965); Bewal, Inc. v. Minnesota Mining and Mfg. Co., 292 F.2d 159 (10th Cir. 1961); King-Seeley Thermos Co. v. Refrigerated Dispensers, Inc., 354 F.2d 533 (10th Cir. 1965).
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 | K | 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.
George S. JONAS, et al., Plaintiffs-Appellants, v. Edward J. STACK, etc., et al., Defendants-Appellees.
No. 83-5390.
United States Court of Appeals, Eleventh Circuit.
April 19, 1985.
Green, Eisenberg & Cohen, James K. Green, West Palm Beach, Fla., David M. Lipman, Miami, Fla., for plaintiff’s attorney Andrew Mavrides.
Price & Bryne, Alexander Cocalis, Chief Trial Counsel, Fort Lauderdale, Fla., for defendants-appellees.
Before TJOFLAT and VANCE, Circuit Judges, and ATKINS , District Judge.
Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of Florida, sitting by designation.
VANCE, Circuit Judge:
This appeal requires us to determine whether an attorney who successfully prosecutes another attorney’s application for fees under the Civil Rights Attorneys’ Fees Awards Act (Act), 42 U.S.C. § 1988, may thereupon request compensation for his own services under the same statute. Although we conclude that such representation constitutes a service which may be compensable within the meaning of the Act, we also conclude that the award may be made only to counsel who actually represented the prevailing party. Accordingly, we dismiss this appeal because it and the fee request in the lower court were brought by fee counsel rather than counsel to the prevailing parties.
In April 1976, a Florida district court appointed Mr. Andrew Mavrides to represent the inmates of the Broward County Jail in their civil rights suit concerning confinement conditions. After six years of litigation, Mavrides filed a motion for $252,255.35 in attorney’s fees and costs pursuant to 42 U.S.C. § 1988. The motion was accompanied by the required supporting memorandum and a detailed breakdown of Mavrides’ costs, expenses and time. The defendants filed a motion in response, acknowledging that Mavrides was entitled to some compensation but contending that the amount should be only $29,430 in fees and $90.80 in costs. The defendants also requested that the court hold an evidentiary hearing on the fee issue. Mavrides apparently concluded that he was unable to represent himself adequately in the face of this opposition, and without consulting the court hired Mr. James Green to prosecute his fee application. As a result of Green’s representation, Mavrides was awarded $89,850 in fees and $2,936.80 in costs. Later, Green filed a § 1988 fee application, purportedly in Mavrides’ name, seeking compensation for his services in representing Mavrides. The district court denied Green’s application with the following order:
THIS CAUSE having come before the Court on the motion of James K. Green for Attorney’s fees, and the Court having considered the record in this cause and being otherwise advised in the premises, ' it is
ORDERED AND ADJUDGED that said motion be, and it is hereby, DENIED. Mr. Green did not represent the plaintiff class but rather represented Mr. Mavrides.
Green, who now has hired a third lawyer to prosecute his claim, then filed an appeal in his own name asking us to reverse the district court’s order and to remand for appropriate proceedings to determine his reasonable fees and expenses.
This court has held that a prevailing party’s counsel is entitled to reasonable compensation when he litigates his own claim for entitlement to § 1988 fees. E.g., Johnson v. University College of the University of Alabama in Birmingham, 706 F.2d 1205, 1207 (11th Cir.1983); Johnson v. Mississippi, 606 F.2d 635, 637-39 (5th Cir. 1979). Mavrides, would, therefore, be entitled to reasonable compensation for all time reasonably spent had he litigated his own fee application. He chose, however, to hire Green to press his claim after it became clear that the defendants intended to oppose his application. The threshold issue is whether such representation constitutes a compensable service within the meaning of the Act. We join a number of other courts in concluding that it does. See Shadis v. Beal, 703 F.2d 71, 72-73 (3d Cir.1983); Grendel’s Den, Inc. v. Larkin, 582 F.Supp. 1220, 1231 (D.Mass.1984); Institutionalized Juveniles v. Secretary of Pub. Welfare, 568 F.Supp. 1020, 1034 (E.D. Pa.1983),
We are guided to this conclusion by an examination of the policy considerations underlying the Act. The Act’s primary function is to shift the costs of civil rights litigation from civil rights victims to civil rights violators. Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1189 (11th Cir. 1983). Its legislative history articulates two justifications for the cost-shifting mechanism. First, the mechanism affords civil rights victims effective access to the courts by making it financially feasible for them to challenge civil rights violations. Second, it provides an incentive for both citizens and members of the bar to act as “private attorneys general” to ensure effective enforcement of the civil rights laws. Id. (citing H.R.Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976) and S.Rep. No. 1011, 94th Cong., 2d Sess. 1, 3 reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5910).
We have recognized that the Act’s success in achieving its purposes depends on whether the cost-shifting mechanism reimburses costs and fees on a par with what the attorney would otherwise receive from fee-paying clients. Dowdell, 698 F.2d at 1190. Were we to institute an absolute ban on recovery for expenses incurred by a lawyer who finds it necessary to hire counsel to prosecute his fee application, the profitability of handling civil rights cases would be reduced, since he would then have to absorb an expense not generally associated with other types of litigation. If Green’s services were not compensable in this case, for example, Mavrides would have to pay Green’s fee out of his own pocket and his real income for handling the case would be reduced significantly. Such reduced profitability would in turn channel lawyers away from civil rights suits towards more remunerative types of litigation, thereby diminishing the enforcement of the civil rights laws and decreasing victims’ opportunity to gain redress. Id. Given this result, we find it more consistent with the goals of the Act to permit an attorney to be compensated for the costs reasonably incurred in hiring another to prosecute his fee application.
In reaching this conclusion we do not mean to imply that it is appropriate in every case for an attorney to hire counsel to prosecute his § 1988 fee application. On the contrary, we envision these cases to be the exception and not the rule. The propriety of passing any litigation costs on to the defendant under § 1988 remains subject to this circuit’s requirement that the costs be justified by the necessities of the case. Dowdell, 698 F.2d at 1191. Whether fee counsel’s services are justified in a particular instance remains within the sound discretion of the trial court.
We now turn our consideration to the issue of whether Green had standing to file the petition for attorney’s fees. He and his counsel are strangers to the litigation in the sense that they are neither parties nor attorneys of record for any party. The Act calls for awards to be made to a “prevailing party.” We can find nothing in the Act or its legislative history which suggests that Congress contemplated that an attorney who did not actually represent the prevailing party would be able to file a fee application on his own motion. We do not believe, therefore, that the meaning of the term “prevailing party” as it is used in the Act can be expanded to encompass an attorney who has no connection with the principal case aside from his prosecution of the fee issue. The proper procedure is for the attorney who benefits from the representation to supplement his own fee application to include the costs and expenses that he has incurred by retaining fee counsel. In this case, then, Mavrides is the proper individual to request compensation for Green’s expenses. We dismiss this appeal in light of Mr. Green’s lack of standing to file the motion for fees in the district court or to file an appeal to this court.
DISMISSED.
. The case had not reached final judgment at the time Mavrides filed his motion, but the court had entered numerous orders in the plaintiffs’ favor and had ruled for them on the basic issue of whether conditions in the jail met constitutional standards at the time of filing and during the pendency of the lawsuit.
. The accompanying memorandum dealt with the twelve factors of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), which must be considered in all fee cases in this circuit.
. The validity and amount of the award to Mavrides are not challenged.
. Green also asks us to require the district court to determine an appropriate award of fees and expenses for his lawyer on this appeal.
. We express no opinion as to whether Mavrides acted properly in hiring Green to represent him on the fee application. This determination is one properly left in the first instance to the trial court.
. Those attorneys who feel the need to hire counsel would be well-advised to raise the issue with the court prior to taking such action. Otherwise they run the risk that the trial court may determine that the necessities of the case did not justify retaining special fee counsel. We are unwilling, however, to make prior consultation with and approval by the trial court a prerequisite to recovery.
. Strict conformity to the language of the statute would require that the application be made by the attorney in the name of his client, the prevailing party. We consider this to be the procedure of choice, since it ensures that awards made under the Act compensate their intended beneficiaries. We are aware that in some instances courts have awarded attorney's fees to an individual attorney rather than to the prevailing party. See, e.g., Shadis v. Beal, 692 F.2d 924 (3rd Cir.1982); cf. Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir.1980). In these cases, however, the awarded fees compensated the attorney for services rendered directly to the prevailing party.
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_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. Kenneth Ray FRAKES, Defendant-Appellant.
No. 76-2650.
United States Court of Appeals, Sixth Circuit.
Submitted June 20, 1977.
Decided Oct. 18, 1977.
Kurt A. Phillips, Fort Thomas, Ky. (Court-appointed — CJA), for defendant-appellant.
Albert Jones, U. S. Atty.,- James H. Barr, Louisville, Ky., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, WEICK and ENGEL, Circuit Judges.
PER CURIAM.
Defendant-appellant stands convicted by a jury on two counts of interstate transportation of stolen goods having a value of $5000 or more, in violation of 18 U.S.C. § 2314 (1970). We affirm.
The proofs at trial indicated that on September 15, 1975, appellant acquired possession of a used John Deere tractor from a Tennessee firm by passing a $16,500 check drawn on an account with insufficient funds. According to a statement given to the FBI by the appellant, the tractor was subsequently transported across state lines into Arkansas.
On September 22, 1975, the appellant bought another tractor, an International Harvester, from a firm in Mayfield, Kentucky. The purchase was made with an $18,000 check, again drawn on account with insufficient funds. This tractor was recovered on September 25 from an auction company in Missouri, where the appellant had left it with instructions to sell it for $15,500 or $16,500.
With respect to both purchases, the circumstances proven at trial established that the appellant intended to take possession of the tractors without paying for them.
Appellant raises a number of issues on appeal, although we find only one to be sufficiently substantial to merit discussion. Specifically, the appellant claims that § 2314, the National Stolen Property Act, does not penalize the interstate transportation of an object acquired in exchange for an insufficient funds check.
The statute provides:
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud .
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
18 U.S.C. § 2314 (1970).
Similarly, the Dyer Act, 18 U.S.C. § 2312 (1970), states:
Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
While the precise issue of this case is a matter of first impression, we conclude that the Supreme Court’s construction of the Dyer Act is controlling. In United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), the Court faced a split among the circuits as to the meaning to be accorded the word “stolen” in the Dyer Act. Three circuits were of the opinion that “stolen” meant the acquisition of property by means which would be punishable at common law as larceny. Three other circuits interpreted “stolen” in a more generic way, not limiting the concept to the crime of larceny. The Supreme Court adopted the latter view, concluding that “ ‘[sjtolen’ as used in 18 U.S.C. § 2312 includes all felonious takings of motor vehicles with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.” 352 U.S. at 417, 77 S.Ct. at 402.
The Court further noted, in language which is especially pertinent to the facts of this case:
[A]n automobile is no less “stolen” because it is rented, transported interstate, and sold without the permission of the owner (embezzlement). The same is true where an automobile is purchased with a worthless check, transported interstate, and sold (false pretenses).
352 U.S. at 416, 77 S.Ct. at 402 (emphasis added).
Relying on the authority of Turley, supra, then Circuit Judge Stewart noted for our court:
The issue as to whether the goods were obtained by one of the unlawful methods of acquisition referred to in [the National Stolen Property Act] is not to be decided upon the basis of technical common law definitions.
Bergman v. United States, 253 F.2d 933, 935 (6th Cir. 1958). We consequently decline appellant’s invitation to follow common law notions in construing the Act.
We accord the same meaning to the word “stolen” in the National Stolen Property Act as in the Dyer Act. United States v. McClain, 545 F.2d 988, 994-95 (5th Cir. 1977); Lyda v. United States, 279 F.2d 461, 463-65 (5th Cir. 1960); see Turley, supra, 352 U.S. at 412 & n. 9, 77 S.Ct. 397. We therefore hold that § 2314 embraces the conduct of appellant in acquiring title to the tractors by means of checks drawn on insufficient funds.
We find support for our conclusion in the fact that the National Stolen Property Act and the Dyer Act are part of an overall legislative scheme designed to thwart the misuse of interstate commerce. As the Fifth Circuit noted in Lyda, supra, 279 F.2d at 464:
The aim of [the National Stolen Property Act] is, of course, to prohibit the use of interstate transportation facilities for goods having certain unlawful qualities. This reflects a congressional purpose to reach all ways by which an owner is wrongfully deprived of the use or benefits of the use of his property. It was one way to meet the difficulties in legislative draftsmanship. The experience with this Act, the Dyer Act, and others bears witness that “what has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches.” Morissette v. United States, 1952, 342 U.S. 246, at page 271, 72 S.Ct. 240, at page 254, 96 L.Ed. 288, at pages 304-305. Congress by the use of broad terms was trying to make clear that if a person was deprived of his property by unlawful means amounting to a forcible taking or a taking without his permission, by false pretense, by fraud, swindling, or by a conversion by one rightfully in possession, the subsequent transportation of such goods in interstate commerce was prohibited as a crime.
See also Turley, supra, 352 U.S. at 413-17, 77 S.Ct. 397.
Affirmed.
See Boone v. United States, 235 F.2d 939 (C.A. 4th Cir. 1956); Murphy v. United States, 206 F.2d 571 (C.A. 5th Cir. 1953); Ackerson v. United States, 185 F.2d 485 (C.A. 8th Cir. 1950); Hite v. United States, 168 F.2d 973 (C.A. 10th Cir. 1948). In each of these cases the defendant obtained possession of a car by passing a bad check, falsely representing that it would be paid.
. As support for its construction of “stolen” in the Dyer Act, Turley cited with approval two cases which gave a similarly broad reading to the word “stolen” in the National Stolen Property Act: United States v. Handler, 142 F.2d 351, 353 (2d Cir. 1944), cert. denied, 323 U.S. 741, 65 S.Ct. 40, 89 L.Ed. 594 (1945); Crabb v. Zerbst, 99 F.2d 562, 565 (5th Cir. 1939).
. We thus need not decide whether the appellant’s conduct falls within the other methods of acquisition condemned by § 2314: “converted or taken by fraud.” Lyda, supra, 279 F.2d at 464-65; see generally United States v. Vicars, 465 F.2d 720 (6th Cir. 1972).
. E.g., 18 U.S.C. § 2316 (1970), (interstate transportation of stolen cattle) construed, Cummings v. United States, 289 F.2d 904 (10th Cir.), cert. denied, 368 U.S. 850, 82 S.Ct. 83, 7 L.Ed.2d 48 (1961). Cummings held that § 2316 condemned the interstate transportation of cattle acquired with an insufficient funds check.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_direct1 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Harold Lorne CHEROT, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation, Central Surety & Insurance Corporation and Orville Lester Carter, Appellees.
No. 5972.
United States Court of Appeals Tenth Circuit.
Feb. 26, 1959.
Rehearing Denied March 24, 1959.
Bryan Tabor, Tulsa, Okl. (Rucker, Tabor & Cox, Joseph A. Sharp, Joseph F. Glass, Tulsa, Okl., on the brief), for appellant.
Alfred B. Knight, Tulsa, Okl., for appellee, U. S. Fidelity & Guaranty Co.
Thomas R. Brett, Tulsa, Okl. (Robert D. Hudson, Tulsa, Okl., on the brief), for appellee, Central Surety Co.
Before HUXMAN, MURRAH and BREITENSTEIN, Circuit Judges.
HUXMAN, Circuit Judge.
This was a declaratory judgment action in which the two appellee insurance companies sought and obtained a declaratory judgment, declaring that they were not required to defend a damage action instituted by Harold Lome Cherot against Orville Lester Carter arising out of an automobile accident under policies of insurance which they had issued. It was the companies’ claim that there was no liability because of an exclusionary clause in each policy. USF&G Company had issued its policy to Howard F. Schultz on the Auburn automobile involved in the collision, and Central Surety Insurance Company had issued its policy to Orville Lester Carter. They were both conventional liability insurance policies. Schultz owned a 1932 Auburn automobile which he left with Carter for repair. While the car was being driven by Carter, it was involved in an accident in which Cherot was injured.
The USF&G policy provided that it should not apply “to an owned automobile while used in the automobile business.” The Central policy excluded coverage of “a non-owned automobile while used (1) in the automobile business by the insured.” The Central policy also contained this provision. “Automobile business means the business of selling, re-' pairing, servicing, storing or parking of automobiles.”
Appellee insurance companies contended successfully in the trial court that the automobile was being used in the automobile business by Carter at the time of the accident, and that, therefore, there was no liability against either of them because of the above exclusionary clauses.
There was no oral testimony in the trial court. The case was submitted on statements at the pretrial conference and on the depositions of Howard Schultz and Orville Lester Carter. In the absence of oral testimony in the trial court, findings of fact by that court do not carry the same weight on appeal as they do when oral testimony is heard. In that posture of the ease, an appellate court is equally capable with the trial court of examining evidence and drawing conclusions therefrom. Nonetheless we are loath to overturn the findings of an experienced trial judge unless, in our opinion, they are clearly erroneous.
What constitutes doing business is a question of law. Whether one is engaged in business under the definition is a question of fact. The books are replete with definitions defining business or what constitutes doing business. In Kelley v. United States, 10 Cir., 202 F.2d 838, 841, we defined business as follows:
“ ‘Business’ is a comprehensive term. It has been defined as that which ‘occupies the time, attention and labor of men for the purpose of a livelihood or profit.’ ”
In Gray v. Board of County Commissioners of Sedgwick County, 101 Kan. 195, 165 P. 867, 868, L.R.A.1918F, 182, the Kansas Court said that:
“ ‘Business’ has been held to be synonymous with ‘calling,’ ‘occupation,’ or ‘trade,’ and defined as ‘any particular occupation or employment engaged in for a livelihood or gain.’ ”
Throughout these cases and numerous others runs the idea of effort occupying a substantial part of one’s efforts or time carried on for the purpose of profit or gain.
Thus considered, we are of the view that the evidence fails to sustain the court’s finding that the insured automobile was being used by Carter in the automobile business within the meaning of the exclusionary clauses of these two policies. Carter and Schultz were both employed as full-time employees for the Reda Pump Company. Carter was a mechanic and Schultz was sales manager. Prior to his employment by Reda Pump Company, Carter had worked as a garage mechanic. He enjoyed working on cars and did so as an “accommodation” to his friends and as a “hobby.” At his home he had some manual and mechanical hand tools, a floor jack, and a two-car garage. At one time he had considered going into the car repair business and had forms printed with the heading “Red’s Service Garage.” During this period, he did some work for some commercial concerns and charged for both labor and material. Carter testified that some nine months before this transaction he quit his attempt to organize a repair business and quit charging for work because he wasn’t making any money.
Schultz had purchased this antique Auburn and had asked Carter to help him restore it to running condition. The car was delivered to Carter in 1956, but was returned to Schultz. It was redelivered to Carter in May or June, 1957, and remained in his possession until the time of the accident on October 13, 1957. Carter and Schultz worked together on the car outside their regular office hours. Carter estimated that he put in about thirty hours and Schultz about half that much time. Carter testified, and his testimony in this respect is uncontradicted, that he did not intend to charge Schultz for labor. Schultz testified that he intended to pay Carter for labor but admitted that mention had never been made of any charge other than for actual expenses. After Carter abandoned his idea of engaging in the automobile repair business for profit, he continued to use the forms headed “Red’s Service Garage” to keep track of expenditures on various cars he was working on. Schultz advanced Carter $60 to be used for “actual out of pocket expenses,” as testified to by Carter. About the time the automobile was completed, Carter gave Schultz a written statement on stationery headed “Red’s Service Garage” showing in itemized form how the $60 had been spent. It showed that $49.68 had been expended for parts. The form contained a column for listing various charges, such as parts and labor. The statement given Schultz contained this notation.
“Parts $49.68
Labor -(Left Blank)
Total -(Left Blank)”
Carter testified that in addition to the charge for the parts there would be some slight charge for the use of electricity. He said they had used quite a bit of electricity and room in the garage. Carter testified that, “I couldn’t have parked my car in there, we would probably have settled on a few dollars above, — for working on it.”
Certainly, so far as the transaction is concerned, his testimony that there was no charge for labor stands uncontradicted. While there was testimony that he worked on a number of cars each month at his home, the testimony is that he did this as a hobby for his friends and made no charge for his labor and that most of these services were of a minor nature. It is significant that not a single instance is established where he charged for labor during the nine months preceding the accident. He also testified that he did not include in his income tax return any item for labor from his car operations.
We are dealing here with an exclusionary clause. Such provisions are strictly construed. These policies were prepared by the insurance companies. In the absence of a clear showing therein to the contrary, it must be assumed that the word automobile “business” as used in the exclusionary clause means business in the ordinary accepted sense — that is an undertaking engaged in with some regularity and for profit and income.
Carter’s testimony that he abandoned his attempt to establish an automobile repair business stands uncontroverted by any direct testimony, as does his testimony that tinkering with cars for his friends was a hobby with him for which he made no charge for labor.
Reversed.
. Blackner v. McDermott, 10 Cir., 176 F.2d 498, and eases there cited.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_procedur | D | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Thomas A. JOHNSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 843, Docket 92-6231.
United States Court of Appeals, Second Circuit.
Submitted Feb. 25, 1993.
Decided March 31, 1993.
Thomas A. Johnson, pro se.
James A. Bruton, Acting Asst. Atty. Gen., Dept, of Justice, Tax Div., Washington, DC (Gary R. Allen, William S. Esta-brook, Billie L. Crowe, Philip H. Karter, Attys., Dept, of Justice, Tax Div., Washington, DC, Albert S. Dabrowski, U.S. Atty. for D. Conn., New Haven, CT, H. Gordon Hall, Asst. U.S. Atty., of counsel), for defendant-appellee.
Before: LUMBARD, McLAUGHLIN, Circuit Judges, and DUFFY, District Judge.
Hon. Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation.
LUMBARD, Circuit Judge:
Thomas A. Johnson, pro se, appeals from an order of the District Court of Connecticut, Dorsey, J, granting the government’s motion for summary judgment in his action to quiet title to his property by removing a tax lien. Johnson contends that this ruling was in error because the IRS assessed the tax which formed the basis of the lien before his time for filing an appeal expired. We agree and reverse.
On August 2, 1990, the Tax Court, Wright, /., determined that Johnson was liable for income tax deficiencies for the taxable years 1980 through 1984. On September 24, 1990, 53 days after this ruling, the IRS assessed Johnson for these deficiencies, and on July 9, 1991, the IRS filed a tax lien on Johnson’s real and personal property in the amount of $347,364.33.
Johnson brought this suit, pursuant to 28 U.S.C. § 2410(a) (1988), to quiet title to his property, claiming that the lien was invalid because the IRS assessed the deficiency prior to the Tax Court’s decision becoming final, in violation of 26 U.S.C. § 6213(a) (1988). Thereafter, the IRS reassessed Johnson’s tax deficiency for 1984, but not for 1980 to 1983 because the statute of limitations for supplemental, assessments had expired.
Both parties moved for summary judgment on the issue of the validity of an assessment made before expiration of the 90-day period for filing an appeal provided in 26 U.S.C. § 6213(a). By order dated August 17, 1992, Judge Dorsey upheld the assessment, concluding that a tax assessment cannot be stayed during the appeal period unless the taxpayer files a notice of appeal and an appellate bond as provided by 26 U.S.C. § 7485 (1988). Because an assessment made during the unexpired appeal period is void, we reverse.
A. Jurisdiction
Initially, we find that the district court had subject matter jurisdiction over this case because 28 U.S.C. § 2410(a) waives the sovereign immunity of the United States. Section 2410(a) states that the United States may be named as a party in “any civil action ... to quiet title to ... real or personal property on which the United States has or claims a mortgage or other lien.” When a federal tax lien is involved, however, an action pursuant to § 2410(a) will not lie if its sole purpose is to challenge the validity of the underlying assessment. See Falik v. United States, 343 F.2d 38, 41 (2d Cir.1965).
An exception to this restriction permits a party to challenge procedural irregularities in the assessment process by way of § 2410(a). In Kulawy v. United States, 917 F.2d 729, 733 (2d Cir.1990), we held that § 2410(a) permitted the taxpayer to “challenge procedural irregularities in the seizure and sale of his property following such an assessment.” As the Tenth Circuit explained, the scope of this exception includes “procedural violations arising from assessment, levy, and seizure.” Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir.1992).
Because Johnson’s claim is procedural in nature, it falls within this exception. A procedural claim is one which does not challenge “the existence or extent of substantive tax liability.” Guthrie, 970 F.2d at 736. Applying this standard, the Guthrie court held that the alleged failure of the IRS to assess the tax properly or to send valid notices of assessment were procedural defects cognizable in a quiet title suit. Id. at 737. See also Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990) (failure to send valid notice of assessment is procedural); Brewer v. United States, 764 F.Supp. 309, 314 (S.D.N.Y.1991) (§ 2410(a) may be used to challenge the procedures used in making the assessment). Here, Johnson’s claim is procedural because he disputes the timing of the assessment, not its amount.
B. Validity of the Assessment
We find that the assessment was invalid because it was made before the Tax Court’s decision became final. Section 6213(a) provides that “no assessment of a deficiency ... shall be made ... until the decision of the Tax Court has become final.” 26 U.S.C. § 6213(a). A decision becomes final upon expiration of the 90-day period allowed for filing a notice of appeal. See 26 U.S.C. § 7481(a)(1) (1988). In this case, the tax was assessed 53 days after the Tax Court’s decision, well before the period for filing a notice of appeal expired.
In concluding that the assessment was valid, the district court relied on 26 U.S.C. § 7485, which provides:
Notwithstanding any provision of law imposing restrictions on the assessment and collection of deficiencies, the review under section 7483 shall not operate as a stay of assessment or collection ... unless a notice of appeal in respect of such portion is duly filed ... and then only if the taxpayer ... has filed with the Tax Court a bond....
The court interpreted this provision as requiring a taxpayer to file a notice of appeal and to post a bond before an assessment would be stayed.
As the government now concedes, this reliance is misplaced. Thus, we conclude that the assessment is void because it was made during the unexpired period for filing a notice of appeal. Section 7485 establishes the circumstances under which appellate review of a Tax Court decision stays an assessment. In seeking such review, the taxpayer must file a timely notice of appeal. See 26 U.S.C. § 7483 (1988). Since Johnson did not file a notice of appeal, there is no appellate review, and § 7485 does not apply.
We also reject the government’s argument that the assessment becomes valid upon the expiration of the appeal period. The assessment violated § 6213(a), and we decline to “give the Commissioner an arbitrary power which it was not intended he should have,” United States v. Yellow Cab Co., 90 F.2d 699, 701 (7th Cir.1937), by validating the assessment. This view is consistent with United States v. Walker, 217 F.Supp. 888, 892 (W.D.S.C.1963), in which the court held an identical assessment, i.e. one made within the appeal period, “null, void and of no force and effect.” See also Philadelphia & Reading Corp. v. United States, 944 F.2d 1063, 1072 (3d Cir.1991) (assessment was void because deficiency notices were not issued); Ventura Consol. Oil Fields v. Rogan, 86 F.2d 149, 153 (9th Cir.1936) (assessment during the period for petitioning the Board of Tax Appeals (now the Tax Court) was illegal and given no effect), cert. denied, 300 U.S. 672, 57 S.Ct. 610, 81 L.Ed. 878 (1937); Yellow Cab Co., 90 F.2d at 701 (assessment while petition was pending before the Board of Tax Appeals was void).
Reversed.
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_weightev | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
McMAN OIL & GAS CO. v. HURLEY et al.
Circuit Court of Appeals, Fifth Circuit.
March 19, 1928.
No. 5050.
1. Mines and minerals <§=105 (2) — Authority to execute conveyance was conclusively presumed, where secretary’s certificates showed resolutions of executive committee and directors authorizing sale.
Where certificates of secretary, showing resolutions of executive committee and board of directors of corporation authorizing and approving sale of oil lease, were issued and delivered to purchaser, it was conclusively presumed that the resolutions were adopted and that corporate authority was given to execute conveyance.
2. Corporations <@=>422(1) — Corporation is es-topped to deny authorized representations of its officers and'agents.
Corporation is estopped to deny representations of its officers and agents, made within the scope of their authority.
3. Frauds, statute of <@=63(2)— Purchaser’s oral agreement, after sale of oil lease, to re-convey, held inadmissible under statute.
Alleged oral agreement of purchaser of oil lease, after sale was made, to reconvey upon return of purchase price within 60 days, held inadmissible under statute of frauds.
4. Evidence <@=230 (3) — Title, having passed, cannot be impeached by vendor’s declaration that it passed conditionally.
After title to property has passed to purchaser, it cannot be impeached by the vendor’s declaration that sale was conditional only.
5. Mines and minerals <@=74 — Failure of vendor of oil lease to attempt to comply with alleged condition permitting repurchase within time agreed rendered purchaser’s title absolute.
If purchaser of oil lease entered into agreement with vendor to reconvey on return of purchase price within 69 days, purchaser’s title became absolute, where no attempt was made to comply with the condition within the time limit agreed upon.
6. Evidence <@=244(1 i) — Declaration that ■ Its officer had agreed to give bribe for sale of oil lease held not binding on purchaser corporation and insufficient to show bribery.
Purchaser of oil lease, sued by receivers of vendor corporation to set aside conveyance as fraud on creditors, held not bound by declaration of vendor’s officer concerning agreement of purchaser’s officer to give bribe for sale, since conversation was not part of res gestee but constituted mere narration of past event, and charge of bribery was therefore not sustained.
7. Fraudulent conveyances <@=298(I)— Evidence held insufficient to support finding that sale of oil lease by corporation at time of financial embarrassment and decline in price of oil was made to defraud creditors.
In suit by receivers of oil company to set aside corporation’s sale of oil lease, made at time price of oil had considerably declined and corporation was financially embarrassed, evidence held insufficient to support finding that sale was made with intent to hinder, delay, or defraud creditors, notwithstanding close family relations between officers and stockholders of two companies and profits realized from property after sale, where insolvency of grantor was not satisfactorily shown.
8. Fraudulent conveyances <@=249 — Year’s delay by receivers held to bar suit to set aside sale of corporation’s oil lease as fraud on creditors.
Suit by receivers of oil company to set aside sale of corporation’s oil lease as fraud on creditors held barred by laches, where receivers delayed bringing suit for one year, after having acquired knowledge of all essential facts upon which suit was based, on account of belief that transaction was profitable to corporation.
9. Fraudulent conveyances <§=248 — Vendor’s receivers on purchaser’s refusal to reconvey oil lease as agreed were required to act promptly to set aside sale as fraud on creditors.
Receivers of oil company, upon receiving notice of refusal of purchaser of oil lease to re-convey in alleged violation of agreement, were required to act promptly to set aside sale on account of fraud, especially in view of fluctuation in prices of oil-producing properties, and receivers could not wait and determine in the light of subsequent events whether it would be to their advantage to recognize the sale as valid.
Appeal from tlie District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge.
Suit by P. J. Hurley and another, receivers of the Gilliland Oil Company, against the McMan Oil & Gas Company. From a decree for complainants defendant appeals.
Reversed and remanded, with directions.
John Rogers, of Tulsa, Okl., Harry H. Rogers, of San Antonio, Tex., A. B. Flanary, of Dallas, Tex., A. H. Carrigan, of Wichita Falls, Tex., and R. L. Batts, of Austin, Tex. (Carrigan, Britain, Morgan & King, of Wichita Falls, Tex., and Flanary & Aldredge, of Dallas, Tex., on the brief), for appellant.
T. R. Boone, of Wichita Falls, Tex., John M. Atkinson, of St. Louis, Mo., J. M. McCormick, of Dallas, Tex. (McCormick, Bromberg, Leftwich & Carrington, of Dallas, Tex., Atkinson, Rombauer & Hill, of St. Louis, Mo., Boone & Humphrey, of Wichita Falls, Tex., and Robert H. Richards, of Wilmington, Del., on the brief), for appellees.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
BRYAN, Circuit Judge.
On May 11, 1921, the Gilliland Oil Company conveyed to the McMan Oil & Gas Company an interest in oil-producing land, designated in the record as the Hardin lease. The conveyance was absolute in form, and was authorized by the executive committee of the Gilliland company’s board of directors. A resolution of the board of directors, dated May 19, purporting to approve the sale, appears in the minutes; but whether it was adopted by a majority vote depends upon conflicting evidence as .to whether a director named McCullough was present. However, it is shown by undisputed testimony that the secretary certified that both sets of resolutions were regularly adopted by a majority vote, and his certificates to that effect‘Were delivered by the general attorney of the Gilliland company to the general attorney of the McMan company after the latter had insisted upon the sale being approved by resolution of the directors.
On November 20, 1922, this suit was brought by P. J. Hurley and John J. Satterthwait, as receivers of Gilliland company, against the McMan company, to have the conveyance in question- decreed to be a mortgage, or to have been made with intent to hinder, delay, or defraud creditors of the grantor. The bill alleged that at the time of such conveyance the Gilliland company was insolvent, in the sense that it was unable to pay its debts as they matured in the course of business. Appellant defended on the grounds that it paid adequate consideration, was the purchaser of an unconditional title in good faith, without notice of the grantor’s insolvency, and that the suit was barred by laches. The purchase price, which was promptly paid, was a million dollars. Before this suit was brought, the net profits exceeded that sum. On final hearing, the District Court held that the sale was made in fraud of creditors, and that appellant had notice, though not actual knowledge, thereof, and ordered that the sale be set aside, and that appellant account to the receivers for the profits it had received over and above the purchase price.
The Gilliland company was engaged in trading in oil properties and in producing and selling oil therefrom. It was incorporated under the laws of Delaware, with its principal office at Tulsa, Okl. In July of 1921 Hurley and Satterthwait were appointed receivers of that company by the Federal Distriet Court of Delaware and ancillary receivers by the Federal District .Court for the Northern District of Texas. The bill of complaint was filed on behalf of preferred stockholders, and charged the sale of property in Louisiana for less than its value,' but did not attack the sale of the Hardin lease to appellant. In May of 1922 the Gilliland company was reorganized, and its assets were ordered returned to it as a solvent, going concern ; and, except for the purpose of bringing this suit, the receivership was terminated.
At the beginning of the year 1921, crude oil and its by-products commanded high prices; but in January of that year those prices began to decline rapidly. The price of crude oil dropped from $3.50 to $4 per barrel in January to $1.50 by May 11, the date of the conveyance in question. It continued to decline until in September, when it fell to the low level of $1 per barrel. Of course, the price of by-products declined in proportion. Beginning in September, prices began to advance. During this period of depression many oil operators either failed or were seriously embarrassed. Many banks that financed oil operators were in a precarious condition, and some of them also failed. The Gilliland company found itself in great financial difficulty, although it is not claimed that at any time its liabilities exceeded its assets. John -W. Gilliland was its president, and owned about 75 per cent, of its common stock. Hurley, who was later one of its receivers, and J. H. Boxley were active vice presidents. Gilliland and Boxley were interested in a number of banks in Oklahoma and Texas, and resorted to the devices of kiting checks and making accommodation notes to secure money for their corporation, which continued to expand its business by making additional purchases until as late as the middle of April. In order to raise the money which the corporation needed to pay its debts, including the debts evidenced by fictitious paper in banks, which, though not definitely fixed by the evidence, ranged somewhere be* tween one and two million dollars, the disputed sale of the Hardin lease was made, and the proceeds of the sale were applied in the payment of its debts. The McMan Oil & Gas Company also had its principal office at Tulsa, and, as its name implies, was engaged in the oil-producing business. J. A. Chapman, R. M. MeFarlin, and H. G. Barnard were its president, vice president, and treasurer, respectively, and together owned more than 75 per cent, of its capital stock. They were familiar with the Hardin lease, by reason of the fact that the McMan company owned a one-eighth interest in it at the time of the conveyance by the Gilliland company. Gilliland, Boxley, Chapman, McFarlin, and Barnard were all related to each other by blood or marriage. Negotiations for the conveyance of the Hardin lease were conducted by Boxley and Barnard, and, according to their testimony, that conveyance was intended to evidence an outright, unconditional sale. The court found that the fair market value of the property at the time of the transaction was approximately $1,784,000. The Hardin lease represented about one-third of the value of the Gilliland company’s total assets. Approximately $3,600,000 of preferred stock had been issued and was held by investors living in New York.
About a month after the conveyance was made, representatives of preferred stockholders called upon Chapman with the view of reacquiring the property. They stated to him that they had been informed by Gilliland that this could be accomplished by returning the purchase price of a million dollars with interest within a reasonable time. Gilliland testified that he had made a statement to this effect to the board of directors of Gilliland company at the time the resolution approving the sale was adopted. He further testified that he never discussed the return of the property with Chapman, but that Barnard agreed, after the sale was made, to a reconveyance upon the return of the purchase price within 60 days. Chapman and Barnard denied that there was any such understanding, but Chapman offered to reeonvey the property upon those terms being accepted and complied with within two weeks.
Upon request, the time was extended about two weeks more, but Chapman’s offer was not accepted. In the meantime, engineers made an investigation and reported to the parties interested in securing a reconveyance that the property was worth less than the sum that the McMan company had paid for it. In September, Hurley, one of the receivers, made practically the same offer, but it was declined. J. W. Hayes, secretary of the Gilliland company, testified that he heard Barnard say that that company could have the property back at any time it returned the money, but that witness was unable to say that the statement was made before the contract was executed. J. H. Maxey, general attorney for the Gilliland company, N testified that, after the sale was agreed upon, but before the resolution of the board of -directors approving it was passed, Boxley told.him that Barnard had agreed to pay Boxley a bribe of $150,000 for making the sale. That witness, however, does not claim that he disclosed this information to the board of directors, or to any of the other officers of the company he represented. Besides this, he co-operated with the general attorney of the McMan company in the preparation of the final papers, and never mentioned the alleged bribe to him, and represented the receivers as attorney throughout the receivership proceedings. Hurley, one of the receivers, testified that he first learned of Boxley’s alleged admission to Maxey of being promised a bribe by Barnard in November of 1921, but admitted that Barnard denied the truth of the charge. And there was no direct evidence that the corrupt agreement was in fact made. The testimony of the several witnesses for appellees, to the effect that appellant’s officers had stated after the sale was made that it would reeonvey upon the return of the purchase price, was received over appellant’s objection and exception, as was also the testimony relating to Maxey’s alleged conversation with Boxley on the subject of a bribe being paid by Barnard. In addition, Boxley denied that any such conversation was ever had, and both he and Barnard denied that the alleged bribe was ever offered.
The testimony discloses that the principal officers and stockholders of the McMan company knew in a general way that the Gilliland company was in need of money to pay its pressing obligations, and in order to get it was under the necessity of disposing of some of its holdings at a possible sacrifice because of greatly depressed, market conditions; but it does not show that they had knowledge or could reasonably be charged with notice that the sale of the Hardin lease would so reduce its assets as to bring about a condition of insolvency.
In our opinion it sufficiently appears that corporate authority was given to execute the conveyance of the Hardin lease to appellant.. The resolutions, both of the executive committee and of the board of directors, purport to have been adopted by majority votes. It is conclusively presumed that they were so adopted by reason of the certificates to that effect issued by the secretary and delivered to appellant by the general attorney of the Gilliland company. A corporation is estopped to deny the representations of its officers and agents made within the scope of their authority. Whiting v. Wellington (C. C.) 10 F. 810; Holden v. Whiting (C. C.) 29 F. 881; Prentiss Tool & Supply Co. v. Godchaux (C. C. A.) 66 F. 234; Commonwealth v. Reading Savings Bank, 137 Mass. 431; Holden v. Phelps, 141 Mass. 456, 5 N. E. 815. The conveyance was not a mortgage. Under no phase of the evidence was the consideration shown to be a loan. The utmost that was claimed by witnesses for appellees was that a sale was made upon condition that the property sold could be repurchased.
That testimony went no further than to show that the condition was imposed by appellant after the sale was consummated; but it was oral testimony, and in our opinion was inadmissible under the statute of frauds. 27 C. J. 207. After title has passed, it cannot be impeached by the vendor’s declaration that it was conditional. Greenleaf, § 189. But, assuming the admissibilty of that testimony, the right claimed was to repurchase within the definite period of 60 days. There was no testimony that such right should continue for a reasonable time, as is contended by appellees. No attempt was made to comply with the alleged condition within the time limit that was agreed upon, and so appellant’s title became absolute. Campbell v. Fetty (C. C. A.) 271 F. 671. We are of opinion also that the evidence, even of appellees, fails to show that the conveyance was made with intent to hinder, delay, or defraud creditors of the Gilliland company. The charge of bribery must fail, because it is only supported by an alleged declaration of an officer of appellees which it is not claimed was made until after the execution of the contract of sale. The alleged conversation between Boxley and Maxey was not a part of the res geste, or made during the continuance or in pursuance of a common plan designed by Boxley and Barnard, but was a narrative of a past event. Under no possible view could it be binding on appellant. There was no other circumstance tending to sustain the charge of bribery.
The evidence does not appear to us sufficient fairly and reasonably to support the conclusion that the Gilliland company made the sale with intent to hinder, delay, or defraud its creditors. In the first place, insolvency of that company is not satisfactorily shown. The most that appears is that that company, in order to pay its debts, was obliged to sell some of its holdings at a sacrifice because of depressed market conditions. No improper use was made of the proceeds of the sale, but they were devoted to the payment of debts. The officers of the McMan company were, of course, acquainted with the financial situation that confronted oil companies generally, and besides knew that the Gilliland company was badly in need of money. But, as it appears to us, the evidence falls short of showing that they were chargeable with notice that the Gilliland company was insolvent, even conceding the existence of a state of actual insolvency. In arriving at this conclusion, we have given full weight to the circumstance that close family relations existed between the principal officers and stockholders of the two companies, But, aside from all the foregoing considerations, we are of opinion that this suit is barred by laehes. Hurley, one of the receivers, and formerly a vice president of the Gilliland company, knew of the sale in question. The original suit, in which- he was appointed one of the receivers, was brought in July of 1921. It is significant that the sale here complained of was not attacked during the entire period of the receivership, which was not terminated until May of 1922. Certainly the preferred stockholders, on whose behalf the receivership proceedings were instituted, knew of the sale, for, within a few weeks after it was made, they negotiated for a repurchase. The reason that they did not reacquire the Hardin lease may reasonably be ascribed to their belief that it was not worth more than the price at which it had been sold. Hurley was notified in September of 1921 that the purchaser would not re-convey the property, but would insist upon holding the title it had acquired. Upon receiving notice of the refusal of the purchaser to reconvey, it became the duty of the receivers to act promptly, especially in view of the great fluctuation in the prices of oil-producing properties. They could not wait and determine in the light of subsequent events whether it would be to their advantage to recognize the sale as valid or to repudiate it as invalid. Hurley excused the delay until November of 1921 on the ground that he did not earlier learn of Barnard’s ‘alleged bribery of Boxley. But it stands admitted that there was a delay in bringing suit oí; a year after Hurley was in full possession of all the essential facts on which the suit was based. In the meantime it developed that the purchase of the Hardin lease was profitable to appellant. It is not equitable to allow appellees so to speculate on the value of the property involved. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328.
The decree is reversed, and the cause remanded, with directions to dismiss the bill of complaint.
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_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.
CONCRETE ENGINEERING CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 9124.
Circuit Court of Appeals, Eighth Circuit.
April 13, 1932.
George E. H. Goodner, of Washington, D. C., for petitioner.
Norman D. Keller, Sp. Asst, to the Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst, to the Atty. Gen., and G. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and John D. Foley, Sp. Atty., Bureau of Internal Revenue, both of Kansas City, Mo., on the brief), for respondent.
Before STONE and KENYON, Circuit Judges, and CANT, District Judge.
STONE, Circuit Judge.
This is a petition by a taxpayer to review an order of the Board of Tax Appeals redetermining income and excess profits taxes for the year 1920.
Before the Board of Tax Appeals petitioner urged four errors in the assessment-of this tax. One of these had to do with the failure of the Commissioner to allow a depreciation deduction on two patents which formed the foundation of petitioner’s business. The Board found the values of the patents, and allowed a depreciation deduction equivalent to one-seventeenth of the value thereof. The petitioner acquiesces in this finding, and that question is not presented here [however, see Burnet v. National Electrie Ticket Register Co., 55 F.(2d) 587, this court, opinion filed January 23, 1932]. Another error has to do with the contention that this assessment is barred by limitations. A third error is the failure of the Commissioner to include the value of the above patents as invested capital for the taxable year. The final error is that the Commissioner refused to allow petitioner the benefit of a “special assessment” in accordance with sections 327 and 328 of the Revenue Act of 1918 (40 Stat. 1093). As to this last error, the Board found that petitioner was entitled to this special assessment, and this finding of the Board is acquiesced in by the petitioner, except that it here contends that the Board erred in failing to hold that petitioner is entitled to have its tax liability computed both by special assessment and by the regular statutory basis with allowance of the patents as invested capital, and that whichever of these two methods results in the least tax is the proper one to apply.
I. Limitations.
The tax return of the petitioner for the year 1920 was filed on March 15,1921. Under section 277 (a) (3) of the Revenue Act of 1926 (44 Stat. 9, 58, 26 USCA § 1057 (a) (3), taxes were required to be assessed within five years after the return for taxation was filed. Section 278 (c) of the same act (44 Stat. 9, 59, 26 USCA § 1060 note) provided that “where both the commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in Section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon.” Under the above statutes, the limitation for the assessment of this tax would (without such consent) have expired on March 15, 1926. On February 2, 1926, a waiver, in the departmental form, was executed by the taxpayer and the Commissioner, expiring December 31,1926. Upon June 14, 1926, the Commissioner notified petitioner of the deficiency assessment here involved. Petitioner concedes that, if this waiver is valid, the assessment is not barred, but it attacks the validity of this waiver. This attack is upon two grounds, which are: First, that this waiver was signed on the part of the Commissioner, “D. H. Blair, Commissioner, L. G.,” which reveals that it was not signed by the Commissioner in person, and there was no showing as to who signed his name to this document; seeond, that the other signature is “Concrete Engineering Company, by A. P. Jessen, See’y-Treas., Taxpayer,” and that, under the laws of Nebraska, the secretary of a corporation is not authorized to bind the corporation in the absence of specific authority.
In Stem Brothers & Co. v. Burnet, 51 F. (2d) 1042, 1046, a similar contention was made regarding a waiver signed “D. H. Blair, Commissioner, M. B.,” and this court said:
“The contention as to the proper signature is met by the waiver itself, which eontains the signature ‘D. H. Blair, Commissioner/ and the presumption of the verity of the acts of public' officials. United Thacker Coal Co. v. Commissioner, 46 F. (2d) 231, 233 (C. C. A. 1); Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782, 784 (C. C. A. 4).
“In general, it may be said as to this controversy and those of a related character that a waiver of this kind is ‘essentially a voluntary, unilateral waiver of a defense by the taxpayer/ as stated in Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; also see Florsheim Bros. Drygoods Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; that the signature by the Commissioner is a statutory requirement made, not for contract purposes, but ‘to meet exigencies of administration/ as said in Aiken v. Burnet, 282 U. S. 277, 281, 51 S. Ct. 148, 75 L. Ed. 339; also see Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; Burnet v. [Chicago] Railway Equipment Co., 282 U. S. 295, 298, 51 S. Ct. 137, 75 L. Ed. 349; Elorsheim Bros. Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; Greylock Mills v. Commissioner, 31 F.(2d) 655, 657 (C. C. A. 2); and where the taxpayer, by the execution of the waiver, has obtained delay in the assessment of additional taxes, and a more deliberate and thorough consideration of the questions involved, and where the waiver is regular in form and in the possession of the proper governmental bureau, every presumption should be taken in favor of its validity and binding effect, and the burden is upon the taxpayer to show such invalidity or ineffectiveness, see Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782, 784 (C. C. A. 4).”
Where a waiver of this character bears a purported signature of the Commissioner, and comes from the files of his office, the presumption is that it has been properly executed, and the burden is upon the taxpayer to prove otherwise, and is not upon the Commissioner to prove the verity or authority of his signature. That burden on the taxpayer has not been here sustained.
As to the sufficiency of the signature of the taxpayer: There is no -question that the secretary of the taxpayer executed the above signature and affixed to the waiver the corporate seal of petitioner. From the record it is obvious that petitioner secured the advantage of this extension in so far as the Commissioner in reliance thereon was prevented by this waiver from making a deficiency assessment before the expiration of the period of limitation. It may, well be that, under the laws of Nebraska, there are many things which a secretary of a corporation cannot alone do so as to bind the corporation, but an act of this sort is of a character which is rather clerical in its, character, and a corporate officer cannot be permitted, under the taxing statutes, to sign-, a waiver and affix the corporate seal in a; manner which would naturally induce the-Commissioner to act thereon, and, after it has secured the advantage thereof, repudiate the transaction to the harm of the government. There is no claim here that this-action of the secretary was in violation or opposition to any action' of the board of directors or other governing officers. The-waiver must be held good against the objections here urged.
II. Patents as Capital Investment.
This contention is that the value of the patents should be included as invested capital, and thus results in a reduction of the tax. If such an inclusion is allowable; permission therefor must be found in provisions of the act. The petitioner relies upon section 326 (a) (3) of the Revenue Act of 1918 (40 Stat. 1057, 1092). That section defines the term “invested capital” as used in the act. Petitioner claims that the value of the patents should be regarded as “paid-in * * * surplus,” as set forth in subparagraph (a) (3), which is as follows : “Paid-in or earned surplus and undivided profits; not ineluding surplus and undivided profits earned during the year.”
Invested capital for the purposes of taxation under this act is expressly defined and limited in section 326, and the matters which are included within that definition must be found in the clear expression of that section. Patents are defined as intangible property for the purposes of the act in section 325 (a), 40 Stat. 1057, 1091. Section 326 (a) has five numbered paragraphs. The division of those paragraphs as to character of property is that the first three refer to tangible property, while the fourth and fifth refer to intangible property. In those definitions, intangible property is included as invested capital only when it is “paid in for stock or shares.” Paragraph (3) has no reference to intangible property. In fact, it seems narrowly limited even as to tangible property to money, since the expressions therein are such as properly apply only to money. Those expressions refer to “surplus” and “undivided profits,” and the expression regarding such surplus and profits is that they shall be “paid in or earned.”
Nor can these patents be allowable under paragraphs (4) or (5), which refer to intangible property because the requirement there is that such property may form a part ■of invested capital only where paid in for •stock or shares. The record here is undisputed that all of the shares of this corporation were paid for by tangible property, and that the patents came to the corporation from the inventor in the form of pure gifts. While these patents added very substantially to the property and assets of the •corporation, they do not come within the statutory definition; therefore they cannot be regarded, for taxation, as any part of the invested capital of the company. The above view is supported by La Belle Iron Works v. U. S., 256 U. S. 377, 388-391, 41 S. Ct. 528, 65 L. Ed. 998, and see Lewis A. Crossett Co. v. U. S., 50 F.(2d) 292, 295 (Ct. Cl.); (Revenue Act 1918) Landesman-Hirschheimer Co. v. Commissioner, 44. F. (2d) 521, 523 (C. C. A. 6); (Revenue Acts 1918 and 1921) Daily Pantagraph v. U. S., 37 F.(2d) 783, 789 (Ct. Cl.); (Revenue Acts 1917, 1918, and 1921) Baker & Taylor Co. v. U. S., 26 F.(2d) 187, 188 (C. C. A. 2), certiorari denied 278 U. S. 615, 49 S. Ct. 19, 73 L. Ed. 538.
In view of the above determination of the second point, there is no place for consideration of the third point, involving special assessments, here urged.
The order of the Board is affirmed, and the petition for review ordered to be dismissed.
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_appel1_3_2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellant, v. 2,974.49 ACRES OF LAND, MORE OR LESS, IN CLARENDON COUNTY, SOUTH CAROLINA, and South Carolina Public Service Authority, et al., Appellees.
No. 8618.
United States Court of Appeals Fourth Circuit.
Argued June 11, 1962.
Decided Sept. 17, 1962.
Edmund B. Clark, Atty., Dept, of Justice (Ramsey Clark, Asst. Atty. Gen., Terrell L. Glenn, U. S. Atty., Thomas P. Simpson, Asst. U. S. Atty., and Roger P. Marquis, Atty., Dept, of Justice, on the brief), for appellant.
Walton J. McLeod, Jr., Waterboro, S. C. (W. D. Simpson, Moncks Corner, S. C., and Rogers & Riggs, Manning, S. C., on brief), for appellees.
Before SOPER and BRYAN, Circuit Judges, and LARKINS, District Judge.
LARKINS, District Judge.
On March 29, 1956 the South Carolina Public Service Authority (hereinafter referred to as the Authority) granted to the United States of America (hereinafter referred to as United States) a three-month option to purchase for the price of $105,000. approximately 3,000 acres of land in Clarendon County, South Carolina, for and on behalf of the Santee National Wildlife Refuge Project. No time limit for performance of the contract, if the option were accepted, was set forth in the option contract. On October 26, 1956 the option was extended to January 29,1957 and the United States exercised the option in writing on December 21, 1956.
No further correspondence ensued between the parties until January 20, 1958 when the Authority advised the United States that it considered the delay of more than one year in making payment to be unreasonable and declared the option to be terminated. The United States replied on January 28, 1958 that it would complete acquisition. On May 6, 1958 the Authority stated that it definitely would not convey the property pursuant to the option contract.
On November 15, 1958 the United States filed a complaint in condemnation and a Declaration of Taking and deposited with the court, the sum of $105,000. as estimated compensation. An order for immediate possession was entered on February 13, 1959. In the complaint reference was made to the option agreement wherein the parties had agreed upon a purchase price of $105,000.
The Authority’s motion for summary judgment to dismiss the complaint and vacate the Declaration of Taldng was denied.
The United States then moved for judgment on the pleadings and the district court denied the motion while deciding that a question of fact to be determined by a jury existed as to whether the United States had complied with its obligations under the. option contract.
In October 1961, trial was held upon the sole issue of whether the United States had complied with the terms of the option contract to perform its obligations within a reasonable time. The jury returned as its verdict, that the delay of the United States in meeting its obligations under the option contract was unreasonable. The district court thereupon entered an order dismissing the complaint, vacating the Declaration of Taking and vacating the order for immediate possession with the comment that the jury verdict rendered the option contract invalid, and inasmuch as the option contract was inseparably involved in the pleadings and issues in this action, the action could not continue without defendant suffering grave prejudice.
The district court was not in error in submitting to the jury the issue of whether the United States’ delay in fulfilling its obligations under the option contract was reasonable. The complaint specifically set forth the option contract as the basis of the price ($105,000.) alleged to be just compensation for the taking of the Authority’s property. This fact coupled with the apparent lethargy on the part of the United States to carry out its obligations under the option contract between December 26, 1956 and May 6, 1958 was sufficient basis for determining that a question of fact existed as to whether the United States had acted within a reasonable time under the option contract and that said question was sufficiently pertinent to this action to be submitted to a jury.
In refusing the Authority’s motion for a summary judgment and in submitting to the jury the question whether the United States had acted within a reasonable time the Judge followed the established procedure. The rule is that the vendor in a contract for the sale of land in which the time for carrying out the contract is not specified, cannot put an end to the contract without notice to the vendee of his intention to do so and affording the vendee a reasonable time to carry out his contract obligations. See United States v. Stott et ux, 140 F.2d 941 (8th Cir., 1944). The Judge was also correct in instructing the jury that, in the determination of what constitutes a reasonable time within which the vendee must act after notice of rescission, the nature of the subject matter, the object of the contract and the situation and conduct of the parties and all other circumstances should be taken into consideration. What is a reasonable time must be computed from the receipt of the notice of rescission, but in considering this question all the circumstances should be taken into consideration, including those which occurred prior to the time when the notice of rescission was received.
The district court determined in its Opinion and Order of July 29, 1960 that this condemnation was duly authorized by federal statutes. Nevertheless, the district court in its order of October 30, 1961 dismissed the condemnation proceeding upon the grounds that the option contract, found to be invalid by the jury, was so intertwined in the condemnation complaint and the exhibits attached thereto that to leave the complaint stand would be prejudicial to the defendant whenever the question of just compensation was considered. The district court went one step further and stated that even an amended complaint would be inadequate to prevent the defendant suffering prejudice.
We think that in this action the court went too far. Once it had determined that the condemnation was authorized by statute and that the statutory requirements had been complied with the court was without power to dismiss the condemnation proceedings and Declaration of Taking. United States v. Hayes et al., 172 F.2d 677 (9th Cir., 1949). The court should have permitted the Government to amend the pleadings so as to eliminate reference to the agreement of option and to permit the proceeding to go on on the basis of the Government’s general power of eminent domain. We think, however, that the option contract may be considered in the trial of the condemnation case which will take place upon the remand and that at this trial the Government may offer the option contract in proof of the value of the property condemned. Since the option here is between the condemnor and the condemnee, the date of the execution of the option and the extension thereof by the Authority was not too remote in time as to preclude the admissibility of the option and the option price as having some probative effect of the value two years later when the formal condemnation proceedings were filed. The jury, however, should be specifically instructed that they should ascertain the value of the property as of November 15, 1958 when the condemnation proceeding and the Declaration of Taking were filed and the money was paid into court; and they should be further instructed that they are not bound by the purchase price agreed upon on March 29, 1956 and extended by the subsequent agreement of October 26, 1956 but that they should consider the agreement as evidence of the value of the property on those dates together with any evidence that may be ' offered of a change in valuation between the date on which the agreement was made and the date when the condemnation proceeding was filed.
The Order entered in this action by the district court on October 30, 1961 dismissing the complaint, vacating the Declaration of Taking and vacating the order for immediate possession is hereby reversed and the proceeding remanded to the district Court with instructions to permit the amendment of the complaint of condemnation and to permit the proceeding in condemnation to proceed in the manner hereinbefore outlined so as to determine the issue of just compensation.
Affirmed in part and reversed in part. Case remanded for proceedings in accord with this opinion.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer: |
songer_direct2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Aida Guzman De FONT et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
No. 71-1124.
United States Court of Appeals, First Circuit.
Heard Nov. 16, 1971.
Decided Jan. 6, 1972.
Antonio Montalvo-Nazario, San Juan, P. R., with whom Segurola & Montalvo, San Juan, P. R., was on brief, for plaintiffs-appellants.
Morton Hollander, Atty., Dept. of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen., Julio Morales-Sanchez, U. S. Atty. and Robert M. Feinson, Atty., Dept. of Justice, were on brief, for defendants-appellees.
Before COFFIN, Circuit Judge, VAN OOSTERHOUT, Senior Circuit Judge, and STEPHENSON, Circuit Judge.
Of the Eighth Circuit, sitting by designation.
PER CURIAM.
Plaintiffs appeal from dismissal of their complaint under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2674) for damages sustained as a result of malpractice injury to their deceased husband and father. The trial court dismissed on the basis of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The complaint alleges that the treatment evaluation and medical care given decedent by various army physicians and hospitals was “deficient, negligent and unwarranted, causing extreme pain, mental disorder and anguish” to deceased and his wife, and that “plaintiffs have suffered the loss of companionship, the loss of father’s ability to produce income and support to both plaintiffs, which are calculated in the amount of $884,000.”
Initially, we observe that the plaintiffs, in opposition to the Government’s motion to dismiss, contend Feres does not control because plaintiffs were not members of the Armed Forces at the time of the negligent act and the injuries received by both plaintiffs did not arise out of', or in the course of, activity incident to service because both plaintiffs were civilians at the time the injuries and damages were suffered. Plaintiffs contend that as wife and child of decedent they have a separate and independent cause of action for mental suffering and anguish under the Civil Code of Puerto Rico. 31 L.P.R.A. § 5141. See Commercial Union Insurance Company v. Gonzalez Rivera, 358 F.2d 480, 482-483. (C.A.5 1966). The mere fact that the cause of action is not derivative under local law, but is an original and distinct cause of action granted to the heirs and personal representatives to recover damages sustained by them by reason of the wrongful death of the decedent, does not remove it from the prohibition of Feres. Van Sickel v. United States, 285 F.2d 87 (C.A.9 1960); United States v. Lee, 400 F.2d 558 (C.A.9 1968), cert, denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969). In Feres, 340 U.S. at p. 143, 71 S.Ct. 153, the Supreme Court made it clear that an accident of geography would not be determinative of the applicable law. The controlling rule is that the Government is not liable under the Act “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service,” Feres at p. 146, 71 S.Ct. at 159.
In the case at hand, the damage claim for loss of “companionship,” “father’s ability to produce income and support to both plaintiffs” is, under the allegations of the complaint, incident to decedent’s service. On this basis the trial court was fully justified in dismissing the complaint. However, we further note that in appellant’s brief and argument before this Court it is claimed that appellant wife “was present throughout the treatment and witnessed and suffered the grave consequences of the inadequate care given to her husband.” Although appellants’ prayer for damages refers only to “loss of companionship” and to loss of the decedent’s “ability to produce income,” appellants also apparently raise some claim of a separate and independent tort to the wife based on mental anguish arising from her observations of the inadequate care given her deceased husband. See Prosser, The Law of Torts, 181 (2d ed. 1955). Even if this claim were adequately specified and damages claimed therefor, we are satisfied that this allegation would not remove the incident-to-service limitation of Feres. We would be unwilling to depart therefrom even if we were able to do so. Cf. Hall v. United States, 451 F.2d 353 (1st Cir. 1971).
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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.
Marcus N. BRESSLER, Plaintiff-Appellee, v. FORTUNE, A DIVISION OF TIME INC., Defendant Appellant.
No. 91-5601.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 23, 1992.
Decided Aug. 6, 1992.
Rehearing and Rehearing En Banc Denied Oct. 16, 1992.
Janet Mayfield Hogan (briefed), Knoxville, Tenn., William H. Ogle, Ormond Beach, Fla., Paul N. Minkoff (argued), Klovsky, Kuby & Harris, Philadelphia, Pa., for plaintiff-appellee.
Floyd Abrams (argued & briefed), Dean Ringel, Cahill, Gordon and Reindel, New York City, R. Louis Crossley, Jr., Long, Ragsdale & Waters, Knoxville, Tenn., for defendant-appellant.
Laura Handman (briefed), New York City, for Amici Curiae.
Before: GUY, NORRIS, and BATCHELDER, Circuit Judges.
RALPH B. GUY, Jr., Circuit Judge.
Defendant, Fortune Magazine, appeals a $550,000 jury verdict in a libel suit brought by plaintiff, Marcus Bressler. Bressler’s claim stemmed from a 1986 Fortune article which reported allegations that Bressler, an official of the Tennessee Valley Authority, had attempted to cover up safety violations at TVA’s Watts Bar nuclear plant. Fortune argues that Bressler, a public official, failed to establish that the article’s statements were false and that the reporters acted with actual malice. Fortune also contends that the district court erred in instructing the jury that Bressler need only prove the article’s falsity by a “preponderance of the evidence,” rather than by “clear and convincing” evidence.
Our thorough review of the record— which details the information provided by the various sources on which the Fortune reporters relied — reveals that the evidence falls short of demonstrating that the reporters realized their statements were false or had serious doubts as to the truth of their statements. We thus reach the contest over the article’s “falsity” only tangentially; we reach not at all the debate over the proper standard of proof for falsity in a public official’s libel suit. On the actual malice issue alone, we reverse and remand for entry of judgment in favor of Fortune.
I.
In October 1986, Fortune published an article focusing mainly on federal officials’ allegations that TVA’s chief of nuclear operations (not the plaintiff here) may have violated conflict-of-interest and salary rules. Seven of the article’s 33 paragraphs, however, reported on investigators’ “allegations about an attempted cover-up of safety questions at the Watts Bar plant.” Brian Dumaine, Nuclear Scandal Shakes the TVA, Fortune, Oct. 27, 1986, at 44.
The article explained that Howard Hasten, an “authorized nuclear inspector” with Hartford Steam Boiler, which had contracted with TVA to inspect the construction of the Watts Bar plant, discovered that welds in pipes carrying water to and from the nuclear reactor containment area had not been tested in accordance with the governing engineering code. At that stage of construction, performing the necessary tests and inspection would have been extremely time-consuming and costly, since many of the pipes had already been insulated and installed.
The article further stated that TVA had issued a safety report which recommended that the pipes be “used as is.” Hasten initially refused to sign this report, since the lack of proper testing violated minimum safety standards. “A burst pipe could set off a serious nuclear accident,” according to the article.
The Fortune story then noted that a “campaign ... to force Hasten to sign the report” was mounted, and that an internal investigation at TVA revealed that managers at TVA’s engineering codes and standards office (of which plaintiff Bressler is a member) called Haston’s superiors at Hartford to complain about Haston’s intransigence. Haston’s supervisor, Harold Robi-son, pressured Haston to sign; Haston finally did so, but wrote that his signature was only at Robison’s direction. The article went on to state that TVA investigator Jerry Smith had received anonymous telephone calls about pressure on Hartford inspectors and that TVA had received an anonymous letter threatening to publicize the welding problems unless TVA persuaded Hartford to increase its inspectors’ salaries. “According to TVA investigators,” the article continued, “Marcus Bres-sler ... tried to cover up the breach of safety standards” and “warned Hartford Steam Boiler to get its inspectors in line or TVA would not renew its inspection con-tract_”
The TVA Board of Directors assigned another internal investigator, Mansour Guity, to look into the origin of the anonymous extortion letter. Guity was unable to link the letter to Hartford inspectors, but, according to the article, Guity “did find out about the pressure Bressler had exerted to cover up the safety violation.” Investigators Smith and Guity later complained to the U.S. Labor Department that TVA management had harassed and intimidated them for voicing their safety concerns. The Labor Department ruled in their favor.
The Fortune story added that the “Hartford Steam Boiler incident was confirmed in a draft report by the Nuclear Regulatory Commission’s office of investigation.” The article attributed this information to “congressional sources.”
At Bressler’s ensuing libel trial, Fortune introduced the final report of the Nuclear Regulatory Commission which concluded, among other things, that TVA managers might have pressured Hartford to accept the “use as is” proposal in the report about the pipe welds even though the welds violated code requirements. Fortune also introduced the notes the reporters took during interviews with the private and federal investigators, who had identified Bressler as the source of the pressure, and the corroborating deposition testimony of two former TVA officials. The reporters’ testimony included explanations of how they developed the story and subjected it to the magazine’s pre-publication fact-checking process.. A journalism expert for plaintiff testified, over defendant’s objection, that the Fortune reporters’ investigation and writing “fell far below the standard of journalism” and that the reporters “knew [the article] was false.” We address this evidence more fully below.
The jury found that the statements about Bressler were false and. that the reporters had acted with actual malice. Bressler was awarded $250,000 in compensatory damages and $300,000 in punitive damages. The district court denied Fortune’s. JNOV and new trial motions, and Fortune now appeals.
II.
The trial judge determined that Bressler was a public official; as such, Bressler could prevail only by showing that Fortune published the article with actual malice, New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), and by demonstrating that the “gist” of the article was false, Masson v. New Yorker Magazine, Inc., — U.S. -, -, 111 S.Ct. 2419, 2433, 115 L.Ed.2d 447 (1991).
In a recent public-figure libel case summarizing accepted formulations of the “actual malice” test, the Supreme Court stated that the test
requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” we have made clear that the . defendant must have made the false publication with a “high degree of awareness of ... probable falsityf.]”
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 2685,105 L.Ed.2d 562 (1989) (citations omitted). The Court emphasized that the inquiry is “subjective,” focusing on whether the defendant “ ‘in fact entertained serious doubts as to the truth of his publication.’ ” Id. at 688, 109 S.Ct. at 2696 (citation omitted). Actual malice, defined in this way, must be established by “clear and convincing proof.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). The question whether the record may support a finding of actual malice is a question of law. Harte-Hanks, 491 U.S, at 685, 109 S.Ct. at 2694.
The Harte-Hanks Court also set forth the duty of an appellate court considering a case such as this one.
In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard ... the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment ... protect[.]’ ”
Id. at 688, 94 S.Ct. at 2696 (citations omitted). Based on our review of the entire record — the several sources on which the Fortune reporters relied, the substance of those sources’ statements, and the content of the various documents consulted in preparing the article — we believe the evidence could not have supported a finding of actual malice under the "clear and convincing” standard. This determination obviates the need to address the proper standard by which a trier of fact must measure a publication’s falsity. Although our conclusion regarding actual malice in this case necessarily suggests that the gist of the article was substantially true, we do not reach this issue.
The “gist” of the contested portion of the Fortune article was that plaintiff Bres-sler allegedly played a lead role in pressuring an independent inspector to certify, contrary to fact, that' certain safety-related welds in the Watts Bar plant met the engineering code requirements, and that Bres-sler also attempted to cover up that safety violation. We now examine the defendant’s basis for reporting such allegations.
III.
In the course of researching a story on TYA’s non-operating nuclear power reactors and allegations that TVA’s chief of nuclear operations may have violated federal conflict-of-interest standards, Fortune reporters Brian Dumaine and Brett From-son learned about Nonconforming Condition Report (NCR) 5609. Howard Haston, the inspector from the Hartford company, had discovered that certain welds on pipes within the plant’s penetration assemblies had not been visually inspected for leakage during the mandatory “hydrostatic” (water-pressure) testing. Such inspection was required under the code promulgated by the American Society of Mechanical Engineers (ASME). It was Haston’s duty, as an authorized nuclear inspector, to check for compliance with the ASME code. Given the welds’ location within the plant, they were considered “safety-related” components.
Having discovered this noncompliahce, Haston prepared NCR 5609 describing the problem. TVA, so alerted, was supposed to suggest a means of solving the problem. Bressler, TVA’s specialist on the ASME code, discussed the matter with Haston’s superiors, Harold Robison and William Higginbotham. Haston did not know what Bressler said in these conversations, and thus could not say that Bressler made any threats regarding Hartford’s contract with TVA. Haston said, however, that given Higginbotham’s “volatile personality ... . any discussion between a client ... and that supervisor could have been construed as threatening because he was concerned about that.”
Faced with NCR 5609, TVA engineer Dorwin Etzler consulted with Bressler and decided to recommend that the welds be “used as is.” Bressler was “instrumental in suggesting [this] disposition,” according to Etzler’s trial testimony. Inspector Ha-ston’s signature was then required on the report in order to approve the “use as is” disposition. If Haston failed to sign it, TVA would have to obtain approval from the Nuclear Regulatory Commission (NRC) — which could delay the plant’s start-up. Bressler later admitted to NRC investigators that the planned schedule for fuel loading affected the decision to forgo the required inspection of the welds.
Haston initially refused to sign the report because to do so would be to certify that the welds met the ASME code, which they did not. Haston finally submitted to pressure from his superiors, but he also inscribed the “unprecedented” notation that his signature was only “per written and verbal direction of H.L. Robison.” Bressler conceded at trial that the welds did not meet the code.
Several months later, after TVA had certified to the NRC that the Watts Bar plant was ready for an operating license, a subcommittee of the House Committee on Commerce and Energy had assigned an investigator, John William. Nelson, to look into allegations, as Nelson put it, of “collusion between T.V.A. and Hartford Steam Boiler ... to the effect their on-site nuclear inspectors were being intimidated or forced to sign off on systems that they felt were not safe.” Shortly thereafter, an engineer on TVA’s internal investigatory unit, the Nuclear Safety Review Staff (NSRS), wrote a memorandum to the TVA Board. The engineer, Jerry Smith, told the Board that anonymous telephone callers had complained that the nuclear inspectors had been “bought off" or “told to back off by their employers as a result of ‘TVA pressure.’ ”
In response, the TVA Board hired an independent contractor, the Quality Technology Corporation (QTC), to investigate the matter raised in Smith’s memorandum. When an anonymous extortion letter arrived at TVA, threatening to inform the NRC of ASME code violations if Hartford inspectors were not given a raise, the TVA Board launched a second investigation. This second inquiry was headed by Mans-our Guity, also of the TVA’s internal investigatory unit (the NSRS). Guity reported to his TVA superiors that the evidence he had gathered showed that the extortion letter was written by a TVA employee and not a Hartford inspector; more importantly, Guity told the Board that there had been collusion between TVA and Hartford managers in coercing inspectors to accept nonconforming components. Guity told TVA Assistant General Counsel William Mason that Bressler had played a lead role in the apparent collusion by “using his position on various national code committees to cause Hartford to take positions on T.V.A. code technical issues that they wouldn’t otherwise take.”
Guity apparently had some difficulty completing his investigation, however. TVA management initially told Mason that the inspectors were refusing to talk to Guity. Mason later learned that the inspectors were willing to provide information, “and that the only problem was that there was this either perception or fact that the code section in [TVA’s] office of engineering was having this communication outside the procedure with Hartford” in an attempt to pressure the inspectors not to talk. Bres-sler was the TVA official responsible for code compliance.
During this time, Bressler met with Ha-ston’s superiors and other Hartford managers. Bressler told Hartford that he had lost confidence in the company as a result of the extortion letter, and he also complained that Hartford inspectors were communicating with QTC, the company the TYA Board had hired to investigate the origin of the anonymous phone calls and the extortion letter. Due in part to Bres-sler’s complaints, Hartford instituted new regulations restricting its inspectors’ ability to communicate with outside investigators. Robison, Haston’s supervisor at Hartford, also sent a memorandum to Hartford inspectors at Watts Bar warning them that “TYA has voiced a concern that the Authorized Nuclear Inspectors are spending too much time with the Quality Technology Corporation.”
Before the NSRS investigation into the alleged collusion was finished, Guity resigned, claiming that his TVA superiors were exerting “undue pressure” on him as a result of his initial findings. Guity filed a retaliation claim against TVA; Jerry Smith, also of the NSRS, did the same. Their claims were upheld.
The NRC then launched its own investigation into the allegations of collusion and intimidation of inspectors. Fortune reporter Fromson learned from Henry Myers, an advisor to a subcommittee of the House Committee on Commerce and Energy (whom the NRC had briefed on its investigation), that the NRC had uncovered evidence corroborating the NSRS findings. According to Fromson’s notes on his interview with Myers, Myers said the NRC had discovered “[t]hat there was a violation of the ASME code. That Bressler at TVA pressured Higginbotham [at Hartford].... That Higg[inbotham] told Robison tó pressure Haston. That Robison did so. Bres-sler is the guy who pressured Hartford....”
Meanwhile, as the NRC pursued its investigation, Fortune reporter Brian Du-maine interviewed Owen Thero, a former investigator for QTC — the company the TVA Board had hired to look into the allegations of collusion and intimidation raised by Jerry Smith. Thero told Dumaine that Bressler had warned Hartford management, “If you don’t play ball — Hartford could lose [its] contract.”
Dumaine also interviewed Guity and Smith, the two NSRS investigators who had successfully sued TVA for retaliation. Dumaine’s interview notes indicate that Guity told the reporter that “the TVA management and Hartford managers forced (other) Hartford managers to sign off on pipes despite objections of Hartford inspectors[.]” Fortune reporter Brett Fromson also interviewed Guity on several occasions. According to Fromson’s interview notes, Guity informed him that “TVA pressured the home office of Hartford to accept the work.” “There was apparent collusion between the Hartford regional managers and the TVA managers to persuade the ANI [inspector] to approve penetration welds which were not hydro-statically tested.” Guity also said that TVA officials had attempted to thwart his investigation.
The reporters also examined transcripts of deposition testimony taken as part of Guity’s and Smith’s labor claims against TVA. Mason, TVA’s lawyer, had testified that there “was a serious question, whether there was an improper T.V.A. link that was defeating the purpose of the [Hartford inspection] contract[.]” Mason also testified that Guity had told Michael Kidd, who had headed the NSRS, “that Mark Bressler ... was using his position on various national code committees to cause Hartford to take positions on T.V.A. code technical issues that they wouldn’t otherwise take.” Mason further testified that Guity had told Mason that Bressler would contact the Hartford regional office about code compliance problems raised at the nuclear plant sites, and the regional office would then contact the sites and proceed to “explain away or order the resolution of the code issues ... despite the fact that the code or the required engineering and substitution for the code may not have been in fact done.” Both Mason and Kidd, whose deposition the reporters also studied, testified that Guity enjoyed a reputation as one of TVA’s top investigators.
Fromson interviewed another QTC investigator, William Kemp, who also pointed to Bressler as the TVA official pressuring Hartford on code issues. Kemp told From-son that when inspector Haston refused to sign NCR 5609, Bressler called Higginbotham, and Higginbotham then called Robison (Haston’s more immediate supervisor), complaining that, “[Y]our guy [Haston] is raising hell,” and instructing Robison to make Haston sign the report.
Fromson also spoke with Haston himself who, though initially reluctant to talk, stated that he had indeed signed the report only when Robison compelled him to, and that “Higginbotham was getting calls from Bressler, the guy in charge of ASME codes and standards[.]” Haston also told From-son that he didn’t think that Bressler had “ever directly threatened ... to pull the contract, but the fear that it might be pulled was always there for Hartford.”
When Fromson tried to reach Haston’s supervisors for comment, he was referred to Hartford’s attorney who said only that Hartford “has done nothing wrong.” Fromson claims he made repeated attempts to reach Bressler for comment, leaving messages with TVA’s public relations department and at Bressler’s own office. At trial, Bressler acknowledged receiving only one call from the reporter, which he did not return. Fromson said he read the relevant portions of the article to TVA’s public relations officer, who ultimately responded that TVA would have no comment.
Once Dumaine and Fromson had completed a first draft of the article, Fortune editors subjected it to the magazine’s standard fact-checking process, during which the reporters would read passages of the article to the sources from whom they had gleaned the information. None of these sources — including Guity, Myers, Kemp, Thero, and Smith — found the article inaccurate.
IV.
The record, as summarized above, demonstrates that the Fortune reporters relied on a variety of mutually corroborative sources and materials. The reporters’ research revealed that four separate investigations — by QTC, the NRC, TVA’s own NSRS, and the House Committee on Commerce and Energy — had uncovered evidence that TVA, through Hartford management, had exerted pressure on Hartford inspectors. Three of these investigatory sources (Guity, Kemp, and Myers) specifically identified Bressler as the source of the pressure on Hartford, and a fourth (Thero) told Dumaine about a specific threat by Bressler regarding Hartford’s contract with TVA. The interview with inspector Hasten also confirmed that he signed NCR 5609 only under duress, that Bressler had had contact with Haston’s superiors while this report was being considered, and that any communication with Bressler, as a Hartford client, would have been deemed a threat to Hartford’s contract.
The reporters also examined the deposition testimony of TVA Assistant General Counsel William Mason and former NSRS chief Kidd which confirmed that Bressler was the source of pressure on the inspectors to accept nonconforming items, and that the inspectors had felt inhibited about talking to the outside investigators — due to pressure emanating from the “code section in the office of engineering” (Bressler’s domain).
Finally, the pre-publication checking process failed to reveal any inaccuracies, and the reporters sought comment from Hartford, TVA, and Bressler in particular.
Based on our detailed examination of the evidence on which Dumaine and Fromson relied in reporting the allegations — identified as such — in the Fortune article, we are convinced that the finding of actual malice in this case is unsupportable. The variety of the sources, their corroborative statements and apparent reliability, and the pre-publication scrutiny to which the sources’ information was subjected, all contribute to our conclusion. If the .televised reading of another’s affidavit accusing an official of bribery does not constitute actual malice even when the reader relies solely on the affidavit and makes no attempt to verify the accusation, then the comparatively extensive research effort by the Fortune reporters here, which gleaned consistent statements from multiple reliable sources, compels us to conclude that actual malice cannot be found on this record. There simply is not enough evidence to show that the defendant actually “entertained serious doubts as to the truth of [the] publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).
We also reject Bressler’s attempt to analogize this case to Harte-Hanks. In that case, the Supreme Court found actual malice in the publisher’s failure to consult a key witness and listen to a readily available tape recording of a contested conversation. These efforts would have verified or contradicted the informant’s “highly improbable” charges, which five other witnesses had cast into serious doubt. Harte-Hanks, 491 U.S. at 691-92, 109 S.Ct. at 2697-98. Given the consistent stories which Fortune’s several sources had provided, and those sources’ apparent reliability, Fortune’s decision not to gain additional comment from Harry Jackson — whom Kemp had identified as an expert on code issues— cannot be equated with the Journal News’ failure in Harte-Hanks to interview Patsy Stephens and'listen to the tape recording of her interview with COnnaughton. Unlike in Harte-Hanks, we can find no evidence here of a “purposeful avoidance of the truth.” Id. at 692, 109 S.Ct. at 2698.
The judgment in favor of the plaintiff is REVERSED, and the case is REMANDED for entry of judgment in favor of the defendant.
. The dissent suggests that we have required Bressler, a minor figure in the article, to demonstrate the falsity of the entire article. Our analysis reveals, however, that we have done no such thing. We have focused solely on the discrete passages in dispute.
. The dissent relies on Masson in criticizing our purported rewriting of the article’s defamatory statements. Masson, however, in addition to confirming that it is the "gist” of the statements which must be examined, — U.S. at-, 111 S.Ct. at 2433, considered the significance of rewriting, or misquoting, by a defendant-publisher, and not by a reviewing court. Further, there has been no allegation that the Fortune reporters altered or fabricated any quotations.
.Before the Nuclear Regulatory Commission would allow Watts Bar to operate, inspectors like Haston had to certify that the plant complied with the ASME code, or that there had been a satisfactory "disposition" of any noncomplying materials or components.
. Nelson was deposed as a witness in a suit brought by a TVA investigator, Jerry Smith, against TVA. The Fortune reporters reviewed his deposition as part of their research for the article at issue here.
. The article states that Myers, identified as a "congressional source[],” had said the allegations were confirmed in a draft NRC report. The final NRC report, issued one month after the Fortune article appeared, confirmed that Hasten had been "coerced, pressured, harassed, threatened and/or intimidated by Higginbotham [or] Robison” into accepting TVA’s "use as is” disposition “which did not meet the minimum requirements of the ASME Code.” The NRC report also states that Bressler admitted the ASME code was violated when the welds were not visually examined during the hydrostatic testing, and that the fear of delaying the start-up of the reactor contributed to the decision to forgo such inspection. Significantly, the report concluded:
The decision by [Hartford] management to agree to the "accept as is” disposition of NCR 5609 may have been influenced by discussions between [Hartford] management and TVA personnel, [Hartford] management's sensitivity to TVA’s needs and desires, and the apparent perceived concern by [Hartford] management personnel that the actions of their ANIs [inspectors] could jeopardize their contract with TVA.
The report also stated that ”[t]here is testimonial evidence to support that TVA, through [Hartford], attempted to discourage the site ANIs from talking to QTC and NSRS personnel.” Bressler was one of only three TVA officials referred tp in this portion of the report; the other two were Dorwin Etzler, who had prepared the “use as is” recommendation after consulting Bressler, and Walter Joest, an engineer in TVA’s Codes, Standards, and Materials Group. Bressler was the TVA official in charge of code compliance.
As the dissent correctly notes, the final NRC report cannot be deemed probative of the reporters’ state of mind, as it was issued only after the article was published. (It is, however, pertinent to the falsity issue.) The draft of this report is properly considered in the actual malice inquiry in that Myers disclosed its conclusions to Fromson during the article’s preparation.
. Although the notes taken during this fact-checking routine were lost before trial, plaintiff did not offer any evidence — such as testimony by the sources purportedly consulted during this process — -to show that such checking never occurred.
. Bressler argues that Guity and Smith, major sources for the article, were obviously biased against TVA, having sued it for retaliatory discharge. However, these investigators’ success in their labor dispute bolsters the credibility of their claim that TVA thwarted their investigation into improper pressure exerted on Hartford inspectors. Further, the depositions of Mason and Kidd indicated to the reporters that Guity, considered one of TVA’s best investigators, was a credible source. Finally, as is evident from our decision in Perk v. The Reader's Digest Association, 931 F.2d 408, 411-12 (6th Cir.1991), reliance on hostile sources does not of itself necessarily constitute actual malice.
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_r_bus | 99 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
NEW BRITAIN MACHINE CO., Plaintiff-Appellant, v. W. Lloyd YEO, Administrator, Estate of Joseph H. Hoern, et al., Defendants-Appellees. W. Lloyd YEO, Administrator, Estate of Joseph H. Hoern, et al., Plaintiffs-Appellees, v. NEW BRITAIN MACHINE CO., Defendant-Appellant.
Nos. 16211, 16287.
United States Court of Appeals Sixth Circuit.
March 8, 1966.
Roy C. Hopgood, New York City, and Palmer S. McGee, Jr., Hartford, Conn'., for New Britain Machine Co., Milton E. Higgs, Higgs & Higgs, Bay City, Mich., on the brief, John M. Calimafde, Arthur M. Lieberman, Hopgood & Calimafde, New York City, Palmer S. McGee, Jr., Day, Berry & Howard, Hartford, Conn., of counsel.
Ferdinand D. Heilman, Saginaw, Mich., for W. Lloyd Yeo and others, Heil-man, Purcell, Tunison & Cline, Saginaw, Mich., on the brief.
Before PHILLIPS and CELE-BREZZE, Circuit Judges, and CECIL, Senior Circuit Judge.
HARRY PHILLIPS, Circuit Judge.
Case No. 16,287 is an appeal by New Britain Machine Company (referred to herein as “New Britain”) from a final judgment rendered against it in the amount of $202,253.51, plus costs and disbursements yet to be taxed. This judgment is based upon royalties on a certain “BV” machine manufactured and sold by New Britain, which uses mechanisms covered by U. S. Patent No. 2,872,-853 (application No. 400,531). Plaintiff s-appellees (referred to herein as “Yeo et al.”) are a group of twenty-four former stockholders of Hoern & Dilts, Inc., a Michigan corporation which was dissolved in 1955, and are the owners of the aforesaid patent as assignees of this corporation.
Case No. 16,211 is an appeal by New Britain from an order of the district court dismissing its action against Yeo et al. for the recovery of royalties alleged to have been paid by mistake and without consideration in the amount of $207,193.-36.
Jurisdiction in both cases is- based upon diversity of citizenship. This opinion will be devoted to case No. 16,287 except where otherwise indicated.
1) The three contracts at issue
This action is for breach of contract. Three contracts are involved, referred to herein as the 1946 contract, the 1950 contract and the 1955 contract. The patent in question, No. 2,872,853, was issued to J. H. Hoern, inventor, February 10, 1959. The application for this patent was filed by Mr. Hoern December 28, 1953.
New Britain is a manufacturer and seller of industrial machines. The machine here in question is of a type known as a rotary-cam actuated boring machine. This type of machine falls generally into one of three classes, namely: (1) “indexing” machines, or (2) “continuous” machines, or (3) “non-indexing, non-eontinuous” machines. The BV machine here involved is of the third class, i. e., “non-indexing, non-eontinuous.”
In 1946 and prior thereto J. H. Hoern and Carl E. Dilts were engaged in business as a partnership designing and building machine tools. Mr. Hoern is now dead and Yeo is the administrator of his estate.
The 1946 Contract
On March 28, 1946, these two individuals entered into a licensing agreement with New Britain. This contract stated that the licensors, Hoern and Dilts, “have been and now are developing cam and pneumatic actuated' type boring machines;” that certain improvements in cam and pneumatic actuated type boring machines were disclosed in patent application No. 642,352 (later granted as Patent No. 2,641,146) and in application for U. S. Patents then in course of preparation (this reference is to application No. 671,477 which was filed May 22, 1946, and for which the patent was issued November 24, 1953, as No. 2,659,961); and that the exclusive right and license to manufacture and sell the said boring machines was granted to New Britain, except in certain particulars therein provided.
The pertinent licensing language of the 1946 contract is quoted in the margin.
Additionally the agreement provided that Hoern and Dilts would disclose to New Britain any invention or improvements relating to the said machines, without further royalty payments.
In September 1946, the Hoern and Dilts Corporation, hereinafter referred to as “H & D, Inc.”, was formed, with Messrs. Hoern and Dilts holding a majority of the stock. H & D, Inc. engaged in the manufacture and sale of “indexing” and “continuous” rotary cam actuated boring machines.
The 1950 Contract
In 1950 New Britain discovered that H & D Inc. was also engaged in the manufacture and sale of a type -of “non-indexing, non-continuous” boring machines. New Britain protested to the individuals and the corporation that this action was an infringement of the exclusive rights granted by the 1946 contract. Two new agreements were executed, one between New Britain and H & D Inc., and the other between New Britain and Messrs. Hoern and Dilts as individuals. The agreement between the two corporations provided that:
“2. H & D agrees to cease forthwith and not to resume the manufacture or sale of Non-indexing Type Boring Machines of the general type heretofore manufactured and sold by it and which New Britain contends are covered by the said exclusive license which New Britain did acquire from Joseph H. Hoern and Carl E. Dilts by agreement of March 28, 1946.”
The new licensing contract which was executed in 1950 between New Britain and the individuals Hoern and Dilts provided that the 1946 agreement “be amended by substituting therefor” the new agreement. The 1950 contract granted New Britain the exclusive license to manufacture and sell “said Rotary-Cam Actuated Boring Machines, including machines of the general type shown in Blue Print T-300 annexed hereto,” and including improvements thereto described and claimed in patent applications No. 642,352 and No. 671,477 (the same two applications mentioned in the 1946 agreement).
Pertinent parts of the 1950 agreement, which will be discussed later in more detail, are set forth in the margin.
The 1955 Contract
In 1955 New Britain purchased the assets of H & D Inc., and that corporation was liquidated. Two new agreements were entered into: (1) covering the purchase and sale of the assets of the liquidated corporation, which expressly-reserved in H & D Inc. title to its patents and patent applications, and (2) a patent licensing agreement.
In the “Representations and Acknowl-edgement” section of the 1955 licensing contract, the parties identified various patents owned by H & D Inc., including the two patents referred to in the 1946 and 1950 agreements; and patent application No. 400,531 (later granted as No. 2,872,853), which is the subject of the present litigation.
The granting clause of the 1955 contract is quoted in the margin.
Under the language of the 1955 contract quoted in footnotes five and six, patent application No. 400,531 (later granted as patent No. 2,872,853) is included within the term “letters patent and patent rights” upon which royalties were to be paid by New Britain, unless excluded by the “special acknowledgment” paragraph (footnote 7) which is discussed later in this opinion and unless included in the exclusive license granted to New Britain by the 1950 contract.
It is reemphasized that application No. 400,531 referred to in footnote 5 was later granted as Patent No. 2,872,853 on February 10, 1959. It is conceded by New Britain that the mechanisms of this patent are used in the BV machine involved in this litigation. The claim of Yeo et al. for royalties is based upon the use of patent No. 2,872,853 with respect to the BV machine.
New Britain contends, however, that the exclusive right to this patent was granted to it by Messrs. Hoern and Dilts under the terms of the 1946 and 1950 contracts and that this patent is excluded by the “special acknowledgement” paragraph of the 1955 contract (quoted infra in footnote 7); and it therefore owes no royalties on this BV machine under the 1955 contract.
2) Holding of district court
The case was originally tried at various sittings by the late District Judge Frank A. Picard, who died without announcing a decision. Following the death of Judge Picard the case was assigned to District Judge Stephen J. Roth. Thereupon by stipulation it was agreed that the case would be submitted to Judge Roth upon the transcript of the proceedings, arguments and briefs of counsel, and proposed findings of fact and conclusions of law.
In rendering a judgment against New Britain, it was the reasoning of the district court that, under the provisions of paragraph (1) (e) quoted in footnote 5, it was stated that at the time of the execution of the 1955 contract H & D Inc. was the owner of patent application Serial No. 400,531, filed December 28, 1953, which was then pending. Judge Roth emphasized that, after listing all the patents and patent applications then owned by H & D Inc., paragraph (1) concluded with this language;
“All of the letters patent, patent applications, licenses and other rights referred to in this paragraph (1) shall be referred to hereinafter in the aggregate and for convenience only as ‘letters patent and patent rights.’ ” (See footnote 6).
The district judge then pointed out that “paragraph 3 provides for the licensing of the ‘letters patent and patent rights’ ” owned by H & D Inc. and payment of royalties thereon by New Britain.
The court then concluded:
“The result urged upon the Court by the defendant would require two things: disregarding the plain and explicit language of the 1955 agreement between the parties and interpolating into the 1950 agreement between them, language which is not there.
“The Court finds that it was the agreement and the intention of the parties that the defendant pay royalties to Hoern and Dilts, Inc., on the ‘BV’ contour machine, which admittedly uses mechanisms covered by patent application number 400,531.”
8) Is the BV machine within the scope of the 1950 contract?
New Britain contends that, under the terms of the 1946 and 1950 contracts, it acquired exclusive rights to all “non-indexing, non-continuous” machines for which Messrs. Hoern and Dilts then had applications pending, and all such machines for which Messrs. Hoern and Dilts thereafter might obtain patents; that the 1946 and 1950 contracts encompassed “non-indexing, non-continuous” machines broadly as a class; that the BV machine here involved falls within the grant of the 1950 contract, even though the application for the patent whose mechanisms are used in this machine was not filed until 1953 and the patent was not issued until 1959; and that the 1955 contract relates exclusively to “indexing” and “continuous” machines, and not to “non-indexing, non-continuous machines” such as the BV machine here involved.
In support of this contention, New Britain relies strongly upon the “special acknowledgement” paragraph of the 1955 contract, which is set forth in the margin.
This “special acknowledgement” language makes it clear that the 1955 contract was not intended to affect any rights which had been acquired by New Britain under the 1946 and 1950 contracts. If an exclusive license to patent No. 2,872,853 in fact was granted to New Britain by the 1950 contract, it is excluded from the 1955 contract by the terms of the “special acknowledgement” paragraph (footnote 7). If New Britain is correct in its interpretation of the “special acknowledgement” paragraph and the 1950 contract, it necessarily would follow that it would owe no royalties to Yeo et al. under the 1955 contract.
The controlling question to be determined then is whether by the 1950 contract Messrs. Hoern and Dilts relinquished and transferred to New Britain, without payment of additional royalties, exclusive rights to all inventions for which they might thereafter apply and be granted patents relating to “non-indexing, non-continuous” types of boring machines. More specifically, the question is whether patent No. 2,872,853 whose mechanisms admittedly are used in the BV machines (for which application was filed in 1953, and was pending in 1955, and which was granted in 1959) is nothing more than an improvement on the earlier patents used in the rotary:cam actuated boring machines licensed to New Britain in 1950.
The rule for interpreting a contract assigning future patents and future improvements is well stated in DeLong Corp. v. Lucas, 176 F.Supp. 104 (S.D.N.Y.), affirmed 278 F.2d 804 (C.A. 2), cert. denied. 364 U.S. 833, 81 S.Ct. 71, 5 L.Ed.2d 58, as follows:
“It is well settled that an agreement to assign a patent and improvements thereon covers only improvements existing at the time the agreement was entered into unless the language specifically refers to future improvements. The law does not look favorably upon covenants which place ‘a mortgage on a man’s brain, to bind all its future products’. Aspinwall Manufacturing Co. v. Gill, C.C.D. N.J., 32 F. 697, 700. See, also Monsanto Chemical Works v. Jaeger, D.C. W.D.Pa., 31 F.2d 188; American Cone & Wafer Co. v. Consolidated Wafer Co., 2 Cir., 247 F. 335; Allison Bros. Co. v. Allison, 144 N.Y. 21, at page 29, 38 N.E. 956, at page 958. As was said in Allison, to effect an assignment of future improvements to a patent which the inventor may thereafter produce ‘the language of the contract must be very plain and evidence unmistakably that such an agreement was in the mind of the inventor’.” 176 F.Supp. at 127.
In Mullins Mfg. Co. v. Booth, 125 F.2d 660, 663 (C.A. 6), this court said:
“Courts of equity are loath to give their aid by construction to a contract, the enforcement of which will constitute a mortgage for life on the inventor’s brain, and bind all his future products.”
A contract assigning future improvements and future inventions will be enforced only where the language evidencing such an intention is clear and convincing. In Ogden v. General Printing Ink Corp., 37 F.Supp. 572, 577 (D. Md.), the court quoted with approval the following language from Williston on Contracts, Rev.Ed., vol. 5, § 1643A, page 6414:
“The governing rule in this class of cases is that where the product of an inventive mind is sought to be appropriated under an agreement to assign to another, the language of the agreement must be clear and show an unmistakable intention that the particular matter covered by the invention or patent is within the intention of the parties.”
Such a contract is to be strictly construed against the grant of inventions that may be perfected in the future. Gas Tool Patents Corp. v. Mould, 133 F.2d 815, 818 (C.A. 7); Briggs v. M & J Diesel Locomotive Filter Co., 228 F.Supp. 26, 31 (N.D.Ill.), aff'd, 342 F.2d 573 (C.A. 7); cf. Gonser v. Leland Detroit Mfg. Co., 293 Mich. 196, 291 N.W. 631.
We hold that the provisions of the 1950 contract are not sufficiently clear and free from ambiguity to meet the test announced and applied in the foregoing decisions; and that the language of this contract is not so specific as to embrace all future inventions that might be perfected by Messrs. Hoern and Dilts relating to the broad class of all “non-indexing, non-continuous” boring machines. To the contrary, in granting an exclusive license to “said Rotary-Cam Actuated Boring Machines” and future improvements thereon, the 1950 contract (see language quoted in footnote 4) by its terms includes (1) “machines of the general type shown in Blue Print T-300 annexed hereto” (which concededly does not embrace Patent No. 2,872,853 here involved) ; and (2) “improvements thereto, as shown, described and claimed in U. S. applications, Serial No. 642,352, filed January 19, 1946, and Serial No. 671,477, filed May 22, 1946.”
The first “whereas” clause in the 1950 contract (footnote 4) limits the term “improvements” on Rotary-Cam Actuated Boring Machines to “certain improvements on said machines * * * shown, described and claimed in Applications for United States Patent, Serial Nos. 642,352 and 671,477.” The granting clause in-eludes “any Letters Patent owned or controlled by Licensors, or either of them, which may be granted on applications now or hereafter filed, and disclosing improvements on or relating to said Boring Machines * * * ” The term “applications * * * hereafter filed” is limited expressly to applications “disclosing improvements on or relating to said Boring Machines.” (Emphasis supplied.)
The language of the disclosure clause of the 1950 contract is expressly limited to “any improvements in rotary-cam actuated boring machines of the type herein licensed.” (Emphasis supplied.)
New Britain relies on both the 1946 and 1950 contracts. The latter is the controlling instrument defining the license granted to New Britain, since it amends the former contract by rewriting it in its entirety.
It is of significance that the 1950 contract contains language that is more restrictive than the 1946 contract in several respects:
(a) The granting clause of the 1946 contract contained a provision for “disclosing improvements on or relating to said boring machines and similar machines”. The words “and similar machines” are omitted from the 1950 contract, in which the comparable provision reads: “disclosing improvements on or relating to said Boring Machines.” (Emphasis supplied.) The 1950 contract contains no provision requiring disclosure of improvements on or relating to “similar machines.”
(b) The 1950 Contract used the term “rotary cam actuated boring machines” instead of the more general term “boring machines” used in the 1946 agreement.
(c) Another significant change between the 1946 contract and the 1950 contract is found in the disclosure clause. Under the 1946 contract, Messrs. Hoern and Dilts agreed to disclose to New Britain ‘‘any inventions, new designs, or methods of production in or relating to boring machines made or owned or controlled by them or either of them,” (emphasis supplied). Under the disclosure clause of the 1950 contract they agreed to disclose only “any improvements in rotary-cam actuated boring machines of the type herein licensed.” (Emphasis supplied.)
Thus, the scope of the exclusive license granted by Messrs. Hoern and Dilts to New Britain is more restricted under the 1950 contract than under the broader language of the 1946 contract. When the parties undertook to settle their dispute in 1950, they wrote more restrictive language into their revised agreement, indicating an intention not to make the exclusive grant so broad and all-inclusive as now asserted by New Britain.
In order to sustain its contention that Patent No. 2,872,853 comes within the scope of the exclusive license granted by the 1950 contract and accordingly that the patent whose mechanisms are used in the BY machine here in question is an exception within the special acknowledgement paragraph of the 1955 contract (footnote 7), New Britain must establish that this later patent is an “improvement on or relating to” the boring machine covered by Patents Nos. 2,641,146 (application No. 642,352) and 2,659,961 (application No. 671,477), which are the only patent applications identified as improvements to boring machines covered by the 1950 contract.
Assuming that there is sufficient ambiguity on this point to permit the introduction of evidence, the burden of proof would be upon New Britain to show that Patent No. 2,872,853, whose mechanisms are used in the BV machine, is an exception under the “special acknowledgement” paragraph of the 1955 contract. In this situation, the law as to the burden of proof is that “A party who seeks advantage of an exception in a contractual stipulation as the basis of his claim is charged with the burden of proving facts necessary to bring himself within such exception.” Davies Flying Service v. United States, 216 F.2d 104, 106 (C.A. 6). To like effect see 17A C.J.S. Contracts § 579, p. 1114.
While this is a contract case and not a patent case, we have read the language of the claims of Patent No. 2,872,853. These claims do not demonstrate that this patent is an improvement upon the boring machines covered by Patent Nos. 2,641,-146 and 2,659,961, the application for which is referred to in the 1950 contract. The application for Patent No. 2,872,853 makes reference to four earlier United States patents and three foreign patents by number, but no reference is made to the two applications identified in the 1950 contract.
New Britain’s own advertising of the BV machine contradicts its contention that this machine is nothing more than an improvement over the boring machines licensed to it by the 1950 contract. The trade magazine “Machinery,” in its November 1960 issue, published an advertisement by New Britain regarding the BV machine, containing the following language:
“Beyond a certain point, continued refinement of existing designs in machine tools ceases to make an appreciable contribution to performance. Thus in designing our New Series of Vertical Precision Boring Machines, we have incorporated several completely new design concepts to provide improved performance and greatly increase overall usefulness. * * *
“In order to take the fullest advantage of the precision inherent in cam control, long linkages between cams and slides have been eliminated. A pair of cams is mounted on a common shaft which is carried within the vertical slide. Since all slide actuating forces are contained in the vertical slide, both cams are directly adjacent to the slides they control and no outside forces are imposed on the slide ways. The result is maximum rigidity for heavy cuts coupled with extreme accuracy for close tolerance work.
“This unique and eminently workable approach to contour turning and boring results in the highest order of accuracy on even the most complex pieces. * * * ”
In the issue of the trade magazine “The American Machinist” dated January 11, 1960, and March 21, 1960, New Britain described its BV machine in part as follows:
“New Britain Cam Actuated Vertical Precision Boring Machines offer an entirely new principle for more accurate boring and turning, plus compact exterior design and fast tooling. Bough cuts and finish cuts within close tolerances on the same set-up are characteristic. Standard models are available with maximum swing from 12" to 17%" in 10 or 15 horsepower.
“Here are a few of the major new developments incorporated in these unusual machines. * * * ”
Brochures issued by New Britain in 1958 and 1959 include the following language in describing the BV machine:
“This unique captive cam shaft feature, through the elimination of long actuating linkage, has resulted in an extremely compact accessible and simplified design with the obvious important advantages in maintenance and repairs.”
New Britain’s president testified as a witness and undertook to establish that the BV machine here involved is an improvement on the boring machines licensed by the 1950 contract. He further testified, however, that New Britain’s above-quoted advertising was correct in describing the BV machine in question as offering “an entirely new principle for more accurate boring and tuning.”
We reemphasize that the 1955 contract expressly mentioned Patent Application No. 400,531, filed December 28, 1953, upon which Patent No. 2,872,853 thereafter was issued, and listed it among the patents and patent applications owned by H & D Inc. This patent application is included in general terms among the “letters patent and patent rights” (footnote 6) upon which a non-exclusive license was’ granted to New Britain in 1955 and for which royalties were to be paid. Since express language excluding this patent is not to be found in the “special acknowl-edgement” paragraph or elsewhere in the 1955 contract, we cannot assume that the parties intended to make an exception in the “special acknowledgement” paragraph as contended by New Britain. This patent application already was in existence at the time the 1955 contract was executed, having been filed two years earlier. If the parties had intended for the “special acknowledgement” paragraph to apply to this patent, assuredly they would have said so.
We hold that New Britain has not established that the BV machine here in question and Patent No. 2,872,853 come within the 1950 contract or the “special acknowledgement” paragraph of the 1955 contract. Accordingly we agree with the finding of the district court that New Britain is liable to Yeo et al. for royalties on this machine.
k) The amount of the judgment
Under date of December 6, 1963, following the filing of his opinion, Judge Roth entered an order stating that the court:
“Finds, in conformity with said opinion, that it was the agreement and the intention of the parties that the defendant pay royalties to Hoern & Dilts, Inc., on the ‘BV’ contour machine,'which admittedly uses mechanisms covered by patent application number 400,531;
“The Court further finds that the rights of said Hoern & Dilts, Inc., were duly assigned to plaintiffs upon its dissolution and as former stockholders of said company;
“It is therefore, ordered that the parties shall forthwith make an accounting between them to determine the amount of royalties due to date, together with interest at the rate of 5% computed from the due date of any royalty found to be due, and this Court retains jurisdiction of this matter pending such accounting and any problems relating to it.”
Pursuant to this order, on January 28, 1964, New Britain filed an accounting which was sworn to by its president. This accounting contained the figures upon which the judgment was finally entered, except for minor corrections.
After a dispute had arisen between the parties concerning the accounting, another hearing was held at which Judge Roth suggested the appointment of a master to take an accounting. Counsel for New Britain responded that “There is no need for a Master,” saying:
“I think you misunderstood me when I said this was a massive job. What I was referring to as a massive job is the report which we submitted last January. This involved going into all transactions under the 1955 contract, all of our varieties of machines, their variations, the patents and patent claims. This job is not called for according to your Hon- or’s rulings you just handed down. The job has been done as a matter of fact, all except for any machines which may have been sold since the end of 1963. As a matter of fact, one entire separate section of our report was plainly identified with BV transactions, so that job was done.
“There is no need for a Master. If it is your pleasure as you have just stated to have an accounting for the BV machines we even included a schedule of what the interest would be as your Honor requested it and that interest was specific to the BV machines. So that the job is done and we can easily undertake to complete it up to the date of this hearing today.”
It was agreed that plaintiffs would send two men to the Connecticut offices of New Britain in order to facilitate the matter of accounting and avoid the necessity of appointing a master. New Britain’s attorney thereafter wrote a letter to the attorneys for Yeo et al., dated July 8, 1964, stating that only a few minor errors had been found in the previous account and “there would be a great savings of time and effort if the newly presented accounting for BV machines were merely to comprise a reproduction of the previous report.” (This reference is to the sworn accounting filed January 28, 1964.) Thereupon, Yeo et al. made a report to the court as to the purported agreement of the parties in Connecticut and asked that a judgment be entered in the sum of $171,342.42 plus interest in the sum of $28,620.98.
At a subsequent hearing on September 21, 1964, extended arguments were made as to whether the judgment should be based on (1) the figures set forth in the sworn accounting filed by New Britain January 28, 1964, or (2) on the figures set forth in New Britain’s “corrected accounting” hereinafter discussed. Yeo et al. contended that royalties on the BV machine should be computed at the rate of five per cent of net sales under Section 4(b) of the 1955 contract, which is applicable to “Hoern & Dilts” machines. New Britain contended that the correct basis of computation was five per cent of the cost of mechanisms under Section 4(c), which is applicable to machines other than “Hoern & Dilts” machines.
Judge Roth thereupon asked the attorney for New Britain whether, assuming the correct measure of royalties to be five per cent of net sales, as provided in Section 4(b) applicable to “Hoern & Dilts” machines, counsel would agree that the figures are accurate as set forth by New Britain in its sworn accounting of January 28,1964, as subsequently corrected by agreement of the parties. The answer of counsel was “Yes.”
Thus, the amount of the judgment entered by the district court is based upon figures set forth in a sworn accounting filed by New Britain and thereafter corrected and substantially verified by the parties. We hold that the district court’s finding of the amount of royalties due is supported by the evidence.
5) The “corrected accounting”
On August 20, 1964, shortly before the judgment was entered, New Britain filed a “corrected accounting”, alleging that the BV machine here involved was not a “Hoern & Dilts” machine, that New Britain had made a mistake by computing royalties at five per cent of net sales as provided under Section 4(b) for “Hoern & Dilts” machines, and that the correct amount owing under Section 4(c) of the 1955 contract was in the approximate sum of $7000, rather than the much larger sum indicated in its previous accounting.
This “corrected accounting” was not filed until after the ease had been tried over a period of more than four years on the theory that the BV machine in question is a “Hoern & Dilts” machine and after the earlier accounting had been submitted by New Britain on this theory. Interrogatory No. 50, which was filed early in the proceedings, is as follows:
“Have you used any of the mechanisms embodying any of the six claims which were allowed in Patent No. 2,872,853 on any other machine other than the so-called Hoern & Dilts machines? If so, state upon what machines they have been used.” (Emphasis supplied.)
The answer was: “No.”
Both the original accounting and the “corrected accounting” were before the district court at the time the judgment was entered. We cannot say that the district judge erred in entering judgment upon the figures set forth in the original accounting as substantially verified by agreement of the parties, rather than accepting the “corrected accounting” based upon a belated change in New Britain’s contention which was contrary to the positions and conduct of the parties throughout the trial.
6) New Britain’s counterclaim
As a part of its sworn accounting of January 28, 1964, New Britain asserted that it had reexamined the entire history of its operations under the 1955 contract in the light of the opinion of the district court, and found that it had made overpayments of royalties totaling $207,-193.36.
On April 17, 1964, New Britain submitted a motion for leave to amend its answer and file a counterclaim in the amount of $207,193.36, which was denied by the district court.
The complaint of Yeo et al. was filed March 30, 1960, and New Britain’s motion to amend its answer and file a counterclaim was not filed until April 17, 1964, after the prolonged trial had been completed and a decision on the merits adverse to New Britain had been announced by the district court. The record shows that at a hearing on March 16, 1962, Judge Picard inquired whether or not any counterclaim would be filed and that counsel for New Britain replied, “No counterclaim.” Under these circumstances we cannot say that the district court abused its discretion in denying New Britain’s motion to amend its answer and file a counterclaim so late in the proceedings. Shwab v. Doelz, 229 F.2d 749, 753 (C.A. 7); Runkle v. Nong Kimny, 105 U
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_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.
Errol B. RESNICK, Plaintiff-Appellant, v. UNITED STATES PAROLE COMMISSION, et al., Defendants-Appellees.
No. 86-1509.
United States Court of Appeals, Tenth Circuit.
Dec. 21, 1987.
Rehearing Denied Feb. 23,1988.
Cyd Gilman, Asst. Federal Public Defender, D. Kan. (Charles D. Anderson, Federal Public Defender, Wichita, Kan., with her on the brief), for plaintiff-appellant.
Leon J. Patton, Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., Alleen S. Castellani, Asst. U.S. Atty., D. Kan., Topeka, Kan., with him on the brief), for defendants-appellees.
Before MOORE, BALDOCK and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
Errol B. Resnick, an inmate in the United States Penitentiary, Leavenworth, Kansas, filed a petition for habeas corpus in the United States District Court for the District of Kansas against the United States Parole Commission, challenging a decision of the Commission which held that Resnick would continue to stay in prison for the time being and that he would not be afforded another parole hearing until April, 1992. 28 U.S.C. § 2241. The district court issued a show cause order, and the Commission filed an answer and return, to which Resnick filed a traverse. Based on the pleadings, and attachments thereto, the district court denied Resnick’s petition and dismissed the action. Resnick appeals.
Resnick is presently incarcerated in the United States Penitentiary, Leavenworth, Kansas, pursuant to four sentences imposed by federal district courts in the State of Florida. The sentences thus imposed are to be served consecutively, and they total 34.5 years. Resnick has now served approximately 15 years under those consecutive sentences. Specifically, Resnick was sentenced on federal charges as follows:
1. 17 years by the United States District Court for the Southern District of Florida on November 2, 1971, upon a conviction for a narcotics conspiracy;
2. 10 years, to be served consecutively to the 17-year sentence referred to in paragraph 1, by the United States District Court for the Middle District of Florida on December 6, 1972, upon a conviction for unlawful melting of United States coins;
3. 2 years and six months, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on January 24, 1973, upon a conviction for illegal sale of firearms; and
4. 5 years, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on September 12, 1973, upon a conviction for conspiracy to escape and attempted escape.
In addition to the four sentences mentioned above, Resnick is serving two life sentences imposed by state courts in Florida for hiring others to commit two murders. The Florida sentences were to be served concurrently with the federal sentences now being served.
Resnick had his initial hearing before examiners of the United States Parole Commission on August 25, 1981. The examiners assigned an offense severity rating for each offense and aggregated those ratings to result in a greatest II rating, indicating that Resnick’s offenses were very serious. As concerns Resnick’s salient factor rating, the examiners fixed that at 10, indicating that he was a good parole risk. In this regard, the examiners noted that Resnick, while incarcerated, had earned a bachelor’s degree and a master’s degree, and was working toward a doctorate degree. Resnick was also highly recommended for parole by a former assistant educational director at the penitentiary.
The examiners referred Resnick’s case to the National Commissioners on September 8, 1981, for original decision because of the unusual sophistication of the crimes involved and because of the possibility of an ongoing criminal conspiracy. On October 16, 1981, the National Commissioners determined that it needed more information concerning the scope of the offenses. A letter was written at that time by the National Commissioners to the U.S. Probation Office requesting more information. The matter was subsequently referred back to the examiners for further hearing, at which time information obtained from the United States Probation Office, as well as other matters, was to be considered. Resnick was informed on February 23, 1982, which was later corrected on March 2, 1982, that the hearing would be held on April 27, 1982.
At the hearing on April 27, 1982, the examiners again gave Resnick a salient factor score of 10, and an offense severity rating in the greatest II category. The case was again referred to the National Commissioners with a recommendation that release of Resnick at that time would depreciate the seriousness of his several offenses, which recommendation noted Res-nick’s state criminal convictions, as well as the four federal convictions, and recommended that Resnick be kept in custody until April 1, 1992, when a new parole hearing would be held. On June 4, 1982, the National Commissioners adopted the recommendations of the hearing examiners. Resnick’s subsequent appeal to the National Appeals Board was denied, whereupon Resnick instituted the present proceeding.
The present appeal raises two issues: (1) The offenses for which Resnick was convicted and sentenced having occurred in 1971, 1972, and 1973, does the application of statutes and regulations in effect at the time of Resnick’s parole board hearings in 1981 and 1982 violate the ex post facto provision of the United States Constitution, Article 1, Section 9, Clause 3? (2) Were Resnick’s due process rights violated by arbitrary and capricious action on the part of the Commission?
Ex Post Facto
Article I, Section 9, Clause 3, of the Constitution provides that, “No Bill of Attainder or ex post facto law shall be passed.”
18 U.S.C. § 4206(a), in effect at the time of Resnick’s parole hearings, provides as follows:
(a)If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:
(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law;
(2) that release would not jeopardize the public welfare;
subject to the provisions of subsections (b)and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released.
# # * # * *
(c)The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.
In denying Resnick present parole and continuing the matter for a 10-year reconsideration to April, 1992, the National Commissioners spoke as follows:
REASONS:
Your offense behavior has been rated as Greatest II severity because you were involved in melting $9,000 in U.S. coins, sold firearms without filing the appropriate ATF forms, smuggled approximately 900 lbs. of marijuana and you had two individuals murdered (as evidenced by your Florida conviction) in conjunction with the marijuana offense. Your salient factor score (SFS-81) is 10 (see attached sheet). You have been in custody a total of 130 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a minimum of 52 months to be served before release for cases with good institutional program performance and adjustment. In addition, you attempted to escape from a secure facility and guidelines established by the Commission for that offense indicate a customary range of 6-12 months to be added to your minimum range of 52 months. Your combined minimum range is 58 months. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior. Commission guidelines for Greatest II severity cases do not specify a maximum limit. Therefore, the decision in your case is based in part upon a comparison of the relative severity of your offense behavior with the offense behaviors and time ranges specified in the Greatest I severity category.
In rendering this decision, the Commission also noted that the victims were murdered in an especially brutal fashion; one victim was mutilated by being covered with lye and the other thrown out of a car and left by the roadside.
Also, during the attempted escape, a hostage was taken.
In essence, then, the National Commissioners denied Resnick present parole and postponed reconsideration to April, 1992, because his present release “would depreciate the seriousness of ... [Resnick’s] offense behavior” which formed the basis for his four federal convictions. In making that decision, the Commission also “noted” that in each of the homicides for which Resnick was convicted of murder under Florida law the victims were treated in especially brutal manner, one victim being mutilated when covered with lye and the other thrown out of a car and left by the roadside.
Resnick’s ex post facto argument, as we understand it, is that in denying parole the Commission concluded that to release Resnick now would, in the language of 18 U.S.C. § 4206(a)(1), “depreciate the seriousness of his offense behavior,” and that such language did not appear in 18 U.S.C. § 4203 (enacted in 1948) (the predecessor statute to 18 U.S.C. § 4206(a)(1)), which was in effect at the time of his four federal convictions. In other words, counsel argues that at the time Resnick suffered his four federal convictions, parole could not have been denied on the ground that to grant parole would “depreciate the seriousness of his offense behavior,” and that the statute in effect at the time of his parole hearing which permitted denial of parole on that ground violated the ex post facto provision. We do not agree with Resnick’s premise that in 1971-73 parole could not be denied, notwithstanding any guidelines, on the ground that to grant parole would have depreciated the seriousness of the underlying offenses.
In Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981), a case involving a Florida statute which reduced the “gain time” for good conduct and obedience to prison rule, the Supreme Court held that for a criminal or penal statute to be ex post facto it must be retrospective, i.e., it must apply to events occurring before its enactment and it must “disadvantage” the person affected by it.
The district court in the instant case concluded that although § 4206(a)(1) was applied retroactively, that such application did not “disadvantage” Resnick. We agree. The enormity or magnitude of the offenses which form the basis for a prisoner’s incarceration has always been a basis for denying parole, notwithstanding guidelines. And this is true even though the predecessor statute to § 4206(a)(1) did not contain the “depreciate the seriousness of the offense” language. The predecessor statute did provide that parole could be granted if it appeared that there is a reasonable probability that the prisoner will live and remain at liberty without violating laws, and if the Commission believes that “such release is compatible with the welfare of society.” In Wiley v. United States Board of Parole, 380 F.Supp. 1194 (M.D.Pa.1974), the court held that denying parole on the ground that to grant parole would “depreciate the seriousness of the offense” came within the language of the predecessor statute, commenting that the seriousness of the offense is a factor which is related to and could be “determinative of the question of whether the prisoner’s release is compatible with the welfare of society.” We agree with such reasoning. Indeed the enormity and magnitude of the underlying offenses for which the prisoner is incarcerated has always been a most important factor in determining whether an inmate should be paroled. And we agree that “early parole” in such a case might tend to “depreciate” the seriousness of the inmate’s criminal behavior.
We regard Resnick’s ex post facto argument to be directed mainly to the statute above referred to, § 4206(a)(1). However, counsel does also complain that the guidelines applied in Resnick’s parole hearings in 1981 and 1982 also violated the ex post facto clause. We fail to see just what guidelines were applied which “disadvantaged” Resnick. Indeed, the thrust of Res-nick's entire argument is that the guidelines in effect in 1981-1982 suggested Res-nick’s early parole release and that the Commission erred in going outside the guidelines. In this general connection, however, we note that the decided weight of authority is that guidelines of this sort, being guidelines only, are not subject to the ex post facto prohibition. Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir.1987); Wallace v. Christensen, 802 F.2d 1539, 1553-54 (9th Cir.1986).
Due Process
We fail to see that Resnick’s due process rights were violated in either of the two proceedings before the Commission. He was given notice under the then existing statute regulations and his request for documents was belated, untimely, and nonspecific.
Nunez-Guardado v. Hadden, 722 F.2d 618 (10th Cir.1983) has present pertinency. In that case we upheld Commission action which departed from the guidelines and fixed the inmate’s parole date above the guidelines’ recommended date of release, stating that “judicial review” of Parole Commission action is “narrow” and that the test is whether the decision of the Commission is arbitrary or capricious, or an abuse of discretion. We also noted that “prison conduct” is only one of the factors to be considered in parole release decision. We further held that consideration by the Commission of criminal acts other than the one count to which the defendant had pleaded guilty after plea bargaining was proper. And having held that the Commission’s action was not arbitrary or capricious, or any abuse of discretion, but was based on “good cause” and was non-viola-tive of due process, we declined to reach the issue of whether the federal parole statutes create a liberty interest.
In sum, although Resnick had attempted escape in Florida, he apparently had a very favorable record in the penitentiary in Leavenworth, Kansas. However, the Commission concluded that the magnitude of the federal crimes for which Res-nick had been convicted, coupled with the two state convictions for murder, which were apparently related to his federal conviction for drug conspiracy, amounted to a “good cause” for denying present parole, since to grant present parole would “depreciate” the seriousness of his offenses. Such, in our view, constitutes a “rational basis” for the Commission’s action. Nunez-Guardado, 722 F.2d at 623; Solomon, 676 F.2d at 290.
Judgment affirmed.
. In Dunn v. U.S. Parole Commission, 818 F.2d 742, 744 (10th Cir.1987), the court held that a district court had subject matter jurisdiction over a habeas corpus proceeding despite the fact that the Parole Commission rather than the warden of the prison was named in the petition. The court reasoned that: “[ajlthough the Leavenworth warden cannot be said to be indifferent to the resolution of Mr. Dunn’s challenge, only in the most formal sense does he control whether Mr. Dunn is released ... [r]ather, ... the Commission directly control(s) whether Mr. Dunn remains in custody."
. Resnick earned his bachelor’s degree in psychology, his master's degree is in the field of numismatics, and he is working toward a doctorate in finance.
. In Solomon v. Etsea, 676 F.2d 282, 287 (7th Cir.1982), the Seventh Circuit stated that the "magnitude” of a prisoner’s individual crime may be the "good cause” referred to in 18 U.S.C. § 4206(c) for which the Commission may deny parole notwithstanding the guidelines and that "[i]t is the extenuating circumstances of the particular offense, not the nature of the violation categorizing him in the guidelines, which must make up the necessary good cause."
. The predecessor statute, 18 U.S.C. § 4203(a) stated: "If it appears to the Board of Parole from a report by proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.”
. 28 C.F.R. § 2.55(a) provides: "at least 60 days prior to a hearing scheduled pursuant to 28 C.F.R. 2.12 or 2.14 each prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determination.”
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_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
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: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_casetyp1_2-3-3 | I | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights".
Ronnie STRICKLIN, Richard B. Rosen-feld and James Michael Strickler, Plaintiffs-Appellees, v. The REGENTS OF the UNIVERSITY OF WISCONSIN and the President of the University of Wisconsin, Defendants-Appellants.
No. 17597.
United States Court of Appeals Seventh Circuit.
Jan. 13, 1970.
Robert W. Warren, Atty. Gen., Charles A. Bleck, Warren M. Schmidt, Asst. Attys. Gen., Dept, of Justice, Madison, Wis., for defendants-appellants.
Sander N. Karp, Percy L. Julian, Jr., Madison, Wis., W. Haywood Burns, Jack Greenberg, Michael Meltsner, New York City, for plaintiffs-appellees.
Before KILEY, FAIRCHILD and CUMMINGS, Circuit Judges.
KILEY, Circuit Judge.
The Regents and President of the University of Wisconsin have appealed from an interlocutory order, in a civil rights class action, ordering them to reinstate as students the three named plaintiffs who had been temporarily suspended from the University.
Plaintiffs, students then in good standing at the University of Wisconsin, were arrested February 27, 1969, during campus disorders. On March 6 the Regents met and, after hearing a report from the University security agency that plaintiffs had participated in the February 27, and earlier, campus disorders, adopted a resolution suspending the plaintiffs “immediately” pending the filing of charges by the University administration, on or before March 8, to be heard on March 19. A “hearing agent” was named to conduct the hearing and report his findings of fact and recommendations to the Regents for review and action by them.
On March 7, the day after the Regents’ meeting, plaintiffs filed a class action civil rights complaint in the district court alleging violations of Fourteenth Amendment due process and equal protection rights on the grounds that they were not informed — before the Regents’ March 6 action suspending them — of the charges against them, and that they had no notice of the meeting and no opportunity to be heard. They sought a declaration that their summary suspension was unlawful and an injunction against enforcement of the suspension and against the refusal of the Regents to reinstate them as students. They also moved for a “temporary restraining order” to stay the suspension pending ultimate determination of the charges to be filed against them on March 8 by virtue of the Regents’ resolution.
On March 12 a hearing was held on plaintiffs’ motion, and on March 13 the district court filed an Interim Opinion and Order, which was amended on March 14. The substance of this entry was to lay ground rules with respect to the burden of proof. The only definitive finding was that the plaintiffs had met their burden to establish prima fa-cie that their suspension was for a substantial period of time without previous specification of charges, notice of hearing and opportunity to be heard; and that the Regents had the burden of showing that the summary termination of each of the plaintiffs — pending the ultimate disposition of charges filed against them — was required by reasons relating to the physical or emotional safety and well-being of the plaintiffs and of other students, faculty, other personnel and University property. Additional affidavits were then submitted.
On March 18, the day before the full hearing of charges was scheduled to begin, the district court entered the Opinion and Order before us. The court, having established federal question jurisdiction, found: that the Regents acted under color of state law; that prior to the Regents’ meeting of March 6 plaintiffs were given no notice or specification of charges and had no opportunity to be heard at the meeting; that since that meeting they were given no opportunity to be heard on the question whether their “immediate” suspension should be continued pending ultimate determination of charges against them; and that the Regents had no intention of reinstating plaintiffs as students during that interim period.
The court found that the Regents had not met the burden defined in the court’s March 13 Interim Opinion and Order. It concluded that under the Regents’ by-laws, as well as under the Fourteenth Amendment, plaintiffs were denied due process because the Regents had made no showing “whatever” that it was impossible or unreasonably difficult to have provided a preliminary hearing prior to the interim suspension order, or a hearing since March 6 on the question whether the interim suspension should continue until completion of the full hearing and the Regents’ ultimate determination thereafter. The court ordered plaintiffs reinstated at noon March 19, without prejudice to the Regents’ rights to impose interim suspension under the due process procedures outlined in the opinion, and to proceed with the full hearing on the charges filed and take appropriate action thereafter. This appeal followed.
Plaintiffs contend that the March 18, 1969, order is not appealable and that even if it is, the issue presented to us is moot.
We hold the order is appealable. While contending that a temporary restraining order is not appealable under 28 U.S.C. § 1292(a) (1), plaintiffsappellees concede that the label used by the parties in the district court is not controlling on the appealability question. The order under consideration was entered after notice, a March 12 hearing, and a subsequent consideration of additional affidavits, findings of fact and conclusions of law. The order granted affirmative substantive relief. See International Products Corp. v. Charles A. Koons & Co., 325 F.2d 403, 406 (2d Cir. 1963) . These elements were not present in an order held not appealable in Austin v. Altman, 332 F.2d 273 (2d Cir. 1964) , relied on by plaintiffs. The fact that other issues raised by the pleadings in the district court are still pending there does not preclude appealability. American Cyanamid Co. v. Lincoln Laboratories, Inc., 403 F.2d 486, 488 (7th Cir. 1968).
We decide, however, that the issue presented to us is moot. The full hearing upon the charges filed against plaintiffs by the Regents has been completed, and plaintiffs have been expelled from the University. The March 18 order, which allowed the Regents to proceed with the hearing scheduled for March 19, became functus officio when the Regents took final action after completion of the full hearing.
We are not persuaded by the Regents’ arguments that we should decide the issue of whether due process requires the procedural safeguards, imposed by the district court, prior to an immediate suspension pending a final hearing because of its great public importance; that we should furnish a guide for conduct of “school authorities”; and that the result of a mootness finding will leave standing a precedent militating against school authorities properly dealing, in the future, with additional problems of student discipline.
Although we hold the March 18 order is appealable, it does not follow that its provisions were of great public importance. It affected only the three named plaintiffs, and them only for the short period until they were expelled in further disciplinary proceedings. We are not disposed on the record before us to decide a moot issue simply because, as contended by counsel for the Regents, the issue will probably arise in the future. Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 L.Ed.2d 209 (U.S. Nov. 24, 1969); Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (U.S. Nov. 24, 1969).
Appellants rely on the decision in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), where the Supreme Court declined to find mootness despite the voluntary abandonment by the State of Georgia of its illegal practice of using the county unit system in primary elections. The Court thought that if the complaint was dismissed the laws establishing the county unit system would remain on the books, would govern elections, and “appellants would be ‘free to return to * * * [their] old ways.’ ” Id. at 376, 83 S.Ct. at 806. There the Georgia laws had been held void under Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Here, however, the Regents’ by-laws have not been held invalid; rather, the district court thought their provisions coincided with requirements of due process and were not complied with as to these plaintiffs. And, further, we cannot speculate that the three students will be readmitted to the University and will subsequently cause the Regents to continue “their old ways.” This consideration renders Boggess v. Berry Corp., 233 F.2d 389, 391, 16 Alaska 256 (9th Cir. 1956), and Pierce v. La Vallee, 293 F.2d 233, 234 (2d Cir. 1961), inapposite.
The appeal from the district court’s order granting a temporary restraining order is hereby dismissed. The dismissal of the appeal, however, should not be read as an approval of the order.
Appeal dismissed.
. Jurisdiction is asserted under 28 U.S.C. § 1331, et seq., 42 U.S.C. §§ 1981, 1983, and 1985, and the Fourteenth Amendment; the complaint also seeks declaratory judgment relief under 28 U.S.C. §§ 2201, 2202.
. On March 14 the words “summary termination” were substituted for the words “continued presence” in the order.
. The by-laws, chap. V, Sec. 5(b), read:
(1) The administration may, in those cases where there is a strong indication that a student’s misconduct will be repeated or continued or where the administration believes it is necessary to permit the University to carry on its functions, impose immediate suspension with resultant loss of all student rights and privileges, pending hearing before the all-faculty disciplinary committee. The student has a right to immediate hearing on the limited question of whether suspension should remain in effect until the full hearing is completed.
(2) In all situations other than set out in (1) above, the Administration, after adequate investigation and notice and opportunity to be heard to the student, is empowered to impose any disciplinary punishment less severe than suspension. In any such case a student may appeal and request a hearing before the all-faculty disciplinary committee.
Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer: |
songer_casetyp1_2-3-3 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights".
Angela Morris Amado ROCHA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 6505.
United States Court of Appeals First Circuit.
Heard Sept. 13, 1965.
Decided Oct. 14, 1965.
Martin T. Camacho, Boston, Mass., for petitioner.
John M. Callahan, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for respondent.
Before ALDRICH, Chief Judge, J. WARREN MADDEN, Senior Judge and JULIAN, District Judge.
Sitting by designation.
ALDRICH, Chief Judge.
This is a petition to review a judgment of the Board of Immigration Appeals affirming a denial of a certificate of citizenship and an order of deportation. The case presents the question whether a statute that was repealed in 1922 was unconstitutional so far as it affected the citizenship of the petitioner. The facts are undisputed. Petitioner’s mother was born in this country in 1901. In 1916 she married a Portuguese citizen and subsequently moved, apparently permanently, to Portugal. Petitioner was born in Portugal in 1931. Her father was a Portuguese citizen, but was not her mother’s husband. Her mother was divorced in 1932. Petitioner first came to this country in 1961.
By Act of March 2, 1907, ch. 2534, § 3, 34 Stat. 1228, petitioner’s mother by marrying a foreign national, lost her United States citizenship and acquired that of her husband. This law was repealed by Act of September 22, 1922, ch. 411, § 7, 42 Stat. 1022, but not retroactively. If born abroad to two foreign nationals petitioner obviously was not a United States citizen merely because her mother had once been one. Indeed, it is conceded that in 1931 petitioner would not have been a United States citizen even if her mother had retained her citizenship. Petitioner’s claim, so far as we could find it to have any merit, is based upon the Nationality Act of 1940, ch. 876, § 205, 54 Stat. 1139, which stated that persons in petitioner’s status are “held to have acquired at birth * * [the] nationality status” of the mother. This statute was repealed by the Act of June 27, 1952, ch. 477, § 403, 66 Stat. 280, but not retrospectively. Id., section 405(c).
Necessarily underlying the applicability of the 1940 Act to the petitioner is the contention that section 3 of the 1907 Act, in depriving her mother of citizenship on marriage, was unconstitutional. In Mackenzie v. Hare, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, a unanimous court upheld its constitutionality. It is true that this unanimity has not characterized the decisions of the last decade upholding Perez v. Brownell, 1958, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (5-to-4; four opinions); Marks v. Esperdy, 1964, 377 U.S. 214, 84 S.Ct. 1224, 12 L.Ed.2d 292 (4-to-4), or holding unconstitutional, Trop v. Dulles, 1958, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (5-to-4; four opinions); Kennedy v. Mendoza-Martinez, 1963, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (5-to-4; four opinions); Schneider v. Rusk, 1964, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (5-to-3), congressional expatriation legislation. No majority has questioned the authority of Mackenzie, however, and, indeed, it has been relied upon in several recent decisions. Perez v. Brownell, supra; Savorgnan v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287; see also Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 187, 83 S.Ct. 554; cf. Perez v. Brownell, supra, 356 U.S. at 69-73, 78 S.Ct. 568 (Warren, C. J., dissenting).
Petitioner relies principally on Schneider v. Rusk, supra, for the proposition that Mackenzie is no longer law. The statute considered in Schneider was directed solely to naturalized citizens, and certainly basic to the decision was the court’s condemnation of this discrimination. It is true that the dissenting opinion expressed the view that the reasoning of the court extended a fortiori to the 1907 Act upheld in Mackenzie. The opinion of the court did not mention the earlier case, however.
It is clear that the decision itself in Schneider did not overrule Mackenzie. It is likewise apparent from the cases cited above that the limits of congressional authority to deprive citizens of their nationality have yet to be defined. We do not feel we should attempt to be the catalyst when to do so would involve express departure from a case which has never, in a majority opinion of the court, been questioned.
Petitioner’s other points do not warrant discussion.
Affirmed.
. “Sec. 3. That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of tile marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.”
. This enactment is unusual in that it does not make residence in the United States before the foreign-born minor reaches a certain age a condition of citizenship. Compare prior act, Act of May 24, 1934, § 5, 48 Stat. 797, and the 1952 Act, 8 U.S.C. § 1401(b).
Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer: |
songer_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.
Antonio AMBROSINO, Plaintiff-Appellant, v. TRANSOCEANIC STEAMSHIP CO., LTD., Defendant-Appellee, v. Giacomo CIRCOLONE and Cross Caruso, Third-Party Defendants-Appellees. Louis CIGLIANO, Plaintiff-Appellant, v. EMPRESSA LINEAS MARITIMAS ARGENTINAS, S. A., Defendant-Appellee.
Nos. 3, 811, Dockets 80-7554, 81-7808.
United States Court of Appeals, Second Circuit.
Argued March 1, 1982.
Decided March 19, 1982.
Martin Lassoff, New York City (Zimmerman & Zimmerman, Thomas J. Doyle, New York City, of counsel), for plaintiff-appellant, Antonio Ambrosino.
Joseph Arthur Cohen, New York City (Alexander, Ash, Schwartz & Cohen, P. C., Carl Ian Schwartz, New York City, of counsel), for defendant-appellee, Transoceanic Steamship Co., Ltd.
Martin Lassoff, New York City (Zimmerman & Zimmerman, Howard Fishkin, New York City, of counsel), for plaintiff-appellant, Louis Cigliano.
Michael D. Martocci, New York City, for defendant-appellee, Empressa Lineas Marítimas Argentinas, S. A.
Before FEINBERG, Chief Judge, and KAUFMAN and MANSFIELD, Circuit J udges.
PER CURIAM:
These two appeals are by longshoremen injured aboard ship during the course of their employment; they seek damages from the shipowners under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., for their personal injuries. The sole issue presented to us is whether the September 9, 1977 amendments to the Code of Federal Regulations, 20 C.F.R. §§ 702.312 and .315, mandate a result on these cases different from the one we reached in Rodriguez v. Compass Shipping Co. Ltd., 617 F.2d 955 (2nd Cir. 1980), aff’d, 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed. 2d 472 (1981). We find that our analysis in Rodriguez is dispositive of the two appeals now before us, and we affirm the judgments of the district courts.
The undisputed facts are that each plaintiff accepted from his employer, the stevedore, compensation for his permanent disability following an informal conference convened by a United States Department of Labor claims examiner in the Office of Workers’ Compensation Programs (OWCP). In each case, the Department issued a Memorandum of Informal Conference, but no formal compensation order was entered and no party requested such an order. Both plaintiffs brought suit in district court more than six months after they accepted payment from their employer. In the Ambrosino case, the complaint was dismissed after defendant’s answer and oral motion to dismiss; in the Cigliano case, defendant’s motion for summary judgment was granted. In both cases, the district court relied on our decision in Rodriguez, supra, and disposed of the claim on the same ground: The longshoreman’s failure to bring suit within six months after acceptance of a compensation award resulted in an assignment of his cause of action to his employer, who thereafter had the exclusive right to pursue the third-party claim against the shipowner, 33 U.S.C. § 933(b).
Plaintiffs argue that Rodriguez is not dispositive because the regulations at the time Rodriguez was decided were later changed in two respects. First, plaintiff points out that formerly any OWCP employee empowered to convene an informal conference could issue a compensation order and that therefore a settlement agreement signed by an OWCP claims examiner could properly be construed as an “award in a compensation order” within the meaning of § 33(b), as Rodriguez held. Plaintiffs argue that in contrast 20 C.F.R. § 702.312, which is quoted in the margin and is applicable to the two cases before us, now provides that “a compensation order following an agreement shall be issued only by a person so designated by the Director to perform such duty.” Plaintiffs contend that the claims examiners in these two cases were not so designated and that therefore we cannot construe the Memorandum of Informal Conference as having the effect of an “award in a compensation order.” Second, plaintiffs argue that under the amended regulation 20 C.F.R. § 702.-315, also reproduced in the margin, if an employer wishes an assignment of the cause of action it must request that “a formal compensation order” be issued. No such request was made here.
Although the effect of the amendments to the regulations was specifically left open in Rodriguez, 617 F.2d at 959 n.l and 960 n.2, and also was not reached by the Supreme Court in affirming our decision in that case, 451 U.S. 596, 598-99 n.3,101 S.Ct. 1945, 1948 n.3, 68 L.Ed.2d 472, we believe that plaintiffs’ arguments are not persuasive. We find nothing in the 1977 amendments that would change the result we reached in Rodriguez. The intent of the Department of Labor in amending the regulations was clearly stated:
The amendments will enable the Department of Labor to process in a more efficient and timely manner the increasing number of claims filed each year.
42 Fed.Reg. 45300, September 9, 1977. Additional language used by the agency in discussing comments received on the proposed amendments reflected a primary concern to avoid “unnecessary delays in the processing of claims.” Id. Plaintiffs provide no basis, and we can find none, that would lead us to conclude that the agency intended in any way to affect the substantive rights of the parties, or to inject additional technicalities into the settlement process. To the contrary, the Department encourages resolution through “informal procedures” in the “vast majority of cases.” 20 C.F.R. § 702.301. The amendments recognize the importance of an official informal conference in which an agreement approved by the Department of Labor has the same final and binding effect as a formal compensation order issued after a contested proceeding. Thus, 20 C.F.R. § 702.315, see note 5 supra, provides: (Emphasis supplied.) See also Verderame v. Torm Lines, 670 F.2d 5, 7 (2nd Cir. 1982).
[W]hen the employer or carrier has agreed to pay, ... such action shall be commenced immediately upon becoming aware of the agreement, and without awaiting receipt of the memorandum or the formal compensation order.
Accordingly, we find that under the revised regulations an agreement approved in a Memorandum of Informal Conference by the claims examiner after an official informal conference constitutes an “award in a compensation order” under § 933(b).
The judgments of the district courts are affirmed.
. Ambrosino was injured on September 14, 1975; a Memorandum of Informal Conference was filed and payment accepted on January 16, 1978. His complaint was filed in the district court on August 16, 1978.
Cigliano was injured on June 21, 1979; a Memorandum of Informal Conference was filed on May 14, 1980 and payment was accepted on JAay 20, 1980. His complaint was filed in the district court on January 10, 1981.
. 33 U.S.C. § 933(b) provides:
Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.
. 20 C.F.R. § 702.312 provides in relevant part;
Informal conferences shall be called by the deputy commissioner or his designee assigned or reassigned the case and held before that same person, unless such person is absent or unavailable. When so assigned, the designee shall perform the duties set forth below assigned to the deputy commissioner, except that a compensation order following an agreement shall be issued only by a person so designated by the Director to perform such duty.
. Acceptance of the compensation award in both cases was subsequent to the 1977 amendments, which were effective October 11, 1977, 42 Fed.Reg. 45300, September 9,1977.
. 20 C.F.R. § 702.315(a) provides in relevant part:
Following an informal conference at which agreement is reached on all issues, the deputy commissioner shall (within 10 days after conclusion of the conference), embody the agreement in a memorandum or within 30 days issue a formal compensation order, to be filed and mailed....
If either party requests that a formal compensation order be issued the deputy commissioner shall, within 30 days of such request, prepare, file, and serve such order....
. Neither plaintiff contends that he had no notice of the consequences of accepting a compensation award or that he was unaware of his rights.
. Signature by the parties on an agreement is not necessary in these two appeals in light of the claims examiners’ approval, following an official informal conference, of the agreement.
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_respond1_7_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 "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").
STEELE v. HARRISON et al.
Court of Appeals of District of Columbia.
Submitted April 3, 1929.
Decided May 6, 1929.
Petition for Rehearing Denied May 25, 1929.
No. 4746.
Walter C. Balderston and Leonard J. Mather, both of Washington, D. C., for appellant.
R. B. Dickey, of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
MARTIN, Chief Justice.
The appellant as plaintiff in the lower court filed a bill of complaint against the appellees, praying that a certain deed of conveyance theretofore executed by her be set aside upon the ground of fraud and also upon the ground that it was obnoxious to the proviso of section 1155, D. C. Code (then iu force), providing that no married woman shall have power to make any contract as surety or guarantor. The lower court heard the evidence and dismissed appellant’s bill. This appeal is now prosecuted upon a record containing the pleadings and the substance of the evidence heard by the trial court. We have carefully considered both pleadings and evidence, and we are convinced that the controlling facts in the case are in substance as follows:
On May 15, 1926, the appellant, Elsie A. Steele, was, and still is, a married woman, the wife of Lewis P. Steele, and was the owner as tenant in common with Blanche A. Davis of certain real estate situate in the District of Columbia, subject to certain trust incumbrances which are not in question in this case. At that time appellant’s husband Lewis P. Steele, and William E. Davis, husband of appellant’s cotenant Blanche A. Davis, were partners engaged in the real estate business in the District of Columbia, and were in need of funds with which to meet their obligations. They accordingly formulated a plan of having their wives place a trust deed upon the aforesaid property wherewith to secure funds for the use of the partnership. Pursuant to this plan appellant and her cotenant, acting under the direction of their husbands, on May 15, 1926, executed and delivered to Francis L. Davis, brother of said William E. Davis, a deed of conveyance in fee simple for the real estate aforesaid, without any consideration whatever- moving to the grantors. On the same day said Francis L. Davis executed a deed of trust upon the property to> appellees Raymond B. Dickey and Sidney B. Harrison, to secure one H. L. Timbelake in the sum of $7,355. On May 25, 1936, however, this trust was released of record, and on the same day a trust deed was executed to the same trustees to secure the firm of Davis & Steele, in the same sum, to wit, $7,355> and this obligation was indorsed by Davis & Steele to Sue K. Harrison. On the same day, to wit, May 25, 1926, Francis L. Davis reconveyed the property to appellant and her eotenant subject to the aforesaid trust in favor of Steele and Davis in the sum of $7,355.
The appellant’s bill of complaint attacks the deed of conveyance executed by her and. her cotenant to Francis L. Davis and prays that it he set aside on the ground that appellant was induced to sign the same by the fraudulent representations of certain of the appellees. This charge, we think, is not sustained by the evidence. Appellant also attacks the deed of trust placed by Francis L. Davis upon the property to secure Steele and Davis in the sum of $7,355, upon the ground that the trust deed if sustained would subject her property as security for the indebtedness of Steele and Davis, thus obligating her as an accommodation surety for them in violation of the proviso of section 1155, D. C. Code (since repealed [see 44 Stat. 676]) which provided that no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker, or indorser.
We think the latter contention of appellant should he sustained. The circumstances surrounding the transaction in question give unmistakable proof of the fact that Francis L. Davis, as grantee in the deed of conveyance, was acting merely as the agent and trustee of appellant and her cotenant in order to place a trust upon their property to serve as security for the debts of their husbands. This was evidently done in order to escape the express provisions of the statute prohibiting such suretyship. Equity, however, looks through the form of the transaction to its substance, and in such case as this the.law follows the equitable rule. It results accordingly that the trust given by Francis L. Davis is subject to the same infirmities as if given directly by appellant, and is therefore void.
In Waters v. Pearson, 39 App. D. C. 10, 16, Chief Justice Shepard spoke for this court as follows: “1. Section 1155 of the Code (31 Stat. at L. 1374, chap. 854) confers general power upon married women to engage in business, to contract, to sue separately, etc., as fully and freely as if unmarried, but concludes with this proviso: ‘That no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker, or indorser.’ By this proviso married women were prohibited from binding themselves as surety for others. But the limitation would be of little or no benefit if it could be evaded by the mere form of the contract entered into. If the mere form of the contract, making the married woman appear as a principal* instead of a surety, would serve to prevent judicial investigation of the real nature of her obligation, the provision of the statute would become a dead letter. The statute declares a rule of public policy and its object is to be executed by courts of law as well as equity. Any one may defend an action on a contract by proof that it is in violation of a statute. E. Bement & Sons v. National Harrow Co., 186 U. S. 76-88, 22 S. Ct. 747, 46 L. Ed. 1058-1068. See Fisk Rubber Co. v. Muller, 42 App. D. C. 49; Schwartz v. Sacks, 55 App. D. C. 87, 2 F.(2d) 188; Howard v. Quinn, 55 Wash. Law Rep. 527, affirmed Bradbury v. Howard, 58 App. D. C. 383, 31 F.(2d) 222.
Tbe decree of the lower court is reversed with costs, and this cause is remanded for such further proceedings as are not inconsistent herewith.
Reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the 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_casetyp1_7-2 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Augustus CHAVIS, Appellant, v. FINNLINES LTD., O/Y, Appellee.
No. 77-1126.
United States Court of Appeals, Fourth Circuit.
Argued March 6, 1978.
Decided May 22, 1978.
C. Arthur Rutter, Jr., Norfolk, Va. (John H. Klein, Breit, Rutter & Montagna, Norfolk, Va., on brief), for appellant.
John B. King, Jr., Norfolk, Va. (Charles F. Tucker, Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and HOFFMAN, Senior District Judge.
Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
WALTER E. HOFFMAN, Senior District Judge.
Appellant, a longshoreman, brought suit against appellee, a shipowner, under the diversity statute, 28 U.S.C., section 1332. More specifically, plaintiff sought damages for injuries he received on February 17, 1975, during the course of his employment in loading cargo aboard the vessel FINN-SAILOR at Newport News, Virginia. He alleged negligence on the part of the shipowner under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, as amended in 1972, 33 U.S.C., section 901, et seq. (hereinafter referred to as the Act). On December 2, 1976, the case was tried before the Honorable John A. MacKenzie and a jury. The jury returned a verdict in favor of defendant-appellee Finn-lines Ltd., O/Y (hereinafter referred to as the shipowner), and the plaintiff appealed. The only issues involve the correctness of the jury instructions. We affirm.
On February 17, 1975, the vessel FINN-SAILOR was being loaded at Newport News. Tidewater Stevedoring Corporation (hereinafter referred to as Tidewater) had been engaged by the shipowner to load the cargo aboard the vessel.
The appellant, an employee of Tidewater, was a member of a longshore gang which was sent to the number six hatch, lower hold, of the FINNSAILOR to load certain cargo. The men in the gang were working under the supervision of the hatch boss, Ralph Sessoms. Appellant and his fellow gang members had been assigned by the stevedore foreman, also an employee of Tidewater, to work in the number six hatch, and plaintiff was advised by Sessoms that a cargo of logs was to be loaded into the lower hold.
The evidence was that the logs were covered with a red clay mud, which created a smooth, slippery surface. The longshore-' men commenced loading, and while there was testimony to the effect that the logs were wet, the longshoremen loaded the logs in the usual manner and apparently had no particular difficulty in handling the logs. (Tr. 24) It rained throughout the day, and the logs were exposed to such weather due to the fact that the hatch was left open. (Tr. 10)
The loading of the logs was completed in the latter part of the afternoon of February 17. Thereafter, the longshoremen began to load bales of herbs. The bales were to be stowed on top of the logs. The men working in the hold, including the appellant, were told that the bales were coming in by the gangwayman, also a Tidewater employee. (Tr. 25) The header in the hatch, Isaiah Battle, made the decision to bring the bales of herbs into the hatch, and Battle testified that the gangwayman could not signal the winchman to bring in the drafts containing the bales until Battle told him to do so. (Tr. 26)
The evidence as to what transpired at this point was sharply conflicting. There was testimony from the appellant and his fellow longshoreman, Isaiah Battle, to the effect that one of the vessel’s mates was in the tween deck of the number six hatch. Battle testified that he asked the mate for some plyboard to put on top of the logs. Battle further testified that this mate who, according to Battle, was wearing a uniform and cap, told him there was no plyboard available on the ship, but to load the bales directly on top of the logs. (Tr. 15-16; 29-30) Appellant’s witnesses testified it was the custom and practice for Finnlines’ vessels, being loaded in Newport News, to supply any plyboard that was necessary for the loading operations.
The vessel’s chief officer testified that the vessel’s mates do not wear uniforms and, in addition, that the vessel never stations a mate in the hatch while logs and bales of herbs are being loaded. (Tr. 87-88) Upon reviewing the vessel’s log book, the chief officer noted that heavy lift cargo was being loaded in the number two hatch, and that under normal procedure all of the vessel’s mates would be in that hatch watching over the loading of the heavy lift. (Tr. 87) He also testified that the ship always carries plyboard. However, there was no evidence that he received any request for such.
While the appellant and several of his fellow longshoremen did testify that the vessel’s mate told them there was no available plyboard on the ship, it was uncontradicted that neither the appellant nor any of the other men advised the hatch boss, Sessoms, or the stevedore foreman that they required plyboard before loading the bales of herbs. (Tr. 32, 59) It was also uncontradicted that, under normal procedure, there is plyboard available on the pier. The appellant testified that he and his fellow longshoremen knew that this plyboard was available on shore for their use. Appellant acknowledged that in the past he and his fellow workers had obtained plyboard from shore for use on various vessels. (Tr. 63-64) However, neither appellant nor any of the other longshoremen attempted to obtain the plyboard from shore.
While handling one of the bales, the appellant injured his back. However, the evidence surrounding the nature of the accident was conflicting. Appellant testified that, while he was maneuvering one of the bales, his feet slipped on the slippery logs and he fell, injuring his back. However, on the day of the accident, appellant reported to the timekeeper for Tidewater, James Davis, who prepared an accident report based upon what the appellant told him. Nowhere in the report is there any indication that a fall on wet logs caused the appellant’s injury. (Tr. 100-101; Defendant’s exhibit No. 2)
Furthermore, on February 18, 1975, the day after the accident, the appellant completed and signed a workmen’s compensation form in which he described his accident as follows:
We were loading bales of herbs weighing approximately 200 pounds on top of some logs we had already loaded. One of the bales fell down between some logs and had to be moved because it was in the way of the rest of them to come. I proceeded to move it when I felt something give in my lower back. (Tr. 69-70)
No mention was made of slippery conditions or the alleged fact that he had slipped on the logs and fallen, thus injuring his back.
I
Duty of Shipowner to Provide a Reasonably Safe Place to Work
Assuming arguendo that, under the stated facts, it was proper to submit the case to the jury, appellant contends that the trial court erred in its refusal to grant an instruction that the shipowner had a responsibility to provide a reasonably safe place to work. Such omission, it is argued, resulted in the jury’s failing to receive a proper statement of the law.
Our consideration of this issue, as well as of the balance of the issues raised, must be guided by the principle that in considering errors in instructions, this court must look to the entire charge, and if the instructions, taken as a whole, fairly and adequately state the pertinent legal principles involved, then affirmance of the court below is required. Nitto Shosen K.K. v. Johnson, 350 F.2d 399 (9 Cir. 1965); Garrett v. Campbell, 360 F.2d 382 (5 Cir. 1966).
In order to determine whether the given charge was correct, it is necessary to evaluate the complexion of the Act as it exists in light of the 1972 amendments. In particular, section 905(b) of the Act, as amended, must be taken into consideration. The subsection provides:
(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel, except remedies available under this chapter.
In Anuszewski v. Dynamic Mariners Corp., 540 F.2d 757 (4 Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), we held that, subsequent to the 1972 Amendments to the Act, the shipowner has no nondelegable duty to provide a longshoreman working aboard a vessel with a safe place to work. We stated:
The legislative history clearly supports the conclusion of the district court that the 1972 Amendments eliminated the absolute and non-delegable duty of a vessel to provide longshoremen a safe place to work. 540 F.2d at 758.
We quoted with approval excerpts from the legislative history in which Congress clearly evidenced its intent to eliminate the doctrine of unseaworthiness and to place a longshoreman injured on board a vessel in the same position he would be if injured in nonmaritime employment ashore.
Appellant cites the House Committee Report for the proposition that Congress provided for actions against shipowners because it recognized that it was important for vessel owners to do what they could to keep their vessels safe for the longshoremen to work aboard. The Committee Report reveals:
Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work. Thus, nothing in this bill is intended to derogate from the vessel’s responsibility to take appropriate corrective action when it knows or should have known about a dangerous condition. Id. at 4704.
The above view, appellant points out, was approved in Marant v. Farrell Lines, Inc., 1976 A.M.C. 504 (E.D.Pa.1976), where the trial court charged the jury that the stevedore and shipowner had concurrent responsibility for longshoring safety. The jury, by special verdict, found the stevedore and shipowner equally at fault in causing the injury.
However, the Third Circuit Court of Appeals reversed. In Marant v. Farrell Lines, Inc., 550 F.2d 142 (3 Cir. 1977), the court held that the portion of the jury charge which informed the jury that “the responsibility for the safety of the longshoreman lies concurrently or jointly with the longshoreman's employer and with the shipowner” was erroneous. Stated the court: “A recent decision of this court, not available to the district court at the trial of this ease, substantiates Farrell’s position. Accordingly, on the basis of Brown v. Rederi, 545 F.2d 854 (3d Cir. 1976), we will order a new trial.”
In Brown, the court stated that “express language in the statute and the legislative reports accompanying the 1972 Amendments amply demonstrate that for reasons of policy the major responsibility for the proper and safe conduct of the work was to be borne by the stevedore.” 545 F.2d at 860. In the Marant opinion, the Third Circuit reiterated its prior holding in Brown that the primary responsibility for longshoremen’s safety was on the stevedore and stated:
This was an important aspect of the legislative plan, intended to focus responsibility for longshoremen’s safety on those best able to improve it, the stevedores. To say that responsibility is concurrent or joint is plainly inconsistent with the intention of the Act to place primary responsibility on the stevedore. 550 F.2d at 144.
Although the duty of providing longshoremen a safe place to work is the primary responsibility of the stevedore, it does not appear that, in all cases, the obligation is exclusively his. Confusion exists chiefly in regard to the extent of the remaining duty on the shipowner in providing a safe place to work. George, “The Content of the Negligence Action by Longshoremen Against Shipowners Under the 1972 Amendments to the Longshoremen and Harbor Workers Act,” 2 The Maritime Lawyer 15, 34 (1977).
Appellant, in acknowledging that the Third Circuit Court of Appeals reversed the district court in Marant, nevertheless argues that since the appellate court also quoted from the House Committee Report statement which recognized the responsibility on the vessel to provide a safe place to work, the omission of the requested instruction was error. This argument is of no merit. While we recognize that such a responsibility of the shipowner could exist, on another set of facts, we are satisfied that under the facts of this case it would have been error to grant such an instruction.
The district judge instructed the jury that:
[t]he owner of the ship... owes to that longshoreman who comes aboard that ship the legal duty to exercise ordinary care, under the circumstances, to keep the premises in a condition reasonably safe for use by that longshoreman, in every reasonable pursuit of any purpose included within the invitation.
It is well established in this circuit that any determination of negligence on the part of a shipowner under 33 U.S.C., section 905(b), must be based on negligence principles applicable to land-based third parties in nonmaritime pursuits. Bess v. Agromar Line, 518 F.2d 738 (4 Cir. 1975). Appellant’s argument that the above instruction was defective because the term “premises” was employed rather than “place of work” is most tenuous and of no merit. We are satisfied the jury was correctly instructed that a shipowner has a duty, under the 1972 Amendments to the Act, to exercise ordinary care as opposed to a nondelegable duty to provide persons working aboard with a safe place to work.
II
Section 343A of the Second Restatement of Torts (1965)
The appellant argues that the trial judge incorrectly instructed the jury on the duty of care owed by the shipowner to the longshoreman by entirely omitting any reference to the final limiting clause of section 343A(1) of the Second Restatement of Torts (1965), which would have rendered the snip-owner liable if it was to be anticipated that harm would result to an invitee despite the obviousness of the dangerous condition. Section 343A(l) reads:
Known or Obvious Dangers.
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness, (emphasis added)
Appellant reasons that the failure to include the limiting clause in the instruction rendered the charge more favorable to the defendant than the actual principle of land-based law upon which the charge was supposedly based. Napoli v. Hellenic Lines, Ltd., 536 F.2d 505 (2 Cir. 1976), is heavily relied upon by the appellant.
In Napoli, the plaintiff longshoreman was injured when he fell from some unsecured boards resting on top of a quantity of drums which were stowed on deck. Snow had become lodged between the boards and the drums. The Second Circuit Court of Appeals stated that, “We believe that where a shipowner has notice of an obviously dangerous condition, his duty of care to longshoremen exposed to such danger should be set forth in section 343A of the Restatement of Torts.” 536 F.2d at 509. That court reasoned that, “We do not think that instructions which flatly negate the duty to protect against obvious danger properly portray the present-day obligations owed by a landowner to one whom he invites upon his premises.” 536 F.2d at 508.
Appellant concludes the Second Circuit accordingly reasoned in Napoli that when an invitee was not in a position to appreciate the risk or to avoid the danger even if aware of it, the court must consider whether the landowner, as the person best able to anticipate and prevent harm from the obvious dangers on premises under his control, should not be under some duty to take corrective action. This standard, argues appellant, as set out by the Restatement in section 343A and as applied by the Second Circuit, is reasonable and proper. It recognizes that the primary responsibility for avoiding obvious dangerous conditions is not on the landowner, just as the Act recognizes that the primary responsibility for a longshoreman’s safety is not on the vessel but on the stevedore; but the Restatement also recognizes that there are situations where despite the obviousness of the danger, the owner still can be liable, much as the Congress has provided that shipowners still can be liable to longshoremen for negligence. Thus, appellant argues, section 343A is a proper standard for shipowner negligence and the court should have instructed on the entire section.
While we feel that Napoli, supra, contains a correct exposition of law, we nevertheless are constrained to limit its applicability to its facts. In Napoli, there was no question that the shipowner, which was acting as its own stevedore, allowed the defect to be created before the longshoremen began work. However, under the facts of the present case, it appears that the stevedore created the alleged defect.
The evidence was that the logs were caked with reddish mud and were slippery. The loading took place on a rainy day. The hatch above the number six lower hold was. left open, exposing the logs to rain. The entire longshoring operation was under the control of Tidewater. Appellee argues, and we agree, that there was no slippery condition in the hold prior to the time Tidewater began its operations. Rather, the slippery condition was created by the stevedore.
It must be noted that this court reviewed this very issue in a recent case, Riddle v. Exxon Transportation Company, 563 F.2d 1103 (4 Cir. 1977). The plaintiff in Riddle was a shipyard-employed welder injured in a fire and gas explosion on a vessel undergoing repair at the shipyard. It was contended that the shipowner was negligent in not insuring that the vessel was “gas-free” when the repair work commenced. A jury rendered a verdict for the defendant. There was evidence that the repair operations had passed into the complete control of the shipyard. The plaintiff appealed, alleging error, in part, with regard to the district court’s instructions dealing with the duty of a shipowner regarding open and obvious conditions on the premises. No instruction on section 343A was given. This court held that:
[e]ven under the modern rule a vessel is not liable for “open and obvious” dangerous conditions, whether existing at time control of the vessel is relinquished, by the vessel or arising afterwards with the knowledge of the vessel, if the danger is such that the stevedore or shipyard would be expected to correct the condition in the course of discharging its responsibility for the safety of the longshoreman or shipyard worker. 563 F.2d at 1111-1112.
Illustrations of the above principle include Anuszewski v. Dynamic Mariners Corp., 540 F.2d 757 (4 Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), and Frasca v. Prudential-Grace Lines, Inc., 394 F.Supp. 1092, 1101 (D.Md.1975).
As one commentator has noted:
The consistent philosophy of these decisions is that in the ordinary situation shipowners are in no position to learn of unsafe conditions or methods arising during the stevedore’s operations; when shipowners do learn of such dangers, ordinarily the stevedore and his employees will have an equal or greater awareness, so that the danger can be said to be open and obvious; and that the safety of stevedoring and other such operations is the primary and usually the sole responsibility of the stevedore. Robertson, “Negligence Actions by Longshoremen Against Shipowners Under the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act,” 7 Jour, of Maritime Law and Commerce 447, 473.
We feel, in sum, that the proper resolution of this issue was well stated in Riddle :
But, whether the statement of the District Court in the challenged instruction was erroneous for not qualifying the vessel’s immunity for “open and obvious” dangers in line with the modem rule [i. e., § 343A] is irrelevant in this case and its use by the District Court would, if erroneous, be at most harmless error. This is so because plaintiff’s injuries resulted solely from the negligence of the [stevedore]- and its employees; and, irrespective of the language of § 343 and § 343A of the Second Restatement, a vessel is unquestionably exempt under both the letter and the intent of the 1972 Amendments from any liability for injuries resulting from the negligence of the [stevedore] and its employees. And this is so, irrespective of whether the condition resulting in plaintiff’s injuries was “open and obvious” or not. Such has recently been the clear holding in four well-reasoned decisions. Hurst v. Triad Shipping Co., 554 F.2d 1237 (3 Cir. 1977); Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837 (2 Cir. 1977); Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233 (5 Cir. 1977); and Teofilovich v. d’Amico Mediterranean/Pacific Line, 415 F.Supp. 732 (C.D.Cal.1976). 563 F.2d at 1112.
See also Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331 (5 Cir. 1977).
Ill
Sections 413 and 416 of the Second Restatement of Torts (1966)
Appellant argues that sections 413 and 416 of the Second Restatement of Torts (1966) should have been included in the court’s charge. No authority is offered by the appellant as support for this assertion. Rather, the appellant is satisfied in devoting one paragraph on his brief to this argument, noting that these sections recognize that although an independent contractor has a responsibility to use reasonable care and to prevent injuries, there are certain circumstances that arise which will result in a responsibility remaining upon the employer to see that certain risks are guarded against.
However, section 416 has been held to controvert the express statutory purpose of section 905(b) of the Act, by imposing vicarious liability on the shipowner for the negligent conduct of the stevedore or the stevedore’s employees. Brown v. Ivarans A/S, 545 F.2d 854 (3 Cir. 1976). The decision of the Fifth Circuit Court of Appeals in Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030 (5 Cir. 1977), is most relevant on this point.
In Hess, the plaintiff worked for an independent contractor employed by the defendant to clean a gasoline barge. While the plaintiff was using water to flush gasoline out of the barge’s piping system, an explosion occurred causing the plaintiff to suffer severe burns. The district court directed a verdict in favor of the defendant and the plaintiff appealed. The Fifth Circuit Court of Appeals affirmed the district court, holding in part that the Second Restatement of Torts, sections 411, 413, 416, 423 and 427 (1965) were not applicable, and stated:
These sections of the Restatement, however, cannot support the plaintiff’s action because he is an employee of the independent contractor, and the sections only impose liability with respect to third parties. 559 F.2d at 1033.
The court also rejected plaintiff’s contention that strict liability concepts were applicable, holding that it was the intent of Congress to eliminate such concepts. 559 F.2d at 1035. We agree with the Fifth Circuit.
IV
Safety and Health Regulations
The jury should have been allowed to evaluate the conduct of the shipowner in light of its customary practice and the relevant longshoring regulations, argues the appellant. Specifically, appellant asked the court to instruct the jury on 29 C.F.R., section 1918.91, of the Occupational Safety and Health Administration (OSHA) Regulations for Longshoring, which provides:
(a) Weather deck walking and working areas shall be kept reasonably clear of lines, bridles, dunnage and all other loose tripping or stumbling hazards.
(c) Slippery conditions shall be eliminated as they occur..
As authority for this proposition, appellant cites Provenza v. American Export Lines, 324 F.2d 660 (4 Cir. 1963), cert. denied, 376 U.S. 952, 84 S.Ct. 970, 11 L.Ed.2d 971 (1964). In Provenza, this court stated that a violation of the longshoring regulations by the stevedore, known to the shipowner, could render the shipowner liable to the injured longshoreman on a negligence theory. Thus, a violation of the applicable safety regulations could be a violation of the shipowner’s duty. In Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347 (4 Cir. 1968), this court held that a longshoreman is entitled to have the regulations placed before the jury with an instruction consistent with the holding in Provenza.
However, Provenza and Venable are no longer good law. Both were decided before the 1972 Amendments to the Act. Provenza stands for no more than the fact that the vessel owner is liable only if the breach of the regulations by the stevedore creates an unseaworthy condition. Since the vessel owner, subsequent to the 1972 Amendments to the Act, is no longer liable to longshoremen for unseaworthy conditions, neither Provenza nor Venable is of assistance to the appellant.
The appellant’s reliance on the Fifth Circuit’s decision in Arthur v. Flota Mercante Gran Centro Americana S.A., 487 F.2d 561 (5 Cir. 1973) is also misplaced, since the Arthur case arose prior to the effective date of the 1972 Amendments to the Act. In cases arising subsequent to the amendments, the Fifth Circuit has held that the regulations apply only to “employers.” Gay v. Ocean Transport and Trading, Ltd., 546 F.2d 1233 (5 Cir. 1977). This conclusion was based in part on the fact that 29 C.F.R. § 1918.2 makes clear that the regulation only applies to employers and not vessel owners. 546 F.2d at 1239, n. 9. More recently, in Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331 (5 Cir. 1977), the Fifth Circuit reiterated its prior holding in Gay v. Ocean Transport and Trading Ltd., supra, and reasoned that the Safety and Health Regulations for Longshoring do not impose any duty on shipowners since such regulations apply only to “employers.”
It manifestly appears that the district court did not err in this area.
V
Contributory Negligence
Appellant contends it was error for the district judge to instruct the jury concerning contributory negligence. Mason v. Mathiasen Tanker Industries, Inc., 298 F.2d 28 (4 Cir. 1962), is cited as authority. In that case, this court held that where there is no contributory negligence or the defendant has introduced no direct evidence to carry his burden of proving contributory negligence by a preponderance of the evidence, it is error for the judge to instruct concerning contributory negligence, for it allows the jury to speculate that in some way plaintiff’s own negligence may have caused him to fall.
Appellant alleges that the record in the present case contains no direct evidence of anything that the appellant, Chavis, failed to do or did do improperly, except that he worked in a hold loading bales of herbs “on top of wet, muddy, slippery logs.” The law is clear, argues appellant, that mere knowledge of a defective condition and use of it, anyway, without a showing of an alternative method, is not contributory negligence. Smith v. United States (Whitehall Terminal Corporation), 336 F.2d 165 (4 Cir. 1964), is cited as authority. Smith involved a defective ladder. This court reasoned:
Had an alternative, safe route been available to Smith, his deliberate choice of a course known to be unsafe could possibly have indicated contributory fault, but mere knowledge of the unseaworthy condition and use of the ladder in the absence of a showing that there was an alternative is not contributory negligence. 336 F.2d at 168.
Appellant concludes that in view of the rather strict statutory requirement under 33 U.S.C., section 905(a), proscribing the defense of assumption of risk, where the plaintiff has continued to work though he knew of a dangerous condition, unless the defendant shows the existence of an alternate method, there may be no consideration of contributory negligence.
At the outset, it must be noted that in considering whether evidence of the appellant’s contributory negligence was sufficient to present a jury question, the appellee is entitled to the benefit of all inferences which the evidence supports, even though contrary inferences might reasonably be drawn. Mays v. Pioneer Lumber Corp., 502 F.2d 106, 108 (4 Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1125, 43 L.Ed.2d 398 (1975); Fleming v. American Export Isbrandtsen Lines, Inc., 451 F.2d 1329 (2 Cir. 1971); McBride v. Loffland Bros. Co., 422 F.2d 363 (5 Cir. 1970).
We are of the opinion that when the appellee is given the benefit of all inferences, especially in a situation as here where the jury was required to choose between sharply conflicting versions of how the accident occurred, the record reveals ample credible evidence from which the jury could have found contributory fault on the part of the appellant. Smith v. Whitehall Terminal Corp. clearly is distinguishable. In that case it was undisputed that the plaintiff fell and injured himself because of a defective ladder, and it was further undisputed that there was no alternative safe route available to him.
In the present case, unlike as in Smith, there was credible evidence from which the jury could have concluded that there were safe alternatives available, and that appellant was contributorily negligent in the following respects: (1) in attempting to move a heavy bale (200 pounds) without requesting assistance from his fellow workers; (2) in not obtaining plyboard from shore where it was available (Tr. 63-64); (3) in not asking his foreman to obtain plyboard from shore for use as dunnage (Tr. 55, 59); and (4) in not keeping a proper lookout for his own safety while working on uneven, wet logs when he knew that the working surface was wet and uneven (Tr. 64).
Moreover, as noted earlier in this opinion, there was credible evidence from which the jury could have believed that no mate was present in the number six hatch and that, therefore, the plaintiff and his fellow longshoremen never attempted to obtain dunnage from any source. The timekeeper for the stevedoring company testified that it is normal stevedoring practice to put dunnage between logs and other cargo regardless of whether the logs are. wet or dry. The failure of appellant and his fellow longshoremen to follow this normal stevedoring practice could have raised an inference of contributory negligence. (Tr. 110-111) This was especially true in view of the fact that the loading of the bales of herbs began late in the day. The jury could have concluded that the longshoremen did not obtain dunnage from the vessel or ashore because they were in a hurry to complete their work before quitting time.
VI
Duty to Supply Dunnage
Appellant argues that the district court erred in refusing to instruct the jury that if it found the shipowner was negligent and that its agents gave improper orders to the longshoremen or stevedore, or failed to properly supply plyboard and that this negligence proximately caused the accident, then its verdict should be for the plaintiff. Because this instruction was refused, contends the appellant, the jury never was instructed that an improper order of the mate or a failure to properly supply ply-board by the vessel could be considered negligence on the part of the vessel owner.
As authority, the appellant cites Bess v. Agromar Line, 518 F.2d 738 (4 Cir. 1975), and avers that this court there indicated that where there is a duty on the ship to supply dunnage, failure to do so can be negligence. Appellant adds that there was sufficient testimony in the record that the jury could have found that, in Newport News, Finnline’s vessels did have the duty to supply necessary plyboard for dunnage.
We are of the opinion that appellant has misconstrued our holding in Bess v. Agromar Line. In that case, we rejected the argument that the shipowner had a duty, as a matter of law, to supply dunnage. 518 F.2d at 743. Moreover, there was testimony in the present case to the effect that it was the stevedore’s responsibility to decide whether dunnage was required, and it was the duty of the appellant and his fellow longshoremen to obtain dunnage from the vessel or from ashore if they felt it was required for their work. Thus, the appellant’s proffered instruction which required the jury to find for the appellant if the vessel did not supply dunnage was both misleading and erroneous. The district court properly refused the instruction.
VII
Conclusion
A district judge has broad discretion in framing his charge to the jury. The court is not bound to give instructions in the form or language in which they are requested, and if the instructions given “sufficiently cover the case and are correct, the judgment will not be disturbed, whatever those may have been that were refused.” 9 Wright and Miller, Federal Practice and Procedure, section 2552 at 627 (1971 ed.). We are of the opinion that the district court did not err in its instructions regarding the duty of care owed by the shipowner. The court’s instructions, taken as a whole, accurately charged the jury as to the shipowner’s duty to exercise reasonable care to keep the vessel in a condition reasonably safe for use by longshoremen working on board. In addition, the court accurately defined relevant terms such as “negligence,” “proximate cause,” and “ordinary care.”
For these reasons, the judgment order entered by the district court is
AFFIRMED.
. Defendant’s exhibit No. 1.
. The district court instructed the jury on the shipowner’s duty of care as follows (A. 31a-33a):
One who invites — one who enters or goes onto the premises of another — in this case the ship — and I am speaking of the ship and the shipowner — one who enters upon such ship as a business visitor, at the express invitation of the shipowner, in connection with the business of the shipowner, is called in law an invitee.
The invitation to enter upon the ship extends not only to that portion of the premises which the invitee or business visitor may be expressly invited to use, but also to such parts as he is invited to enter by fair implication. That is to say, the invitation extends to all parts of the premises where the invitee, under the circumstances and conditions of his invitation, should reasonably be expected to go.
The owner of the ship who thus extended an invitation to a longshoreman to come aboard, owes to that longshoreman who comes aboard that ship the legal duty to exercise ordinary care, under the circumstances, to keep
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_casetyp1_7-2 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
In re Wade Dillon BALDWIN and Judith Ann Baldwin, Bankrupts. Lizzie ZARATE, Plaintiff-Appellee, v. Wade Dillon BALDWIN, Defendant-Appellant.
No. 77-1696.
United States Court of Appeals, Tenth Circuit.
Submitted March 13, 1978.
Decided June 30, 1978.
R. Thomas Dawe, Albuquerque, N.M., for defendant-appellant.
Jennie Deden Behles, Albuquerque, N.M., for plaintiff-appellee.
Before HILL, BARRETT and DOYLE, Circuit Judges.
HILL, Circuit Judge.
This action was brought by Lizzie Zarate, a creditor of bankrupt Wade Dillon Baldwin, for a determination of the discharge-ability of her claim against Baldwin. The bankruptcy judge held that Zarate’s claim was excepted from discharge by § 17(a)(2) of the Bankruptcy Act [11 U.S.C. § 35(a)(2)]. The district court affirmed. Baldwin seeks reversal of that determination.
In June, 1972, judgment was entered in New Mexico district court in an action by Zarate against Baldwin for negligent medical treatment. Zarate v. Baldwin, No. 11— 71-01121 (Bernalillo Co., N.M., Dist. Ct., June 2, 1972). The judgment specifically incorporated the terms of an agreement settling Zarate’s claim. The judgment recited that it was entered upon a claim of “simple negligence.” It provided that Za-rate should recover $60,000 from Baldwin, payable according to a stated schedule, with interest only in case of delinquency. The schedule of payments required Baldwin to pay $175 each month from July, 1972, through December, 1973; $500 each month from January, 1974, through May, 1975; and $800 each month thereafter until the full amount was paid. The judgment further provided that: “[T]he debt herein stated shall not be provable or dischargeable in bankruptcy.” Baldwin made payments according to the schedule through April, 1975, at which time $48,850 remained unpaid.
Baldwin filed a petition for discharge in bankruptcy in June, 1975. Zarate commenced this action pursuant to § 17(c) of the Bankruptcy Act [11 U.S.C. § 35(c)]. She contended the debt should be excepted from discharge on two grounds: (1) Baldwin’s contractual waiver, incorporated into the state court judgment, precluded discharge; (2) Because the settlement agreement upon which judgment was entered was reached through Baldwin’s false representation that he would not seek discharge of the debt, her claim was excepted from discharge by § 17(a)(2).
The testimony adduced at the hearing in bankruptcy court revealed that Baldwin had previously obtained a discharge in bankruptcy and he was not again eligible to seek discharge until May, 1975. Both Za-rate and Richard Ransom, her attorney in the state court proceeding, testified that at the time of the settlement negotiations she was concerned about the possibility Baldwin would seek discharge and that she agreed to the settlement only upon Baldwin’s assurance that he intended to pay in full and that the debt would not be affected by subsequent bankruptcies.
The bankruptcy judge found that Baldwin misrepresented ■ his intent to pay the debt in full and not to seek its discharge in bankruptcy and that Zarate relied upon that misrepresentation in entering into the settlement agreement. He further concluded that Baldwin was bound by his waiver contained in the settlement agreement. He held the debt was not dischargeable.
Baldwin contends the bankruptcy judge’s conclusions regarding his misrepresentation and Zarate’s reliance were erroneous. He further contends that the liability was not within the scope of § 17(a)(2) because Za-rate did not give up property on account of his misrepresentation. Finally, he argues that the contractual waiver of his right to seek discharge of the debt is unenforceable.
The bankruptcy judge’s findings of fact, adopted by the district court, will not be disturbed unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Bankruptcy R. 810. The evidence amply supports the finding that Baldwin misrepresented his intent. The clause waiving discharge, together with the promise to pay inherent in the agreement, is at the very least a representation that Baldwin intended to pay the debt in full, regardless of future bankruptcies. The circumstances which indicate Baldwin had no intention of fulfilling that promise when he made it include his insistence that the agreement state Zarate’s claim to be for “simple negligence”, thus paving the way for discharge of the debt; the progressive payment schedule ■ that permitted Baldwin to avoid enforceable liability for the greater share of the debt or any interest thereon until he was again eligible to seek discharge; and the fact that he ceased to make payments as soon as he was again eligible to petition for discharge.
Testimony by Zarate and Ransom that she knew of his previous bankruptcy and insisted on the waiver clause to assure payment in full amply supports the finding that Zarate relied upon Baldwin’s, misrepresentation.
Section 17(a)(2) excepts from discharge claims which “are liabilities for obtaining money or property by false pretenses or false representations.” A liability for negligent medical malpractice is a dis-chargeable debt. In re Byrne, 296 F. 98 (2d Cir. 1924). In its present posture, however, Zarate’s claim is not for Baldwin’s malpractice; it is for the property she forwent by entering into the settlement agreement in reliance on Baldwin’s false representations. Before agreeing to the settlement, Zarate had an unliquidated claim for damages against Baldwin. The significant aspect of the agreement is not that it caused the prior claim to be reduced to judgment, but that it caused Zarate to give up property of a value equal to the present unpaid balance of the judgment. By agreeing to settle, Zarate forwent her right to pursue her claim to judgment after trial. Her evidence could have shown that Baldwin’s conduct was willful, in which case his liability would not have been dischargeable. 11 U.S.C. § 35(a)(8). But most importantly, she forwent her right to collect the debt through the process of the court during the time when Baldwin was precluded from seeking discharge by reason of his prior bankruptcy. By keeping current with the relatively low initial payments, Baldwin avoided interest on the unpaid balance of the principal sum, and he avoided enforceable obligation for the remainder of the debt until his statutory six years [11 U.S.C. § 32(c)(5)] had run. The bankruptcy judge correctly held that Zarate’s claim was excepted from discharge by § 17(a)(2) of the Bankruptcy Act.
We need not address the matter of enforceability of the contractual waiver of discharge. The significance of the provision is that it constitutes a representation that Baldwin intended to pay the debt in full, which we have held was false.
AFFIRMED.
. Claims for willful and malicious injuries are excepted from discharge by 11 U.S.C. § 35(a)(8).
. Because Zarate’s claim was for property which she gave up by entering into the settlement agreement rather than for damages resulting from Baldwin’s negligent malpractice, our decision in In re Vickers, No. 76-2175 (10th Cir. Aug. 19, 1977), stating the rule that when a claim has been reduced to judgment the record and the judgment are ordinarily dispositive as to the nature of the claim, does not apply.
The instant case may be distinguished from our recent opinion in In re Feisen, No. 77-2035 (10th Cir. Apr. 14,-1978). In that case, a guarantor of a debt challenged the discharge of his claim against the debtor for the amount he had been caused to pay on account of the debtor’s default. The original debt, the guarantor’s liability thereon, and the debtor’s liability to the guarantor had been reduced to judgment in state court pursuant to a settlement agreement. In the bankruptcy court the guarantor sought to raise the matter of the debtor’s fraud in the contract of guaranty. We held that he was properly precluded from doing so because there had been no showing of fraud in the state court proceeding. We specifically noted “[tjhere is nothing in this record which indicates that the stipulation reached in settling the litigation in the state court proceedings . was in any manner induced by fraud.” Slip op. at 5-6.
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_district | F | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Thomas S. JONES, Plaintiff-Appellant, Cross-Appellee, v. CENTRAL SOYA COMPANY, INC., Defendant-Appellee, Cross-Appellant.
No. 83-7468.
United States Court of Appeals, Eleventh Circuit.
Dec. 10, 1984.
Champ Lyons, Jr., Mobile, Ala., for plaintiff-appellant, cross-appellee.
William C. Tidwell, III, Kathryn Anne Eckerlein, Mobile, Ala., for defendant-ap-pellee, cross-appellant.
Before HILL and HENDERSON, Circuit Judges, and WISDOM , Senior Circuit Judge.
Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
ALBERT J. HENDERSON, Circuit Judge:
Thomas S. Jones and Central Soya Company, Inc. (“Central”) both challenge the reasonableness of the amount of attorney’s fees awarded to Jones by the United States District Court for the Southern District of Alabama in a successful action against Central alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). The jury found Central’s conduct to be willful and awarded Jones double damages in the amount of $41,666.42. The district court later granted Jones an additional interim amount of $18,796.00 as well as reinstatement with full pension benefits.
Pursuant to a provision in 29 U.S.C. § 216(b) authorizing reasonable attorney’s fees to the prevailing plaintiff in an ADEA action, the district court awarded Jones approximately $24,000.00 allocable to counsel fees. On appeal, Jones alleges that the amount was insufficient because of 1) the exceptional result obtained in the litigation, 2) the purported contingency fee arrangement between Jones and his counsel, and 3) the delay in payment of the attorney’s fees. Central cross appeals, contending that the district court improperly awarded Jones attorney’s fees for the time billed for the work of an unnecessary second trial lawyer.
Awards of attorney’s fees in age discrimination actions are governed by 29 U.S.C. § 216(b) which provides: “[t]he court ... shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant ....” See 29 U.S.C. § 626(b) (rendering section 216(b) applicable to ADEA actions). A number of factors are relevant to the determination whether such an award is reasonable, the most familiar of which were discussed at length in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974).
In this case, the district court based its award on a “lodestar” figure consisting of the product of the time invested by Jones’ counsel and an hourly rate. Record, vol. 1, pp. 381-84. In doing so, the district court addressed each of the factors listed in Johnson and concluded that no adjustment of the lodestar amount was necessary. See id. at 381-86. We may overturn this award only for “clear abuse of discretion.” Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir.1983).
Jones first contends that the lodestar figure should have been increased because of the results obtained in the ADEA action. The district court reasoned that although counsel “achieved substantial relief for the plaintiff in this case, the court does not feel that counsel is entitled to an enhancement bonus on this factor.” Record, vol. 1, p. 385.
The Supreme Court of the United States has instructed that “[bjecause acknowledgment of the ‘results obtained’ generally will be subsumed within other factors used to calculate a reasonable fee it normally should not provide an independent basis for increasing the fee award.” Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891, 903 (1984). However, “in some eases of exceptional success an enhanced award may be justified.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40, 52 (1983); see Blum, — U.S. at —, 104 S.Ct. at 1550, 79 L.Ed.2d at 903 (quoting Hensley). We are confronted here with the question whether the result in this ease constitutes “exceptional success.”
Although the Supreme Court has not yet addressed in detail the-circumstances under which an award of attorney’s fees should be enhanced because of the result obtained, the Court noted in Blum that “where the experience and special skill of the attorney ... require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue” an increase may be warranted. Blum, — U.S. at —, 104 S.Ct. at 1549, 79 L.Ed.2d at 902. See also Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir.1983) (“exceptional success” may be based upon extraordinary economies of time given the complexity of the task).
Other courts have articulated additional factors that may justify an enhanced attorney’s fee award such as the development of new law furthering important congressional policies, see Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1530-31 (11th Cir.1983); Johnson, 488 F.2d at 718; accord Ramos, 713 F.2d at 557, success achieved under unusually difficult circumstances, see White v. City of Richmond, 713 F.2d 458, 462 (9th Cir.1983) (near complete success achieved in face of highly unfavorable law); Ramos, 713 F.2d at 557 (“unusually difficult circumstances”), and the size of the award. See Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1533 (11th Cir.1983); Wolf v. Frank, 555 F.2d 1213, 1218 (5th Cir.1977); Johnson, 488 F.2d at 718.
None of these grounds is sufficiently present in this case to compel the conclusion that the district court abused its discretion. There is no indication that the success of Jones’ attorneys was achieved with any special economics of time or under unusually difficult circumstances. Moreover, the case did not establish significant new law furthering an important congressional goal, and the $60,462.42 recovered is not such a substantial amount as to require enhancement.
In Ramos the Court of Appeals for the Tenth Circuit observed that “total victory” may constitute “exceptional success.” Ramos, 713 F.2d at 557. The main thrust of Jones’ argument appears to be based precisely on this point. According to Jones, because he prevailed on all his claims he is entitled to an enhanced award of attorney’s fees.
We decline, however, to equate “total success” with “exceptional success.” Although the Supreme Court in Hensley observed that “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees,” Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 54, the Court has never suggested that complete victory alone requires an enhanced award. Indeed, the Court specifically distinguished “excellent” results from “exceptional” results and instructed that only the latter could justify an increased grant of attorney’s fees. Id., 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Winning on all claims does not seem to us to be so unusual that it must be deemed “exceptional.”
Furthermore, the Court in Hensley held that, given the vast range of success possible in a civil rights action, a decrease in the lodestar amount is not required simply because the plaintiff failed to win every contention raised in his lawsuit. Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 55. We believe the converse follows — just as losing on some claims does not necessarily mandate a decrease in the lodestar figure, neither does winning on all claims demand an increased amount. The central inquiry remains whether the expenditure of counsel’s time was reasonable in light of the overall success achieved. See id., 461 U.S. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d at 52.
A contrary boilerplate rule that total victory mandates a larger award of attorney’s fees would mean that lawyers fortunate enough to attract clients with highly meritorious claims would always be entitled to increased attorney’s fees. Statutory entitlements to attorney’s fees were not designed to provide windfalls to lawyers. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act).
This is not to say that the totality of the success is never a relevant factor in determining whether a result is “exceptional.” We simply hold that the mere fact that a plaintiff recovered everything he sued for in the underlying litigation does not, by itself, mandate an enhanced award. In an appropriate case, the completeness of the success might be weighed along with the legal and factual hurdles, the economies of time and skill involved, the monetary award and the law created in evaluating whether a result is “exceptional.” Because the other influences are not present in this case, we conclude that the district court did not abuse its discretion in declining to enlarge the fee notwithstanding the fact that Jones recovered on all claims.
Jones next asserts that the district court erred by not considering the contingency fee arrangement he allegedly had with his counsel. The Supreme Court recently deferred a ruling on whether an upward adjustment of the attorney’s fees is authorized because of the risk of nonrecovery. See Blum, — U.S. at —, 104 S.Ct. at 1550 n. 17, 79 L.Ed.2d at 903 n. 17. It is well established in this circuit, however, that a contingency fee arrangement may justify an increase in an award of attorney’s fees. See, e.g., Hall v. Board of School Commissioners, 707 F.2d 464 (11th Cir.1983) (per curiam); Marion v. Barrier, 694 F.2d 229, 231-32 (11th Cir. 1982) (per euriam); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981).
To decide the issue in this case we must distinguish between two types of risks an attorney may assume in making a fee arrangement. First, an attorney may risk all entitlement to fees by entering into a conventional contingency agreement with his client. Second, although not making his entitlement to fees dependent upon the verdict or judgment, an attorney always assumes the risk that he will not be paid by his client because of indigency. If an attorney is aware, when finalizing his agreement, that his client will be unable to pay, and that the only recourse for collecting his compensation is a statute providing for fee-shifting, then for practical purposes, the attorney would have assumed the risk of nonrecovery if his client does not prevail.
The district court recognized this distinction in reasoning that “[ajlthough adequate compensation was, as a practical matter, probably contingent upon a successful result, the case was not taken on a contingent fee basis . . . . [Cjounsel is not entitled to an enhancement bonus on this factor.” Record, vol. 1, at 385. This quotation is a finding of fact that there was no contingency fee agreement between Jones and his counsel. In addition, the court evidently reasoned that, although there was a “practical risk” of nonpayment because of Jones’ indigency, this risk did not justify a fee enhancement.
We may overturn the district court’s finding of fact only if it is “clearly erroneous.” Fed.R.Civ.P. 52(a). The facts in the record reflect considerable doubt about the fee arrangement between Jones and his attorney. At an initial meeting between Jones and his attorney in February, 1981, the fee was not discussed. Record, vol. 2, p. 393-7. Later, an hourly bill was sent to Jones. When Jones expressed his inability to pay it, his attorney told him they would “cross that bridge later.” Id. at 393-9. Several months then passed during which there was no further mention of the fee. Id. at 393-9 to 393-10. Jones later authorized his lawyer to settle the case for up to $40,000.00 of which a third would be retained as attorney’s fees. Id. at 393-12. However, no settlement ever materialized. After Jones prevailed at the jury trial, he agreed that his counsel would “look exclusively to the Court for the fixing of a reasonable fee” without disturbing the jury award. Id. at 393-13.
At no point was it apparent that Jones’ counsel agreed to forego compensation for his efforts in the event the action was unsuccessful. Accordingly, we are not left with the requisite “definite and firm conviction” that the district court made a mistake in finding there was no contingency fee arrangement between Jones and his attorney.
Moreover, the district court was correct in reasoning that the “practical risk” assumed by Jones’ counsel is not a basis for enhancing a fee award. Jones argues that one purpose of fee-shifting statutes is to attract competent counsel and that compensating for the “practical risk” would encourage lawyers to take civil rights cases involving indigent clients. According to Jones, refusing to provide this compensation would have a “chilling effect” on the willingness of attorneys to take such cases.
It is true that in passing statutes supporting the entitlement to attorney’s fees, Congress intended to encourage competent counsel to take on possibly undesirable cases by providing for adequate compensation for their successful efforts. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S. CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act). This court has recognized that enhancement on the basis of a conventional contingency arrangement furthers this congressional purpose. See, e.g., Yates, 719 F.2d at 1534.
We do not believe, however, that Congress intended that such advocates be paid for the financial risks they assume to a greater degree than other lawyers. As we stated in Jones, compensation for risk “is neither less nor more appropriate in civil rights litigation than in personal injury cases.” Jones, 636 F.2d at 1382.
In this case, counsel for Jones seek an amount compensating them for the risk of nonpayment by a client liable for fees, a risk that is assumed without special compensation by all attorneys in all cases. A lawyer may not preserve a right of recourse against his client for fees and still expect to be compensated as if he had sacrificed completely his right to payment in the event of an unsuccessful outcome. To justify a risk premium a lawyer must agree to hold his client unaccountable for his fees if he loses the case. Because the district court found that no such agreement existed, the court did not abuse its discretion in refusing to enhance the fee award on the basis of contingency.
Jones’ last argument is that the district court abused its discretion by not awarding additional attorney’s fees to compensate for delay in payment. This court has recognized that if the hourly rate for attorney’s fees is based on historical rates, thus reflecting the reasonable attorney’s fee at the time the work was performed, an adjustment may be necessary to compensate for inflation and interest. See Johnson v. University College of the University of Alabama, 706 F.2d 1205, 1210-11 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983); Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1193-94 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The district court did not discuss delay, and did not state whether the hourly rate it used to compute Jones’ award was current or historical. The evidence the court could have considered in arriving at the applied rate of $85.00 per hour contains information about both current and historical rates. Under these circumstances we cannot determine whether the district court abused its discretion by failing to increase the award to account for delay.
We decline, however, to remand this case for clarification or reconsideration because we hold that Jones waived the right to seek an enhancement of attorney’s fees on the basis of delay. He failed both at the district court hearing on attorney’s fees and in his “Application for Award of Attorney’s Fees,” Record, vol. 1, pp. 291-306, to raise the issue of enhancement for delay. In reaching our conclusion we are mindful of the general rule that the “burden rests on the party seeking an attorney’s fee award to file a fee application and proffer proof going to the Johnson guidelines before the trial court.” Carr v. Blazer Financial Services, Inc., 598 F.2d 1368, 1371 (5th Cir.1979). Because Jones did not advance any argument for delay until after the district court’s order granting attorney’s fees, we decline to consider it as a basis for overturning the award. See Gates v. Collier, 616 F.2d 1268, 1278 n. 16 (5th Cir.1980) (suggesting waiver of claim for interest on award of attorney’s fees when issue not raised until after the district court made the award), modified on rehearing, 636 F.2d 942 (5th Cir.1981) (per curiam).
Finally, Central, as cross-appellant, urges that the district court abused its discretion by not reducing the award by the amount allocated for the allegedly duplica-tive work performed at trial by a second attorney for Jones. The district court considered the issue and concluded that it was not “unreasonable for the plaintiff to have been represented at trial by two experienced attorneys. The defendant was represented at the trial by house counsel and trial counsel, although house counsel did not participate actively in the litigation.” Record, vol. 1, p. 382.
A reduction in a fee “is warranted only if the attorneys are unreasonably doing the same work. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.” Johnson, 706 F.2d at 1208 (emphasis in original); see Ward v. Kelly, 515 F.2d 908, 912 n. 11 (5th Cir.1975); Johnson, 488 F.2d at 717.
Except for the fact that both were present at trial, there is no evidence in the record suggesting that Jones’ attorneys were doing identical work. Also, there is no indication in the record, aside from the fact that only one lawyer actively participated in the trial for Central, that it was unreasonable for Jones to retain two trial attorneys. Indeed, the record reflects that the lack of opportunity for pretrial preparation by Jones’ attorney may have necessitated additional trial counsel. See Record, vol. 2, p. 393-5. At any rate, in the absence of any evidence to the contrary, we cannot conclude that the trial judge, who was in the best position to evaluate the reasonableness of the use of two trial at-in torneys by Jones, abused his discretion declining to reduce the fee.
The judgment of the district court AFFIRMED. is
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981.
The Johnson court cited the following considerations as being relevant to the determination of the reasonableness of the award:
1) the time and labor required;
2) the novelty and difficulty of the questions;
3) the skill requisite to perform the legal service properly;
4) the preclusion of other employment by the attorney due to the acceptance of the case;
5) the customary fee;
6) whether the fee is fixed or contingent;
7) time limitations imposed by the client or the circumstances;
8) the amount involved and the results obtained;
9) the experience, reputation and ability of the attorneys;
10) the "undesirability” of the case;
11) the nature and length of the professional relationship with the client; and
12) awards in similar cases.
Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974).
Johnson dealt with 42 U.S.C. § 2000e-5(k), which permits attorney’s fees for the prevailing party in certain Title VII actions. Its reasoning, however, has been applied to awards of attorney’s fees under 29 U.S.C. § 216(b). See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184 (11th Cir.1983) (violation of Equal Pay Act, 29 U.S.C. § 206(d), to which section 216(b) also applies), cert. denied, -U.S.-, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The Johnson criteria were also approved by Congress when it passed the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. See S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913. In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40, 50 n. 7 (1983), a case addressing the reasonableness of an award of attorney’s fees under section 1988, the Supreme Court stated that the "standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of [attorney’s] fees to a ‘prevailing party.’” Accordingly, our inquiry extends beyond just those cases dealing with section 216(b).
. Neither the number of hours nor the hourly rate applied is at issue in this appeal.
. Computing a "lodestar” figure first and then adjusting it in light of other considerations is a widely accepted practice. See, e.g., Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1543-44, 79 L.Ed.2d 891, 895-96 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-435, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40, 50-51 (1983); Ursic v. Bethlehem Mines, 719 F.2d 670, 676-77 (3d Cir.1983); White v. City of Richmond, 713 F.2d 458, 460-61 (9th Cir.1983); Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir.1983); Copeland v. Marshall, 641 F.2d 880, 890-91 (D.C.Cir.1980) (en banc).
. “Although the Court should consider the amount of damages, or back pay awarded, that consideration should not obviate court scrutiny of the decision’s effect on the law.” Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). The Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, not only ”make[s] it possible for non-affluent litigants to obtain legal representation, but to reward attorneys whose service has benefited the public interest.” Dowdell v. City of Apopka, 698 F.2d 1181, 1191 (11th Cir.1983) (emphasis in original). The cost-shifting contemplated by section 1988 is "designed to induce and encourage litigation on the theory that litigants acting as ‘private attorneys general' may help to enforce important congressional policies . . . .” Id. at 1189 n. 12.
. See also Elser v. I.A.M. National Pension Fund, 579 F.Supp. 1375, 1381 (C.D.Cal.1984) (No enhancement under 29 U.S.C. § 1132(g) when the "relief obtained by [the] plaintiffs was that due them---- In order to be considered an exceptional result, it would have to be one not thought likely to be achieved.”).
. The fact that a class was benefited, rather than an individual, has been a consideration in the past in calculating an award of attorney’s fees. See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1194 (11th Cir.1983) (not abuse of discretion for district court to determine that the case was less difficult because the plaintiff was an individual rather than a class), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984); Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). This notion however, appears to have been laid to rest by the Supreme Court of the United States. See Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549 n. 16, 79 L.Ed.2d 891, 903 n. 16 (1984).
. For example, the White court increased an award of attorney’s fees for exceptional success when the plaintiff obtained injunctive relief in spite of its restricted availability under Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The legal obstacles overcome in this case do not compare with those in White.
. Jones contends that the recovery in the ADEA litigation was actually worth over $330,000.00 because of the present value of the pension benefits and reinstatement. We recognize that “fees awarded ... [should] not be reduced because the rights involved may be nonpecuniary in nature,” S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS, 5908, 5913. Nonetheless, even accepting this figure, we cannot say that the district court abused its discretion by declining to enhance the award of attorney's fees.
. We express no opinion concerning the relative weight of these factors for determining "exceptional success” nor the degree to which any or all of them must be present to justify the enhancement of an attorney's fee award on the basis of the results obtained. In addition, we express no opinion about the extent, if any, to which these factors are necessarily indistinguishable from the existing Johnson criteria. We merely hold that, even if all these factors are valid considerations, the district court did not abuse its discretion in denying an enhanced attorney’s fee award on the basis of "exceptional success.”
Our opinion does not necessarily foreclose the possibility that in future cases in this circuit an increase in an award of attorney’s fees may be justified on the basis of “exceptional success” even when all claims asserted are not successful. See White v. City of Richmond, 713 F.2d 458, 461-62 (9th Cir.1983) (enhancement upheld despite minor concessions by plaintiff during settlement negotiations).
. Justice Brennan wrote separately in Blum, however, "to reaffirm ... that Congress has clearly indicated that the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee.” Blum v. Stenson, — U.S. — , —, 104 S.Ct. 1541, 1550, 79 L.Ed.2d 891, 904 (1984) (Brennan, J., concurring).
. Counsel for the appellant admitted at this point that the fee situation was "vague.” Record, vol. 2, p. 393-12.
. In addition, we note that in an effort to justify the employment of two trial attorneys, Jones' counsel stated that two lawyers were necessary in light of the fact that Jones could not afford pretrial deposition discovery. Record, vol. 2, p. 393-5. The district court may have taken this to mean that Jones' ability to pay was so significant an issue before trial that cost-cutting measures were necessary. Such concern over Jones’ ability to pay suggests that the parties expected, at least at that point, that Jones would ultimately be liable for his counsel's fees. This liability is inconsistent with a contingency fee arrangement.
. Vindication of the policy of the law depends to a significant degree on the willingness of highly skilled attorneys, such as those now before the court, to accept employment in discrimination cases on a wholly contingent basis. They will hardly be willing to do so if their potential compensation is limited to the hourly rate to which they would be entitled in noncontingent employment. Busy and successful attorneys simply could not afford to accept contingent employment if those were the rules that were applied. The enforcement of our civil rights acts would then be entrusted largely to less capable and less successful lawyers who lack sufficient employment. Such an arrangement would ill serve policies of enormous national importance.
Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1534 (11th Cir.1983).
. The relevant period of delay generally runs from the time payment for legal services rendered would normally be due to the time of the receipt of the payment. In this case, however, the relevant period may be somewhat shorter because the district court awarded interest from the date of its order granting attorney’s fees to Jones. Record, vol. 1, p. 387.
. The district court’s order stated that "$85.00 per hour for time expended on the merits of the case is a reasonable fee for [Jones] in accordance with the customary hourly fee charged for this type of litigation.” Record, vol. 1, p. 384.
. The district court stated that it based its hourly rate figure on 1) the affidavit of Champs Lyons, Jr., one of Jones’ attorneys, 2) the testimony at the hearing for the application of the award of attorney’s fees, and 3) the Defendant’s Response to Post-Judgment Interrogatories. Record, vol. 1, pp. 383-84.
The affidavit was dated February 8, 1983, Record, vol. 1, p. 306, and stated that "when I handle litigated matters on a strictly hourly basis, my regular rate is $95.00 an hour . . . .” Id. at 298. The use of the present tense suggests that the rate was current.
The hearing testimony revealed that an initial bill was sent to Jones in June, 1981, reflecting a rate of $80/hour. Record, vol. 2, p. 393-8. This would represent a historical rate, applicable two years before the district court’s August 2, 1983, order granting attorney’s fees. In addition, two witnesses were asked to state their opinion on the "customary range for hourly fees charged in Mobile in Federal court litigation.” Id. at 393-41 to 393-44. The answers, apparently indicating current fee ranges, were $60.00-100.00 per hour, and $75.00-100.00 per hour. Id. at 393-42, 393-44; see also id. at 393-38 ($75.00-$100.00 per hour).
Finally, the Defendant’s Response to Post-Judgment Interrogatories replied to a question concerning “the then current hourly rate,” Record, vol. 1, p. 284, and a question asking for "the customary hourly rate,” id. at 286, by giving the same answer of $85.00 per hour. Id. at 351-52. These last answers suggest that the historical and current rates may be the same.
. In an affidavit accompanying his request for attorney’s fees, counsel for Jones reviewed the Johnson factor involving awards in other cases and stated that "reported cases, particularly older ones, should be viewed with circumspection, not only because of the impact of inflation since the date of the services, but also because they typically involve special circumstancefs] unique to the facts of the case." Record, vol. 1, p. 306. Despite the reference to inflation, this statement is insufficient to raise the delay issue.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_respond1_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 first listed respondent. 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.
VAREKA INVESTMENTS, N.V., a Netherlands Antilles Corp., Plaintiff-Appellee, v. AMERICAN INVESTMENT PROPERTIES, INC., a Florida Corp., Defendant-Appellant.
No. 82-5722.
United States Court of Appeals, Eleventh Circuit.
Feb. 9, 1984.
Rehearing Denied March 21, 1984.
Lawrence H. Rogovin, North Miami Beach, Fla., for defendant-appellant.
Steel, Hector & Davis, Vance E. Salter, Miami, Fla., for plaintiff-appellee.
Before RONEY, HATCHETT and ANDERSON, Circuit Judges.
HATCHETT, Circuit Judge:
In this diversity case, we review the district court’s award of damages to a lessor resulting from a commercial lease transaction and the termination of the lease. We affirm.
FACTS
Vareka Investments, N.V. (Vareka) was incorporated under the laws of the Netherlands Antilles on October 20, 1978, to serve as a passive investment vehicle. With the exception of a shareholder who is a citizen of Italy residing in Montreal, Canada, all of the shareholders of Vareka are citizens and residents of the Republic of Ecuador. Leonard E. Treister and Jerome J. Cohen were shareholders, officers, and directors of American Investment Properties, Inc. (AIP). In January, 1978, AIP purchased The Quarters Office Park. During 1978, a company half owned by Treister and Cohen, Greater American Management Corporation (GAMC), operated The Quarters Office Park (The Quarters). In January, 1979, Vareka purchased The Quarters from AIP. Simultaneously, AIP leased The Quarters back from Vareka under a fifteen-year net lease under which AIP was obligated to pay Vareka a minimum “net” return of Vare-ka’s cash investment. AIP was also obligated to pay all expenses and assume all duties to the subtenants and to operate The Quarters. Vareka had no liability whatsoever for the operation, maintenance, or expenses of The Quarters. Treister and Cohen, individually, guaranteed AIP’s performance under the lease for the first five years, with an aggregate liability of $100,-000.
On January 15, 1979, Vareka filed an “Application by Foreign Corporation for Authorization to Transact Business in Florida” with the Florida Department of State. The State of Florida granted the application, and Vareka became qualified to transact business in Florida. The qualification listed as the “address of principal office” of Vareka, 1400 Southeast First National Bank Building, Miami, Florida. A Resident Agent Certificate was also filed with the Secretary of State of Florida. On the certificate, Vareka designated an attorney at a Miami, Florida, law firm as its resident agent. The law firm had represented Vareka in the negotiations and consummation of the transaction, and continues to represent Vareka in Florida.
In August, 1979, AIP notified Vareka that AIP intended to terminate the lease. The present actions were commenced in September, 1979, when Vareka filed suit. In October, 1979, the district court authorized Vareka to re-enter the premises for the purposes of operation and management, pursuant to the lease agreement. Vareka hired Coldwell Banker Property Management Company (Coldwell Banker) to operate the property from October, 1979, through the date of the trial.
PROCEDURAL HISTORY
On September 4, 1979, soon after AIP advised Vareka of its intent to terminate, Vareka sued AIP under the lease. On September 14, 1979, Vareka sued Treister and Cohen based on the Guaranty. The trial court consolidated the cases.
Vareka moved for partial summary judgment on liability. The district court withheld ruling on Vareka’s motion for summary judgment pending a determination of whether the court lacked subject matter jurisdiction. After holding an evidentiary hearing and considering memoranda of law on the issue of jurisdiction, the district court concluded that subject matter jurisdiction existed. Thereafter, the district court granted Vareka’s motion for summary judgment as to the liability of AIP, Treister, and Cohen. The district court conducted a bench trial and found that Vareka suffered $548,000 in damages due to AIP’s breach of the lease, and that Vareka was entitled to collect $100,000 of that amount from Treister and Cohen under the Guaranty. AIP, Treister, and Cohen (appellants) then filed a “Motion to Alter or Amend Judgment” and a “Notice of Appeal.” The district court denied the motion to alter or amend judgment. The appellants did not file a new notice of appeal.
ISSUES
On appeal, we must decide whether the district court correctly concluded that it had subject matter jurisdiction; whether the district court correctly granted summary judgment; whether Vareka’s cause of action for damages was premature; whether Vareka properly mitigated those damages; whether there was sufficient evidence to support the district court’s award of damages; and whether Federal Rule of Appellate Procedure 4(a)(4) requires dismissal of this appeal.
A. Subject Matter Jurisdiction
Appellant, AIP, contends that the district court’s finding that Vareka’s principal place of business was in Quito, Ecuador, • is clearly erroneous. After conducting an evidentiary hearing, the district court concluded that it had subject matter jurisdiction based on diversity. Under 28 U.S.C.A. § 1332(c), a foreign corporation is deemed to be a citizen of the state in which it has its principal place of business. Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31, 35 (5th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982). One looks to the “total activity” of the corporation in order to determine its principal place of business. Village Fair Shopping Center v. Sam Broadhead Trust, 588 F.2d 431, 434 (5th Cir.1979). This analysis incorporates both the “place of activities” test (focus on production or sales activities), and the “nerve center” test (emphasis on the locus of the managerial and policymaking functions of the corporation). Toms v. Country Quality Meats, Inc., 610 F.2d 313, 315 (5th Cir.1980).
The question of a corporation’s principal place of business is a question of fact. Village Fair at 433. Thus, we review the district court’s determination that Vareka’s principal place of business was Ecuador to determine whether it is clearly erroneous.
The district court found that all of Vareka’s shareholders were citizens and residents of the Republic of Ecuador, with the exception of DiGiorgis, a citizen of Italy, residing in Montreal, Canada. Prior to institution of the present case, all corporate meetings were conducted, and all corporate decisions were made in Ecuador. The appellants were at all times relevant to this case residents and citizens of the state of Florida. The managing director of Vareka was a citizen and resident of Ecuador; the major investor in Vareka is an Ecuadorian corporation. Vareka was formed as a passive investment vehicle in order to invest funds in United States real estate. Jose Perez, the managing director of Vareka, received materials offering The Quarters for sale at his offices in Quito, Ecuador. In connection with the purchase of The Quarters, Vareka obtained loans from several Ecuadorian citizens. These loans were evidenced by promissory notes made, executed, and delivered in Quito, Ecuador. Under the long-term lease, AIP was obligated to pay all the expenses, assume all the duties to the subtenants, and operate The Quarters Office Park. Thus, Vareka was not involved in the day-to-day operation of this commercial property. At no time did any officer, director, employee, shareholder, or other representative of Vareka meet or communicate with any of the tenants at The Quarters. Likewise, no officer, director, employee, shareholder, or representative ever paid any utility bills, taxes, or service payments applicable to The Quarters, or take any other action which might be construed as operating or managing the property. Vareka had no corporate office in Miami, Florida. Although Vareka did not maintain a distinct corporate office in Quito, Ecuador, it maintained its books and records and held corporate meetings in Quito. Vareka’s books and records were maintained with the part-time assistance of Perez’s legal secretary and the accountant of another shareholder, in Quito. Otherwise, Vareka had no employees in Florida or elsewhere. Vareka directed AIP to make all lease payments to a Miami bank account. The sole signatories on the bank account were investors of Vareka. In August, 1979, when AIP notified Vareka that it intended to terminate the lease, AIP sent the notification to Vareka in Quito, Ecuador, via telex. The investors and shareholders of Vareka then met in Quito and responded to the advice of termination.
AIP argues that the final negotiations and closing occurred in Miami, Florida. Vareka qualified to do business in Florida and appointed a resident agent in Miami, Florida. All payments were to be sent to a Miami address. Correspondence from Vareka to AIP emanated from the office of the Miami lawyer. Finally, Vareka maintained a bank account in Florida for the purpose of receiving and disbursing all payments relating to The Quarters.
Based on the many factors cited by the district court, we conclude that the district court’s holding that Vareka’s principal place of business is in Ecuador, is not clearly erroneous. Since all appellants were citizens and residents of the state of Florida, the district court correctly concluded that it had subject matter jurisdiction.
B. Summary Judgment as to Liability
AIP argues that because Vareka resumed possession of The Quarters on AIP’s account, on an election of remedies theory, the cause of action for damages does not accrue until the end of the term of the lease.
The relevant portion of the Lease provides that the landlord may, without further notice to the tenant, in the event of default, exercise any one or more of the remedies set forth in the Lease. Section 9.02(b) provides:
Landlord may, without barring later election of any other remedy and without terminating this lease, at any time and from time to time (i) re-enter the premises with or without process of law, and manage and operate the same (ii) sublease any vacant portion of the Premises or any part or parts thereof, to any persons, and (iii) assume Tenant’s interest in any or all subleases, for the account of Tenant or otherwise, and receive and collect the rents therefrom. In the latter event Landlord shall apply such rents first to the payment of such expenses as Landlord may have paid, assumed or incurred in recovering possession of the Premises, including costs, expenses, attorney’s fees, and for placing the same in good order and condition or preparing or altering the same for subleasing, and all other expenses, commissions, and charges paid, assumed or incurred by Landlord in or in connection with subleasing the Premises, and then to the fulfillment of the covenants of Tenant. Any such subleasing as provided for herein may be for the remainder of the term of this lease or for a longer or shorter period. Landlord may execute any sublease made pursuant to the terms hereof either in Landlord’s own name or in the name of Tenant, or assume Tenant’s interest to and in any existing sublease of the Premises, as Landlord may see fit. No subtenant shall in any such event be under any obligation for the application by Landlord of any rent collected by Landlord from such subtenant to any and all sums due and owing under the provisions of this lease. In such event Tenant shall have no right or authority whatever to collect any rent whatever from any subtenant on the Premises. In any case, and whether or not the Premises or any part thereof be re-let Tenant, until the end of what would have been the term of this lease in the absence of such expiration and whether or not the Premises or any part thereof shall [have] been re-let shall be liable to Landlord for, and shall pay to Landlord, any amount equal to:
(i) all Minimum Rent and Additional Rent which is otherwise payable under this lease, less
(ii) the net proceeds, if any, of any re-letting effected for the account of Tenant pursuant to the provisions of this Section 9.02, after deducting all Landlord’s expenses in connection with such re-letting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys’ fees, expenses of employees, alteration costs, and expenses of preparation for such re-letting.
Tenant shall pay such amount to Landlord monthly on the days on which the Minimum Rent is payable under this lease, and Landlord shall be entitled to recover the same from Tenant on each such day.
In its May 19, 1982, order, the district court correctly stated that under Florida law, a lessor has an election of three alternative courses of action when the lease is breached by the lessee.
The lessor may treat the lease as terminated and retake possession for his own account, thus terminating any further liability on the part of the lessee; or the lessor may retake possession of the premises for the account of the lessee, holding the lessee liable for the difference between rental stipulated to be paid under the lease agreement and what, in good faith, the lessor is able to recover from a re-letting; or the lessor may stand by and do nothing, holding the lessee liable for the rent due as it matures, which means all remaining rent due if there is an acceleration clause and the lessor chooses to exercise the right to accelerate.
Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982 (Fla.App.1978). Re-entering the premises and re-letting for the account of the lessee is, thus, a remedy available under both the Lease and Florida law. Section 9.02(b) of the Lease.
In this case, the parties are in agreement, and the district court concluded, that the lease has not been terminated. Vareka re-entered The Quarters to manage and operate it for the account of AIP, pursuant to section 9.02(b). AIP argues that under Florida law a lessor’s cause of action for damages does not accrue until the time when the forfeited term, if it had not been forfeited, would have expired. Hyman v. Cohen, 73 So.2d 393, 398 (Fla.1954); Kanter v. Safran, 68 So.2d 553, 558 (Fla.1953). Consequently, the court’s grant of summary judgment regarding liability was error at this time. AIP also cites Coast Federal Savings for the proposition that when a lessor retakes possession for the account of the lessee, he loses the right to recover the full amount of the remaining rental due under an acceleration clause. Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982, 984 (Fla.1978).
Coast Federal Savings is distinguishable. In this case, Vareka does not seek to recover “the full amount of remaining rental due.” In its May 20, 1982, order, the district court specifically stated:
Issues have been raised and arguments have been presented concerning prospective rights and liabilities under the lease agreement. This ruling does not address those issues. It deals only with the liability of the defendants up to the date of trial. Whether the defendants could seek a recovery of future profits, should they ever exist, if the plaintiff continues to hold the property for their account, remains an open question. [Emphasis added.]
Neither Kanter nor Hyman preclude summary judgment as to liability. The district court correctly cited Chandler for the proposition that, under Florida law, parties may negotiate any contract not violative of law or public policy. Chandler Leasing Division, etc. v. Florida-Vanderbilt Development Corp., 464 F.2d 267, 271 (5th Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972). In Chandler the court stated,
We recognize that under the Florida case law there are three remedies available to lessors when their lessees breach a lease agreement. However, these remedies are not established as the sole remedies which may be provided for lease breaches, but are intended to supply remedies when none are provided in the lease or when broader contractual lease remedies violate public policy.
In this case, the lease specifically provides that when the landlord takes possession upon default and re-lets for the account of the tenant, the tenant is liable for minimum rent due minus the net proceeds of re-letting on a monthly basis. Further, the lease entitled the landlord to “recover the same from Tenant on each such day.”
Because the parties have stipulated that the lease was not terminated and that Vareka is in possession of the premises for the account of AIP, the district court correctly granted summary judgment as to liability based upon section 9.02(b) of the lease.
C. Accrual of the Cause of Action for Damages
AIP also argues that under Florida law, a lessor operating for the account of the lessee has an affirmative duty to mitigate damages by making a good-faith effort to re-let the premises. Robinson v. Peterson, 375 So.2d 294, 296 (Fla.App.1979). AIP argues that hiring Coldwell Banker to operate the office park and entering into subleases of office suites with new and renewing subtenants did not satisfy the affirmative duty to use good efforts to re-let. At oral argument, it became clear that AIP’s position is that Vareka was required to re-let the premises to a prime tenant, such as AIP had been, who would then sublease to other tenants.
AIP correctly states Florida law:
Had the lessee prevailed on the question of whether the lessor did in fact use good efforts to re-let, the lessor’s right of recovery would have been entirely defeated.
Robinson v. Peterson at 297. This language does not preclude recovery of damages in this case.
After resuming possession, Yareka retained Coldwell Banker Property Management Corporation to manage The Quarters. Although Coldwell Banker did not find a new prime tenant, AIP concedes that Cold-well Banker entered into subleases of office suites with new and renewing subtenants. The cases cited by AIP for the proposition that Vareka had an affirmative duty to re-let, Robinson v. Peterson and Coast Federal Savings, both involve a single lease rather than a “prime lease and sublease” fact pattern. Robinson v. Peterson, 375 So.2d 294 (Fla.App.1979); Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982 (Fla.App.1978). Thus, in their single lease fact patterns, “re-letting” was the only means available to mitigate damages. In Kanter v. Safran, the court stated:
[This case] eliminates any thought that the lessor is necessarily required to seek an assignment of the defaulting lessee’s specific interests or to sell only the remaining term of the original lease, since that term is ‘at an end.’ He is required only to recoup only what he can in good faith, consistent with his own interest as well as that of the defaulting lessee.
Kanter v. Safran, 82 So.2d 508, 509 (Fla.1955). Although not specifically applicable to this case, Kanter indicates that Florida law requires a good-faith effort to mitigate damages as opposed to requiring mitigation of damages by a specific method. Further, section 9.02(b) of the lease specifically gives the landlord authority to execute any subleases and specifies that the tenant is liable for damages “whether or not the Premises or any part thereof be re-let.” Because the district court found that Coldwell Banker’s management had “been efficient and successful,” Vareka satisfied Florida’s requirement that the lessor mitigate damages and thus, was not precluded from recovering damages.
D. Mitigation of Damages
AIP asserts that the documentary evidence was insufficient to show damages. Upon re-entry, Vareka retained Coldwell Banker Property Management Corporation to manage the operation of The Quarters Office Park. Review of the record indicates that there was sufficient detail to support the expenses recoverable by Vareka under the terms of the lease. The district court concluded that the “monthly reports for the operation of The Quarters, as prepared by Coldwell Banker, are not in error.” Thus, we find the district court’s award of damages correct.
E. The Jurisdictional Prerequisites of Rule 4(a)(4)
Vareka argues that AIP’s trial court motion to alter or amend was not in fact a motion under Fed.R.Civ.P. 60, but a motion to alter or amend under Fed.R.Civ.P. 59(e). Consequently, AIP should have filed a notice of appeal within thirty days after docketing of the order denying the motion to alter or amend. Fed.R.App.P. 4(a)(4).
On June 14, 1982, AIP filed a motion to alter or amend pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure. On July 9, 1982, the district court, without discussion, denied the motion. On October 29, 1982, a panel of this court denied Vareka’s motion to dismiss this appeal, stating that the trial court motion in question was to be treated as a “rule 60 motion rather than a rule 59 motion, so that Fed.R.App.P. 4(a)(4) does not apply.” The panel correctly denied the motion to dismiss. Review of AIP’s original motion to alter or amend did not address itself to the merits of the case, as Vareka argues. Consequently, this appeal is properly before the court. Smith v. United States Parole Commission, 721 F.2d 346 (11th Cir.1983).
We therefore affirm the final judgment of the district court.
AFFIRMED.
. Title 28 U.S.C.A. § 1332(a) and (c) provides in pertinent part:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state;
(3) citizens of different States in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603d(a) of this title, as plaintiff and citizens of a State or of different States.
(c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business....
. Former Fifth Circuit case, Section 9(1) of Public Law 96-452-October 14, 1980.
Question: This question concerns the first listed respondent. 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_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).
UNITED STATES of America, Appellee, v. Welcome Linden FRALEY, III, Appellant.
No. 26328.
United States Court of Appeals, Ninth Circuit.
Nov. 26, 1971.
David M. Rothman (argued), Los An-geles, Cal., for appellant.
Larry S. Flax, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES, KOELSCH and HUFSTEDLER, Circuit Judges.
KOELSCH, Circuit Judge.
Welcome Linden Fraley, III, appeals from the judgment of the district court convicting him of disobeying the order of his Selective Service Board to report for induction into the armed forces of the United States. (50 U.S.C.App. § 462(a)).
He challenges the validity of the judgment on several grounds. However, a discussion of all of them is unnecessary, for one has merit and requires reversal of the judgment.
United States v. Kember, 437 F.2d 534, 536 (9th Cir. 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1392, 28 L.Ed.2d 662 (1971), holds that “the appeal board as well as the local board [must] state its reasons for denial of a conscientious objector claim where the application therefor is prima facie sufficient, unless the appeal board’s reasons can be determined from the agency record with reasonable certainty.” That rule, applicable here, is dispositive of this appeal.
Although Fraley made out a prima facie showing in support of his claim as a conscientious objector, the local board denied him such classification. Thereafter, the appeal board made a de novo determination [Bishop v. United States, 412 F.2d 1064 (9th Cir. 1969)] and likewise classified him 1-A. It specified no reason or reasons for its determination and none is apparent from the administrative record “with reasonable certainty.” United States v. Kember, supra,, 437 F.2d p. 536. In that respect this case is wholly unlike United States v. Verbeek, 423 F.2d 667 (9th Cir. 1970), where “fresh and powerful evidence” of the registrant’s insincerity, not before the local board, was initially presented to the appeal board; instead, it falls in the category of cases such as United States v. Atherton, 430 F.2d 741 (9th Cir. 1970), in which the “appeals board had no more information to go on than did the local board; * ? * ”
In Atherton, supra, the conviction was reversed, where the appeal board had nothing before it save the record of the local board, and it was impossible to ascertain whether the latter board’s denial of the registrant’s conscientious objector claim was based upon an erroneous standard of religious belief. Here, even if we assume the appeal board adopted the local board’s reasons, the latter’s statement of them is both ambiguous and uncertain.- It is impossible to determine whether the local board concluded (erroneously) that Fraley’s beliefs were not religious, or whether Fraley was not sincere in his profession of them, or both. Thus, because as in United States v. French, 429 F.2d 391, 392 (9th Cir. 1970) “we cannot tell whether or not the Appeal Board relied upon the erroneous ground” the order to report was invalid and the conviction must be and is
Reversed.
. “Statement: The reason why we feel that the conscientious objector status be denied:
1. Ou the initial filing of the form 150 there is very little to indicate the basis for this individual’s belief. In most instances questions were answered with one short sentence.
2. The report of the appearance before the Government Appeal Agent indicates nothing whatsoever to do with beliefs that would sustain a conscientious objector status, but delves into the physical and mental status of the individual with respect to the Armed Forces.
3. At the inception of this Personal Appearance the registrant submitted a three page hand written document setting forth numerous reasons why he is not acceptable for the armed services, but nothing verifying why he is not acceptable.
4. Upon considerable questioning as to the religious beliefs, as the record of this hearing will show, at no time did he give answers that would show basic or deep seated reasons for non violence.
In fact registrant did indicate on one answer that where he had a choice he would prefer not to destroy. It is the majority opinion of this board that the Selective Service Regulations do not give the registrant the choice in this case.”
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: |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.